Opinion
No. 33954-4-II.
September 11, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 04-3-02681-3, John A. McCarthy, J., entered September 16, 2005.
Remanded by unpublished opinion per Quinn-Brintnall, J., concurred in by Bridgewater and Hunt, JJ.
On May 28, 2003, a child was born to a 30-year-old, drug-addicted mother who had had an adulterous relationship with a married man she met through her church. The mother, who suffered from "diminished mental capacity" due to a brain injury she suffered in a car accident and was already struggling to raise a young daughter, gave the child to her brother and his wife (the appellants) to "adopt" and to raise. Clerk's Papers (CP) at 12. Although the appellants could have immediately attempted to establish legal custody of the child through an adoption proceeding (RCW 26.33.100, .150), third party custody petition (RCW 26.10.032), or a guardianship petition (RCW 11.88.040(2)), which all would have required notice to the father, they took no action to legalize custody of the child until 11 months after the father filed a parentage action. The record also suggests that they and/or the child's mother misrepresented the child's whereabouts and, arguably, interfered with the father's access to the child by filing for protection or restraining orders and threatening to accuse the father of rape.
Because of the nature of this case, confidentiality is appropriate. Accordingly, we have determined that the names of the parties will not be used in the case caption or the body of this opinion. RAP 3.4.
The superior court commissioner who heard the father's parentage action, specifically stated in his order:
The court is aware of a third-party custody action filed by [the appellants] recently in Pierce County, and is aware of an ex-parte restraining order entered by the Pierce County Superior Court. [The appellants] are not parties to this action, but the court is troubled by unwarranted delay in transferring the child to his father. This action has been delayed in part due to [the father's] action pro se, but in part due to misrepresentations made by [the mother] . . . about who was actually parenting [the child]. (At the time, [the mother] was represented by counsel other than [her current counsel].) For some time, [the mother] asserted she was parenting [the child], which now appears to be not the case. Accordingly, it is ordered that [the mother] will turn over [the child] to his father on or before September 1, 2004, subject to the orders of the Pierce County Court, but [her counsel] is directed to file a copy of this order with the Pierce County Superior Court so that the Pierce County Court is aware of this court's concerns. It is important for all courts addressing the welfare of [the child] to know that substantial delay in entering the plan adopted today was occasioned by [the mother's] misrepresentations. Had she simply acknowledged from the outset that she was not parenting [the child], and had she simply acknowledged from the outset her own limitations as to parenting, the plan adopted today almost certainly would have been entered months earlier.
CP at 49 (emphasis added).
During the mother's pregnancy, the father, who was aware of the pregnancy, moved to Oklahoma in an unsuccessful attempt to repair his marriage and to be with his eight-year-old son. The father later asserted that at the time he left Washington, he believed the mother had agreed to give him the child to raise. But when he contacted the mother within days of learning of the child's birth, the mother informed him, for the first time, that she wanted the appellants to adopt the child. On September 2, 2003, just over three months after learning of the child's birth and the mother's plans, the father filed a paternity action and a proposed parenting plan in Lewis County, Washington, where he believed the child had been residing with the mother.
Although there was some dispute during the Lewis County proceedings regarding where and with whom the child was living, the child was in fact living with the appellants in Pierce County and had been since shortly after his birth. Despite being aware of, and even attending, the Lewis County proceedings, the appellants did not take any steps to obtain legal custody of the child until August 12, 2004, when they filed their petition for third party custody in Pierce County.
That same day, the appellants also filed an ex parte motion for a restraining order and an order to show cause, asking the Pierce County court to issue a temporary restraining order prohibiting the father from contacting any party or removing the child from the state. They asserted that the order would merely preserve the status quo until the "identity" of the father was determined and the parenting plan was entered. They also alleged that the child would be "at risk because of father's history of methamphetamine use," but they never presented any evidence that the father had used illegal drugs at any time. CP at 15. They also asked the court to grant them temporary custody of the child subject to the father's visitation. The Pierce County court granted the temporary order and set a show cause hearing for August 26, 2004.
Meanwhile, on August 13, 2004, more than 11 months after the father filed the paternity petition, the appellants moved to intervene in the Lewis County action and to transfer the case to Pierce County and consolidate it with their third party custody petition. A Lewis County commissioner denied the motion to intervene and, on August 25, 2004, found that there was no dispute that the father was the child's biological father and granted custody of the then 14-month-old child to his biological father. Noting that it was "troubled by unwarranted delay in transferring the child to his father," and making special note that the delay was caused in large part by the mother misrepresenting who had actual physical custody of the child, the Lewis County commissioner ordered the appellants to "turn over" the child to the father "on or before September 1, 2004, subject to the orders of the Pierce County Court." CP at 49.
The mother joined in the third party custody petition.
The appellants continued to pursue their third party custody petition, and the Pierce County court appointed a guardian ad litem (GAL)/parenting investigator to investigate the case and to represent the child's interests. The Pierce County court also entered a second temporary restraining order, and then, on September 8 and 27, 2004, entered orders requiring the child to remain in the appellants' custody but allowing visitation by the father.
In addition, on October 1, 2004, the mother also petitioned for a protection order prohibiting the father from contacting her, her daughter, or the child. In the protection order petition, which the mother filed in Lewis County, the mother alleged that the father had raped her and that the child was born as a result of the rape. Four days later, the Lewis County court denied the petition, finding that the mother had not met her burden of proof.
Following a short trial, which lasted approximately four hours, the Pierce County court concluded that the appellants had failed to establish that the father was unfit or that placing the child with the father would result in an actual detriment to the child's growth and development. On August 24, 2005, the Pierce County court orally denied the appellants' petition and ordered the parties to establish an appropriate schedule to transfer physical custody of the child to the father. At that point, the child was 27 months old.
