E.N. v. T.R. , 247 Md. App. 234 ( 2020 )

E.N. v. T.R., No. 1231, September Term 2019. Opinion by Beachley, J.
DE FACTO PARENTHOOD—TWO LEGAL PARENTS—CONSENT BY ONE
LEGAL PARENT
Appellant E.N. (“Mother”) and D.D. (“Father”) are the biological parents of two
minor children who were born in 2005 and 2007. The four lived together until 2009, when
Father was incarcerated. Thereafter, the children lived with Mother and the maternal
grandmother.
In late 2013, Father was released from prison, and began a relationship with appellee
T.R. Father and T.R. moved in together, and the children began visiting them “almost
every weekend.” In 2015, Father and T.R. purchased a home together, and later that year
the children moved in, partially because they wanted to spend more time with Father, but
also because Mother needed a break “to get herself right.”
The children continued to live with Father and T.R. until late 2017, when Father
was again imprisoned. Despite Father’s incarceration, the children continued to live with
T.R.
In November 2017, while T.R. and the children were visiting with the children’s
paternal grandparents, Mother appeared and demanded their return. Police diffused the
situation, and the children returned to T.R.’s home the following day. Mother neither
contacted nor saw the children again until September 2018.
In February 2018, T.R. filed a complaint for custody, essentially alleging that she
was the children’s “de facto” parent because the children had lived with her for the
preceding three years, and had almost no contact with Mother during that time. Mother
filed a counter-complaint requesting sole legal and physical custody. From prison, Father
filed a document purporting to give T.R. “full custody” of the children.
Following a hearing, the circuit court concluded that T.R. was the de facto parent of
the children even though it expressly found that Mother did not consent to or foster the
relationship with T.R. The court granted T.R. physical custody with joint legal custody to
T.R. and Mother. Mother then noted this timely appeal in which she claims that the circuit
court erred because both legal parents must consent to and foster a parent-like relationship
to create a de facto parent relationship with a third party.
Held: Judgment affirmed.
Although technically an issue of first impression in Maryland, the Court of Appeals
has implicitly held that one parent may consent to the creation of a de facto parent
relationship. In Conover v. Conover, 450 Md. 51 (2016), a same-sex couple case, the Court
of Appeals for the first time recognized de facto parenthood in Maryland. Although there
was only one biological parent in Conover, the Court of Appeals’s holding in its most literal
sense recognized that one legal parent’s conduct could create a de facto parent relationship
with a third party.
In her concurrence in Conover, Judge Watts interpreted the majority opinion to hold
that “only one parent is needed to consent to and foster a parent-like relationship with the
would-be de facto parent.” Id. at 87-88. She expressed concern, however, that in cases
with two biological parents, one biological parent could unilaterally consent to and foster
a de facto parent relationship without any knowledge by the other legal parent. In this case,
we adopt Judge Watts’s interpretation of the majority opinion in Conover.
Additionally, recognition of T.R.’s de facto parenthood will not infringe on
Mother’s fundamental rights because once T.R. achieved de facto parent status, she had
co-equal fundamental constitutional rights with Mother.
Finally, the circuit court did not abuse its discretion in awarding T.R. primary
physical custody where the court found that T.R. is a “wonderful mother,” that Mother’s
request for custody seemed insincere, that the children felt that Mother abandoned them
and instead viewed T.R. as their “real” mother, and that T.R. is an integral part of the
children’s lives.
Circuit Court for Prince George’s County
Case No. CAD18-04949
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1231
September Term, 2019
E.N.
v.
T.R.
Kehoe,
Beachley,
Shaw Geter,
JJ.
Opinion by Beachley, J.
Filed: August 25, 2020
Pursuant to Maryland Uniform Electronic Legal Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document
is authentic.
