John Basciano v. William R. Foster, et ux.

No. 1978, Sept. Term 2021 Opinion by Leahy, J. Family Law > Child Custody > De Facto Parenthood > Absence of Consent to Formation and Establishment of Parent
- Like Relationship with Child Applying the principles and teachings imparted in Conover v. Conover , 450 Md. 51 (2016), and E.N. v. T.R. , 474 Md. 346 (2021), we hold that where a chil d’s existing legal parents both do not consent to the formation of a parent

- like relationship between the child and a third party, the third party has failed, under the first factor of the H.S.H.

- K. test adopted in Conover , to establish a de facto parent r elationship. See E.N. v. T.R ., 474 Md. at 401 (“Read to its logical conclusion, to satisfy the first factor, where there are two legal parents, both parents must knowingly participate in consenting to and fostering the third party’s formation of a parent

- like relationship with a child. ”). Family Law > Child Custody > De Facto Parenthood > Absence of Consent to Formation and Establishment of Parent
- Like Relationship with Child > Unfitness or Exceptional Circumstances
The first factor of the H.S.H.

- K. test requires that “the biologi cal or adoptive parent consented to, and fostered, the petitioner’s formation and establishment of a parent

- like relationship with the child.” Conover v. Conover , 450 Md. 51, 74 (2016) ( quoting In re Custody of H.S.H.

- K. , 533 N.W.2d 419, 421 (Wis. 1995)). The third party, however, may obtain custody of the child after establishing that the parents are either unfit or that exceptional circumstances exist such that continued custody with the parents would be detrimental to the child’s best interest. E.N. v. T.R. , 474 Md. 346, 372 (2021 ) (describing requirement for third

- party standing in a custody case); Ross v. Hoffman , 280 Md. 172, 178

- 79 (1977) (holding that the presumption of custody with a parent may be overcome if “( a) the parent is unfit to have custody, or (b) if there are such exceptional circumstances as make such custody detrimental to the best interest of the child”). Once a party has demonstrated unfitness or exceptional circumstances, the court can proceed to the best interests of the child analysis, and there is no need to show de facto parentage in order for the third party to have standing.Circuit Court for Anne Arundel County

Case No. C

- 02

- FM

- 20

- 001874 CHILD ACCESS
REPORTED
IN THE COURT OF SPECIAL APPEALS

OF MARYLAND
No. 1978 September Term, 20 2 1

______________________________________

JOHN BASCIANO

v. WILLIAM R. FOSTER, ET UX.

______________________________________ Kehoe , Leahy , Friedman , JJ.

______________________________________

Opinion by Leahy , J.

______________________________________ Filed : November 1, 2022

* Ripken, Laura S., J., did not participate in the Court’s decision to designate this opinion for publication pursuant to Md. Rule 8

- 605.1.In C onover v. Conover , the Court of Appeals first recognized de facto parenthood

as “ a viable means to establish standing to contest custody or visitation. ” 450 Md. 51, 59 (2016). Judge Adkins , writing for the Court, profoundly acknowledged that “[c]hild custody and visitation decisions are among the most serious and complex decisions a court must make, with grave implications for all parties.” Id. at 54. Appellant John Basciano (“Father”) appeals from an order of the Circuit Court for Anne Arundel County establishing the appellees, Colleen Foster and William R. Foster (collectively, the “Fosters”) , as de facto parents . The Fosters are the maternal grandparents of the only child between F ather and their daughter, Katie Lynn Foster (“Mother”). 1 The
court grant ed Father and the Fosters joint legal custody of the minor child with tie

- breaking authority to the Fosters, and primary physical custody to the Fosters. In the first of three
issue s raised in this appeal, we review whether the circuit court abused its discretion in finding that, despite the absence of consent by eithe r of the child’s parents, “ exceptional circumstances” warranted granting the child’s maternal grandparents de facto parenthood status under the test enunciated by the Court of Appeals in Conover

. Applying the holdings and the principles imparted in Conover and the Court’s more recent opinion in E.N. v. T.R. , 474 Md. 346 (2021) , w e hold that where a child’s existing legal parents both do not consent to the formation of a parent

- like relationship between the child and a third party, the third party has failed to establish a de facto parent relationship.

