IN E. N. V. TR., Sept Term 2020, filed July 12, 2021, the Court of Appeals has published a well-researched and comprehensive opinion on de facto parents. E.N. (Mom) and D.D. (Dad) had two children. They all lived together as a family until D.D. was incarcerated. After spending approximately four years in prison, D.D. was released and began a relationship with T.R. The children moved in with D.D. and T.R. and lived with them for several years until D.D. was incarcerated again. During the time the children were living with them (over a two-year period), Mom visited once. For a period of time after Dad’s second incarceration, the children continued living with T.R. At some point, Mom, unsuccessfully, tried to take them from T.R. She ultimately filed suit. After a five-day trial, the court concluded that T.R. was a de facto parent. The court ordered joint legal custody, with T.R. having tie-breaker authority, and physical custody to T.R. with visitation to Mom. The Court of Special Appeals affirmed the trial court’s decision.

The Court of Appeals reversed, holding that in the absence of consent by both legal parents to the establishment of a de facto parent, a de facto parent relationship could not be established. The Court held, “where there are two legal (biological or adoptive) parents, a prospective de facto parent must demonstrate that both legal parents consented to and fostered a parent-like relationship with a child, or that non-consenting legal parent is an unfit parent or exceptional circumstances exist.” Slip Op., p.5 (emphasis supplied).

It is hard (simply reading this decision and not reading the transcript), to understand why what appears to be Mom’s abandonment/ disinterest over a period of years was not, by the Court of Appeals, seen as implied consent, neglect, and/or abandonment. There is nothing to suggest that Mom didn’t know where her children were or that Dad kept her from knowing. She made little effort to see them or to make any legal steps to secure access. There is no reference to her payment of child support. Why aren’t these actions or inactions evidence of unfitness or exceptional circumstances? Was this a case where the facts were simply not properly placed before the Court? Why no best interest attorney? Why was a custody evaluation, sought by T.R., denied? Although the Court clearly recognized that at the heart of any custody dispute the best interest of the children is paramount, did the trial court get the evidence it really needed to support its decision? Was this an example of the saying “bad facts make bad law”?

There was a lengthy and well-reasoned dissent, asserting that the majority opinion “is a step backwards along the path to a modern understanding of the best interests of children . . . .” Slip Op., Dissent, P.l. The dissent focused on the rights of children to “maintain relationships with parental type caregivers after those relationships have been formed and fostered for a significant period of time by at least one legal parent.” Id .at 6. The dissent noted that the bond between the third party and the child “is no less real” if fostered by only one of two legal parents. The dissenting opinion, while recognizing the distress of the legal parent who might lose custody to a de facto parent be forced to share custody, places the child’s needs over that of the adults’, in a way that the majority opinion does not seem to do.

Not two months later, the Court of Special Appeals issued its decision in B.O. v. S.O., No. 1202. September Term 2020. In that case, B.O. (the child’s aunt) and S.O.’s (Mom) sister began caring for the child, K., when he was just a few months old. He had been removed from Mom’s custody due to child neglect and domestic violence. B.O. filed a Protective Order against Mom, which she contested; B.O. was granted custody for one year. She retained custody, even after the Order’s expiration, for approximately two more years. Mom entered a substance abuse program which, at some point, became residential. While Mom was there, K. did spend some overnights with her. There were a series of protective orders sought by both Mom and Aunt against each other, right up until the merits custody trial. Dad was not a participant in any court proceeding, as he was in prison serving multiple life sentences for murders.

The trial court, after determining that Aunt could not establish that Mom had consented to a parental relationship between Aunt and K., awarded custody to Mom. It did not need to consider the other factors set forth E.N. v. T.R. (that the alleged de facto parent and child lived together in the same household, that the alleged de facto parent assumed the obligations of parenthood, and that the alleged de facto parent and the child had a bonded and parent/child-like relationship). Initially the trial court found, after Aunt’s case, that there was implicit consent by Mom because she had never sought to have K. returned to her and, although there was no “explicit” statement, oral or written, there had been a demonstration of consent to the fostering of the relationship between K. and Aunt. At the conclusion of the case, however, the trial court found differently, citing that Mom had contested the original award of custody, she had attempted to have the child returned to her, there were no written or oral statements from Mom demonstrating consent and, in fact, Mom had challenged every effort by Aunt in the current litigation. The court found credible Mom’s effort to see K. and regain custody. The court, also, while acknowledging Mom’s mental health issues and substance abuse, found either an absence of proof or rehabilitation. The court found no necessity to conduct the best interest analysis because Aunt was not able to prove the threshold issue of a parent’s consent to the establishment of the de facto parent relationship.

Several questions arise. If the original caretaking of K. by Aunt was because of Mom’s neglect and substance abuse issues, should her failure/refusal to consent at that time be dispositive? A drug addicted neglectful parent is, presumably, someone who is not capable of rational thought or acting in a child’s best interest. Is that parent even capable of giving consent? Is their challenge of any efforts by third parties to get the child to a (presumably) safe and loving environment an action in the child’s best interest? Does that initial failure of consent dictate forever the determination of de facto parenting? Yet if this Mom’s challenge to Aunt’s custody and her continued efforts to seek access demonstrate lack of consent, how is it that in E.N. v. T.R., Mom’s failure to make any effort to see her children, file suit, or pay support was not seen as implicit consent to the establishment of de facto parenthood for T.R.?

Clearly, these kinds of cases are very fact specific. And, yes, you don’t even reach a best interest analysis unless one can establish de facto parenthood. But one does have to worry about the well-being of the children in both of these cases and whether their best interests are being served.