The appellants appealed the court's denial of their petition to this court. We stayed execution of the custody transfer order and accelerated review. Claiming illness and other personal catastrophes, the appellants' attorney obtained a series of continuances, and we heard oral argument on this matter on June 26, 2007. During this time, the child, who turned four in May 2007, continued to reside with the appellants subject to visitation with his father, who has since returned to live in this state.
We now reject the appellants' assertions that (1) the evidence does not support the Pierce County court's findings that the father was fit and that his custody of the child would not cause an actual detriment to the child's growth and development; (2) the court erred when it applied the detriment to the child standard rather than the best interests of the child standard; and (3) the court erred when it failed to make the child a party to the case and provide independent counsel to the child. Accordingly, we affirm the Pierce County court's order denying the appellants' third party custody petition, lift the order staying the transfer of custody to the father, and remand to the court for entry of a schedule that will smoothly and expeditiously transfer physical custody to the father.
The appellants also contend that the Pierce County court violated both the child's and their own rights to maintain their relationship, "family association," and to be free from "state-imposed" harm. Br. of Appellants at 93. Although the appellants cite numerous cases that arguably support their claim that these rights exist, to the extent these arguments do not overlap with their other arguments addressed below, the appellants do not explain how the process they received failed to protect these interests. Accordingly, we do not address these issues except to the extent they are already addressed as part of the appellants' other arguments. Holland v. City of Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290 (passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration), review denied, 136 Wn.2d 1015 (1998); see also RAP 10.3(a)(5) (appellate brief should contain argument supporting issues presented for review and citations to legal authority).
The appellants also argue that the Pierce County court's transition schedule was inadequate for a variety of reasons. Because the court must reconsider the transition issue, taking into consideration the current circumstances, we do not address these arguments.
ANALYSIS
Standard of Review
We review a trial court's custody disposition for manifest abuse of discretion. In re Custody of Shields, 120 Wn. App. 108, 119-20, 84 P.3d 905 (2004) ( Shields I), reversed on other grounds, 157 Wn.2d 126 (2006). Because the trial court is in the best position to evaluate the evidence, we "are generally reluctant to disturb a child custody disposition." In re Custody of Stell, 56 Wn. App. 356, 366, 783 P.2d 615 (1989). We review questions of law de novo, see In re Marriage of Kastanas, 78 Wn. App. 193, 197, 896 P.2d 726 (1995), and we uphold a trial court's findings of fact where substantial evidence supports them. Shields I, 120 Wn. App at 120. "Evidence is substantial if it exists in a sufficient quantum to persuade a fair-minded person of the truth of the declared premise." In re Marriage of Burrill, 113 Wn. App. 863, 868, 56 P.3d 993 (2002), review denied, 149 Wn.2d 1007 (2003).
Detriment to the Child Standard
Chapter 26.10 RCW governs non-parental custody actions. RCW 26.10.030(1) allows a third party to petition for custody of the child if "the child is not in the physical custody of one of its parents or if the petitioner alleges that neither parent is a suitable custodian." Although RCW 26.10.100 provides that "[t]he court shall determine custody in accordance with the best interests of the child," Washington courts have consistently held that this standard implicitly recognizes a presumption that placement with the natural parent is in the child's best interests and that this presumption is necessary to protect the parents' rights and interests. In re Custody of R.R.B., 108 Wn. App. 602, 612-15, 31 P.3d 1212 (2001) (discussing Stell, 56 Wn. App. at 356), review denied, 151 Wn.2d 1017 (2004); In re Marriage of Allen, 28 Wn. App. 637, 626 P.2d 16 (1981); see also State v. Santos 104 Wn.2d 142, 149-50, 702 P.2d 1179 (1985) (child has a right to an accurate determination of parentage).
To overcome the presumption that placement with the biological parent is in the child's best interests and to protect the biological parent's constitutional rights and interests, a non-parent seeking third party custody has the burden of establishing that the biological parent is either unfit or that placing the child with the biological parent will result in actual detriment to the child's growth and development, "something greater than the comparative and balancing analyses of the `best interests of the child' test"; this is referred to as the detriment to the child test. Allen, 28 Wn. App. at 649. Our Supreme Court adopted the detriment to the child test in In re Custody of Shields, 157 Wn.2d 126, 144, 136 P.3d 117 (2006) ( Shields II). Both Shields II and Allen expressly found that, when properly applied, this standard was constitutional and appropriately balanced the parents' interests with the "state's interest in the child's welfare." Allen, 28 Wn. App. at 649; see also Shields II, 157 Wn.2d at 144. This is the standard that the Pierce County court applied.
In contrast, if the custody dispute is between two biological parents or a parent and a party standing in legal parity to the parent, see In re Parentage of L.B. 155 Wn.2d 679, 708-09, 122 P.3d 161 (2005) ( L.B. II), cert. denied sub nom Britain v. Carvin, 126 S. Ct. 2021 (2006), the best interests of the child standard applies. For example, RCW 26.09.002 states:
Parents have the responsibility to make decisions and perform other parental functions necessary for the care and growth of their minor children. In any proceeding between parents under this chapter, the best interests of the child shall be the standard by which the court determines and allocates the parties' parental responsibilities. The state recognizes the fundamental importance of the parent-child relationship to the welfare of the child, and that the relationship between the child and each parent should be fostered unless inconsistent with the child's best interests. The best interests of the child are served by a parenting arrangement that best maintains a child's emotional growth, health and stability, and physical care. Further, the best interest of the child is ordinarily served when the existing pattern of interaction between a parent and child is altered only to the extent necessitated by the changed relationship of the parents or as required to protect the child from physical, mental, or emotional harm.
