The legal question was whether the aunt, who actually raised the child for 8 years, qualified as a de facto parent after the ruling in Conover. The Conover court applied a four part test to delineate such status.   Three parts of the test focused on whether the person acted like a parent and whether the child formed a bond similar to a child/parent relationship.   Arguably, the aunt met these tests.

The fourth part of the test, however, is whether the biological or adoptive parent consented to, and fostered, the relationship.   This part of the test is key because of a parent’s fundamental right to make decisions regarding his or her child.   Troxel v. Granville, 530 U.S. 57, 65 (2000)(“[T]he interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by this Court.”)

The aunt did not meet this test as the mother decidedly did not consent to her sister raising her child:   “To allow Aunt to be granted de facto status would directly violate the protection of parental rights guarded by the Court of Appeals in Conover, and the constitutional rights and principals of Troxel“.

The Court of Special Appeals thereupon remanded the case to effectuate a care plan in the best interests of the child:   “Recognizing the complicated health statuses and interpersonal histories of all the parties, we remand the case to the juvenile court for … further proceedings as necessary in order to develop a plan for J.M.’s care.”