Interesting reading (not that you have time for it)

[4honor]

Here is the link to a dissenting opinion on the WA Courts regarding

defacto parents rights vs bio parental rights ( aka Troxel & Smith)

http://www.courts.wa.gov/opinions/?fa=opinions.opindisp&docid=756261DI1

thought you might like to see what's going on in WA state that will have ripples everywhere.

[socrateaser]

.

[4honor]

Supreme Court of the State of Washington

                            Opinion Information Sheet

Docket Number:       75626-1
Title of Case:       In re the Parentage of: L.B.;
                     Sue Ellen ("Mian") Carvin v. Page Britain
File Date:           11/03/2005
Oral Argument Date:  02/15/2005


                                SOURCE OF APPEAL
                                ----------------
Appeal from Superior Court,
            County
            Honorable Michael J Trickey


                                    JUSTICES
                                    --------
Authored by Bobbe J Bridge
Concurring: Barbara A. Madsen
            Charles W. Johnson
            Gerry L Alexander
            Susan Owens
            Tom Chambers
            Mary Fairhurst
Dissenting: James Johnson
            Richard B. Sanders


                                COUNSEL OF RECORD
                                -----------------
Counsel for Petitioner(s)
            Brian Haig Krikorian
            Attorney at Law
            999 3rd Ave Ste 3210
            Seattle, WA  98104-4049

            Erica Krikorian
            Attorney at Law
            999 3rd Ave Ste 3210
            Seattle, WA  98104-4049

Counsel for Respondent(s)
            Janet Marie Helson
            Skellenger Bender PS
            1301 5th Ave Ste 3401
            Seattle, WA  98101-2605

            Patricia S. Novotny
            Attorney at Law
            3418 NE 65th St Ste a
            Seattle, WA  98115-7397

            Nancy Lynn Sapiro
            Northwest Women's Law Ctr
            3161 Elliott Ave Ste 101
            Seattle, WA  98121-1016

Counsel for Guardian(s) Ad Litem
            Matthew Jolly
            Attorney at Law
            10500 NE 8th St Ste 660
            Bellevue, WA  98004-4365

Amicus Curiae on behalf of Lesbian & Gay Rights Project of the ACLU
            Aaron Hugh Caplan
            Attorney at Law
            Aclu of Washington
            705 2nd Ave Ste 300
            Seattle, WA  98104-1799

            Leslie Cooper
            ACLU - Lesbian and Gay Rights Proj
            125 Broad Street, 18th Floor
            New York, NY  10004

Amicus Curiae on behalf of American Civil Liberties Union of WA
            Aaron Hugh Caplan
            Attorney at Law
            Aclu of Washington
            705 2nd Ave Ste 300
            Seattle, WA  98104-1799

            Leslie Cooper
            ACLU - Lesbian and Gay Rights Proj
            125 Broad Street, 18th Floor
            New York, NY  10004

Amicus Curiae on behalf of Natl Center for Lesbian Rights & Children of Lesbians
            Kristin Johanna Boraas
            Preston Gates & Ellis LLP
            925 4th Ave Ste 2900
            Seattle, WA  98104-1158

            Laura Kristine Clinton
            Preston Gates & Ellis LLP
            925 4th Ave Ste 2900
            Seattle, WA  98104-1158

            Courtney Joslin
            National Center for Lesbian Rights
            870 Market St., #570
            San Francisco, CA  94102

            Shannon Minter
            National Center for Lesbian Rights
            870 Market St., #570
            San Francisco, CA  94102

            Jamie D. Pedersen
            Preston Gates & Ellis LLP
            925 4th Ave Ste 2900
            Seattle, WA  98104-1158

            Jennifer C Pizer
            Lambda Legal Defense & Education Fund
            3325 Wilshire Blvd.
            Suite 1300
            Los Angeles, CA  90010-1729

Amicus Curiae on behalf of Justice for Children Project
            Lisa Kay Barton
            O'Brien Law Firm PLLP
            175 NE Gilman Blvd Ste 100
            Issaquah, WA  98027-2904

