In re L.J.M.

15 Wash.App.2d 588

476 P.3d 636

In the MATTER OF the Parentage of L.J.M.

No. 53532-7-II

Court of Appeals of Washington, Division 2.

Filed November 24, 2020

Michele Gentry Hinz, Attorney at Law, 33035 52nd Ave. S, Auburn, WA, 98001-3622, Patricia S. Novotny, Zaragoza Novotny PLLC, 3418 Ne 65th St. Ste. A, Seattle, WA, 98115-7397, for Appellant.

Nathan Joseph McAllister (Appearing Pro Se), 3201 36th St. Nw, Gig Harbor, WA, 98335, for Respondent.

PUBLISHED OPINION

Maxa, J. ¶ 1 Philip Bergsieker appeals the trial court's order dismissing his de facto parentage petition regarding his stepson LJM, which was filed under RCW 26.26A.440. Bergsieker's wife and Nathan McAllister are LJM's genetic parents.

¶ 2 RCW 26.26A.440, effective January 1, 2019, provides a means by which a person can petition for de facto parentage status regarding a child despite not being the child's genetic parent. To establish standing to maintain a de facto parentage proceeding, a petitioner must allege facts sufficient to satisfy seven requirements. RCW 26.26A.440(3), (4). The trial court determined that Bergsieker failed to allege sufficient facts to satisfy two of the seven statutory elements.

¶ 3 We conclude that the trial court erred in ruling that (1) Bergsieker did not allege facts sufficient to satisfy the requirement that he had undertaken "permanent" responsibilities as LJM's parent because McAllister was alive, (2) Bergsieker did not allege facts sufficient to satisfy the requirement that he had held out LJM as his child because LJM had a different last name and members of their community are aware of Bergsieker's status as LJM's stepfather, and (3) whether LJM's mother fostered or supported the relationship between Bergsieker and LJM at the expense of McAllister was material to the court's analysis. Accordingly, we reverse the trial court's order dismissing Bergsieker's de facto parentage petition based on standing and remand for the trial court to determine whether Bergsieker actually can demonstrate the statutory elements by a preponderance of the evidence.

FACTS

¶ 4 Bergsieker and Adrianne Bergsieker, LJM's mother, are married and have lived together since early 2015. LJM was born in May 2010. Bergsieker has been a part of LJM's life since July 2014. Bergsieker and Adrianne¹ also have another daughter who was two years old at the time of the petition.

¶ 5 McAllister is LJM's genetic father. Before the petition was filed, McAllister had no physical custody, legal custody, or court-ordered visitation with LJM. He was incarcerated when the petition was filed.

¶ 6 In March 2019, Bergsieker filed a petition for de facto parentage under RCW 26.26A.440. Adrianne joined the petition. The petition alleged detailed facts supporting each of the elements of RCW 26.26A.440(4). The petition also stated Bergsieker's reason for wanting to become LJM's de facto parent:

The petitioner requests that the court make him a third legal parent for [LJM] because the current situation, in which there is no legal connection between [LJM] and his primary father figure, is detrimental to [LJM]. If [LJM's] mother should die or become unable to care for him, the petitioner would have no established legal status to support maintaining continuity in [LJM's] home and family environment. If the petitioner should die or become disabled, [LJM] would not be eligible for any governmental survivor benefits as his child. Although the petitioner is in an everyday parental role, he does not have parental authority to make medical or educational decisions for [LJM]. In these ways and others, failure to recognize the petitioner as [LJM's] legal parent is detrimental to [LJM].

Clerk's Papers (CP) at 21.

¶ 7 McAllister submitted a one-page response letter to the court to express his opposition to the petition.

¶ 8 The trial court reviewed Bergsieker's petition for de facto parentage and McAllister's response. The court entered an order dismissing the petition, finding that Bergsieker had not alleged sufficient facts to meet two of the de facto parentage requirements.

¶ 9 The court entered the following findings regarding the statutory requirements set forth in RCW 26.26A.440(4)(c), (d) and (f) :

(c) The individual undertook full and permanent responsibilities of a parent of the child without expectation of financial compensation

The Court finds the petitioner has undertaken the responsibilities of parenting without expectation of financial compensation since 2014. However, there could be no expectation of permanency on his part as the child's biological father is living.

The Court finds the petitioner has not alleged sufficient facts to meet this requirement.

(d) The individual held out the child as the individual's child

The holding out of a child as one's own, is the critical, primary difference between pre-2019 Washington State case law concerning de facto parentage and the newly enacted RCW 26.26A.[440] (effective January 1, 2019). It is a legal requirement that cannot be waived or minimalized.