1 Mother last participated in the proceedings in the circuit court at the scheduling conference in February 2021. Her whereabouts were unknown at the time of the trial, and she is not a party to this appeal.2

Because neither Father nor Mother conse nted to the development of a parent

- like relationship, de facto parenthood cannot be conferred on the Fosters under the first factor of the H.S.H.

- K. 2 test adopted in Conover . See E.N. , 474 Md. at 401 ( “Read to its logical conclusion, to satisfy the first factor, where there are two legal parents, both parents must knowingly participate in consenting to and fostering the third party ’ s formation of a parent

like relationship with a child .” ). We further c onclude, however, that based on the circumstances in this case, the circuit court did not abuse its discretion in finding exceptional circumstances sufficient to award the Fosters third

- party custody of the ir grand c hild

. 3
BACKGROUND
Father and Mother, who never were married to each other, are the biological parents of their only c hild , C., who was born in January 2020. On or about July 2 2 , 2020, the Fosters were contact ed by the Maryland Department of Human Services and were informed that Mother and Father had overdosed on heroin while caring for C

. , who was just six months old. Drugs and drug paraphernalia w ere found in several areas of the apartment

. C

. was placed in the care of the Fosters, and the Anne Arundel Department of Social Services executed a safety plan. The Safety Plan reflected that C

. “will remain in the care
of mater nal grandparents . . . due to parental drug use.” It instructed that any visitation

2 In re Custody of H.S.H.

- K. , 533 N.W.2d 419, 421 ( Wis. 1995)

.
3 To protect the identity of the child, we refer to him as “C

. ” throughout this opinion.3

from Mother and Father “be supervised at all times” by the Fosters. The Safety Plan was signed by both the assessor and Mr. Foster. While Father was present when the Safety Plan was discussed , the Plan does not bear his signature. Both Mother and Father were arrested and charged with drug offenses and child endangerment. Emergency Complaint for Custody
The Fosters filed a complaint for custody and motion for emergency and ex parte relief on July 27, 2020, and Mr. Foster appeared for an emergency hearing before a magistrate that same day. At the hearing, Mr. Foster testified that , on the night of July 22, 202 0 , he was contacted by someone at the Maryland Department of Human Services , who informed him that his daughter had overdosed on heroin

. Father also overdosed the prior night in the same apartment. Mr. Foster rushed to the apartment to pick up C

. so that he would not be placed in foster care.
Mr. Foster explained that , after Mother had been sober for 11 months, the Fosters got Mother an apartment “on her own just a couple of days before this incident” and were unaware that Father “was in the area or in the apartment.” Mr. Foster opined that Father is “a present danger to both my daughter and the baby. A nd every time he shows up, we have these kind of problems. So we had no idea that [Father] was involved until the police called us.” The magistrate found that extraordinary circumstances exist ed and recommended granting te mporary custody of C

. to the Fo sters on July 27, 2020. Specifically, the magistrate found:4

The Plaintiffs (maternal grandparents) were given physical custody of the infant minor child when the Defendant (mother) overdosed on heroin and was taken to the hospital on Thursday night. The mother’s current drug abuse makes her incapable of caring for the child. The Defendant (father) overdosed on Wednesday night, after checking himself out of a drug treatment program. It is believed that the father supplied the mother with her drugs. A circuit court judge entered an order ratifying the magistrate’s findings and recommendations that same day. The court’s order also directed the Fosters t o serve the complaint for custody and summons on Mother and Father. Father and Mother were served with process on August 14 and 20 , respectively. Father then filed an answer to the complaint on October 2, 2020. He alleged that he did not supply drug s to Mother and was “getting help for [his] addiction” by completing a “30

- day rehab” and participating in an outpatient program. Mother answered the c omplaint on January 6, 2021

