E.N. v. T.R.

Decision Date25 August 2020
Docket NumberNo. 1231, Sept. Term, 2019,1231, Sept. Term, 2019
Citation236 A.3d 670,247 Md.App. 234
Parties E.N. v. T.R.
CourtCourt of Special Appeals of Maryland

Argued by: Kenneth E. McPherson (Kenneth E. McPherson, Chtd. on the brief) of Fulton, MD, for Appellant.

Argued by: Tisha S. Hillman of Largo, MD, for Appellee.

Kehoe, Beachley, Shaw Geter, JJ.

Beachley, J.

This case presents the precise issue that Judge Watts presciently recognized in her concurring opinion in Conover v. Conover , 450 Md. 51, 146 A.3d 433 (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."

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 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.

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, 146 A.3d 433. To establish de facto parenthood, the Court of Appeals has adopted the four-part test from In re Custody of H.S.H.-K. , 193 Wis.2d 649, 533 N.W.2d 419, 421 (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, 146 A.3d 433 (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 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, 146 A.3d 433.

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 Conover began a relationship in July 2002."5 Id. at 55, 146 A.3d 433 (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, 146 A.3d 433. Although the circuit court concluded that Michelle was a de facto parent, it noted that in Janice M. v. Margaret K ., 404 Md. 661, 948 A.2d 73 (2008), the Court of Appeals declined to recognize de facto parent status. Conover , 450 Md. at 58, 146 A.3d 433. 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, 146 A.3d 433. In so holding, the Court, after acknowledging its departure from stare decisis, id . at 66, 146 A.3d 433, nevertheless recognized de facto parenthood in Maryland by adopting the H.S.H.-K . test, id . at 75, 146 A.3d 433. The Court then reversed and remanded, instructing 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, 146 A.3d 433.

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
...

To continue reading

Request your trial
9 cases
  • E.N. v. T.R.
    • United States
    • Court of Special Appeals of Maryland
    • July 12, 2021
  • Rochkind v. Stevenson
    • United States
    • Court of Special Appeals of Maryland
    • August 28, 2020
  • Basciano v. Foster
    • United States
    • Court of Special Appeals of Maryland
    • November 1, 2022
  • E.N. v. T.R.
    • United States
    • Court of Special Appeals of Maryland
    • July 12, 2021
  • Request a trial to view additional results
1 books & journal articles
  • Review of the Year 2020 in Family Law: COVID-19, Zoom, and Family Law in a Pandemic
    • United States
    • ABA General Library Family Law Quarterly No. 54-4, January 2021
    • January 1, 2021
    ...Id. at 242. 356. Id. at 244–45. 357. Id . at 246–47. 358. In re L.J.M., 476 P.3d 636, 643, 645 (Wash. Ct. App. 2020). 359. E.N. v. T.R., 236 A.3d 670, 672 (Md. Spec. Ct. App.), cert. granted , 242 A.3d 1117 (Md. 2020). 360. Id. Published in Family Law Quarterly , Volume 54, Number 4, 2021. ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT