FILED NOVEMBER 2, 2021 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
LANA WALKER, ) ) No. 37690-7-III Appellant, ) ) v. ) ) WARREN RILEY, ) PUBLISHED OPINION TOSCANINI BIRCH,† ) ) Respondents. )
STAAB, J. — After taking care of her granddaughter, E.L. for 13 years, Lana
Walker filed a petition for de facto parentage. Walker’s daughter, Toscanini Birch,
E.L.’s mother, disputed the petition. A superior court commissioner found that Walker
did not have standing to pursue a de facto parentage petition because she does not hold
E.L. out as her own daughter and dismissed the de facto parenting petition. Walker
appeals. In response, Birch contends that the commissioner’s ruling was correct, and in
the alternative, argues that Walker also failed to prove that she (Birch) consented to a
parent-like relationship between Walker and E.L.
† Formally known as Wojnas. No. 37690-7-III Walker v. Riley, et al
We reverse the commissioner’s order dismissing Walker’s petition for de facto
parentage. In doing so, we adopt the decision by Division Two in In re Parentage of
L.J.M., 15 Wn. App. 2d 588, 476 P.3d 636 (2020), and hold that standing for purposes of
a de facto parentage requires a petition to set forth facts sufficient to prove each element
of de facto parentage. Any dispute of the facts necessary to demonstrate standing will be
resolved at an expedited hearing.
In this case, Birch disputes whether Walker met her burden of proving the factors
of “holding out” and consent. We conclude that the element of “holding out” a child as
one’s own does not require a petitioner to claim that they are a biological parent. Instead,
it requires the petitioner to prove that she held herself out to the public in a parental
capacity as opposed to a caretaker. Finally, we conclude that when a legal parent, who
was then capable of parenting, voluntarily chooses to absent herself from the child’s life
while the child is in the petitioner’s sole custody, she necessarily consents to and fosters
the parent-like relationship between the petitioner and the child. We remand for the court
to determine if Walker can meet her burden of proving standing in light of these
definitions.
FACTS
E.L. is 14 years old. Lana Walker is E.L.’s maternal grandmother. E.L. has lived
with her grandmother since she was approximately three months old. In support of her
petition for de facto parentage, Walker alleged that in October 2007, Birch consented to a
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court order granting nonparental custody of E.L. to Walker. E.L.’s father failed to appear
at the adjudication of custody as well as subsequent hearings. Under the final parenting
plan, Birch was granted supervised visits with E.L.
On March 23, 2018, 11 years later, Birch filed a petition for modification
requesting E.L. reside with her primarily and have visitation with Walker every other
weekend. In her petition for modification, Birch stated she had been sober for six years,
completed two years of outpatient training, taken parenting classes, and earned her
bachelor’s degree. A superior court commissioner found adequate cause to modify the
final parenting plan. A guardian ad litem was appointed. In 2019, Birch’s motion for a
temporary parenting plan was granted, allowing her to have visitation every other
weekend and phone communication every Tuesday. E.L. continues to live with her
grandmother who cares for her medical, educational, and emotional needs.
On March 17, 2020, Walker filed a motion to establish de facto parentage. She
explained that E.L. had lived with her since E.L. was three months old. Since that time,
Walker has performed all parenting duties of the child, including attending medical
appointments, parent-teacher conferences, extra-curricular activities, and church
performances. Walker calls E.L. her daughter, and E.L. refers to her as “mom.”
Additionally, E.L. gives Walker Mother’s Day cards. Walker said from the time E.L.
was about three months old until she was about nine years old, Birch’s visits with E.L.
were sporadic and short. When E.L. was about nine years old, Birch started showing
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more interest in E.L. and would sometimes meet her at a park or at E.L.’s grandfather’s
house. However, her visits remained inconsistent, and she did not show up to many of
E.L.’s events.
Birch opposed Walker’s petition for de facto parentage. She disputed Walker’s
claim of a bonded relationship with E.L., asserting that Walker was simply a caregiver.
Birch argued that she did not consent to the relationship between E.L. and Walker, and
has been fighting for more than two years to regain custody
In her reply, Walker pointed out that Birch waited six years from when she
became sober to seek custody of E.L. During that time, she received post-secondary
education, obtained a stable job, found a home, and was married. Walker argued that by
failing to seek custody during that time, Birch consented to and fostered a parent-like
relationship between Walker and E.L. Although Walker admits that she did not tell
people that E.L. was her daughter, her actions were consistent with that of a parent, and
she held out E.L. as her child.
