DWYER, C.J.
¶ 1 This case concerns the interplay between foster parenting and the common law de facto parentage doctrine. Jackie Johnston, the biological mother of a newborn, encouraged Mary Franklin, Johnston's intimate
¶ 2 The facts are these.
¶ 3 In early 2005, during a period when the couple was separated, Johnston relapsed and became pregnant with A.F.J. Johnston reached out to Franklin for help and moved to Washington. Shortly after Johnston and Franklin reunited, Franklin learned that Johnston was pregnant. Franklin assisted Johnston in obtaining prenatal care and drug addiction treatment. During the course of the pregnancy, when Johnston was not in treatment, she lived primarily with Franklin.
¶ 4 In October 2005, Johnston, still pregnant, relapsed again. Johnston was then admitted into the Perinatal Treatment Services (PTS) facility in Tacoma, where she remained until after A.F.J.'s birth. A.F.J. was born on November 20, 2005. His full given name includes the surnames of both Franklin and Johnston.
¶ 5 Johnston and A.F.J. resided at PTS until late December, although Franklin took A.F.J. home with her on occasion. Johnston later reported that, because PTS would not allow Franklin to take A.F.J. home with her more frequently, she left PTS earlier than recommended.
¶ 6 Upon leaving PTS, Johnston rented an apartment for the month of January. However, she used the apartment for only a short time. Instead, Johnston and A.F.J. stayed with Franklin over the December holidays and lived with Franklin for most of the month of January. Franklin and Johnston together attended A.F.J.'s doctor appointments. Franklin participated in the decision to have A.F.J. circumcised.
¶ 7 At the end of January, about one month after leaving PTS, Johnston had a severe relapse. Franklin, concerned about the welfare of A.F.J. and Johnston, called Child Protective Services. A.F.J. was removed from the home. He was, however, returned to Franklin's care several days later. The State initiated a dependency action on A.F.J.'s behalf.
¶ 8 In April 2006, the trial court required Franklin to become licensed as a foster parent
¶ 9 Franklin accepted foster care payments from September 2006 through April 2008. After April 2008, the foster care payments ceased; however, they were resumed in February 2009. Franklin did not deposit any of the checks sent to her after April 2008.
¶ 10 The State filed a termination petition against both Johnston and A.F.J.'s unknown biological father, who did not respond to the petition. His rights were terminated by default.
¶ 11 Franklin then filed petitions requesting either nonparental custody of A.F.J. or the establishment of de facto parentage. The nonparental custody, de facto parentage, and dependency proceedings were linked and accepted into the Unified Family Court. Subsequently, the termination proceeding was continued pending the resolution of Franklin's nonparental custody and de facto parentage actions.
¶ 12 A trial was then held on the nonparental custody and de facto parentage actions. In April 2009, at the conclusion of trial, the court made numerous oral findings and rulings. In May 2009, the trial court entered several written orders consistent with the court's prior rulings. The trial court entered findings of fact and conclusions of law regarding nonparental custody and de facto parentage, wherein the trial court found that Johnston was a fit mother. The trial court concluded that Franklin did not prove either that Johnston was an unfit mother or that it would be to A.F.J.'s detriment to be placed in Johnston's custody, and, as a result, there was no basis to grant nonparental custody to Franklin. The trial court also concluded that Franklin had demonstrated that she was A.F.J.'s de facto parent.
¶ 13 The trial court ordered a temporary parenting plan that provided for the parties to equally share residential time and to engage in joint decision-making. Johnston was named the default decision-maker in the event that they were unable to make joint decisions. The trial court also ordered Franklin to pay $215 per month in child support to Johnston, granting a deviation from the child support schedule based on the parties' equal residential arrangement. In addition, the trial court awarded $20,000 in attorney fees to Johnston.
¶ 14 Franklin appeals, raising issues regarding the award of attorney fees, the order of child support, and the parenting plan. Johnston cross appeals, contending that Franklin cannot be A.F.J.'s de facto parent.
¶ 15 We first consider the decisive issue in this case. Johnston contends on cross appeal that the trial court erred by finding that Franklin, A.F.J.'s foster mother, was A.F.J.'s de facto parent. We disagree.
¶ 16 Our Supreme Court first recognized the de facto parentage doctrine in In re Parentage of L.B., 155 Wn.2d 679, 122 P.3d 161 (2005). There, the court examined whether a biological mother's former lesbian partner, who was neither biologically related to the child nor an adoptive parent of the child, had standing to petition for a determination of coparentage of the child. L.B., 155 Wash.2d at 683-84, 688-89, 122 P.3d 161. The two women at issue therein were in a long-term 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 years old. L.B., 155 Wash.2d at 683-84, 122 P.3d 161.