Suzanne Johnson
2020-08-25 14:10-04:00
Suzanne C. Johnson, Clerk
This case presents the precise issue that Judge Watts presciently recognized in her
concurring opinion in Conover v. Conover, 450 Md. 51 (2016): Where there are two legal
parents,1 may only one parent consent to and foster a parent-like relationship so as to create
a de facto parent relationship with a third party? Stated another way, where there are two
extant legal parents, must both legal parents consent to and foster the creation of a de facto
parent relationship with a third party? We shall hold that a de facto parent relationship
may be established by the conduct of only one legal parent. We shall further hold that the
trial court here did not err in awarding primary physical custody of the children to the de
facto parent.
FACTUAL AND PROCEDURAL BACKGROUND
Because appellant E.N. (“Mother”) does not challenge the circuit court’s fact-
findings, we recount the relevant facts from the trial court’s memorandum opinion. Mother
and D.D. (“Father”) are the biological parents of two minor children who were born in
2005 and 2007. Mother and Father lived together with the children from 2005 until Father
was incarcerated on drug charges in October 2009. After Father was incarcerated, Mother
and the children lived with the maternal grandmother.
Father was released from prison in late 2013. Around this time, he began a
relationship with appellee T.R. and the two moved in together. The children began visiting
with Father and T.R. “almost every weekend.”
1
In this opinion, we shall refer to a biological or adoptive parent as a “legal parent.”
In 2015, Father and T.R. purchased a home together. Later that year the children
moved in with Father and T.R., primarily because the children wanted to spend more time
with Father. In order to facilitate the move, Mother signed paperwork to permit the
children to transfer from the school they had been attending to a school in Father’s school
district. Mother agreed to this arrangement, testifying that she needed a break “to get
herself right.”
The children continued to live with Father and T.R. until late 2017, when police
raided their home and discovered several firearms, ammunition, and a “significant amount”
of cocaine. Father was ultimately convicted of drug distribution and related firearms
violations, resulting in ten years’ imprisonment. He is scheduled to be released in August
2024. From June 2015 to late 2017, Mother only saw the children once, in the spring of
2017 when she took the children out to dinner with their grandparents.
After Father’s incarceration in 2017, the children continued to live with T.R. In
November 2017, while T.R. and the children were visiting with the children’s paternal
grandparents, Mother appeared at the grandparents’ home and asked for the return of her
children. T.R. refused. The police ultimately arrived to defuse the situation. The children
stayed the night at the paternal grandparents’ home, but returned to T.R.’s home the
following day. Mother did not see or have contact with the children again until September
2018.
On February 16, 2018, T.R. filed a complaint for custody, essentially alleging that
she was the children’s “de facto” parent because the children had lived with her for the
2
preceding three years during which they had no contact with Mother.2 Mother filed a
counter-complaint requesting sole legal and physical custody of the children. Although
Father was named as a defendant in T.R.’s complaint, he never formally answered the
complaint. Instead, Father filed a document purporting to give T.R. “full custody” of the
children.
The case proceeded to trial on September 13, 2018. Because T.R. was unable to
complete her case in chief on September 13, the court scheduled the case for completion
on November 19–20, 2018. In light of the approximately two-month delay to resume the
trial, the circuit court issued a pendente lite order granting Mother visitation with the
children every other weekend “until the November 19 and 20, 2018 hearings.” After the
November merits hearing, the court continued the pendente lite visitation order while the
court held the matter sub curia.3 On July 2, 2019, the court issued a Memorandum Opinion
and Order in which it concluded that T.R. was the de facto parent of the children, and
granted “sole physical custody” to T.R. and joint legal custody to T.R. and Mother. Mother
noted this timely appeal.
2
T.R.’s complaint did not expressly reference the term “de facto parent.”
3
The court also granted Mother Christmas visitation.