An adequate cause hearing occurred on June 2, 2020, before a superior court
commissioner. The commissioner determined that each of the seven statutory factors
must be demonstrated for a petitioner to have standing. The commissioner found that
Walker failed to establish all the factors outlined in RCW 26.26A.440(4) because Walker
“has not held out the child as the Petitioner’s child.” Clerk’s Papers (CP) at 72.
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Walker filed a motion for revision. The motion for revision was denied. The
decision was then timely appealed to this court.
ANALYSIS
The parties dispute whether Walker has proved facts sufficient to establish
standing to bring a de facto parentage action under RCW 26.26A.440. The issues raised
in this appeal require us to interpret the statute on de facto parentage. We apply a de
novo standard of review when interpreting statutes, with the primary goal of determining
the legislative intent. In re Parentage of J.D.W., 14 Wn. App. 2d 388, 396, 471 P.3d 228
(2020). Our first step is to consider the statute’s plain language, along with the context of
the statutory scheme as a whole. Id. at 397. When a statute such as this has been
modeled after a “uniform act that (1) was promulgated by the Uniform Law Commission
(ULC) and (2) mandates that consideration be given to the need to promote uniformity
among the states that enact it, we may look to the ULC’s official comments to construe
the statute even when it is not ambiguous.” Id. at 397 (footnote and citations omitted).
De facto parentage was created by common law to provide a path to parentage for
individuals who formed a strong parent-child relationship with a child. In re Parentage
of L.B., 155 Wn.2d 679, 122 P.3d 161 (2005). In doing so, the court recognized the
changing demographics of an average American family. Id. at 707. The court set forth
factors for establishing the status as a common law de facto parent but expressly limited
the status to “‘those adults who have fully and completely undertaken a permanent,
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unequivocal, committed, and responsible parental role in the child’s life.’” Id. at 708
(quoting C.E.W. v. D.E.W., 2004 ME 43, 845 A.2d 1146, 1152 (2004)).
Effective January 2019, the Washington State Legislature codified de facto
parentage, RCW 26.26A.440, adopting language from the Uniform Parentage Act of
2017, 9B U.L.A. 37 (2019). This provision allows for parental rights to be established by
adjudication. Similar to the common law pronouncement, the purpose of the statute is to
“‘ensure[ ] that individuals who form strong parent-child bonds with children with the
consent and encouragement of the child’s legal parent are not excluded from a
determination of parentage simply because they entered the child’s life sometime after
the child’s birth.’” J.D.W., 14 Wn. App. 2d at 404 (quoting UNIF. PARENTAGE ACT
(2017) § 609 cmt., 9B U.L.A. 80-81 (2019)). The Washington statute provides for the
establishment of de facto parentage by a nonparent when statutory requirements are met.
RCW 26.26A.440. A petitioner seeking de facto parentage status must initially meet the
requirements for standing. If the petition survives the initial determination of standing,
the petitioner must prove seven factors by a preponderance of the evidence in order to be
declared a de facto parent.
1. PROCEDURE FOR PROVING STANDING
Initially, we must decide what factors a petitioner must prove in order to establish
standing. The standing requirements are vaguely set forth in RCW 26.26A.440(3). This
section provides:
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(3) 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: (a) The individual must file an initial verified pleading alleging specific facts that support the claim to parentage of the child asserted under this section. The verified pleading must be served on all parents and legal guardians of the child and any other party to the proceeding. (b) An adverse party, parent, or legal guardian may file a pleading in response to the pleading filed under (a) of this subsection. A responsive pleading must be verified and must be served on parties to the proceeding. (c) Unless the court finds a hearing is necessary to determine disputed facts material to the issue of standing, 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. If the court holds a hearing under this subsection, the hearing must be held on an expedited basis.
RCW 26.26A.440 (emphasis added).