¶ 17 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 pursuant to the Uniform
¶ 18 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., 155 Wash.2d at 683, 122 P.3d 161. The court announced a common law remedy recognizing that, while attempting to give structure and predictability to [parentage] determinations, neither the UPA nor corresponding statutes defining parental rights and responsibilities purport to preclude the operation of the common law when addressing situations left unanswered after conducting a strict statutory inquiry. L.B., 155 Wash.2d at 696, 122 P.3d 161. While the UPA undeniably provides a statutory, and the most common, avenue by which courts adjudicate a person a parent in this state[,] ... it inevitably did not contemplate nor address every conceivable family constellation. L.B., 155 Wash.2d at 688 n. 5, 122 P.3d 161. Thus, the de facto parentage doctrine was needed to fill the interstices that our current legislative enactment fails to cover in a manner consistent with our laws and stated legislative policy. L.B., 155 Wash.2d at 707, 122 P.3d 161. The court explained that, until the time that the legislature chooses to act, it is the duty of the court to `endeavor to administer justice according to the promptings of reason and common sense.' L.B., 155 Wash.2d at 707, 122 P.3d 161 (quoting Bernot v. Morrison, 81 Wn. 538, 544, 143 P. 104 (1914)).
¶ 19 The court then set forth the elements that a party claiming de facto parent status must establish: (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; (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; and (5) the petitioner has fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child's life. L.B., 155 Wash.2d at 708, 122 P.3d 161. The court held that
L.B., 155 Wash.2d at 708-09, 122 P.3d 161 (alteration in original and citations omitted).
¶ 20 Subsequently, our Supreme Court held that the de facto parentage cause of action is unavailable in the stepparent-stepchild context. In re Parentage of M.F., 168 Wn.2d 528, 532, 228 P.3d 1270 (2010). Before M.F. was two years old, her natural parents divorced and her mother married John Corbin. M.F., 168 Wash.2d at 529-30, 228 P.3d 1270. Several years later, her mother and Corbin divorced, but Corbin continued to have regular contact with M.F. until she was 12. M.F., 168 Wash.2d at 530, 228 P.3d 1270. Corbin subsequently petitioned to be recognized as M.F.'s de facto father.
¶ 21 In denying Corbin's request, the Supreme Court explained that the factors prompting us to recognize a remedy in L.B. are not present in this case, as no statutory gaps exist to fill. M.F., 168 Wash.2d at 532, 228 P.3d 1270. Rather, the court reasoned, [a]n avenue already exists for a stepparent seeking a legal, custodial relationship with a
M.F., 168 Wash.2d at 532, 228 P.3d 1270. The court determined that chapter 26.10 RCW, the third party custody statute, provided an adequate statutory remedy for Corbin. The court held that the intertwined judicial and statutory history [of third party custody actions] illustrates the legislature's ongoing intent to create laws accommodating stepparents who seek custody on or following dissolution. Though our statutory scheme does not permit a stepparent to petition for parental status, this does not equate to a lack of remedy. M.F., 168 Wash.2d at 533, 228 P.3d 1270.
¶ 22 Because no statutory void exists with respect to stepparent-stepchild relationships, the court determined that it cannot apply an equitable remedy that infringes upon the rights and duties of M.F.'s existing parents. M.F., 168 Wash.2d at 532, 228 P.3d 1270. The court emphasized that, in addition to the existence of a statutory remedy, its decision was based on the fact that the court was faced with the competing interests of parents—with established parental rights and duties—and a stepparent, a third-party who has no parental rights. M.F., 168 Wash.2d at 532, 228 P.3d 1270. The court concluded:
M.F., 168 Wash.2d at 534, 228 P.3d 1270.
¶ 23 Turning to the issues presented herein, the correct starting point is not whether the de facto parent test has been met but, rather, whether that test is applicable here; the de facto parentage test is relevant only if we first decide that the de facto parentage doctrine applies to the circumstances presented in this case. M.F., 168 Wash.2d at 534, 228 P.3d 1270. Thus, only if we first determine that the de facto parentage doctrine is available in a situation such as this must we then turn to the question of whether Franklin's proof satisfies the de facto parentage test.
¶ 24 Johnston contends that the de facto parentage doctrine cannot be applied to the circumstances of this case for two reasons, one general and the other specific to this case. First, Johnston contends that foster parents may never qualify as de facto parents and, thus, Franklin cannot be A.F.J.'s de facto parent. Second, Johnston contends that there were statutory remedies available to Franklin, thus precluding application of the de facto parentage doctrine. We find neither contention persuasive.