(Emphasis added.)
In Shields II, our Supreme Court also rejected the argument that the state may only interfere with a fit parent's right to make decisions for his or her child upon a showing of parental unfitness, concluding that another recent case, Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000), did not require a higher standard of parental unfitness and that the plurality in that case held only that the standards applied must "accord at least some special weight to the parent's own determination" of what was in the child's best interests. Shields II, 157 Wn.2d at 143 (quoting Troxel, 530 U.S. at 70).
Substantial Evidence
The appellants argue that the evidence does not support the Pierce County court's findings that the father was not unfit and that placing the child with him would not result in an actual detriment to the child's growth and development. We disagree.
They also argue that the Pierce County court's findings are not adequate for review. We conclude that the court's rulings, when combined with the transcripts, are adequate for review.
The record does not reveal any evidence that the father was not a fit parent. At most, it shows that the father (1) lived in a trailer in a small town in Oklahoma at the time of the trial and would likely take the child to Oklahoma if he gained physical custody; (2) was unemployed at the time of the trial due to a work-related injury that required surgery and, arguably, did not have the financial resources the appellants had; (3) had been married and divorced several times; (4) had four children from his prior marriages ranging in age from 8 to 22 and, although he had a good relationship and shared custody of his 8-year-old son and had occasional visits from his 16-year-old daughter, his relationship with his two older sons had been strained; and (5) had a prior criminal history that seemed to be linked to a drinking problem that he had since addressed.
Although the appellants alleged that the father used drugs, they never supported this allegation with any evidence. And, although the mother alleged in a petition for a protection order against the father that he had raped her and that the child was the result of the rape, the father was never charged with rape, the restraining order was not granted due to lack of evidence, and the GAL did not find the rape allegation credible enough to give it much weight when making her recommendation. Thus, there was no evidence before the Pierce County court establishing that the father was unfit or otherwise incapable of caring for the child, and the evidence supports the court's finding that the father was not unfit.
Notably, if the father had been convicted of raping the mother and the child was conceived as a result of that rape, the father's consent to any potential adoption would not have been required. RCW 26.33.170(2)(b).
Similarly, the only evidence at trial relevant to any possible detriment to the child was the GAL's testimony that common sense suggested removing the child from the only home he had ever known would be detrimental to him. But when questioned about her basis for this assertion, the GAL provided little support for her conclusion, and the court was well within its discretion to discount this testimony.
When questioned about how she reached her conclusions, the GAL responded that she based them on her observations as a "[l]ayperson," and that she had taken a single child and adult psychology class in 1978 and attended several continuing legal education classes. Report of Proceedings (RP) (Aug. 24, 2005) at 48. She did not identify any specific training or education relating to evaluating the potential risks of separating a child from its known environment.
To the extent the appellants are asserting they were not required to present expert testimony to establish a detriment, that argument may have some merit. GALs are entitled to investigate the case, gather information, and give recommendations based on the information they have gathered, and they are not appointed as experts. Fernando v. Nieswandt, 87 Wn. App. 103, 107-08, 940 P.2d 1380, review denied, 133 Wn.2d 1014 (1997). But whether a GAL is qualified as an expert or has obtained her information from qualified experts affects the weight the court gives the GAL's conclusions and recommendations:
The statutes which authorize the appointment of the guardian ad litem authorize the family courts to hear the opinions of a witness who would not be a traditional expert under ER 702. A guardian ad litem is not appointed as an "expert." Rather, she is appointed to investigate the child and family situation for the court and make recommendations. In effect, she acts as a neutral advisor to the court and, in this sense, is an expert in the status and dynamics of that family who can offer a commonsense impression to the court. But the court is also free to ignore the guardian ad litem's recommendations if they are not supported by other evidence or it finds other testimony more convincing.
Fernando, 87 Wn. App. at 108.
Furthermore, even though the GAL eventually presented additional information in her third GAL report, she filed this report when the court was addressing the custody transfer, well after it had already denied the third party custody petition. Additionally, even if she had presented this information earlier, it was still insufficient to establish that placing the child with the father would result in actual detriment to the child's growth and development. The GAL reported that the experts she had consulted for her last report stated there would be a serious risk of detachment and a possible detriment to the child if the physical custody transition was not properly executed. Although this shows a risk of detriment, it does not show that transferring custody to the father would have an actual detrimental effect, only that it could be detrimental if the transfer was improperly executed. Although this evidence emphasized that a proper transition was vital, it did not establish that placing the child with the father would result in actual detriment to the child's growth and development.
The appellants further contend that the Pierce County court erred by not presuming harm as a matter of law because they were the child's "psychological parents." But the authorities they cite address situations where the parties involved were of comparable status, such as in a dissolution proceeding between two parents or where a non-parent has established a de facto parent relationship with the child, or merely recognize that removing a child from his or her known home can be disruptive regardless of parental fitness; these authorities do not establish a presumption of harm where the parties are not of comparable legal status. And several of appellants' related arguments amount to an assertion that because courts frequently find a sufficient risk of harm when the third party is a child's psychological parent and the biological parent has had little contact with the child, that the court here was required to make that same finding. The detriment to the child test is, however, a factual test fully dependent on the evidence presented in the case; the fact that appellants can cite cases that factually establish an actual detriment to the child does not mean on these facts that the court here should have presumed there was an actual detriment as a matter of law.
