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In re Custody of A.F.J.

Supreme Court of Washington, En Banc

November 27, 2013

In the Matter of the Custody of A.F.J.
v.
Jackie Johnston, Petitioner Mary Franklin, Respondent,

Argued March 15, 2012.

Appeal from King County Superior Court. 07-3-07493-1. Honorable Kimberly Prochnau.

Mary Franklin, pro se.

Dennis J. McGlothin and Robert J. Cadranell II (of Olympic Law Group LLP ), for petitioner.

Roger A. Leishman and Christina Y. Chan (of Davis Wright Tremaine LLP ), for respondent.

H. Michael Finesilver, J. Mark Weiss, and Peter S. Lineberger on behalf of American Academy of Matrimonial Lawyers, amicus curiae.

Carrie H. Wayno, Assistant Attorney General, on behalf of Department of Social and Health Services, amicus curiae.

David J. Ward on behalf of Legal Voice, amicus curiae.

David J. Ward, Sarah E. Lysons, and Bobbe J. Bridge on behalf of Legal Voice and Center for Children & Youth Justice, amici curiae.

AUTHOR: Justice Steven C. Gonzá lez. WE CONCUR: Justice Susan Owens, Justice Mary E. Fairhurst, Justice Debra L. Stephens, Justice Pro Tem. Tom Chambers. AUTHOR: Chief Justice Barbara A. Madsen. AUTHOR: AUTHOR: Justice Charles W. Johnson. WE CONCUR: Justice James M. Johnson, Justice Charles K. Wiggins.

OPINION

Page 374

González, J.

[179 Wn.2d 182] ¶ 1 Washington State law recognizes that a parental bond with a child may be formed in many ways. In re Parentage of L.B., 155 Wn.2d 679, 122 P.3d 161 (2005). In L.B., we adopted the common law test established by the Wisconsin courts to determine whether a person was the de facto parent of a child. A de facto parent " stands in legal parity with an otherwise legal parent, whether biological, adoptive, or otherwise." Id. at 708. The primary question before us is whether de facto parent status can be established based partially on facts that arose during a foster placement. While in most circumstances a foster parent will not be able to meet the criteria set forth in L.B., we find that foster parent status is not itself an absolute bar to establishing de facto parentage and that the court can consider facts that arose during a foster care placement. We also find sufficient evidence on this record to affirm the trial court's conclusion that Mary Franklin is A.F.J.'s de facto parent. We affirm.

Facts

¶ 2 Mary Franklin and Jackie Johnston began seeing each other in about 2002. Their relationship was complicated by the distance between their primary homes and Johnston's drug use. While they only lived

Page 375

together sporadically over the next few years, Franklin testified that Johnston had been her domestic partner. Among other things, Johnston arranged for Franklin to be covered by Johnston's health insurance and arranged many courses of drug rehabilitation.

¶ 3 Franklin and Johnston broke up and reconciled many times. During one of the periods they were separated, and while Johnston was heavily using crack cocaine, she became [179 Wn.2d 183] pregnant. She called Franklin for help, and Franklin responded. Johnston later testified that " Mary Franklin rescued me." Clerk's Papers (CP) at 535. The two women decided to parent the expected child together. Johnston moved back to Seattle and enrolled in an inpatient drug treatment program at Swedish Hospital in Ballard. After completing a 41-day program, she moved back in with Franklin. Unfortunately, while Franklin was out of town vacationing with her parents, Johnston relapsed and attempted suicide. Johnston was eight months pregnant at the time. In response, Johnston enrolled herself into an inpatient perinatal treatment program in October 2005. While she was in the program, her son, A.F.J., was born. While Franklin was not present at A.F.J.'s birth, he bears both their surnames and Franklin suggested his first.

¶ 4 After Johnston left the treatment program, she moved into " Clean and Sober" housing. She stayed there only a few days before she and A.F.J. moved in with Franklin. Unfortunately, Johnston relapsed again several months later. After finding Johnston passed out with a broken glass crack cocaine pipe and A.F.J. on the bed, Franklin called Child Protective Services (CPS). CPS removed A.F.J. from the house and put him in protective custody. Three days later, at the shelter care hearing, Johnston requested A.F.J. be ...


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