The seven factors that a petitioner must prove for final determination of de facto
parentage are set forth in subsections (4)(a) through (g) of the same statute:
In a proceeding to adjudicate parentage of an individual who claims to be a de facto parent of the child, the court shall adjudicate the individual who claims to be a de facto parent to be a parent of the child if the individual demonstrates by a preponderance of the evidence that: (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
7 No. 37690-7-III Walker v. Riley, et al
(g) Continuing the relationship between the individual and the child is in the best interest of the child.
RCW 26.26A.440.
The requirements for standing under RCW 26.26A.440(3) are ambiguous. Under
subsection (3)(a), the verified petition must include facts to support the claim to
parentage. If the responsive pleading raises disputed facts “material to the issue of
standing,” then the court determines if the petitioner has “alleged” facts sufficient to
satisfy by a preponderance of the evidence the seven factors set forth in subsection (4).
The statute does not clarify whether “facts material to the issue of standing” are the same
facts required to prove de facto parentage. RCW 26.26A.440(3)(c).
This issue was recently addressed in J.D.W. where Division One of this court
considered the factors necessary to find standing. The court noted that standing was a
threshold matter that the trial court must determine based on the initial pleadings. 14 Wn.
App. 2d at 399. To be legally sufficient, the initial pleading must allege facts sufficient
to satisfy each of the seven elements of de facto parentage regardless of whether there are
disputed facts. Id. at 400. But when facts are disputed, the court need only decide facts
that are material to the issue of standing.
In deciding which facts were material to a determination of standing, the court
rejected the respondent’s argument that standing required the petitioner to prove each of
the seven elements by a preponderance of the evidence. Such a reading would render the
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statute redundant and fails to recognize the distinction between the seven factors listed in
subsection (4) and the term “facts material to the issue of standing” used in subsection
(3). Id. at 402-04. On the other hand, the court also rejected the petitioner’s argument
that standing only required allegations sufficient to support each element without proving
any element. Such an interpretation would render meaningless that portion of subsection
(3)(c) that requires disputed facts to be determined at an expedited hearing. Id. at 402.
Instead, the court concluded that facts material to standing required the petitioner
to make a threshold showing “that he or she unequivocally parented the child as part of
the child’s family unit and that a legal parent consented to and fostered a parent-child
relationship between the petitioner and the child.” Id. at 409. These two factors balanced
the concerns recognized by our Supreme Court in L.B. of protecting a parent’s
constitutionally protected interest in the care and custody of their children while
preserving the child’s interest in maintaining relationships with those who have
unequivocally parented them. Id.
Three months later, Division Two similarly held that the preliminary finding of
standing for a de facto parentage action requires the court to determine whether the
petition sets forth sufficient facts to support each of the seven statutory elements. In re
Parentage of L.J.M., 15 Wn. App. 2d at 596. This threshold review assumes the truth of
the petition “unless there are disputed facts material to the issue of standing.” Id. at 596-
97. While citing Division One’s decision in J.D.W., the court in L.J.M. did not adopt
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J.D.W.’s holding. Instead, the court found that a petition meets the requirement for
standing by alleging facts sufficient to demonstrate each of the seven statutory elements.
Id. at 594. If the pleadings raise disputed facts material to the issue of standing, the
dispute is resolved at an expedited hearing. Id.
As the analysis in J.D.W. and L.J.M. suggests, the statutory requirements to prove
standing in a de facto parentage are ambiguous. We note that the Washington statute on
standing differs from the uniform act in one significant manner. The comments to the
uniform act note that the petitioner must prove the statutory requirements by a
preponderance of the evidence at the preliminary standing stage. See 9B U.L.A. at 80-81.
But at the final hearing, the uniform act requires the petitioner to prove the seven factors
by “clear-and-convincing evidence.” Id. While the uniform act requires proof of all
seven factors at both hearings, the burden of proof at each hearing is different.
On the other hand, the Washington statute is different from the uniform act
because it only requires proof at the final hearing by a preponderance of the evidence.
RCW 26.26A.440(4). Our state legislators have created a redundancy by lowering the
burden of proof at the final hearing without addressing the necessary proof at the
preliminary standing hearing. It is not clear whether this was intentional. However, it is
clear that the uniform act intended all seven factors to be proved at each hearing.