3
DISCUSSION
I
A. ONE LEGAL PARENT MAY CREATE A DE FACTO PARENT RELATIONSHIP BY
CONSENTING TO AND FOSTERING A PARENT-LIKE RELATIONSHIP BETWEEN THE
PUTATIVE DE FACTO PARENT AND THE CHILD
A de facto parent, sometimes referred to as a “psychological parent” in other
jurisdictions, is a person who is not a child’s biological or adoptive parent but who has a
parent-like relationship with the child. Conover, 450 Md. at 62, 68 n.12. To establish de
facto parenthood, the Court of Appeals has adopted the four-part test from In re Custody
of H.S.H.-K., 533 N.W.2d 419, 421 (Wis. 1995). That test requires a putative de facto
parent to prove:
(1) that the biological or adoptive parent consented to, and fostered, the
petitioner’s formation and establishment of a parent-like relationship with
the child;
(2) that the petitioner and the child lived together in the same household;
(3) that the petitioner assumed obligations of parenthood by taking
significant responsibility for the child’s care, education and development,
including contributing towards the child’s support, without expectation
of financial compensation; and
(4) 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.
Conover, 450 Md. at 74 (quoting H.S.H.-K., 533 N.W.2d at 435–36).
In her appeal, Mother challenges only the circuit court’s determination as to the first
element of the H.S.H.-K test. Specifically, she argues that the circuit court erred in
construing the first element of the H.S.H.-K test by finding the existence of a de facto parent
4
relationship based on the conduct of only one legal parent. Instead, Mother contends that
when a child has two extant legal parents a de facto parent relationship cannot be created,
as a matter of law, unless both legal parents consent to and foster the relationship between
the child and the putative de facto parent. Thus, Mother contends that the circuit court’s
express finding that Mother did not consent to and foster a de facto relationship between
the children and T.R. precludes T.R. from being a de facto parent.4
Because this is a purely legal issue, we review the circuit court’s decision de novo.
Conover, 450 Md. at 60.
We begin with Conover, the seminal case in Maryland concerning de facto
parenthood. Although Conover did not involve two legal parents and a putative de facto
parent, the Court of Appeals’s decision, and particularly Judge Watts’s concurrence,
provide some guidance in resolving the issue before us. There, “Michelle and Brittany
4
The trial court found that Mother did not consent to T.R.’s parent-like relationship
with the children, but based that finding on the principle that a de facto parent relationship
may not be created through implied consent. The court stated, “Implied consent does not
meet the burden needed to satisfy prong one of the Conover test. . . . [T]he consent needs
to be express and explicit.” Maryland appellate courts have not decided whether consent
may be implied. To the extent the parties raised this issue, we need not resolve it here. We
note, however, that other jurisdictions are divided on this issue. Compare, e.g., K.W. v.
S.L., 157 A.3d 498, 507 (Pa. Super. Ct. 2017) (holding that consent may not be implied,
but may be found when a parent “act[s] in a manner consistent with consent”), with K.A.F.
v. D.L.M., 96 A.3d 975, 985 (N.J. Super. Ct. App. Div. 2014) (“A parent’s ‘consent’ to the
creation of a psychological parent bond need not be explicit.”).
5
Conover began a relationship in July 2002.”5 Id. at 55 (footnote omitted). The two agreed
that Brittany would be artificially inseminated, and in 2010, she gave birth to a son. Id.
The birth certificate listed Brittany as the child’s mother, but did not identify anyone as the
father. Id. The parties married approximately six months after the child’s birth. Id. A
year later, however, the parties separated, and, in July 2012, Brittany ceased allowing
Michelle overnight and weekend visitation access. Id. After Brittany filed a complaint for
absolute divorce, Michelle responded by filing an answer and a counter-complaint, both of
which sought visitation rights. Id. In denying Michelle’s request for visitation, the circuit
court determined that she lacked parental standing to seek visitation. Id. at 57. Although
the circuit court concluded that Michelle was a de facto parent, it noted that in Janice M.
v. Margaret K., 404 Md. 661 (2008), the Court of Appeals declined to recognize de facto
parent status. Conover, 450 Md. at 58. Accordingly, the circuit court denied Michelle’s
request for visitation based on a lack of standing. Id.The Court of Appeals overruled Janice M. because it was “clearly wrong,” and held
“that de facto parenthood is a viable means to establish standing to contest custody or
visitation.” Id. at 59, 66. In so holding, the Court, after acknowledging its departure from
stare decisis, id. at 66, nevertheless recognized de facto parenthood in Maryland by
adopting the H.S.H.-K. test, id. at 75. The Court then reversed and remanded, instructing
5
In a footnote, the Court of Appeals noted that, by the time it issued its decision,
Michelle began living as a transgender man and had changed his name. Conover, 450 Md.
at 55 n.1. In order to be consistent with the record, the Court referred to him as “Michelle”
and used female pronouns. Id. For consistency, we shall follow the Court’s footsteps in
referring to Michelle Conover. We intend no disrespect in doing so.
