By Fred Franke
Franke, Sessions & Beckett LLC
The latest word from the appellate courts defining familial relationships is the Court of Special Appeals which revisited the issue of de facto parent status in In Re: J.M., Jr., 2017 WL 3141086 (7/25/17, unreported). Last year, the Court of Appeals recognized de facto parenthood to grant visitation rights to the non-biological parent of a child born to same-sex couples. Conover v. Conover, 450 Md. 51 (2016). The child was born prior to the couple marrying (actually prior to the enactment of Maryland law permitting them to marry) and the non-biological parent sought visitation, as a de facto parent, after the couple’s subsequent divorce.
In Re: J.M., Jr., was against the backdrop of a CINA proceeding. There, a grandmother was the legal guardian of a 10 year old boy who had very little contact with his birth mother (a daughter of the grandmother) or his birth father since the child was 2 years old. Although the child’s grandmother was the legal guardian, his aunt (the mother’s sister) was effectively the one raising the child. The Juvenile Court, in the CINA proceeding, recognized the aunt as a de facto parent and consequently the aunt gained full equal party status with the natural parents in the proceeding. The mother, the father, and Child Welfare Services appealed.
As with many CINA cases, the facts are sad. The child had pronounced mental health issues and those in his family orbit did also: “Many of the parties have reported histories of mental health needs and physical limitations …”(Footnote 5 of In Re J.M., Jr.).
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.”