Rainey v. Smith

DARLENE RAINEY, ET AL. v. SIMONE SMITH

No. 310

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2020

April 2, 2021

Circuit Court for Prince George's County

Case No. CAD1924554

UNREPORTED

Nazarian, Arthur, Leahy, JJ.

Opinion by Nazarian, J.

* This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

Darlene Rainey ("Grandmother") and Lamont Adair ("Grandfather") appeal the denial of their amended complaint seeking custody of M, their grandchild. Although M's father (their son) had died, M's mother is fit and present, and the Grandparents don't contend otherwise. They argue instead that they qualified as M's de facto parents and that it was in M's best interests that they have sole legal and physical custody of him. After awarding joint legal and shared physical custody pendente lite, the Circuit Court for Prince George's County held a hearing and found that the Grandparents had not met the standard for de facto parenthood and denied their request for custody. Conover v. Conover¹ sets a high bar for establishing de facto parenthood, and we agree with the circuit court that the Grandparents didn't clear it.

I. BACKGROUND

Simone Smith ("Mother") is the mother of M, who was born in August 2017. M's father, Lamont Adair, Jr. ("Father"), was involved in M's life from the time he was born until Father died in August 2018. In March 2018, Mother decided to move from Virginia to Maryland to live with Father and the Grandparents. After Mother's arrival, she, Grandmother, and Father all agreed that M would stay with Father or Grandmother while Mother was at work.

From May to June 2018, Mother worked two jobs. After work, she stayed frequently at her friend Urina Jackson's house because she didn't get off from work until 10:00 or 11:00 p.m. and didn't have a key to the Grandparents' house. Even so, Father was at thehouse to help care for M. After Father died, the childcare arrangement between Grandmother and Mother continued, and Grandmother watched M while Mother was at work.

Mother and M continued to live at the Grandparents' house, even after Father died, until June 2019. In June, Mother signed a lease and intended to move to her own apartment. But during the summer of 2019, Mother spent two weeks in jail in Montgomery County, Maryland and Delaware. Upon release, Mother moved into the apartment she secured before going to jail. She intended to retrieve M from the Grandparents' home and establish M's new home at her apartment. Mother was in contact with Grandmother while she was incarcerated, and she communicated to Grandmother her intention to pick up M and his possessions on August 8, 2019. When she arrived that day, Grandmother and Grandfather did not allow Mother to take M. Mother regained physical custody of M on August 12, 2019.

A. Procedural History

On July 30, 2019, while Mother was still incarcerated, Grandmother filed a complaint seeking sole legal and physical custody of M. Mother filed a counter-complaint on September 12, 2019. Grandmother then amended her complaint to add Grandfather as a plaintiff, answered the counter-complaint, and filed motions for custody and visitation pendente lite and for a status hearing.

On December 31, 2019, a magistrate heard testimony on the motion for custody and visitation pendente lite. The magistrate found that the Grandparents met the standard to bede facto parents and recommended that the court award joint legal and shared physical custody of M to the Grandparents and Mother. Mother filed exceptions to the magistrate's order on January 10, 2020. The circuit court entered a pendente lite order on February 19, 2020 awarding joint legal custody to the Grandparents and Mother.

B. The Circuit Court's Ruling

The circuit court held an evidentiary hearing and received testimony and evidence on the merits of the custody dispute on February 24-25, 2020, then convened the parties by phone to deliver its ruling on March 13, 2020. The circuit court found that the Grandparents did not qualify as de facto parents and returned sole legal and physical custody to Mother. The court acknowledged that M had lived in the same home with the Grandparents but found that Mother encouraged and fostered a grandparent-type relationship between M and Grandparents, and Mother had not consented to a parent-like relationship. Additionally, the court recognized that the Grandparents cared for M and provided financial support, but again, their relationship with him was one of grandparents and grandchild, not parent and child. As a result, the court determined that it need not analyze whether awarding custody to the Grandparents was in M's best interests.