¶ 25 We begin by addressing Johnston's assertion that a foster parent can never qualify as a de facto parent.
¶ 26 In A.C., a nonparental custody action, the trial court awarded custody of a young boy to his foster parents rather than to his mother. 137 Wash.App. at 253, 153 P.3d 203. The foster parents had not known A.C. prior to the State removing him from his mother's care; instead, they met A.C. only as a result of traditional foster care placement. A.C.,
¶ 27 The circumstances in Blackwell were quite different. In that case, the Blackwells were foster parents who were investigated for child abuse and who had their foster care license revoked. Blackwell, 131 Wash.App. at 374, 127 P.3d 752. They subsequently brought a tort claim against the State alleging negligent investigation, a cause of action afforded only to children and parents. Blackwell, 131 Wash.App. at 375, 127 P.3d 752. The Blackwells argued that the court should extend the duty [and, thus, the cause of action] to foster parents, especially those who claim to be de facto or psychological parents. Blackwell, 131 Wash.App. at 376, 127 P.3d 752. We held that the foster parents could not satisfy the elements of the de facto parentage test:
Blackwell, 131 Wash.App. at 378, 127 P.3d 752.
¶ 28 Blackwell does not support Johnston's contention that all individuals who serve as foster parents are categorically excluded from being de facto parents. Otherwise, we would not have found it necessary to determine whether the Blackwells could satisfy the elements of the de facto parentage test. Nor does A.C. support Johnston's contention, given that the court determined that the child's mother had not consented to the relationship; as such, the five-part de facto parentage test could not be met. See L.B., 155 Wash.2d at 708, 122 P.3d 161 (part one). Indeed, none of the cases cited by Johnston indicate that foster parents are necessarily unable to satisfy the elements of L.B.'s five-part test. We can discern no reason to categorically exclude those individuals serving as foster parents from seeking de facto parent status. To the contrary, our decisions indicate that each determination of de facto parentage should be made based on the particular facts of each case, rather than by applying sweeping, categorical rules. As an equitable remedy, such a question is properly left to a case-specific inquiry.
¶ 29 Nevertheless, Amicus DSHS opines that, as a general matter, allowing foster parents to be recognized as de facto parents undermines the dependency process and contravenes legislative intent to maintain the family unit. Amicus DSHS Br. at 18. Foster parents generally have neither a right to intervene in dependency proceedings nor a very high likelihood of being granted permissive intervention in such proceedings because a foster parent's adversarial participation in a dependency hearing has a tendency to shift the focus of the proceeding from the ability of the natural parent to care for the child to a comparison of the natural parent to the foster parent. In re Welfare of Coverdell, 39 Wn.App. 887, 890-91, 696 P.2d 1241 (1984). Similarly, the American Law Institute has cautioned, [r]elationships with foster parents are ... generally excluded ... because inclusion of foster parents would undermine the integrity of a state-run system designed to provide temporary, rather than indefinite, care for children. AM. LAW INST., PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS & RECOMMENDATIONS § 2.03 cmt. (c)(ii), at p. 120 (2003).
¶ 30 DSHS's concerns are legitimate. However, such concerns do not arise in a situation such as this, where a parent-child relationship between the individual seeking de facto parent status and the child preexisted the fostering relationship. In fact, the American Law Institute, after noting the
¶ 31 We next turn to Johnston's contention that the de facto parentage doctrine was inapplicable here because statutory remedies were available to Franklin. Johnston argues that Franklin could have become A.F.J.'s legal custodian through a nonparental custody action or could have adopted A.F.J. and, thus, that Franklin cannot avail herself of the remedy provided by the de facto parentage doctrine. Indeed, where statutory remedies are available, the common law de facto parentage doctrine cannot be employed. M.F., 168 Wash.2d at 532-33, 228 P.3d 1270. Our Supreme Court has determined that such remedies constitute suitable alternatives to de facto parent status in the stepparent context, where the child already has two legal parents. M.F., 168 Wash.2d at 532-33, 228 P.3d 1270.
¶ 32 Contrary to Johnston's contention, however, no statutory remedies were available to Franklin. As with the petitioner in L.B., Franklin could not have successfully sought parental status pursuant to the UPA because she and Johnston were engaged in a same-sex relationship that is not contemplated by the UPA. 155 Wash.2d at 688 n. 5, 122 P.3d 161. In addition, as the trial court herein found, adoption was not an available remedy because Franklin could not have reasonably sought to complete an adoption in the mere two months between A.F.J.'s birth and the State's initiation of the dependency action.