6
the circuit court to apply the H.S.H.-K. standards to determine whether Michelle could be
considered the child’s de facto parent. Id. at 85.
In its most literal sense, Conover held that the conduct of one legal parent could
create a de facto parent relationship between a third party and a child. But because there
was only one legal parent in Conover, the Court was not required to, and indeed did not,
address the issue presented here.6 In her concurring opinion, however, Judge Watts
recognized the implications of broadly construing the majority’s holding, foreseeing the
precise issue presented here:
By adopting the four-factor test set forth in H.S.H.-K., 533 N.W.2d at
435, the Majority holds that, under the first factor, when seeking de facto
parent status, the third party must show “that the biological or adoptive parent
consented to, and fostered, the [third party]’s formation and establishment of
a parent-like relationship with the child[.]” In other words, the Majority holds
that only one parent is needed to consent to and foster a parent-like
relationship with the would-be de facto parent. This will work in cases such
as this one, where a second biological or adoptive parent does not exist, i.e.,
where there is only one existing parent. Where there are two existing parents,
however, permitting a single parent to consent to and foster a de facto parent
relationship could result in a second existing parent having no knowledge
that a de facto parent, i.e., a third parent, is created.
6
Maryland appellate courts have not yet expressly considered the implications of a
de facto parenthood case involving two legal parents and a putative de facto parent. In all
but one of our prior de facto parent cases, the children only had one legal parent. The
exception is Kpetigo v. Kpetigo, 238 Md. App. 561, 565–66 (2018), where a biological
father and his ex-wife each sought custody of a child whose biological mother was living
in the Ivory Coast, but who did not participate in the custody action. This Court rejected
the father’s contention that Conover recognized de facto parenthood only for same-sex
couples, holding that the ex-wife established a de facto parent relationship with the child.
Although the Court found that the father consented to and fostered the relationship, the
issue presented here—whether both legal parents must consent to and foster the de facto
relationship—was not before the Kpetigo Court. Nevertheless, by affirming the existence
of a de facto relationship in the absence of any evidence of the biological mother’s consent,
the Court did not require both legal parents’ consent to create a de facto parent relationship.
7
Conover, 450 Md. at 87–88 (Watts, J., concurring) (emphasis added). We will revisit the
significance of Judge Watts’s concurring opinion infra.
Intermediate appellate courts in two other states that have adopted the H.S.H.-K.
test, New Jersey and Washington, have expressly considered the situation presented here
and reached different conclusions. The Superior Court of New Jersey interpreted the
language of the H.S.H.-K. test to require the consent of only a single legal parent. In K.A.F.
v. D.L.M., 96 A.3d 975, 977 (N.J. Super. Ct. App. Div. 2014), a child, Arthur, was
conceived by K.A.F. through artificial insemination. K.A.F.’s partner, F.D., adopted
Arthur. Id. K.A.F. and F.D. later ended their relationship and K.A.F. became romantically
involved with D.M. Id. at 977–78. K.A.F. allegedly consented to and fostered D.M.’s
parent-like relationship with Arthur, but F.D. was opposed to the relationship. Id. at 978.