RCW 26.09.260 (modification of an existing parenting plan or custody decree); RCW 74.13.310 (statute addressing foster parent training, recognizing that "[p]lacement disruptions can be harmful to children by denying them consistent and nurturing support."); L.B. II, 155 Wn.2d at 708-09 (child developed relationship with biological mother's former, long-term same-sex partner with biological parent's consent); In re Dependency of J.H., 117 Wn.2d 460, 469, 815 P.2d 1380 (1991) (recognizing that children may form important attachments to foster parents to the point the foster parents become the child's psychological parents, but holding that the foster parent has no right to expect the relationship to continue permanently when the contractual relationship between the state and the foster parents gave the state agency final authority on placement decisions); In re Custody of H.S.H.-K., 193 Wis.2d 649, 533 N.W.2d 419, cert. denied, 516 U.S. 975 (1995) (child developed relationship with biological mother's former, long-term same-sex partner with biological parent's consent); E.N.O. v. L.M.M., 429 Mass. 824, 711 N.E.2d 886, cert. denied, 528 U.S. 1005 (1999) (child developed relationship with biological mother's former, long-term same-sex partner with biological parent's consent).
The appellants also argue that the Pierce County court erred because it considered the delay caused by the mother and, possibly, the appellants, when determining the child's placement. They assert that even if they caused the delay, the court could not discount the bonding that occurred between them and the child during the course of the proceedings. Although the appellants are arguably correct that the reason for the delay is not relevant to whether placing the child with the father would be detrimental to the child's growth and development, the delay and the reasons for the delay were relevant to the weight the court was required to give the father's constitutionally protected interests. Accordingly, the court properly considered the reason for the delay.
In sum, substantial evidence supports the Pierce County court's conclusions that the father was not unfit and that placing the child with the father would not result in an actual detriment to the child's growth and development.
Application of Detriment to the Child Standard
The appellants further contend that even if the record supports the Pierce County court's decision, the court erred when it applied the detriment to the child test. They first argue that case law establishes that the detriment to the child test is a "parent-centered" approach that has been abandoned in favor of the more "child-centered" best interests of the child test. They next argue that even if the case law did not require the court to apply the more child-centered best interests test, it still should have applied the best interests of the child test (1) because they were either the child's de facto or psychological parents; or (2) the father had no constitutionally protected interest in his relationship with the child because he failed to diligently pursue a relationship with the child and/or the child's mother prior to or after the child's birth or because he abandoned the child. These arguments have no merit.
A. "Child-Centered Jurisprudence" Under Case Law
The appellants argue that In re Parentage of L.B., 155 Wn.2d 679, 708-09, 122 P.3d 161 (2005) ( L.B. II), cert. denied sub nom Britain v. Carvin, 126 S. Ct. 2021 (2006), establishes that when determining child placement and custody issues, the courts must "make the child's interests the center of child placement jurisprudence," and, therefore, the Pierce County court erred when it applied the detriment to the child test. Br. of Appellants at 34. L.B. II does not support this approach.
In L.B. II, our Supreme Court examined whether a biological mother's former lesbian partner, who was not biologically related to the child or an adoptive parent, had standing to petition for determination of co-parentage with regard to a child born into their relationship. 155 Wn.2d at 683-84, 688-89. The two women were in a committed relationship when the child was born, the decision to add the child to the relationship was a joint decision, the women held themselves and the child out to the public as a family, and the women co-parented the child until their relationship ended when the child was six. L.B. II, 155 Wn.2d at 683-84.
After their relationship ended, the biological mother terminated all contact between her former partner and the child. The former partner petitioned for establishment of parentage asking that she be declared the child's legal parent under the Uniform Parentage Act, chapter 26.26 RCW; that she be declared a parent under equitable estoppel or recognized as a de facto parent; and that she be allowed statutory third party visitation rights. L.B. II, 155 Wn.2d at 685.
On review, relying on its equitable powers and recognizing the common law status of a de facto parent, our Supreme Court determined that the former partner had standing to petition for a determination of co-parentage if she could establish that she had a de facto parent relationship with the child. L.B. II, 155 Wn.2d at 683. The court then set out the five factors a person claiming de facto parentage status must establish:
The court also distinguished de facto parentage from psychological parentage, stating:
Psychological parent is a term created primarily by social scientists but commonly used in legal opinions and commentaries to describe a parent-like relationship which is "based . . . on [the] day-to-day interaction, companionship, and shared experiences" of the child and adult. Joseph Goldstein, Anna Freud, Albert J. Solnit, Beyond the Best Interests of the Child 19 (1973). As such, it may define a biological parent, stepparent, or other person unrelated to the child. See also [Black's Law Dictionary 1145 (8th ed. 2004)] ("A person who, on a continuing and regular basis, provides for a child's emotional and physical needs."). In Washington, psychological parents may have claims and standing above other third parties, but those interests typically yield in the face of the rights and interests of a child's legal parents. See, e.g., [ J.H., 117 Wn.2d at 469]. In J.H., in the context of foster families, we reaffirmed that the "law recognizes the importance of the psychological parent to the child" but found that because the very nature of a foster placement is "temporary, transitional and for the purpose of supporting reunification with the legal parents" the law does not "establish a right on the part of a foster parent" to continue the relationship. [ J.H., 117 Wn.2d at 469]. Courts have, nevertheless, recognized and relied on a person's characterization as a "psychological parent" in supporting their decisions. [ J.H., 117 Wn.2d at 469]. De facto parent: Literally meaning "parent in fact," it is juxtaposed with a legally recognized parent. Black's, supra, 448 (defining de facto as "[a]ctual; existing in fact; having effect even though not formally or legally recognized"). We are asked in this case to define the parameters of this term and in doing so, find that it describes an individual who, in all respects functions as a child's actual parent, meeting the criteria suggested herein.
L.B. II, 155 Wn.2d at 691-92 n. 7.
The court also found that the former partner could not petition for visitation under the third party visitation statutes because those statutes were unconstitutional and therefore inoperable. L.B. II, 155 Wn.2d at 683.
