E.N. v. T.R.

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