In re the Parentage of J.A.B.
In re the Parentage of J.A.B.
Opinion of the Court
¶1 This case involves a petition for recognition as a de facto parent. The trial court here found that Richard Benjamin is the de facto parent of B.H.R. This finding is supported by the record and was not an abuse of discretion. Nor did the court err in its parenting plan decisions. We thus affirm.
¶2 In 1998, Snowwhite Reich and her four month old son B.H.R. began living with Richard Benjamin. Reich and Benjamin lived together as a family for seven years and had a child together, J.A.B. B.H.R. considers Benjamin to be his father and has called him “dad” since he could first speak. B.H.R.’s biological father, Robert Henry, lives in another state and maintains only periodic contact.
¶3 Until she began showing symptoms of mental illness, Reich worked part time and was the children’s primary caregiver. In February 2005, she became imbued with frenetic energy, stopped sleeping, and began speaking in rhyme. She became delusional. Eventually she became mute and communicated only through written notes.
¶4 Reich was hospitalized for 11 days. Doctors diagnosed bipolar affective disorder and prescribed mood-stabilizing and antipsychotic medication.
¶5 Reich did not accept her diagnosis and disliked the side effects of the medication. Despite several adjustments to the regimen, she stopped taking her medication, precipitating a relapse. She again became paranoid and anxious, exhibiting the same type of frenetic energy as before and speaking in rhyme. She threatened suicide. At one point she became assaultive, and Benjamin called police for help. Reich was hospitalized again. Benjamin was awarded temporary custody of both children.
¶6 In May, Reich was again hospitalized, suffering “from mental disorder characterized by alternating patterns of mania and depression, disorganization, paranoia, and catatonia.”
¶8 The custody actions remained pending. Through the years, B.H.R.’s biological father, Henry, had never objected to Benjamin’s role. But in June 2005, Henry submitted a declaration opposing Benjamin’s petition for nonparent custody of B.H.R. He characterized it as an honorable effort to provide protection for B.H.R. in relation to Reich, whom Henry described as “very volatile at times.”
¶9 Then in October 2005, the parties appeared headed for agreement. Benjamin filed a petition to adopt B.H.R., in which Reich joined and which (in a reversal not fully explained by the record) Henry also supported, consenting to the adoption and to termination of his parental rights. The petition did not go forward, however, possibly because, also in October, Reich again stopped taking her medication. Her behavior became increasingly erratic. Benjamin took a leave of absence to care for the children.
¶10 In February 2006, Reich physically attacked Benjamin, and the two permanently separated. Reich moved in with her parents. The children stayed with Benjamin, who amended his petition to add a de facto parent cause of action.
¶11 At trial on the petition, some 10 witnesses testified, including experts on both sides. Reich contested the evidence of her illness and disputed Benjamin’s role. Henry no longer sought custody and instead argued B.H.R. should reside primarily with Reich. The court-appointed parenting evaluator recommended that Benjamin have custody of both children.
¶13 The court entered a parenting plan under which the children reside with Benjamin a majority of the time. As to B.H.R., the plan provides for residential time with all three parents.
¶14 Reich appeals both the designation of Benjamin as a de facto parent and the final parenting plan granting Benjamin primary residential placement of B.H.R. and J.A.B.
DISCUSSION
¶15 Questions of law are reviewed de novo.
De Facto Parenthood
¶16 In 2005, our Supreme Court embraced the common law concept of de facto parenthood in L.B. The
¶17 A “de facto parent” is an adult who has “ ‘fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child’s life,’ ”
¶18 Under L.B., a petitioner who meets this rigorous test may proceed, as any other legal parent, to establish a parenting plan and residential schedule under chapter 26.09 RCW. A petitioner who cannot make the required showing must proceed instead under the nonparent custody statute, chapter 26.10 RCW.
¶20 We find we must respectfully disagree with our colleagues.
¶21 First, we question the M.F. court’s approach to procedure. Instead of beginning with an initial factual determination of whether a petitioner is a de facto parent and then applying the appropriate statute, M.F. requires any person who is not a legal parent to proceed under statutes designed for nonparents. But if a person is a de facto parent, he or she is not a “nonparent.”
¶22 We also do not believe L.B. is distinguishable. The nonparent custody statute is available to any person, not just stepparents, and so was. equally available to the petitioner in L.B. That she made no effort to proceed under the statute was no bar to her petition for de facto parent status. Rather, in its extensive discussion of cases from other jurisdictions with similar statutory frameworks, the L.B. court recognized that the nonparent custody statute is an inadequate remedy for a person seeking parental status.
¶23 Nor can we see a distinction, for purposes of this analysis, between blended families resulting from consecutive marriages and blended families resulting from nonmarital relationships. In L.B., no marital relationship existed between the petitioner and the biological parent because none was possible. In M.F., the petitioner had been a legal stepparent. Here, Benjamin and Reich never married but presumably could have. These differences in relationship history have great consequence under M.F., apparently on grounds that the legislature contemplated consecutive marriages even if it did not contemplate less traditional family arrangements.