We must decide whether to follow the holding in J.D.W. or L.J.M., or devise a
third standard for determining standing. While we recognize that the holding in J.D.W. is
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a more nuanced approach to the issue of standing, we conclude that the holding in L.J.M.
comports with the language of the statute and the legislative intent. Thus, we adopt the
decision of L.J.M. and hold that the petition must allege facts sufficient to demonstrate
each of the seven statutory factors. If the petitioner’s allegations are legally insufficient
to demonstrate standing, the petition shall be dismissed. Any disputed factors must be
proved at an expedited hearing.
2. “HOLDING OUT” A CHILD AS ONE’S OWN.
In this case, the superior court commissioner denied Walker’s petition at the
preliminary standing hearing after finding that Walker failed to present evidence that she
held E.L out as her own child. Since this is one of the seven factors set forth in RCW
26.26A.440(4), and since E.L.’s mother contested this factor, Walker was required to
prove this factor by a preponderance of the evidence. The commissioner found that
Walker’s evidence was insufficient because she never claimed that E.L. was her
biological child. On appeal, Ms. Walker contends that holding a child out as one’s own
does not require a petitioner to lie. Instead, she maintains that “holding out” requires the
petitioner to perform all of the functions of a parent that would distinguish the petitioner
from a nonparent caregiver. The term’s meaning and definition is a question of statutory
interpretation that we review de novo. J.D.W., 14 Wn. App. 2d at 396. Our primary goal
is to determine the legislative intent. Id. at 396-97.
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The term “holding out” is not defined by statute. The parties do not suggest a
working definition of the term. While Birch argues that the term should be given a literal
and narrow reading, Walker suggests that we apply a fluid definition that considers the
unique circumstances of each case. Neither proposal promotes the purpose of the statute
while providing consistent application.
A few of our prior decisions have found evidence of holding out without defining
the term. In L.J.M., the trial court found the allegations deficient because the petitioner
was the child’s step-father. The trial court had concluded that performing parenting
functions as a stepparent does not constitute holding a child out as one’s own. On appeal,
the L.J.M. court rejected this conclusion, noting that nothing in the statute’s language
requires the petitioner to hold the child out as their genetic child. L.J.M., 15 Wn. App. 2d
at 600. The trial court’s overly narrow definition of “holding out” “would preclude
almost all stepparents from attaining de facto parent status unless the stepparent falsely
claimed that they were “the biological parent. Such a result would be inconsistent with
the purpose of RCW 26.26A.440.” Id. Instead, the requirement to hold oneself out as a
parent can be satisfied “even if it is known that the petitioner is the child’s stepparent.”
Id. at 601.
In J.D.W., the court recognized that a preliminary finding of standing will include
“whether the petitioner held the child out as his or her own (so as to rule out relationships
that are not parental in nature).” J.D.W., 14 Wn. App. 2d at 413. The court went on to
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find standing because the petitioner unequivocally parented the child as part of the child’s
family unit. Id.
While the statutory element of “holding out” was not one of the common law
elements of de facto parenting established by our Supreme Court in L.B., the court did
find that “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., 155 Wn.2d at 708 (quoting C.E.W., 845 A.2d at 1152).
Similarly, the comment to the Uniform Parentage Act, § 609 comment clarifies the
purpose of the statutory language:
Under this new section, an individual who has functioned as a child’s parent for a significant period such that the individual formed a bonded and dependent parent-child relationship may be recognized as a legal parent. This provision ensures that individuals who form strong parent-child bonds with children with the consent and encouragement of the child’s legal parent are not excluded from a determination of parentage simply because they entered the child’s life sometime after the child’s birth.
9B U.L.A. at 80-81.
With this statutory intent in mind, and without adopting an exclusive definition of
the term, we conclude that holding a child out as one’s own is to assert a status as a
parent or parent-like as opposed to a caretaker. Whereas a person who holds themselves
out as a parent will make major decisions for a child, such as education, extra-curricular
activities, religion, health care, and residence, a caretaker will not. Holding a child out as
one’s own does not require a petitioner to lie and claim a biological connection to the
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child. Instead, it requires that one holds themself out as a person responsible for
parenting the child.