After K.A.F. and D.M. ended their relationship, D.M. sought custody and visitation of
Arthur, which both K.A.F. and F.D., the legal parents, opposed. Id. The trial court
dismissed D.M.’s claim based on F.D.’s consistent opposition to D.M.’s parent-like
relationship with Arthur, concluding that “where there are two fit and involved parents,
both must have consented to the creation of a psychological parent relationship before a
third party can maintain an action for visitation and custody based on the existence of that
relationship.” Id. New Jersey’s intermediate appellate court disagreed with the trial court’s
interpretation, stating: “We fail to perceive any basis for this argument either in the law or
the policies underlying the concept of a psychological parent.” Id. at 979. The court
recognized that “it would be difficult to ignore the ‘psychological harm’ a child might
suffer because he is deprived of the care of a psychological parent simply because only one
8
of his ‘legal parents’ consented to the relationship.” Id. at 981. Additionally, the court
found the wording of the H.S.H.-K. test and the New Jersey Supreme Court’s discussion
of that test informative:
The Court’s continual reference to “a” legal parent or “the” legal
parent in the singular strengthens our conclusion that the consent of both
legal parents is not required to create a psychological parent relationship
between their child and a third party.
Nothing in the historical development of the psychological parent
policy, in the policy itself, or in the language of the Court, therefore, suggests
that both legal parents must consent before a court may consider a claim of
psychological parenthood by a third party. Rather, it is sufficient if only one
of the legal custodial parents has consented to the parental role of the third
party. In that circumstance, a legal custodial parent has voluntarily created
the relationship and thus has permitted the third party to enter the zone of
privacy between her and her child.
Id. at 982–83. The court recognized “the importance of F.D.’s ‘consent,’ or lack thereof,”
as a factor in the overall analysis, but noted that “in most cases, the longer and more
established the parental role of a third party has become, the lack of consent by one legal
parent would diminish in analytical significance.” Id. at 983.7
The Washington Court of Appeals reached a different conclusion, holding that the
doctrine of de facto parenthood “may be extended to a stepparent of a child with two legal
parents . . . if the stepparent petitioner establishes . . . that both legal parents consented to
the stepparent being a parent to the child.” In re Parentage of J.B.R., 336 P.3d 648, 649–
50 (Wash. Ct. App. 2014) (emphasis removed). That court nevertheless found that both
7
Because the trial court “dismissed D.M.’s complaint on a motion for summary
judgment,” K.A.F., 96 A.3d at 977, the court remanded the case for a plenary hearing, id.
at 984.
9
parents there had consented to the de facto relationship: the mother expressly consented to
the relationship, and the father was deemed to have consented by “voluntarily absent[ing]
himself” from the child’s life. Id. at 654 (“The biological father’s decision not to support
J.B.R. and not to seek a relationship with his daughter for more than a decade clearly
evidences his consent for [the de facto parent] to establish a parent-child relationship with
J.B.R.”).8 The divergent views taken by the New Jersey and Washington courts
substantiate the important competing interests that make resolution of this case
challenging.
As Maryland’s intermediate appellate court, we aspire to discern how the Court of
Appeals would resolve this issue of first impression. In our view, Judge Watts’s concurring
opinion in Conover provides the best guidance available. In her concurring opinion, joined
by Judge Battaglia, Judge Watts interpreted the majority opinion to hold that “only one
parent is needed to consent to and foster a parent-like relationship with the would-be de
facto parent.” Conover, 450 Md. at 87–88 (Watts, J., concurring). Judge Watts articulated
the concern that Mother raises here, stating, “[w]here there are two existing parents,
however, permitting a single parent to consent to and foster a de facto parent relationship
could result in a second existing parent having no knowledge that a de facto parent, i.e., a
third parent, is created.” Id. at 88. She continued, “The majority opinion, however, will
8
See also Middleton v. Johnson, 633 S.E.2d 162, 169 (S.C. Ct. App. 2006) (noting
in dicta that “when both biological parents are involved in the child’s life, a third party’s
relationship with the child could never rise to the level of a psychological parent, as there
is no parental void in the child’s life”).