¶ 33 Before applying the five-part test to the facts herein, however, we must determine whether the period of time during which an individual is serving as a foster parent may be considered for purposes of the de facto parentage test. Johnston contends that the period of time that the fostering relationship existed must be excluded from consideration. In support of her contention, she cites as persuasive authority a recent decision of the Alaska Supreme Court, wherein the court held that the trial court had properly excluded the time that the petitioner was a foster parent when analyzing whether the petitioner was the child's psychological parent. Osterkamp v. Stiles, 235 P.3d 178, 187 (Alaska 2010).
¶ 34 In that case, the female foster parent of a child, Simon, chose to adopt him while her male domestic partner, Osterkamp, declined to adopt him. Osterkamp, 235 P.3d at 181-82. Osterkamp later sought partial custody of Simon on the basis that he was Simon's psychological parent. The Alaska Supreme Court reasoned that the time served as a foster parent may not be considered for purposes of establishing psychological parent status because
Osterkamp, 235 P.3d at 187. Moreover, Simon had been adopted by the female foster parent and [t]he purpose of an adoption decree is to vest all legal parental rights with the adoptive parent or parents, to the exclusion of all others. Osterkamp, 235 P.3d at 187.
¶ 35 The reasoning in Osterkamp is unpersuasive as applied to the circumstances presented herein, where the parent-child relationship between Franklin and A.F.J. was initiated and encouraged by Johnston before and beyond the fostering relationship itself and where there is evidence that the relationship between Franklin and A.F.J. was, at its inception, intended to be permanent rather than temporary. Osterkamp notwithstanding, Johnston offers no reason that persuades us to mandate that the period of time during which Franklin was A.F.J.'s foster mother be ignored when analyzing whether Franklin's proof satisfies the five-part test. To be sure, we decline to hold that the time period during which an individual seeking de facto parent status served as a foster parent must always be considered in evaluating the five-part test. Rather, we are persuaded that this time period may be considered where the circumstances of the case warrant such consideration, as is the case herein. This holding does not compel a trial court to find that any particular component of the L.B. test is met but, rather, allows the court to consider all relevant circumstances in determining whether an individual's proof satisfies the de facto parentage test.
¶ 36 We now turn to the question of whether the evidence of Franklin's relationship with A.F.J. satisfies the five-part de facto parentage test.
¶ 37 The first part of the five-part test, that the natural or legal parent consented to and fostered the parent-like relationship, is met. Johnston had a romantic relationship with Franklin, notwithstanding that this relationship was unstable due to Johnston's drug addiction. Johnston renewed her relationship with Franklin upon learning that she was pregnant. Johnston testified that before A.F.J. was born, she had continued reaching out to Franklin because she was nine months pregnant, and ... wanted [Franklin] to be there. Report of Proceedings (March 30, 2009) at 64. Franklin obtained prenatal care and drug addiction treatment for Johnston in order to ensure the child's well-being. Once A.F.J. was born, Franklin took him home from PTS as frequently as she was allowed; indeed, Johnston testified that she had left PTS earlier than recommended because the facility would not allow Franklin to take A.F.J. more often. Johnston and Franklin resided together with A.F.J. after Johnston left PTS. Johnston testified that Franklin was co-parenting A.F.J. before the State intervened. As the trial court found, Johnston requested that Franklin be involved in naming A.F.J., and Franklin participated in the decision to circumcise him. When A.F.J. was removed from Johnston's custody, Johnston requested that A.F.J. be placed with Franklin. At this time, he was only two months old. Johnston continued supporting Franklin's relationship with A.F.J. even after the State became involved, in part because she believed that she and Franklin would stay together. Both before and after the State's involvement and Franklin's status as a foster parent, Johnston encouraged and fostered Franklin's parental role in A.F.J.'s life.
¶ 38 The second part of the test, that the petitioner and the child lived together in the same household, is likewise satisfied. Johnston and A.F.J. lived predominantly with Franklin after Johnston left PTS, prior to the State taking custody of A.F.J. Moreover, after the State filed the dependency action, A.F.J. continued to reside with Franklin, a circumstance that Johnston supported.
¶ 39 The third part of the test, that the petitioner assumed the obligations of parenthood without expectation of financial compensation, is also satisfied. Franklin assumed parental duties before A.F.J. was even born. After A.F.J.'s birth, Franklin continued to fulfill a parental role and maintained her position as the primary wage earner. Rather than expecting financial compensation, she assumed financial obligations. Knowing that Johnston had no employment, Franklin could not have expected that she would be reimbursed for her efforts. Prior to becoming a foster parent, Franklin "expressed the desire to provide long term care for [A.F.J.]." Clerk's Papers (CP) at 927.