. After Father’s counsel entered an appearance, Father filed an amended answer. Among other things, he alleged that, “ after the overdose incident on July 23, 2020, [Father] immediately sought the proper help and treatment neces sary to live a sober life in order to be the best parent he can be for the minor child. [Father] has continued in his treatment and will likewise continue such treatments and therapies for the foreseeable future.” Father requested that the court award hi m “sole physical and legal custody of the minor child” or, in the alternative, “determine a graduated access plan between the [Fosters], [Father], and the minor child where the end result awards primary physical custody to [Father].”5 Parenting Plan On May 25, 2021, the Fosters and Father “reached a temporary agreement regarding access” with C

. , titled “Parenting Plan

– Overnight Visitation Stipulation.” At the time, Father was living with his parents. The Parenting Plan , signed by F ather and his parents and approved by the Fosters , required Father, among other things, to maintain “active membership in a state certified drug recovery program” and provide documentation of t his status to the Fosters every 30 days. The Plan required Fat her to submit to a hair follicle drug test and undergo a urinalysis every seven days and provide those results to the Fosters. The Plan further required Father to “continue with psychotherapy and/or medication management [], follow recommended treatment, and comply with prescription medication requirements.” Every 21 days, Father was obligated to provide a letter from his psychotherapist or “medication management doctor” stating whether he is following recommended treatment and “is a present risk to harm himself or third persons.” Father’s parents , the Bascianos, agreed to report Father’s “behavior honestly and accurately prior to and during overnight visitation” and to “request that [Father] immediately vaca[te] their residence if drug intoxication and/or mental health episodes a re witnesse d or even suspected.” They also agreed to supervise C ., and that “ at no time shall [Father] or any third party be left alone unsupervised” with C. The court ratified the parties’ agreement into a pendente lite order regarding visitation on the same day.6 Custody Evaluation On May 26 , 2021, the court ordered a custody evaluation . As explained below, the
court

- appointed custody evaluator appeared at the custody hearing and presented her findings and recomme ndations. Her report was admitted into evidence. Merits Trial
The case proceeded to a one - day trial on December 15, 2021

.

The Fosters’ Case

- in

- Chief Following opening arguments, counsel for the Fosters called Heather Szymanski, a special educator with the Anne Arundel County Public Schools. Ms. Szymanski was assigned to work with C

. twice a month through the Infants and Toddlers Program and focused on “building basic play skills and social interaction and communication.” She explained that she had “definite concerns of autism and his social interaction” and that “communication would be the biggest concern[] right now.” Ms. Szymanski recommended that C

. move to a “more intensive program” focused on autism. Because the pro gram wa s weekly, C

. would not be able to attend the program during weeks that he wa s with Father and his parents in New Jersey

. Ms. Szymanski then testified that C

. was “showing a five [

- ] month development” in communication at his initial testing when he was actually 16

- months old

. According to Ms. Szymanski, it was “extremely important for [ C

. ] to receive services and to get the type of services that he needs” because , to a child who may have autism , such services make “a huge difference for what the outcome looks like . . . when they start kindergarten.” On

cross - examination, Ms. Szymanski did not have enough knowledge of New Jersey’s7

programs to opine whether they we re similar to Maryland’s but agreed that the coaching model employed at the County was “widely accepted.” Next, Father called his primary care physician , Andrew Johnston

. 4 D r. Johnston testified that he had treated Fat her since February 2020. D r. Johnston explained that Father
had been drug tested every month since August of 2021 and that he had not seen any positive results for marijuana, opioids , fentanyl, heroin, meth or PCP. On cross

examination, D r. Johnston confirmed that he was not aware of the number of overdoses that Father had since he le arned that Mother was pregnant with C

. or if Father had abused his prescribed medication. After Dr. Johnston’s testimony concluded, the Fosters resumed their case - in

- chief and called Anita Tucker, the custody evaluator. After testifying that she did not have
concerns about the Foster s ’ fitness to care for C ., Ms. Tucker summarized the recommendations from her report: I recommended that Mr. and Mrs. Foster continue to have primary physical custody and that [Father] have a graduated schedule with mo re time with [C

. ], which I believe should start sometime after [C

. ] was due to have an updated treatment plan from Infants and Toddlers. So based on his

- - [C

. ]’s progress with his therapy and doing therapy with the Fosters and with the Bascianos wheneve r they had him. . . . And then also contingent on [Father] ’s participating in

- - that he participate in [C

. ] ’s therapy sessions and that he continue[] his participation in the 12 Step program, his medication assisted therapy, his individual therapy, and t hen either monthly urinalysis or a hair follicle test every 90 days.