10
have greater consequences in cases for children with two existing parents because a de
facto parent request may occur without the knowledge or consent of the second existing
parent.” Id.9
We recognize that an interpretation of a majority opinion by a concurring (or
dissenting) member of a court is not binding because a majority of the court has not placed
its imprimatur on that interpretation. We also recognize that Judge Watts’s concurring
opinion was likely circulated to the entire Court prior to publication.10 See generally, Igor
Kirman, Standing Apart to Be a Part: The Precedential Value of Supreme Court
Concurring Opinions, 95 Colum. L. Rev. 2083, 2101–04 (1995) (discussing the circulation
of drafts in the Supreme Court). That the Majority did not respond to Judge Watts’s
specific and substantive concerns provides us at least some evidence that the Court of
Appeals did not disagree with her interpretation of the majority opinion. Indeed, it is not
uncommon for the Court of Appeals’s majority opinion to respond to issues raised in
concurring and dissenting opinions. See, e.g., Barclay v. Castruccio, ___ Md. ___, No. 30,
9
The concurring opinion specifically expressed the concern that allowing one legal
parent to create a de facto parent relationship “may result in a child having three parents
vying for custody and visitation, and being overburdened by the demands of multiple
parents.” 450 Md. at 88. Although Judge Watts agreed with the majority opinion in the
context of the same-sex couple presented in that case, she noted that “the Majority
expresses no concern about the creation of a single de facto parentship where there are
already two existing parents, and where one parent may create a de facto parentship absent
the other existing parent’s notice of, and consent to, the de facto parentship of a third party.”
Id.10
See Court of Appeals, Court Overview, Inner Workings of the Court of Appeals
of Maryland, https://mdcourts.gov/coappeals/coaoverview (last visited August 8, 2020)
(“After a predetermined period of time has passed for the judges to study the proposed
majority and dissenting opinions, the court holds a ‘case’ conference (at least once
monthly) and considers all proposed opinions then scheduled for final disposition.”).
11
Sept. Term 2019, slip op. at 7 n.15 (filed June 30, 2020) (disagreeing with concurring
opinion’s suggestion “that a ‘relationship’ is not required in the inheritance interference
tort set forth in § 19 of the Third Restatement.”); Small v. State, 464 Md. 68, 87 n.21 (2019)
(stating that the majority opinion was not, as the concurring opinion suggested,
“dismiss[ing] decades of extensive social science research” regarding the reliability of
eyewitness identification (alteration in original)); Sizer v. State, 456 Md. 350, 371 n.4, 374
n.6 (2017) (disagreeing with the concurring/dissenting opinion’s characterization of the
hearing judge’s conclusion of law, and challenging the concurring/dissenting opinion’s
characterization of a “hard take-down”).
Accordingly, we hold that a de facto parent relationship can be created by only one
legal parent consenting to and fostering a parent-like relationship with a putative de facto
parent. The circuit court therefore did not err in concluding that T.R. was the de facto
parent of the children based on Father’s conduct in creating a parent-like relationship
between T.R. and the children.11
B. A DE FACTO PARENT HAS A CO-EQUAL FUNDAMENTAL CONSTITUTIONAL RIGHT
WITH LEGAL PARENTS CONCERNING CARE AND CONTROL OF A CHILD
Mother additionally argues that recognizing T.R. as a de facto parent infringes on
her constitutional fundamental rights as a parent. Although the Supreme Court has not
considered the fundamental rights of parents vis-à-vis de facto parents, in Troxel v.
11
We note that, even were we to apply the Washington Court of Appeals’s analysis
to this case, the same result would likely abide. The factual record arguably manifests
Mother’s implied consent where she “voluntarily absented [her]self from [the children’s
lives], thus consenting to and fostering a relationship between [the children] and the
petitioning party.” In re Parentage of J.B.R., 336 P.3d at 654.
12
Granville, 530 U.S. 57 (2000), the Court discussed the fundamental rights of parents in
relation to third parties. It concluded that a Washington statute allowing any third party to
petition the court for visitation of a child at any time was unconstitutional. Id. at 67. The
Court’s opinion focused largely on the overbreadth of the statute, and did not make any
specific pronouncements concerning the constitutionality of custody and visitation laws.