¶24 But these are differences in the legal relationships of the adults. We are unable to see their relevance to the question here: whether a person who is not the legal parent of a child is in fact the child’s parent, and should be recognized as such by a court of equity.
¶25 The nonparent custody statute does not address that question at all. Rather, it operates only where there is no available, suitable legal parent. The statute permits nonparent custody only where the child does not currently reside with a legal parent, or the legal parents are shown to be unsuitable custodians.
¶26 More fundamentally, residential placement is not equivalent to parental status. The nonparent custody statute and the de facto parent doctrine have very different purposes. A nonparent custody order confers only a temporary and uncertain right to custody of the child for the present time because the child has no suitable legal parent. When and if a legal parent becomes fit to care for the child, the nonparent has no right to continue a relationship with the child.
¶27 Parenthood comprises much more than mere custody. A parent has a fundamental liberty interest in the care, custody, and control of his or her child.
¶28 We do not believe the L.B. court intended to limit the de facto parent doctrine to parties who have no legal right to marry, leaving to all others the very limited avenue of the nonparent custody statute. We therefore depart from the
Benjamin Is a De Facto Parent to B.H.R.
¶29 As set forth above, a de facto parent must be an adult who has “ ‘fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child’s life.’ ”
¶30 Benjamin and B.H.R. have resided together since 1998, when B.H.R. was only four months old. B.H.R. has always considered Benjamin to be his father, and Benjamin has fully embraced that role. Henry and Reich fostered this parent-like relationship, as is evident from the history of Benjamin’s relationship with Reich and by Reich’s and Henry’s initial support of Benjamin’s attempt to adopt B.H.R. Even at trial, Reich and Henry agreed Benjamin has acted as a good father to B.H.R. and that B.H.R. should maintain contact with him. There is no evidence that Benjamin had any expectation of remuneration; child support payments from Henry were expended for B.H.R.’s benefit and not to compensate Benjamin. The evidence plainly shows that Benjamin has developed a bonded, dependent, parent-like relationship with B.H.R., and that
Residential Placement of J.A.B.
¶31 Reich makes her argument concerning J.A.B. in one sentence: “[I]f the trial court had properly applied the law as to the child B.H.R., then the court would have to reassess the placement of the younger child [J.A.B.] to Richard Benjamin.”
¶32 Reich’s argument appears to rest on the assumption that the court made the same residential placement for both children because they enjoy a particularly close relationship. Substantial evidence would support a finding to that effect, but the trial court did not make that finding. Its decision instead emphasizes Reich’s failure to appreciate “the severity in which her mental health episodes disrupted her parenting of the children.”
¶34 Given the evidence of Reich’s mental instability and resistance to her diagnosis and treatment, the court reasonably determined it would be in J.A.B.’s best interests to reside primarily with Benjamin. Indeed it is difficult to see how the court could have reached a different conclusion. The court did not abuse its discretion here.
¶35 Affirmed.
Report of Proceedings (Aug. 8, 2006) at 75.
Clerk’s Papers at 6.
Id
155 Wn.2d 679, 122 P.3d 161 (2005), cert. denied, 547 U.S. 1143 (2006).
The court found that Reich “is capable of parenting the child(ren), but she lacks insight into the severity in which her mental health episodes disrupted her parenting of the children.” Clerk’s Papers at 68.
Id. at 141.
Henry has not participated in this appeal.
Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 880, 73 P.3d 369 (2003).
In re Marriage of Kovacs, 121 Wn.2d 795, 801, 854 P.2d 629 (1993).
Id. (quoting C.E.W. v. D.E.W., 2004 ME 43, 845 A.2d 1146, 1152).
141 Wn. App. 558, 561, 170 P.3d 601 (2007).
Id. at 565.
Id. at 570.
RCW 26.10.030; RCW 26.09.240 (held unconstitutional in In re Parentage of C.A.M.A., 154 Wn.2d 52, 66, 109 P.3d 405 (2005)).
193 Wis. 2d 649, 665-66, 533 N.W.2d 419 (1995).
The same would have been true in L.B. See 155 Wn.2d at 709 (noting there was no indication that L.B.’s birth mother is in any way unfit as a parent).
RCW 26.10.030.
In re Custody of Shields, 157 Wn.2d 126, 144, 136 P.3d 117 (2006).
L.B., 155 Wn.2d at 710.
Id. (quoting C.E.W., 845 A.2d at 1152).
Id. (quoting In re Parentage of L.B., 121 Wn. App. 460, 487, 89 P.3d 271 (2004)).
Appellant’s Br. at 7.
Clerk’s Papers at 68.
Reference
- Full Case Name
- In the Matter of the Parentage of J.A.B., Richard Benjamin, Snowwhite Reich, In the Matter of the Parentage of B.H.R., Richard Benjamin, Snowwhite Reich
- Cited By
- 22 cases
- Status
- Published