Franklin v. Johnston

C. Johnson, J.

¶22 (dissenting) — The majority’s new rule too broadly applies the de facto parent doctrine extending it far beyond its narrow and equitable foundation. In adopting this new approach, the majority misapplies the principles this court recognized in In re Parentage of L.B., 155 Wn.2d 679, 122 P.3d 161 (2005), and greatly expands the proper scope of the doctrine. In order to understand the majority’s new approach, a review of the facts of L.B. is instructive.

¶23 In L.B., we applied our traditional equitable powers to resolve a dispute not contemplated under the statutory *192scheme then in effect. Under the facts of that case, two women had been in a long-term, loving, and committed relationship. They dated for several months before deciding to move in together. After five years of cohabitation, they jointly decided to add a child to their relationship and signed a notarized agreement acknowledging that both women would act as the child’s parents. For six years after the child was born, they held themselves out as a family and each was involved in every aspect of raising the child, including discipline, schooling, and medical decisions. Using our powers in equity, we recognized that it was fair and just to enforce the agreement made between the biological mother and her domestic partner. L.B., 155 Wn.2d 679.

¶24 Equity does not, however, support such a result under the facts here. Throughout their entire relationship — both before and after A.F.J.’s birth — Mary Franklin and Jackie Johnston were never in a long-term, loving, and committed relationship. Rather, the relationship was on-again, off-again and complicated due to drug addiction. Before the pregnancy, the women did not live in the same state, much less the same residence. This relationship is not, as the majority suggests, at the outermost bounds of the de facto parentage doctrine but at the outermost boundary of what can even be considered a relationship at all. Under these facts, it seems improbable that a court could even find a committed intimate relationship for any equitable purpose, let alone a sufficient basis for infringing on the birth parent’s rights.

¶25 Moreover, opposite to what occurred in L.B., Franklin and Johnston never agreed to conceive and raise a child. To the extent that they agreed to coparent after the fact, it is unclear how much choice Johnston had in the matter as a pregnant, single woman struggling with drug addiction. Perhaps most probative as to the nature of the women’s relationship at the time of A.F.J.’s birth, Johnston chose to get her own apartment when she left Perinatal Treatment Services with the baby, rather than move in with Franklin. *193Although the two women lived together briefly in January 2006, within a matter of weeks Franklin called Child Protective Services due to Johnston’s relapse. A.F.J. was allowed to return to Franklin’s care only after she promised to obtain a foster parent license. At no point did any coparenting occur and, from that point forward, Franklin was A.F.J.’s foster parent while Johnston was in and out of drug rehabilitation centers. While her actions in helping to raise A.F. J. are certainly laudable, they should not confer de facto parent status to her.

¶26 As should be clear from the above discussion, the circumstances here and in L.B. are in no way similar. There was no continued natural progression of the relationship by entering into a purposeful agreement to conceive, followed by implementation of that agreement as coparents. No coparenting ever occurred. Johnston was vulnerable at every key point in the development of Franklin’s parent-like relationship, which calls into question whether Franklin’s parent-like role was ever truly fostered and consented to by the mother.

¶27 Johnston’s supposed consent and fostering of Franklin’s parental relationship is further disproved by the fact that the parent almost always determines who cares for the child while he or she is dependent. These are often tumultuous and emotional times for the child and, in an effort to reduce the impact on the child (as well as in recognition that the parents’ rights have not been terminated), the Department of Social and Health Services will generally consider the parents’ wishes regarding placement as in the child’s best interests. A parent who successfully implements the changes required by the dependency proceedings should expect reunification with their child rather than, as here, further deprivation of their rights by the person entrusted by the State with temporarily caring for the child.

¶28 When dependency proceedings were instituted against her, Johnston had little choice but to “consent and foster” a parental relationship with someone. Johnston was *194in a vulnerable position. Threatened with the possible loss of her child, she made the best of her limited choices. She chose the woman she happened to be dating at the time. Because she reached out for help, the majority upholds depriving her of rights in the care and upbringing of her son. The majority’s new expansive rule is not controlled by the same narrow, equitable principles applied in L.B. and is troubling in its expansiveness. I dissent.

J.M. Johnson and Wiggins, JJ., concur with C. Johnson, J.