Id. at 73. The Court simply held that the trial court’s grandparental visitation order was an
unconstitutional infringement on the parent’s “fundamental right to make decisions
concerning the care, custody, and control” of her children under the Due Process Clause.
Id. at 72.
Conover recognized that “Troxel was an extremely narrow decision” that was
“hinged ‘on the sweeping breadth’ of the Washington statute and ‘the application of that
broad, unlimited power.’” 450 Md. at 70 (quoting Troxel, 530 U.S. at 73). The Court of
Appeals noted that “several state courts of last resort have expressly held that Troxel does
not prevent the recognition of de facto parent status.” Id. at 71. Our reading of Troxel
likewise leads us to conclude that the Supreme Court did not hold that recognition of de
facto parenthood infringes on the due process interests of biological or adoptive parents.
More importantly, the Conover Court’s approval of the following quote from Smith v.
Guest, 16 A.3d 920, 931 (Del. 2011) leaves little doubt that the Court of Appeals sees no
constitutional impediment in this regard:
Troxel does not control these facts. The issue here is not whether the
Family Court has infringed Smith’s fundamental parental right to control
who has access to ANS [the minor child] by awarding Guest co-equal
parental status. Rather, the issue is whether Guest is a legal “parent” of ANS
who would also have parental rights to ANS—rights that are co-equal to
13
Smith’s. This is not a case, like Troxel, where a third party having no claim
to a parent-child relationship (e.g., the child’s grandparents) seeks visitation
rights. Guest is not “any third party.” Rather, she is a [] de facto parent
who . . . would also be a legal “parent” of ANS. Because Guest, as a legal
parent, would have a co-equal “fundamental parental interest” in raising
ANS, allowing Guest to pursue that interest through a legally-recognized
channel cannot unconstitutionally infringe Smith’s due process rights. In
short, Smith’s due process claim fails for lack of a valid premise.
450 Md. 71–72 (alterations in original). The Conover Court then concluded, “Put simply,
numerous courts have declined to treat Troxel as a bar to recognizing de facto parenthood
or other designations used to describe third parties who have assumed a parental role.” Id.
at 72. We also note that in In re Guardianship of Victoria R., 201 P.3d 169, 178 (N.M. Ct.
App. 2008), a case cited by the Conover majority, the Court of Appeals of New Mexico
stated, “To our knowledge, the United States Supreme Court has never recognized a
fundamental right of biological parents to engage in off-again, on-again parenting without
regard to the effects this pattern of parenting has on children.” The Victoria R. court
concluded that “Mother does not have an unqualified constitutional right to terminate at
her whim the stable, nurturing parent-child relationship that naturally and foreseeably arose
between Child and Petitioners during the period that Mother was unwilling or unable to
care for Child.” Id.We recognize that Conover did not expressly address the issue Mother raises, i.e.,
whether recognition of T.R.’s de facto parenthood infringed upon Mother’s fundamental
rights where Mother neither consented to nor fostered the de facto relationship.
Nevertheless, we are confident that the Court of Appeals would find no constitutional
infringement on Mother’s due process rights because, once T.R. achieved de facto
14
parenthood status, T.R. qualified as a “legal parent” entitled to co-equal fundamental
constitutional protections. In our view, such a rule strikes the proper balance between
parents’ fundamental rights to care for their children and the children’s fundamental rights
to be placed with caregivers who will promote their best interests. Cf. In re O.P., 240 Md.
App. 518, 568 (2019) (“[A]s important an interest as parents have in raising their children,
it is not absolute. . . . ‘[T]he best interests of the child may take precedence over the
parent’s liberty interest.’” (quoting In re Mark M., 365 Md. 687, 706 (2001))), rev’d on
other grounds, ___ Md. ___, No. 26, Sept. Term 2019 (filed Aug. 14, 2020); In re
Adoption/Guardianship of C.A. and D.A., 234 Md. App. 30, 54 (2017) (“[A] child’s best
interests do trump the parent’s liberty interest in maintaining his relationship with a
child.”).