            Katherine Federle
            Ohio St.  Michael Moritz College of Law
            55 W. 12th Avenue
            Columbus, OH  43201

            Katherine Hunt Federle
            Attorney at Law
            Ohio State Uni Col of Law #255
            55 W 12th Ave
            Columbus, OH  43210-1338

            Angela Lloyd
            Ohio St.  Michael Moritz College of Law
            55 W. 12th Avenue
            Columbus, OH  43201

Amicus Curiae on behalf of American Academy of Matrimonial Lawyers
            H. Michael Fields
            Attorney at Law
            207 E Edgar St
            Seattle, WA  98102-3108

Amicus Curiae on behalf of WASHINGTON STATE COURT APPOINTED SPECIAL
            Lorraine Alicia Rimson
            Attorney at Law
            1904 3rd Ave Ste 1030
            Seattle, WA  98101-1170

Amicus Curiae on behalf of children of lesbians & gays
            Lorraine Alicia Rimson
            Attorney at Law
            1904 3rd Ave Ste 1030
            Seattle, WA  98101-1170

Amicus Curiae on behalf of AMARA PARENTING AND ADOPTION SERVICES
            Lorraine Alicia Rimson
            Attorney at Law
            1904 3rd Ave Ste 1030
            Seattle, WA  98101-1170

No. 75626-1
J.M. JOHNSON, J. (dissenting)  --  I disagree with the majority's
resolution of this case and am saddened by the impact caused by this
judicial rewrite of our parentage laws on this child -- poor little L.B.
At the outset, I note that the sexual orientation history of the parties in
this case should be irrelevant under the straightforward analysis the
statute and constitution require.1  Regardless of the various sexual
orientation claims, the outcome must be that a mother has a fundamental right to make decisions for her child.  The Washington Uniform Parentage Act (UPA), chapter 26.26 RCW, requires the same analysis and conclusion as do the state and federal constitutions: L.B.'s mother, Page Britain, is fit (no contrary allegation has been made), and therefore the courts must presume that she acts in her child's best interests.

Under the majority's holding, the parties in this case will return to the
trial court for a determination of whether Sue Ellen ('Mian') Carvin, the
claimant, is a 'de facto' parent -- even though she is not a parent under
any reading of our constitution or statute.2  If or when the court below
decides she is a 'de facto' parent, Carvin will magically obtain the
fundamental rights of a parent -- rights equal to those of L.B.'s
biological and legal mother, Britain.  Unfortunately, the court will then
likely divide custody on some unspecified basis.

This outcome is unconstitutional and in derogation of rights of the mother
because it interferes with an admittedly fit parent's fundamental right to
make child rearing decisions.  See Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000); see also In re Parentage of C.A.M.A., 154 Wn.2d 52, 109 P.3d 405 (2005); In re Custody of Smith, 137 Wn.2d 1, 969 P.2d 21 (1998).

It will be shown below that this 'de facto' claimant meets none of the
qualifications of a parent under the UPA.  Further indicative of Carvin's
motives here, her counsel admitted at argument that Carvin has not
contributed to L.B.'s support since this litigation began.  Wash. State
Supreme Court 17:34, 18:32 (Feb. 15, 2005), audio recording by TVW,
Washington State's Public Affairs Network, available at  http://www.tvw.org.

Instead of helping support L.B., she has chosen to engage in protracted
litigation that is costly, financially and emotionally -- undoubtedly
causing agonizing stress on little L.B., who has become a battleground for this interpersonal and political debate.3

The majority purports to dispose of the constitutional issue raised in
Troxel and Smith by waving a magic wand and creating 'de facto' parents:
'(o)ur common law recognition of another class of 'parents' eradicates the parent/nonparent dichotomy that was the crux of both the Smith and Troxel opinions.'  Majority at 38.  However, it is this court's creation of this new class of parents that is the constitutional violation (and the court
has no power to 'eradicate the parent/nonparent dichotomy' which has
existed as long as there have been families).  In this case there is a
real, fit, actual, biological parent whose fundamental interest in the
care, custody, and raising of her child is infringed by the majority's
elevating of a nonparent to 'de facto' parental status.