(1) the natural or legal parent consented to and fostered the parent-like relationship, (2) the petitioner and the child lived together in the same household, (3) the petitioner assumed obligations of parenthood without expectation of financial compensation, and (4) the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship, parental in nature. See [ In re Parentage of L.B., 121 Wn. App. 460, 487, 89 P.3d 271 (2004) ( L.B. I), affirmed in part and reversed in part on other grounds, 155 Wn.2d 679 (2005)]. In addition, recognition of a de facto parent is "limited to those adults who have fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child's life." [ C.E.W. v. D.E.W., 2004 ME 43, 14, 845 A.2d 1146].
L.B. II, 155 Wn.2d at 708 (emphasis added). The court also noted that the appellate courts had already recognized the de facto parent status in Allen and Stell, stating that these cases demonstrated that parties can create psychological parent-child relationships or de facto family relationships that are also entitled to legal protection even though these relationships are not statutorily recognized. L.B. II, 155 Wn.2d at 692-93 (citing Stell, 56 Wn. App. at 368-69; Allen, 28 Wn. App. at 648).
The court further noted that:
While the legal and social interests of children and parents are often interrelated, much of our statutory scheme remains distinctively adult-centric — and as the litigation here was brought, and principally furthered, by the involved adults, much of our discussion necessarily centers on the interests, rights, and responsibilities of the litigant adults. Nevertheless, as established by our legislature, "the best interests of the child" pervades our judicial consciousness in this field.
L.B. II, 155 Wn.2d at 695 n. 10. It then held:
that henceforth in Washington, a de facto parent stands in legal parity with an otherwise legal parent, whether biological, adoptive, or otherwise. Cf. C.E.W., [2004 ME at 13-14]. As such, recognition of a person as a child's de facto parent necessarily "authorizes [a] court to consider an award of parental rights and responsibilities . . . based on its determination of the best interest of the child." C.E.W., [2004 ME at 14]; see RCW 26.09.002. A de facto parent is not entitled to any parental privileges, as a matter of right, but only as is determined to be in the best interests of the child at the center of any such dispute.
L.B. II, 155 Wn.2d at 708-09.
Although the court stated that "`continuity of established relationships is a key consideration,'" L.B. II, 155 Wn.2d at 708-09 n. 26 (emphasis omitted) (quoting McDaniels v. Carlson, 108 Wn.2d 299, 312-13, 738 P.2d 254 (1987)), when evaluating the factors related to the best interests of a child, the best interests standard "unequivocally establishes the child as the central focal point of the" best interests inquiry; it also addressed how recognition of a de facto parent's status interacted with the biological parent's "constitutionally protected liberty interest to care for and control her child without unwarranted state intervention." L.B. II, 155 Wn.2d at 708-09 n. 26, 709 (citations omitted). It held that because a person claiming de facto parentage status must show that the biological or legal parent consented to and fostered the parent-like relationship, the biological parent's rights were not compromised when a third party's rights and interests were elevated to the same status as the biological parent's rights and interests. L.B. II, 155 Wn.2d at 709.
The court's later discussion of L.B. II in Shields II re-emphasized that a central aspect of de facto parent status is the biological parent's consent to the non-biological parent's role in the child's life:
Additionally, recognition of a de facto parent is "limited to those adults who have fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child's life." [ L.B. II, 155 Wn.2d at 708]. We found that recognizing a de facto parent that met the above criteria did not impermissibly interfere with a parent's constitutionally protected rights in part because of the critical showing that the parent "consented to and fostered" the parent-child relationship. [ L.B. II, 155 Wn.2d] at 712.
Shields II, 157 Wn.2d at 146 (emphasis added).
The appellants' assertion that L.B. II adopts a wholly child-centered jurisprudence in which the child's best interests are always the paramount consideration is an overstatement. L.B. II establishes only that the best interests of the child test applies when the biological parent has consented and approved to the child's relationship with the party claiming to be a de facto parent. L.B. II still recognized that there are circumstances when the child's interests must be balanced against the parent's constitutionally protected interests.
The appellants also cite numerous additional cases that they argue support a "child-centered" rather than a "parent-centered" jurisprudence. Although these cases stand for the general propositions the appellants cite them for, none of them establishes that the best interests of the child test applies here. In general, the cited cases do not go beyond the basic premise that courts often recognize that the best interests of the child must prevail under certain factual circumstances; that children can form important, familial bonds with people other than their biological parents; and that the child and/or third party may have interests that are entitled to some degree of protection. The cases do not, however, address how the courts must balance a third party's or a child's interests with a biological parent's interests when no de facto parent relationship exists, the biological parent has established or has timely attempted to establish a relationship with the child, and the biological parent is not wholly unable to care for the child.