II. DISCUSSION

This custody case is not a dispute between divorcing parents. Nor is there any allegation that M's surviving parent, Mother, is unfit or that exceptional circumstances exist that justify an intrusion into Mother's right to parent him. In this case, the Grandparents' potential opportunity to gain custody of M depended, at the threshold, ontheir ability to establish themselves as M's de facto parents. This is, as it should be, a difficult standard to meet.

The Grandparents argue that in denying their request for custody, the trial court erred in its application of the four-factor test for de facto parenthood adopted in Conover v. Conover, 450 Md. 51 (2016) and erred in considering abandonment and extinguishment in the course of finding that they weren't de facto parents.² Specifically, the Grandparents contend that the trial court failed to properly consider the first, third, and fourth factors of the Conover test because the court perceived their relationship as grandparental rather than parental.

Mother counters that the circuit court applied its discretion appropriately and correctly found that she did not consent to the Grandparents assuming a parent-like relationship with M. Additionally, she argues that the court was correct in finding that the Grandparents' relationship did not rise to a parent-like relationship and correctly considered their level of involvement and the length of the relationship.

We review a circuit court's custody decision for abuse of discretion but if the "order involves an interpretation and application of statutory or case law, we review the trial court's conclusions de novo." Kpetigo v. Kpetigo, 238 Md. App. 561, 568-69 (2018) (citing Walter v. Gunter, 367 Md. 386, 391-92 (2002)). And we give deference to the circuit court's findings of fact unless they are clearly erroneous. See Burak v. Burak, 455 Md. 564, 617 (2017) (quoting In re Yve S., 373 Md. 551, 586 (2003)). The trial court has such broad discretion to make factual findings because the trial judge is in a far better position "to weigh the evidence." In re Yve S., 373 Md. at 586. This is because only the trial judge "sees the witnesses and the parties, [and] hears the testimony." Id. "There is an abuse of discretion 'where 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.'" In re Adoption/Guardianship No. 3598, 347 Md. 295, 312 (1997) (alteration in original) (quoting North v. North, 102 Md. App. 1, 13 (1994)).

A. The Circuit Court Correctly Applied the Conover Test.

Parents have the fundamental constitutional right to the "care, custody, and control" of their children, and court-awarded custody or visitation to non-parents infringes on thatright. McDermott v. Dougherty, 385 Md. 320, 353 (2005) (quoting Md. Code (1984, 1999 Repl. Vol, 2004 Supp.), § 5-203(d)(2) of the Family Law Article). Before the Court of Appeals recognized de facto parenthood in 2016, Maryland courts required third parties seeking custody to prove either that the child's natural parents were unfit to have custody or that there were exceptional circumstances making parental custody detrimental to the best interest of the child. See Kpetigo, 238 Md. App. at 569 (quoting Ross v. Hoffman, 280 Md. 172, 178-79 (1977)).

De facto parenthood recognizes that certain narrowly defined third parties who have a special parent-like relationship with a child can stand on equal footing with a biological parent. See id. at 570. Generally, de facto parenthood is "a relationship resulting in bonding and psychological dependence upon a person without biological connection [and] can develop during an ongoing biological parent/child relationship." Conover, 450 Md. at 76-77 (quoting Monroe v. Monroe, 329 Md. 758, 775 (1993)). A de facto parent does not need to establish exceptional circumstances or the unfitness of biological parents "before a trial court can apply a best interest[] of the child analysis." Id. at 85. Once established, a de facto parent is a legal parent with the same fundamental parental rights as a biological or adoptive parent. See id. at 71-72.

The standard, however, is a stringent one. The de facto parenthood test the Court of Appeals adopted in Conover was formulated initially by the Wisconsin Supreme Court in In re Custody of H.S.H.-K., 533 N.W.2d 419, 435-36 (Wis. 1995), and measures the relationship between the potential de facto parent and the child against four factors,beginning with the biological or adoptive parent's consent to a parent-like relationship with the child:

(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

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