This is a constitutional matter.  The United States Supreme Court found in Troxel that the Washington trial court had erred when it failed to apply
the constitutionally required presumption that a fit parent acts in the
child's best interests (and thus failed to require proof that the parent
was unfit before making a custody determination against the parent's
wishes).  Troxel, 530 U.S. at 68-69.  Moreover, the Troxel trial court
presumption, reflecting Washington's nonparental visitation statute then in effect, failed to protect the mother's fundamental constitutional right to
make decisions concerning the rearing of her own daughter.4  Id. at 70.
(The Troxel decision also predicts the fate of the majority's 'de facto'
parent ruling when reviewed by that court.)

Here, the majority errs, as the Washington statute and trial court did in
Troxel, by allowing a court to assume that it is in a child's interests to
continue a relationship with a nonparent over objection of the legitimate
parent.  Second, the majority's ruling fails to provide any protection for
Britain's fundamental constitutional right as a fit mother to make
decisions concerning the upbringing of her own daughter.

Worse, in my view, the majority here looks beyond a detailed and complete statutory scheme adopted by the Washington legislature and creates by judicial decree a new method for determining parentage.  The UPA, adopted by many states, is avowedly intended to provide the exclusive remedy for determining parentage as it 'governs every determination of parentage in this state.'  RCW 26.26.021(1).

An unambiguous statute is not subject to judicial construction.  Wash.
State Coalition for the Homeless v. Dep't of Soc. & Health Servs., 133
Wn.2d 894, 904, 949 P.2d 1291 (1997).  Instead, a court must ascertain and give effect to the intent and purpose of the legislature.  Id.

Additionally, separation of powers requires a court to resist the
temptation to rewrite an unambiguous statute to suit its notions of public
policy and to recognize that ''the drafting of a statute is a legislative,
not a judicial, function.''  State v. Jackson, 137 Wn.2d 712, 725, 976 P.2d
1229 (1999) (quoting State v. Enloe, 47 Wn. App. 165, 170, 734 P.2d 520
(1987)).

Here, the UPA unambiguously defines a 'parent.'  A parent is 'an individual who has established a parent-child relationship under RCW 26.26.101.'  RCW 26.26.011(12).  A mother-child relationship is established in five situations: (1) when a woman gives birth to a child, (2) through an adjudication of maternity, (3) through adoption, (4) by a surrogate parentage contract, or (5) by an affidavit and physician's certificate stating a person's intent to be bound as a parent of a child born through alternative reproductive medical technology.  RCW 26.26.101.5

Britain qualifies under RCW 26.26.101(1)(a) -- incorporating the
preexisting definition of parent -- as she is the birth mother of L.B. 6
Carvin does not qualify under any section.7  This should end the analysis.

The statute does contemplate various other ways in which a person may
establish a true parent relationship.  Absent from these definitions of
parent, which the legislature intended as exclusive, is any mention of a
'de facto' parent or any provision that Carvin fits.

The statute's extensive detail and forethought is evidence that the
legislature included relationships that it intended to include and excluded
all other relationships.  The statute is complete and legislatively
intended as exclusive.  Nowhere in the text of the UPA or other chapters of the RCW is the term 'de facto parent' or 'psychological parent' mentioned.

The majority improperly concludes that the legislature's failure to speak
is somehow an invitation for this court to add further definitions or
provisions to a statute that is clear, unambiguous, and all encompassing.8

The majority's conclusion is wrong on the facts and violates our long-
standing rules of statutory construction.