See Lehr v. Robertson, 463 U.S. 248, 103 S. Ct. 2985, 77 L. Ed. 2d 614 (1983) (it is a parent's relationship with the child, not a mere biological link, that determines whether a biological parent is entitled to constitutional protection of his right to have a relationship with his child, but not addressing appropriate test when natural father has a relationship with the child); Smith v. Org. of Foster Families for Equality § Reform, 431 U.S. 816, 97 S. Ct. 2094, 53 L. Ed. 2d 14 (1977) (foster parent action challenging procedures for removal of children from foster homes, recognizing children can form important psychological bonds with third parties and concluding that the removal procedures properly balanced any interests the foster parents' had in their relationship with the child but not addressing the balance required to protect a parent's interests versus a child's or third party's interests); Brown v. County of San Joaquin, 601 F. Supp. 653 (E.D. Cal. 1985) (recognizing that foster families and children may have a liberty interest in maintaining their relationship once efforts at familial reunification have been abandoned, but not addressing balance between parent's, child's, and foster family's interest if reunification with parent is still potentially viable); In re Welfare of Aschauer, 93 Wn.2d 689, 611 P.2d 1245 (1980) (dependency action where parents were found unable to care for child, recognizing that continuity of relationships with third parties may be important to child and that the courts have increasingly recognized the importance of these relationships but not addressing best interests standard in other contexts); In re Guardianship of Palmer, 81 Wn.2d 604, 503 P.2d 464 (1972) (recognizing that children can form bonds with third parties and addressing best interests of child when determining whether to restore custody to parents who had previously been found unfit without discussing how parents' and child's interests must be balanced before parents' rights can be terminated in the first instance); In re Custody of A.C., 124 Wn. App. 846, 103 P.3d 226 (2004) (recognizing child may form important bonds with non-parent and allowing grandmother who had cared for grandchild with son's permission to request visitation under dissolution statutes), remanded for reconsideration, 155 Wn.2d 1011, reversed on remand, 130 Wn. App. 157 (2005); In re Welfare of Harney, 19 Wn. App. 85, 88, 574 P.2d 395 (brief discussion of parties' interests in context of the burden of proof, recognizing that parental rights "are measured against the discharge of parental responsibilities; the welfare of the child is always the primary consideration," and finding parent unable to care for child but not addressing if best interests test applies if parent is not unfit) (citing In re Welfare of Snyder, 85 Wn.2d 182, 532 P.2d 278 (1975)), review denied, 90 Wn.2d 1015 (1978); In re Adoption of B.L.V.B., 160 Vt. 368, 628 A.2d 1271, 1276 (1993) (consensual same sex adoption case involving de facto parent relationship stating that "our paramount concern should be with the effect of our laws on the reality of children's lives," and applying best interests of the child test, holding that natural mother's rights need not be terminated for de facto same-sex parent to adopt the child).
The appellants also argue that the father failed to establish a relationship with the child and has, therefore, forfeited his rights to the child. We address that argument below.
The cases the appellants cite emphasize that courts have increasingly recognized the importance of a child's relationships with others who have acted as its parents and have acknowledged that the best interests of the child is a key factor in determining the placement of a child; but none of these cases establishes that the best interests of the child test applies when the child's biological parent has not consented to and fostered the child's relationship with the third party. Ultimately, our Supreme Court has already determined that when the biological parents' and the child's interests must both be considered, the parents' rights are only adequately protected under the detriment to the child test. Although this approach is not as protective of the child's interests as the best interests of the child test, it is more protective of the child's interests than requiring the third party to establish that the biological parent is unfit, and it is the balance between competing rights our Supreme Court has adopted. The appellants fail to direct us to any authority that would allow us to override that determination.
Citing Bennett v. Jeffreys, 40 N.Y.2d 543, 356 N.E.2d 277 (N.Y. 1976), Lemley v. Barr, 176 W. Va. 378, 343 S.E.2d 101 (W.Va. 1986), and In re Interest of Brandon L.E., 183 W. Va. 113, 394 S.E.2d 515 (W.Va. 1990), overruled in part by Clifford K. v. Paul S., 217 W.Va. 625, 619 S.E.2d 138 (W.Va. 2005), the appellants also argue that extraordinary circumstances justify application of the best interests of the child test, primarily because they are the child's psychological parents and the child has been separated from his father for most of his life.
Bennett and Lemley, both involved parents who consented to the child's relationship with the non-parent, and are, therefore, as discussed below, inapposite here. Bennett, 40 N.Y.2d at 544, 548; Lemley, 176 W.Va. at 385. Furthermore, although Brandon L.E., did not rely on the voluntary or involuntary aspect of the non-parent's relationship with the child, Clifford K. overruled Brandon L.E. to the extent it did not recognize that one of the most important factors to consider when determining whether the non-parent had a psychological parent relationship with the child that is entitled to deference, was whether the child's legal guardian or parent consented and encouraged the child's relationship with the non-parent. Clifford K., 217 W. Va. at 643-44. Accordingly, Brandon L.E. is not applicable.
Allen also establishes that the detriment to the child test already recognizes extraordinary circumstances, stating:
The authorities cited herein suggest we must look to a middle ground; to give custody to a nonparent there must be more than the "best interests of the child" involved, but less than a showing of unfitness. In extraordinary circumstances, where placing the child with an otherwise fit parent would be detrimental to the child, the parent's right to custody is outweighed by the state's interest in the child's welfare. There must be a showing of actual detriment to the child, something greater than the comparative and balancing analyses of the "best interests of the child" test. Precisely what might outweigh parental rights must be determined on a case-by-case basis. But unfitness of the parent need not be shown.
Allen, 28 Wn. App. at 649.
B. De Facto Parent or Psychological Parent Status
The appellants argue further that the Pierce County court should have applied the best interests of the child test because they were the child's de facto or psychological parents. Again, these arguments have no merit.
Although it is clear that the appellants meet four of the five factors required to establish de facto parentage set out above, they still had to show that "the natural or legal parent consented to and fostered the parent-like relationship." L.B. II, 155 Wn.2d at 708. Here, although the mother consented to and fostered the appellants' relationship with the child, the father clearly did not. The appellants argue, however, that the mother's consent was sufficient to establish their de facto parent status because she was the child's only legal parent at the time she consented. Additionally, they appear to assert that the mother's consent effectively allowed them to step into her shoes, raising their constitutional rights to that of the mother in relation to the father's.