4 The court allowed Father to call this witness during the Fosters’ case - in

- chief because he was testifying virtually on Zoom.8

Ms. Tucker explain ed that she recommended the Fosters have final decision

- making authority, in part, because C

. “was staying with the Fosters more of the time and his pediatrician, the Infants and Toddlers people were all do wn here.” Ms. Tucker further recommended that primary physical custody should remain with the Fosters because “that was the status quo and [sh e] thought they should stick with the status quo at least until [C

. ] moved on further in his therapy and they were able to give some indication about is this working.” Ms. Tucker could not opine whether the Bascianos would report if Father relaps ed

. Fina lly, Ms. Tucker testified that C

. is “primarily” attached to Ms. Foster.
On cross

- examination, when asked whether her concerns about Father having custody of C. would be ameliorated if Father remained sob e r, Ms. Tucker replied: [Y]es, they would be lessened about him having either a shared 50/50 custody schedule or them moving toward him having primary physical custody.

. . . But at the time I wrote the report I felt the Fosters should still have the primary physical custody but the intention was not that they retain it forever,

. . . certainly over time he could be the primary custodian with the Fosters still obviously involved, because I believe that they are very much attached to him and [C

. ] is very much attached to them and I don’t believe that they should just be eliminated from his life.
On re

- direct examination, Ms. Tucker opined, even if Father “was still on track,” that “there still need [ed] to be a gradual transition.” Ms. Tucker further testified that if C

. is “going to live with [ Father ], that [Father] should be living with his parents.” Christopher Foster testified next

. 5 He is the son of the Fosters and Mother’s older brother. Christopher related that Ms. Foster cared for his children for a couple of years ,

5 Because Mr. Christopher Foster s hares a last name with Mother and the Fosters, we refer to him by his first name in order to avoid confusion. In doing so, we mean no disrespect.9

and that both Mr. and Ms. Foster were fit to care for C

. He was not in contact with Mother and did not know anyone in the family who knew her whereabouts. According to Chri stopher, Mother was at his house a “lot when she was pregnant , ” and he saw her “for a brief time” after she gave birth to C

. Christopher opined that , based on his personal knowledge, neither Father nor Mother were fit to be the sole custodial provider for C

. In particular , Christopher was not sure that Father wa s “over” his addiction. He further explained that he was worried about domestic abuse between Father and Mother and witnesse d bruises on Mo ther but was not aware of any incidents when Mother actually accused Mr. Foster of physical violence

. Ms. Foster t hen took the stand, and, a mong other things, explained that ever since the parties began alternating weeks with C

. , C

. had difficulty returning to his sleep schedule
upon his return

. Ms. Foster also noticed that C

. had bitten his nails “halfway down his little fingers” due to separation anxiety. She said that a consis tent sleep schedule was “extremely important” for a child with C .’s developmental delays because he could not “ ask for his needs” but “need [ed] someone who knows his cares.” When this consistency wa s lacking, Ms. Foster testified , C

. wa s “suffering.” Ms. Foster further explained that, while she had no problem communicating with Father, all of her communications regarding C

. were with Ms. Basciano. In short, s he
summarized that she had not been co

- parenting with Father but with his moth er. Although Ms. Foster was “very proud of how far [Father] ha [d] c[o]me since July 20 th ,” she “would like to see at least another year where everything stays the same and progress keeps going forward, in order that [her] grandson is never exposed to that kind of horrific ordeal again.”10

Concerning Mother and Father’s relationship, Ms. Foster confirmed that she received calls relating to “very erratic behavior” and reports of physical violence but had not “witnessed
the actual abuse itself. ” Finally, Mr. Foster testified , and began by expressing his concern that Father had
had additional overdoses after the July 2020 incident. Specifically, Mr. Foster referenced that both Mother and Father were “on the streets of Camden for a couple of weeks” in August 2020. Mr. Foster further testified to concerns regarding Father’s medicatio ns and compliance with the Parenting Plan.
Mr. Foster testified that on July 23, 2020 , he signed the Safety Plan and that the representative from Child Protective Services “had both [Mother and Father] sign it.” Mr. Foster concluded his direct testimony by seeking a “return to [visitation for Father ] every other weekend” because “it seemed to work better for [C .] ” Father’s Case