In this case, the commissioner found that Walker did not hold herself out as E.L.’s
parent because she did not tell others that she was E.L.’s parent. Similar to the trial
court’s decision in L.J.W., the commissioner in this case applied an overly narrow
definition of “holding out” that does not promote the statutory purpose. The statute,
which contemplates that a person may become a de facto parent even if they enter the
child’s life after the child is born, does not require a petitioner to lie and claim to be a
biological parent. Walker can meet the requirement of “holding out” even if it is known
that she is not the child’s parent.
3. CONSENT TO A PARENT-LIKE RELATIONSHIP WITH CHILD
As an alternative basis for affirming the dismissal on appeal, Birch contends that
Walker failed to prove consent. Birch argues that she did not consent to or foster a
parent-like relationship between Walker and E.L. The commissioner did not enter
findings on this factor.
To prove standing, the petitioner must demonstrate that “[a]nother parent of the
child fostered or supported the bonded and dependent relationship required under (e) of
this subsection.” RCW 26.26A.440(4)(f). This requirement saves the de facto parenting
statute from infringing on the constitutional rights of parents.
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in contrast to [Petitioner’s] fears that “teachers, nannies, parents of best friends, . . . adult siblings, aunts, [ ] grandparents,” and every “third-party . . . caregiver” will now become de facto parents, Pet. for Review at 12, 15, attaining such recognition should be no easy task. Critical to our constitutional analysis here, a threshold requirement for the status of the de facto parent is a showing that the legal parent “consented to and fostered” the parent-child relationship. . . . The State is not interfering on behalf of a third party in an insular family unit but is enforcing the rights and obligations of parenthood that attach to de facto parents; a status that can be achieved only through the active encouragement of the biological or adoptive parent by affirmatively establishing a family unit with the de facto parent and child or children that accompany the family. In sum, we find that the rights and responsibilities which we recognize as attaching to de facto parents do not infringe on the fundamental liberty interests of the other legal parent in the family unit.
L.B., 155 Wn.2d at 712 (footnote and citations omitted); see also In re Custody of
B.M.H., 179 Wn.2d 224, 241, 315 P.3d 470 (2013) (“The de facto parentage doctrine
incorporates constitutionally required deference to parents by requiring that the biological
or legal parent consent to and foster the parent-like relationship.”).
In this case, Birch argues that she did not consent to Walker’s parent-like
relationship with E.L. Instead, she contends that Walker became E.L.’s legal guardian
through court intervention. Birch argues that guardian actions cannot form the basis for
consent since they are not intended to permanently deprive a parent of the care and
custody of the child. Instead, such actions are intended to confer temporary status on the
guardian because the child has no suitable legal parent. While Birch is correct about the
temporary status of legal guardians, the Supreme Court has previously found that
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similarly situated foster parents can qualify as de facto parents if they meet all of the
requirements. In re Custody of A.F.J., 179 Wn.2d 179, 188, 314 P.3d 373 (2013).
In this case, Walker contends that not only did Birch initially consent to the
guardianship arrangement, but after Birch became capable of parenting, it took another
six years before she took steps to end the guardianship and regain custody of E.L. During
the time that Birch was capable of parenting but chose not to, Walker performed all of the
functions of a parent and E.L. remained in Walker’s sole custody.
We hold that if true, these allegations would be legally sufficient to prove consent
under the de facto parenting statute. Like the court’s holding in A.F.J., Walker’s status as
E.L.’s guardian does not preclude her from being declared E.L.’s de facto parent. If
Birch resolved her disabling condition but chose not to re-engage with the child, her
inaction necessarily fostered the continuing parent-like relationship between E.L. and
Walker. See In re Parentage of J.B.R., 184 Wn. App. 203, 213, 336 P.3d 648 (2014)
(noncustodial parent who voluntarily absents himself from child’s life consents and
fosters a parent-like relationship between his child and the petitioner).
We reverse the superior court’s order dismissing Walker’s petition for de facto
parentage and remand for a hearing to determine if Walker meets her burden of proving
all seven factors necessary to show standing. At this hearing, the court can apply the
procedure and definitions we set forth above. We deny Birch’s request for attorney fees
16 No. 37690-7-III Walker v. Riley, et al
as she has failed to devote a section in her brief sufficient to justify an award of fees
under RCW 26.26A.510 or RAP 18.1(b).
_________________________________ Staab, J.
WE CONCUR:
_________________________________ Fearing, J.
_________________________________ Lawrence-Berrey, J.