But the heightened status of a de facto parent in respect to the biological parent is proper primarily because the biological parent consented to and fostered the relationship and, in doing so, chose to raise the third party's status in relation to his or her constitutional rights. Shields II, 157 Wn.2d at 145-46. If we were to accept the appellants' argument, we would allow the mother to unilaterally abrogate the constitutional rights of at least one person, the child's father. Given this, although the mother consented to the appellants' role in the child's life, the father's obvious lack of consent precluded a finding that the appellants attained de facto parent status in relation to his rights.
The appellants also claim that their status in relation to the father's rights was altered by the fact that they were the child's "psychological parents," a status that arguably does not require the biological parent's consent. L.B. II resolves that issue, stating: "In Washington, psychological parents may have claims and standing above other third parties, but those interests typically yield in the face of the rights and interests of a child's legal parents." 155 Wn.2d at 691-92 n. 7 (emphasis added) (citing In re Dependency of J.H., 117 Wn.2d 460, 469, 815 P.2d 1380 (1991)). Thus, L.B. II establishes that, even if the appellants were the child's psychological parents, their interests are not equal to the father's, and this argument fails.
C. Extent of the Father's Constitutionally Protected Interests
The appellants further contend that the Pierce County court should have applied the best interests of the child test because the father failed to timely and diligently establish a relationship with the child and/or the mother, therefore waiving any constitutionally protected interests he had in his relationship with the child. Even assuming the father was required to diligently pursue a relationship with the child and/or the mother to preserve his constitutionally protected interests, the appellants have not shown that the father failed to do so here.
The appellants also assert that the detriment to the child test does not apply because the father did not have an established, pre-existing relationship with the child. Although the parents in Allen and Shields II clearly had pre-existing relationships with the children, neither case states that the only time a biological parent has a protected interest in his relationship with his child is if there is already a pre-existing relationship; nor do these cases suggest that this is the only circumstance in which the detriment to the child test applies. Shields II, 157 Wn.2d 126; Allen, 28 Wn. App. at 645-47.
The appellants assert that the father's act of proceeding pro se throughout much of these proceedings demonstrates that he did not diligently pursue custody and/or that he was an unfit parent. Although the father has periodically had counsel during these extended proceedings, it is mere conjecture that he would have been able to afford counsel during every stage of the proceedings. Additionally, although perhaps not generally advisable, a person has a right to represent himself pro se. Accordingly, we decline to consider the father's periodic lack of representation to be evidence of failure to diligently pursue a relationship with the child.
First, as to their contention that the father abandoned the mother and the child by moving to Oklahoma and failing to provide support for the drug-addicted, pregnant mother, the evidence presented at trial belies this assertion. The father testified that when he left Washington, he believed that the mother had agreed to give him the child to raise and that he left contact information with the mother but she never contacted him. This demonstrates that the father believed he had made arrangements to care for the child from birth and that he made himself available to the mother but she, rather than he, failed to keep in contact, not that he left the state and abandoned the mother and the child to fate.
Second, as to their contention that the father failed to preserve his rights because he waited three months to file a paternity action, appellants fail to show that a three-month delay demonstrates a lack of diligence sufficient to compromise his rights. Although the cases the appellants cite establish that a mere biological relationship is not sufficient to establish a biological parent's constitutionally protected right to have a relationship with his child, the cases address circumstances involving considerably more delay or other circumstances clearly not present here. Furthermore, the father filed his Lewis County paternity petition promptly, well within any analogous statutory time periods, including the time allowed if he had been a presumed father of the child. RCW 26.26.525 (no time limit for filing parentage action if child has no presumed, acknowledged, or adjudicated father); RCW 26.26.530(1) (presumed father must adjudicate parentage within two years of the birth of the child).
See Michael H. v. Gerald D., 491 U.S. 110, 109 S. Ct. 2333, 105 L. Ed. 2d 91 (1989); Lehr, 463 U.S. 248, Caban v. Mohammed, 441 U.S. 380, 99 S. Ct. 1760, 60 L. Ed. 2d 297 (1979); Quilloin v. Walcott, 434 U.S. 246, 98 S. Ct. 549, 54 L. Ed. 2d 511 (1978); Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); Doe v. Attorney W., 410 So. 2d 1312, 1315, 1317 (Miss. 1982); In re Interest of T.E.T., 603 S.W.2d 793, 795 (Tex. 1980), cert. denied sub nom Oldag v. Catholic Charities of the Diocese of Galveston-Houston, 450 U.S. 1025 (1981).
Third, as to appellants' contention that the father failed to preserve his rights because he did not diligently pursue his visitation rights, the record also does not support this contention. In fact, the record shows that the father exercised his visitation rights to the extent possible while balancing his other legitimate obligations in another state and that the mother's and appellants' actions arguably interfered with his ability to fully exercise his visitation rights. Additionally, had the appellants not waited 11 months to attempt to intervene in the Lewis County action and/or file their third party custody petition, and had the mother initially admitted the father was the child's biological father and identified the appellants as the people having physical custody of the child, the Lewis County petition would likely have been resolved in a much more expedient manner. To the extent the mother's and the appellants' actions delayed the father's contact with the child, rather than his own action, any delay caused by others cannot be a basis upon which to find the father failed to timely pursue a relationship with the child.
The appellants argue that we cannot consider the Lewis County court's finding that the mother's actions significantly delayed the Lewis County proceedings. They assert that this would amount to an "improper application of collateral estoppel, since neither [they nor the child] were parties to that action." Br. of Appellant at 59. They also seem to assert that the issues were not identical, because in Lewis County the sole issue was who, as between the father and mother, should have custody; but here, the issue is whether the father or the appellants should have custody and the issue of the mother's potential "obstruction" was only relevant to whether she should have custody. They contend that relying on this " sua sponte `finding'" is unfair to them because they were not a party to that action and could not rebut that claim. Br. of Appellant at 59.