- in

- Chief Father called his employer, Tadita Covington, manager at Planet Fitness

. She related that Father had worked for her at Planet Fitness since January 20 21

— approximately 11 months

— and she described him as an “outstanding employee.” She explained his dedication to study and pass the test for his trainer certificate , as well as his desire to become a man ger. S he said she was “so proud of him ” because he had come “ a long way , ”
and noted that F ather wa s “ an amazing asset honestly to our club. ” She claimed that he brought “ positivity, ” and that he was “ always happy.” Ms. Covington described Father as “rel iable” and a great coach.11

Ms. Basciano, Father’s mother, testified next that C

. and Father “have a lot of fun”
and that Father also care d for C., ga ve him baths, fe d him, and change d his diaper

. She described their routine with C

. and noted that she and Ms. Foster were “in constant contact” and cooperate d very well with each other about what work ed best. According to Ms. Basciano, Father participate d in pick up and drop off as long as his work schedule allow ed it. She related that, during one seven - day period while the Bascianos and Father were on vacation with C

. , Father “did everything.” She opined that Father “wants to be there for [ C

. ] and be re sponsible” and “just loves it.” Ms. Basciano testified that Father was determined to remain sober and wanted to be “ the dad that he’s supposed to be.” Finally, Father testified. He began by clarif ying that he was in “recovery” but not fully “recovered.” He established a “routine throughout [hi s ] recovery,” which include d a “12 step meeting,” “church every Sunday,” therapy, and “simply spending time with [his] family.” He explained that in the past wh en he tried to get sober, he “never had a motivation to stay sober” and felt that he “was a failure” and would “never do anything with [his] life.” Father claimed that he and C

. had “built a very, very strong bond” and that
C

. “knows that I’m dad.” He ad mitted that he had concerns about C

. ’s speech delay and potential autism. Father did not have concerns about the Fosters’ care for C ., but expressed that he fe l t “as though they have attacked me as the father” and that “nothing will ever be good enough to them.” He requested that C

. live with him and that he raise his son

. At the conclusion of Father’s testimony, the court heard closing arguments and took the matter under advisement.12 Ruling
The parties reconvened before the circuit court on January 18, 2022 to receive the court’s ruling. After accepting Mr. Foster’s proffer regarding his annual income, the court delivered a lengthy ruling from the bench. At the outset, the court recognized the “fundamental right” of parents to “direct and govern the care , custody , and control of their ch ildren.” The circuit court then noted that de facto parenthood does not contravene these principles and proceeded to analyze each of the factors from the four

- part test first adopted
in Conover v. Conover , 450 Md. 51, 85 (2016) :

The first [factor] , the legal parent must consent to and foster the relationship between the third party and the child. [C

. ] was placed in the Foster’s care by Child Protective Services in July of 2020 after [Father] and [Mother] overdosed on heroin with [C

. ] in th eir care. Immediately following the incident, the Fosters sought and were awarded emergency custody of [ C. ]

. The Court of Appeals had held that both legal parents must consent to a third party de facto parent relationship unless non

- consenting parent is un fit o r exceptional circumstances exist. Here, [Mother] has been battling drug addiction, her current whereabouts are unknown and living conditions are unknown, and she has not been involved in [C

. ]’s life since he was, approximately, six months old. The Court finds that she is not a fit parent to care for [C

. ] at this time. [Father] argues that the Fosters cannot meet their burden to establish the first prong, consent, because [C

. ] was placed in their care by DSS, and they received custody after seekin g court intervention. This Court disagrees. I find that the Fosters are able to prove this prong because exceptional circumstances exist. At the time that [C

. ] was placed in the Foster [s ’ ] care , [Father] overdosed on heroin while [C

. ] was in his and the [Mother]’s care. [C

. ] was just six months old at the time that the Fosters assumed daily parenting responsibilities. [Father] began receiving substance abuse treatment in the later part of 2020, and was not able to provide a stable environment for the baby. [Father] relinquished all parenting responsibility to the Fosters until May of 2021 while he focused on his recovery and demonstrated very little parenting responsibility for [C