That the legislature neither intended a 'de facto' parent nor intended the
courts to provide such cause of action is evidenced by the legislative
determination not to create such a status or cause of action following the
Court of Appeals decision in State ex rel. D.R.M. v. Wood, 109 Wn. App.
182, 34 P.3d 887 (2001) (State petitioned to impose child support on former same-sex partner of woman who conceived a child through artificial insemination while the women were a couple).  That case involved a different issue than the present case -- child support obligation, not parentage was before the court.  However, the fact pattern served to alert the legislature of the situation that arises when an unmarried couple (sexual orientation irrelevant) conceive through artificial insemination and later cease to be a couple.  Were this situation not already considered by the legislature, the Court of Appeals' decision specifically alerted the legislature.  See id. at 195.  The court stated: 'If the marriage statute, adoption statute, UPA presumptions or surrogacy statute are inadequate when an unmarried couple, same gender or not, conceive artificially, it is up to the Legislature to make any changes.'  Id. (emphasis added).

The legislature chose not to amend the UPA and not to create a 'de facto'
parent.  The legislature has spoken.  'When the legislature has assumed to speak upon a given subject, courts must take its expression as it is, and if it be certain in its terms, there is no reason for speculation as to its reasons, nor warrant for adding anything to meet a given case.'  In re
Estate of Adler, 52 Wash. 539, 547, 100 P. 1019 (1909).  As the UPA is the exclusive method for determining parentage, the majority errs by finding a court power to legislate further (and to legislate inconsistently).
I also find the majority's decision in this case inconsistent with another
recent case.  This court declined to reach the issue of 'de facto'
parentage, although the petitioner argued the issue in her supplemental
brief, in the case of In re Custody of Brown, 153 Wn.2d 646, 651 n.3, 105 P.3d 991 (2005).  In Brown, petitioner Gail Luby -- the paternal
grandmother of minor child S.H.B. -- filed a nonparental custody petition
and argued that she should be afforded the rights of a parent under the
similar doctrine she labeled 'in loco parentis.'  Id. at 652.  The facts
established that S.H.B. was two years old when her parents (who had drug problems) left her in the care of Luby.  Id. at 648-49.  Luby then lived with and cared for S.H.B. for the next six years.  Id.  Applying Luby's facts to the majority's new test for 'de facto' parent, Luby would qualify.

From the facts of that case it appears that (1) S.H.B.'s natural parents
consented to and fostered the parent-like relationship; (2) Luby and S.H.B. lived together in the same household; (3) Luby assumed obligations of parenthood, including support, without expectation of financial compensation; and (4) Luby was in a parental role for a length of time sufficient to have established with the child a bonded, dependent
relationship, parental in nature.  See id. at 648-49.  Despite these facts,
this court did not reach or create the 'de facto' parent analysis or
rewrite the statute.

Luby's claim is far better than Carvin's in many respects.  L.B. never
lived separately with Carvin.  Moreover, the record is unclear regarding
Carvin's contributions to the financial support of L.B.; she admitted no
contribution in the years since the litigation commenced.  Wash. State
Supreme Court 17:34, 18:32 (Feb. 15, 2005), audio recording by TVW,
Washington State's Public Affairs Network, available at http://www.tvw.org.

Luby's story was less persuasive in other respects -- she had been arrested and pleaded guilty to drug charges (marijuana).  Brown, 153 Wn.2d at 649-50.  This fact (and others) made it evident that it may not have been in S.H.B.'s best interests to stay with Luby.  However, such facts are irrelevant to a determination of a 'de facto' parent under the majority's new test.  That the court chose not to address 'de facto' parentage with Luby is evidence that the majority's decision today is crafted to suit these facts and current notions of political correctness.  It is doubly unfortunate that this court, and the court below, has determined to pursue such ad hoc decision making with respect to poor little L.B. -- a most vulnerable subject.

Also unfortunate in this case is the majority's usurpation of the
legislature's role in government.  The majority claims that 'Washington
courts have not hesitated to exercise their common law equitable powers to award custody of minor children.'  Majority at 21.  However, to do so in this case was improper as the majority goes against the express intent of the legislature.  See infra pp. 3-6.