The petitioner alleges he has satisfied this requirement because school staff, medical providers, friends and their community look to he [sic] and his wife for parenting decisions concerning the child and have done so since 2014, and the child calls him "Dad." However, the child uses a different last name and school staff, medical providers, friends and their community are all aware of petitioner's role as the child's stepfather. The performance of parenting functions by a stepparent does not satisfy the stringent test of holding a child out as one's own.

The Court finds the petitioner has not alleged sufficient facts to meet this requirement.

....

(f) Another parent of the child fostered or supported the bonded and dependent relationship required under e) of this subsection[.] ...

Although the Court finds the petitioner has alleged sufficient facts to meet this requirement, petitioner's wife, the child's biological mother, fostered or supported the bonded and dependent relationship with the child at the expense of the child's biological Father.

CP at 30-31 (underlining in original, emphasis added).

¶ 10 The trial court concluded that Bergsieker had alleged sufficient facts to satisfy the remaining four requirements of RCW 26.26A.440(4).

¶ 11 Bergsieker appeals the trial court's order dismissing his petition for de facto parentage.

ANALYSIS

A. UPDATED WASHINGTON UNIFORM PARENTAGE ACT

¶ 12 The Supreme Court established a common law de facto parentage doctrine in In re Parentage of L.B. , 155 Wash.2d 679, 122 P.3d 161 (2005). The court noted the lack of an available statutory remedy for persons seeking de facto parentage status under the former version of the Washington Uniform Parentage Act (WUPA), former chapter 26.26 RCW. L.B. , 155 Wash.2d at 707, 122 P.3d 161.

¶ 13 In 2018, the Washington legislature repealed former chapter 26.26 RCW, and enacted an updated version of WUPA, chapter 26.26A RCW. LAWS OF 2018, ch. 6 § 509. Chapter 26.26A RCW went into effect on January 1, 2019. RCW 26.26A.903. The updated WUPA was based on the 2017 version of the Uniform Parentage Act (UPA). In re Parentage of J.D.W. , 14 Wash. App. 2d 388, 397 n.3, 471 P.3d 228 (2020).

¶ 14 The updated WUPA included a section providing a procedure for establishing de facto parentage, RCW 26.26A.440. This section was based on section 609 of the UPA. J.D.W. , 14 Wash. App. 2d at 398, 471 P.3d 228. RCW 26.26A.440 "provides a statutory path to legal parentage for de facto parents, who, loosely speaking, are adults who, with the consent and encouragement of a legal parent, have formed a strong parent-child relationship with a child." J.D.W. , 14 Wash. App. 2d at 398, 471 P.3d 228.

¶ 15 RCW 26.26A.440 outlines the process to petition for de facto parentage. The trial court initially must determine whether the petitioner has standing. RCW 26.26A.440(3). RCW 26.26A.440(3) states, "The following rules govern standing of an individual who claims to be a de facto parent of a child to maintain a proceeding under this section." The petitioner "must file an initial verified pleading alleging specific facts that support the claim to parentage of the child." RCW 26.26A.440(3)(a). Then, an adverse party may file a verified responsive pleading. RCW 26.26A.440(3)(b).

¶ 16 If these pleadings raise "disputed facts material to the issue of standing," the trial court must hold an expedited hearing to resolve the disputed facts. RCW 26.26A.440(3)(c). Otherwise, "the court shall determine, based on the pleadings under (a) and (b) of this subsection, whether the individual has alleged facts sufficient to satisfy by a preponderance of the evidence the requirements of subsection (4)(a) through (g) of this section." RCW 26.26A.440(3)(c).

¶ 17 RCW 26.26A.440(4) states the seven statutory requirements for de facto parentage referenced in RCW 26.26A.440(3)(c) :

(a) The individual resided with the child as a regular member of the child's household for a significant period;

(b) The individual engaged in consistent caretaking of the child;

(c) The individual undertook full and permanent responsibilities of a parent of the child without expectation of financial compensation;

(d) The individual held out the child as the individual's child;

(e) The individual established a bonded and dependent relationship with the child which is parental in nature;

(f) Another parent of the child fostered or supported the bonded and dependent relationship required under (e) of this subsection; and

(g) Continuing the relationship between the individual and the child is in the best interest of the child.

If the court finds that the petitioner has alleged sufficient facts which, if proved, would satisfy these statutory requirements, the petitioner has standing to maintain a de facto parentage proceeding. RCW 26.26A.440(3)(c).²

¶ 18 If the trial court concludes that standing has been established, the final step is the actual adjudication of the de facto parentage petition. RCW 26.26A.440(4) states:...