. ] during that time. [Father] has been sober since August 9th , 2020.13 While this [ c ] ourt applauds [Father] ’s efforts and successes that he has made while he was in treatment and continues to make, this [c] ourt also recognizes that this period of time allowed the Foste rs to bond with [C

. ] as parents. The Fosters are primarily responsible for all aspects of [C

. ] ’s daily care and long

- term care. Even [Father] , through his conduct, recognizes this dynamic. [Father] refers to the Foster [s] ’ decision

- making regarding deci sions that impact [C

. ] ’s welfare. One example of many is that he became aware that the Fosters had made arrangements to address [C

. ]’s developmental delays . . . with a pediatrician and Anne Arundel County Infant and Toddlers. Even though the program is for parents, he deferred . . . to their decision

- making regarding [C

. ]’ s involvement in the program. The Court finds that [ de facto ] parenthood of [ C .] was established by the Fosters through exceptional circumstances, therefore they were able to meet the first prong. Having found that the first prong has been met, I will make my findings regarding the remaining prongs, although I will note that they were largely uncontested. The second prong is that the third party must have lived with the child. Here [,] the Fosters and [C

. ] have lived together in the same household since July 2020. Three, the third party must perform parental functions for the child to a significant degree. The Fosters have taken on real parenting responsibilities and taken them over since July 2020, including being primarily responsible for [C

. ] ’s care, education, development, and contribute towards his financial support without any expectation of any financial contribution. The role encompasses all aspects of parenthood, including researching, enrolling, and participating in Anne Arundel County’s Infant and Toddlers Program/Parent Child Learning Series with [C

. ]

. The fourth prong is that a parent/child bond must be forged. This [c] ourt finds that the evidence indicates that the Fosters and [C

. ] have formed a parent/child bond relationship. [C

. ] has relied on the Fosters as his primary caretakers for most of his young life. After review of the facts, I’ve concluded that the Fosters have met their burden of proving that they are de facto parents. Having concluded that the Fosters are de facto parents of C

. , the court then turned to analyze the custody factors set forth in Montgomery County Department of Social Services v. Sanders , 38 Md. App. 406, 420 (1977) and Taylor v. Taylor , 306 Md. 290 , 304

- 11 (1986). T he court found , a mong other things, that the Fos ters are “fit parents” and “have14

provided a stable and loving home for [C

. ]. ” While there we re “reasonable grounds” to believe that C

. “has been neglected by [Father],” the court found that the “neglect is not likely to occur again.” The court noted that Father has “completely turned his life around . . . taking more parental responsibility and . . . taking active steps to receive treatment.” While the court did “have some concerns that he has yet to demonstrate an ability to care
for [C

. ] without the assistance of his parents, those concerns do not amount to him being unfit.” Regarding the “age, health, and sex of the child,” the court foun d that C

. “has significant communication and social developmental delays” and was receiving services for developmental delays through Anne Arundel County , for which he w as eligible only if he reside d in the County at least half the time. The court speci fi c ally found that it was in
C

. ’s “best interest to receive early intervention services that specialize in developmental delays.” The court had concerns with Father’s “ability to maintain a stable home for [C

. ], because he is heavily reliant on the family a nd is at the beginning stages of being self

sufficient.” The court referenced “concerns” that Father “has had minimal involvement in pediatrician appointments ” and “treatment strategies” and concluded that it had “significant concerns that extended time . . . without [support] services would have a detrimental impact on [C

. ]’s wellbeing.” Concerning the willingness of the parents to share custody, the court noted that the parties agree d that C

. should eventually be in Father’s care, but the Fosters believed it was
too early in Father’s recovery to assume the role of primary caretaker. Given C

. ’s “needs for his suspected autism and a need for consistent services,” the court found that the week15

o n/week off schedule was “not in his best interest on a long

- term basis.” Although C

. and the Fosters ha d a “parent/child relationship,” the court observed that Father is “at the beginning stages of having a parent/child relationship.”
The court concl uded: “After consideration of all the factors, the [c]ourt has
determined that it is in the best interest of [C