The appellants' assertion that the mother's potential obstruction is irrelevant to this case is incorrect. The appellants argued repeatedly that the father failed to establish a relationship with the child, and the extent to which that delay was the result of someone else's actions is relevant here. Further, although the appellants were not parties to the Lewis County case, the Lewis County court's emphasis on the mother's delay was merely evidence of her delay, not conclusive proof of that fact, and nothing prevented the appellants from presenting evidence to contradict the Lewis County court's conclusion in the Pierce County action. They simply failed to rebut this evidence.
To the extent they are also asserting that the father abandoned the child, that argument is wholly without merit. Under the statutes addressing termination of parental rights in the context of adoption proceedings, abandonment occurs when "the parent has failed to perform parental duties under circumstances showing a substantial lack of regard for his or her parental obligations." RCW 26.33.120(1). To the extent the court considered this issue, the evidence supports the conclusion that the father did not disregard his parental duties or obligations. There was evidence that the father negotiated with the mother to care for the child prior to leaving for Oklahoma, that he provided the mother with contact information but she did not contact him, that he made various failed attempts to contact her, and that he acted within weeks of the child's birth to establish parentage and take responsibility for the child. Furthermore, the Lewis County court specifically stated that much of the delay in establishing parentage and initially awarding the father custody was due to the mother's actions, the later delay was clearly caused by the appellants' petition, and there was evidence that the mother and the appellants also interfered with the father's visitation. This evidence was sufficient to allow the court to find that, although the father's contact with the child was delayed, it was not due to a disregard for his parental responsibilities. Child's Right to Participate as a Party, to Independent Counsel, and to an Adequate Hearing
The cases the appellants cite, In re Interest of Skinner, 97 Wn. App. 108, 982 P.2d 670 (1999), In re Matter of H.J.P., 114 Wn.2d 522, 789 P.2d 96 (1990), and In re Adoption of McGee, 86 Wn. App. 471, 937 P.2d 622, review denied, 133 Wn.2d 1014 (1997), all address termination of parental rights under the state adoption statutes, so we assume this is the termination procedure the appellants are referring to in their brief.
Finally, the appellants contend that because the child had constitutionally protected interests at stake in this case, he was entitled to participate as a party, to independent counsel, and to an adequate hearing, and that the Pierce County court erred by failing to ensure that he received these protections. Again, we disagree.
The appellants properly note that, although it declined to reach the issue, our Supreme Court indicated in L.B. II that it might find merit in the contention that children in custody actions are entitled to independent representation under the state or federal constitutions if the issue is properly raised and preserved. L.B. II, 155 Wn.2d at 712 n. 29. But the issue was not properly raised and preserved here. The court appointed a GAL to act on the child's behalf, and none of the parties asserted that the GAL failed to perform her duties adequately. Furthermore, the appellants do not acknowledge that under RCW 26.10.070, the court had the discretion to appoint counsel for the child. Nor do they argue that this statute is insufficient to protect the child's constitutional rights in this context. To the extent the appellants are arguing this issue purely as a constitutional right, their briefing is inadequate, and we decline to reach this issue.
The court stated:
Amicus in this case have argued that, like [the petitioner and natural parent in the case], L.B. also has constitutionally protected interests at stake in this case. Particularly relevant, amicus curiae the Justice for Children Project advocates on behalf of L.B. for appointment of independent counsel. Because no party to this dispute, [the petitioner, the natural parent], nor L.B., through her GAL, has raised or otherwise addressed this issue at any stage in the proceeding, we decline to consider the issue of whether appointment of counsel is in fact constitutionally mandated. See RAP 13.7(b). That being said, we strongly urge trial courts in this and similar cases to consider the interests of children in dependency, parentage, visitation, custody, and support proceedings, and whether appointing counsel, in addition to and separate from the appointment of a GAL, to act on their behalf and represent their interests would be appropriate and in the interests of justice. Cf. RCW 13.34.100(6); RCW 26.09.110; KING COUNTY LOCAL FAMILY LAW RULE 13. When adjudicating the "best interests of the child," we must in fact remain centrally focused on those whose interests with which we are concerned, recognizing that not only are they often the most vulnerable, but also powerless and voiceless. We, however, reserve for another day the underlying question raised by amicus of whether the United States or Washington Constitution mandate appointment of counsel in a given circumstance. But see Kenny A. ex rel. Winn v. Perdue, 356 F. Supp. 2d 1353, 1359-61 (N.D. Ga. 2005) (holding children have fundamental liberty interest in deprivation proceedings and due process requires appointment of independent counsel to represent child's interests).
L.B. II, 155 Wn.2d at 712 n. 29.
RCW 26.10.070 provides that "[t]he court may appoint an attorney to represent the interests of a minor or dependent child with respect to custody, support, and visitation."
Finally, the appellants appear to assert that the hearing was obviously inadequate because it was so short. It was the appellants' burden to present evidence supporting their petition and to argue their case; the fact that the court heard all the evidence and argument in a relatively short time does not establish that the proceeding itself was deficient but merely that there was little evidence or argument presented. Accordingly, this argument has no merit.
Conclusion
The appellants fail to show that the Pierce County court erred by denying their third party custody petition. Accordingly, we affirm the denial of the appellants' petition and lift the order staying transfer of custody to the father. Because, however, the child has remained in the appellants' custody while this appeal was pending, and circumstances have undoubtedly changed during that time, it is appropriate that the trial court reconsider how to implement the child's transition to his father's custody. Thus, we remand to the trial court for entry of a transition schedule that will smoothly and expeditiously transfer physical custody to the father.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, P.J., HUNT, J., concur.