Previously, this court has properly declined to look beyond the statutory
enactments of the parentage act to create the interests of a 'psychological parent.'  See In re Dependency of J.H., 117 Wn.2d 460, 476, 815 P.2d 1380 (1991).  In In re Dependency of J.H., the court properly declined to create an equitable cause of action when the statutory scheme did not provide one stating, '(a)t the present time, foster parents have not been accorded a statutorily recognized expectancy in a continued relationship between themselves and their foster children, even in instances where foster parents may in fact have become the 'psychological parents' of the foster children.'  Id.

The court properly decided not to act as a legislature in In re Dependency of J.H., but unfortunately today the same restraint is not shown.  This court should have continued to follow the long precedent and declined to usurp the legislature's role.

The majority wishes to act with the wisdom of Solomon in not only
implementing but making the law in this sensitive family law area.
Solomon's famous case with two women claiming the same baby had a different point, however, badly misapprehended by the majority.  Solomon threatened to cut the baby in half in order to determine the real mother, to whom he restored full custody.  1 Kings 3:16-28.  The court today holds an actual division more wise and sends the case and the child to lower courts for that division.  Poor little L.B.

I dissent.

1 I note this because the Court of Appeals' decision is wrought with
references to sexual orientation of mother, father, and claimant that are
irrelevant and only serve to obfuscate the determinative issue: who is the child's mother?  See In re Parentage of L.B., 121 Wn. App. 460, 89 P.3d 271 (2004).
2 The father, John Auseth, later married Britain, signed an acknowledgment of paternity, and added his name to L.B.'s birth certificate.  Clerk's Papers (CP) at 198.  The Court of Appeals remanded the case and directed the trial court to determine whether the father is a necessary party.  It seems obvious the father would be a necessary party as Carvin's action also intrudes on his rights.  The majority's disposition of this problem is unclear.
3 The litigation costs, including those of six separate amici, would be
better placed in trust for little L.B., who will no doubt sorely need such
help later in life.
4 Similarly, the subsequently adopted 'grandparents visitation statute' was held unconstitutional in In re Parentage of C.A.M.A.
5       '(1) The mother-child relationship is established between a child
and a woman by:
'(a) The woman's having given birth to the child, except as otherwise
provided in RCW 26.26.210 through 26.26.260;
'(b) An adjudication of the woman's maternity;
'(c) Adoption of the child by the woman;
'(d) A valid surrogate parentage contract, under which the mother is an
intended parent of the child, as provided in RCW 26.26.210 through
26.26.260; or
'(e) An affidavit and physician's certificate in a form prescribed by the
department of health wherein the donor of ovum or surrogate gestation
carrier sets forth her intent to be legally bound as the parent of a child
or children born through alternative reproductive medical technology by
filing the affidavit and physician's certificate with the registrar of
vital statistics within ten days after the date of the child's birth
pursuant to RCW 26.26.735.
'(2) The father-child relationship is established between a child and a man by:
'(a) An unrebutted presumption of the man's paternity of the child under
RCW 26.26.116;
'(b) The man's having signed an acknowledgment of paternity under RCW
26.26.300 through 26.26.375, unless the acknowledgment has been rescinded or successfully challenged;
'(c) An adjudication of the man's paternity;
'(d) Adoption of the child by the man;
'(e) The man's having consented to assisted reproduction by his wife under RCW 26.26.700 through 26.26.730 that resulted in the birth of the child; or '(f) A valid surrogate parentage contract, under which the father is an intended parent of the child, as provided in RCW 26.26.210 through 26.26.260.'  RCW 26.26.101.
6 Indeed I, like the statute, prefer the (unqualified) term 'mother,' and
would not normally have to add 'birth' were it not for the unfortunate
context of decisions such as the majority.
7 Note, however, there may have been earlier times when she arguably could have complied, e.g., by adoption if L.B.'s mother agreed.
8 The Court of Appeals directly and improperly concluded that the
legislature invited the courts to make the law in this area.  See In re
Parentage of L.B., 121 Wn. App. 460, 475-76, 89 P.3d 271 (2004).  This
conclusion violates the doctrine of separation of powers and improperly
suggests that a court may write (or add to) any law it deems incomplete or unsatisfactory.