¶ 40 Pursuant to the laws in place at the time, Franklin was required to become a foster parent in order to maintain care of A.F.J.
AM. LAW INST., supra, § 2.03, cmt. (c)(ii), at p. 120. The American Law Institute provides two especially useful illustrations. The first illustration describes an ordinary fostering relationship:
AM. LAW INST., supra, § 2.03, cmt. (c)(ii), ill. 19, at p. 121. In contrast, the second illustration describes a more unusual situation that nevertheless involves a fostering relationship:
AM. LAW INST., supra, § 2.03, cmt. (c)(ii), ill. 21, at p. 121. The distinction between these two types of fostering relationships is of significant consequence in determining whether a foster parent can establish de facto parent status.
¶ 41 As evidenced by the circumstances presented herein, Franklin did not assume the obligations of care for A.F.J. with the expectation that she would receive compensation. Prior to becoming licensed as a foster
¶ 42 The fourth part of the test, that 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, is also satisfied. A.F.J. was three and a half years old at the time of trial, and Franklin had parented him since his birth. Proof was abundant that the two are bonded in a parent-child, dependent relationship. As Johnston herself recognizes, Franklin is a parent to A.F.J., and A.F.J. believes Franklin to be one of his mothers. One social worker noted that A.F.J. had "clearly developed a primary attachment to [Franklin] as his parent." CP at 949.
¶ 43 Nevertheless, Johnston contends that, by virtue of the State taking legal custody of A.F.J. when he was only two months old, Franklin cannot have established the requisite parental relationship over a sufficient period of time. We disagree. To begin, there is no time requirement included within the test announced by our Supreme Court.
¶ 44 Franklin also satisfies the fifth part of the test, which requires that the petitioner has fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child's life. The trial court found that Franklin "has been devoted to him and has fully and unequivocally assumed a parental role" and then concluded that "if she does not qualify as a de facto parent under the analysis in [L.B.], then no one would." CP at 711. Johnston contends that Franklin was not properly found to be a de facto parent because the trial court failed to explicitly find that Franklin undertook a permanent parental role. Although the trial court did not utilize each of the words listed in L.B.—permanent, unequivocal, committed, and responsible—the trial court's findings imply, and the evidence presented at trial supports, a determination that Franklin undertook a permanent parental role, acted as a responsible parent, and was fully committed to A.F.J.
¶ 45 Each part of the test that must be met to establish that an individual is a de facto parent is met here. Applying the de facto parentage doctrine to these unusual circumstances does not require us to extend the doctrine beyond its intended scope and does not open the floodgates of de facto parentage claims to those undeserving of such a classification. RCW 13.34.020 declares that "the family unit is a fundamental resource of American life which should be nurtured." Our holding today is consistent with this public policy goal. Recognizing Franklin's relationship with A.F.J. as a de facto parent-child relationship nurtures the family unit that the parties intentionally formed.
¶ 47 The remainder of this opinion has no precedential value. Therefore, it will be filed for public record in accordance with the rules governing unpublished opinions.
We concur: LEACH, A.C.J., and BECKER, J.
The trial record provided to us is incomplete. We have been provided with none of the exhibits admitted at trial. Moreover, we have not been provided with a record of the testimony of numerous witnesses. In such a situation, our ability to fairly evaluate the findings in light of the record before the trial court is compromised. Thus, we treat the findings as verities. See Happy Bunch, LLC v. Grandview N., LLC, 142 Wn.App. 81, 90, 173 P.3d 959 (2007); St. Hilaire v. Food Servs. of Am., Inc., 82 Wn.App. 343, 351-52, 917 P.2d 1114 (1996); Rekhi v. Olason, 28 Wn.App. 751, 753, 626 P.2d 513 (1981); Gaupholm v. Aurora Office Bldgs., Inc., 2 Wn.App. 256, 257, 467 P.2d 628 (1970). This approach to appellate review of trial court factual determinations is one of long standing. See Apostle v. Lillions, 8 Wn.2d 118, 121, 111 P.2d 789 (1941); Deller v. Long, 96 Wn. 372, 373, 165 P. 98 (1917).
Johnston also contends that Franklin cannot properly be found to be A.F.J.'s de facto parent because A.F.J.'s biological father was never notified of the proceedings. However, on July 26, 2007, the unknown father's parental rights were permanently terminated by order of the court after default. Accordingly, A.F.J.'s biological father had no right to be notified of further proceedings.