II
Finally, Mother argues that the circuit court abused its discretion in granting T.R.
custody of the children because T.R. “either purposely or negligently contributed to
[Mother’s] lengthy absence from the children’s lives.” Although Mother appeared to
concede this issue in a colloquy with the Court during oral argument, we shall briefly
consider the trial court’s best interest analysis and determination.12
An appellate court will only rarely find an abuse of discretion on a custody issue.
Gizzo v. Gerstman, 245 Md. App. 168, 201 (2020). “An abuse of discretion may occur
12
In response to a question from the Court if the only issue in the appeal was the
“legal issue” regarding whether both parents must consent to and foster a de facto parent
relationship, Mother’s counsel emphatically and unequivocally answered in the
affirmative.
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when no reasonable person would take the view adopted by the trial court, or when the
court acts without reference to any guiding rules or principles, or when the ruling is clearly
against the logic and effect of facts and inferences before the court.” Id.“Child custody and visitation decisions are among the most serious and complex
decisions a court must make, with grave implications for all parties.” Id. at 199 (quoting
Conover, 450 Md. at 54). Consequently, courts weigh many “best interests” factors before
making such a decision, including:
1) fitness of the parents, 2) character and reputation of the parties, 3) desire
of the natural parents and agreements between the parties, 4) potentiality of
maintaining natural family relations, 5) preference of the child, 6) material
opportunities affecting the future life of the child, 7) age, health and sex of
the child, 8) residences of parents and opportunity for visitation, 9) length of
separation from the natural parents, and 10) prior voluntary abandonment or
surrender.
Montgomery Cty. Dept. of Soc. Servs. v. Sanders, 38 Md. App. 406, 420 (1977) (citations
omitted). In Taylor v. Taylor, 306 Md. 290, 304–11 (1986), the Court of Appeals provided
thirteen additional factors for consideration in custody disputes, some of which overlap
with the Sanders factors. These factors are: 1) the capacity of the parents to communicate,
2) willingness to share custody, 3) fitness of the parents, 4) relationship established
between the child and each parent, 5) preference of the child, 6) potential disruption of the
child’s social and school life, 7) geographical proximity of the parental homes, 8) demands
of parental employment, 9) age and number of children, 10) sincerity of the parents’
requests, 11) financial status of the parents, 12) impact on state or federal assistance, and
13) benefit to the parents. Id. Because each case hinges on a plethora of unique facts
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relating to these factors, “[t]here can be very little constructive or useful precedent on the
subject of custody determinations.” Sanders, 38 Md. App. at 419.
In its best interests analysis, the trial court expressly considered each of the
Taylor/Sanders factors. We highlight some of the salient findings, none of which Mother
challenges on appeal:
• T.R. is a “wonderful mother,” while Mother “needs advice and guidance on
daily parenting responsibilities.”
• Although T.R.’s request for custody is sincere, “the [c]ourt is less than
convinced of [Mother’s] sincerity.”
• The children expressed clear preference to live with T.R., and they told the
court that “they felt abandoned by their mother” and saw T.R. as “their ‘real’
mother.”
• The children have developed friendships “in the neighborhood and school”
while living with T.R., and they are thriving in school with T.R.’s assistance.
Mother, on the other hand, “has trouble knowing and obtaining information
about the children’s activities,” and “does not assist the . . . children with
their homework.”
• T.R. is an “integral part” of the children’s lives and the “children have
bonded and established a parent-child relationship with her.”
As noted, Mother does not challenge these findings on appeal. Moreover, Mother
has not directed our attention to any evidence that T.R. “purposely or negligently
contributed to [Mother’s] lengthy absence from the children’s lives,” nor did the court
make any finding related to that allegation.
We commend the trial court for its thorough review of the relevant custody factors,
and discern no abuse of discretion in the court’s decision to award primary physical custody
of the children to T.R.
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JUDGMENT OF THE CIRCUIT COURT
FOR PRINCE GEORGE’S COUNTY
AFFIRMED. COSTS TO BE PAID BY
APPELLANT.
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