. ] to grant primary physical custody to the Fosters and to have joint legal custody [between Father and the Fosters] . . . with the Fosters having final decision

- making authority.” T he court then outlined an access schedule, under which Father had visitation every third week of the month , although Father’s visitation
with C

. was to be s upervised until he provided a negative hair follicle test “at his expense.” After compl ying with this directive , Father would have “increased access for the holidays.” Mother was granted supervised access at the Fosters’ discretion. Finally, the court awarded child support to the Fosters in the amount of $338 per month. The judge memorialized her ruling in a written order that was entered on February 10, 2022. Father noted a timely appeal and presents three questions for our review:
1. “Did the trial court err when it conflated the test for a de facto parent relationship with ‘exceptional circumstances’?”
2. “Did the trial court err and/or abuse its discretion when it found that ‘exceptional circumstances’ existed which were sufficient to confer parental status on the maternal grandparents?”
3. “Did the trial court abuse its discretion when it entered an order under which [Father] cannot increase his time with the child, absent consent or a change in circumsta nces?”16 STANDARD OF REVIEW
As directed by Maryland Rule 8

- 131(c), when an action has been tried without a jury, we apply the clearly erroneous standard of review to the trial court’s factual findings and review the court’s decision for legal error. Maryland decisional law adjusts and fine
tunes this general standard to accommodate our review of the diverse cases that come before our appellate courts. In child custody dispute s , for example, t he best interests of the child “guides the trial court in its determination, and in our review” and “is always determinative

. ” Santo v. Santo , 448 Md. 620, 626 (2016) (quoting Ross v. Hoffman , 280 Md. 172, 178 (1977)). The Court of Appeals articulated the standard of review an appellate court should apply in reviewing a custody determination in Santo v. Santo :

We review a trial court’s custody determination for abuse of discretion. This standard of review accounts for the trial court’s unique opportunity to observe the demeanor and the credibility of the parties and the witnesses. Though a deferential standard, abuse of discretion may arise when 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. Such an abuse may also occur when the court’s ruling is clearly against the logic and effect of facts and inferences before the court or when the ruling is violative of fact and logic. Put simpl y, we will not reverse the trial court unless its decision is well removed from any center mark imagined by the reviewing court.
Santo , 448 Md. at 625

- 26 (cleaned up). On review, we grant the trial court broad discretion “because only [the trial court] sees the witnesses and the parties, hears the testimony and has the opportunity to speak with the child.” Burak v. Burak , 455 Md. 564, 617 (2017) (quoting In r e Yve S. , 3 73 Md. 551, 58 5

- 8 6 (2003)). Comparatively speaking, a trial court “is in a far better position

. . . to weigh the evidence” and determine custody, than an appellate court with only a “ cold record before it.” Id.17

Even under this deferential review, however, a court’s discretion is always tempered by the requirement that the court apply the correct legal standards. Faulkner v. State , 468 Md. 418, 460

- 61 (2020) (citing Jackson v. Sollie , 449 Md. 165, 196 (2016)); In re Dory , 244 Md. App. 177, 203 (2019) (“[T]rial courts do not have discretion to apply incorrect legal standards and a failure to consider the proper legal standard in reaching a decision constitutes an abuse of discr etion.” (cleaned up)). DISCUSSION
I.
De Facto Parentage A. Parties’ Contentions Father avers that the “trial court erred when it conflated the test for de facto parent [ age ] with ‘exceptional circumstances.’” According to Father, there are only three situations in wh ich a third party may acquire the same status as a natural parent : (1) where the natural parents are unfit, (2) where “ exceptional circumstances ” exist, or (3) where de facto parentage has arisen. Relying on Conover v. Conover, 450 Md. 51 (2016) and B.O.
v. S.O. , 252 Md. App. 486 (2021) , Father argues that the three situations in which a third party may contest custody or visitation are distinct and disjunctive

— which means that “‘exceptional circumstances’ cannot be swapped for parental consent.” In other words,
the “ exceptional circumstances ” analysis is separate and apart from the four factors that
courts must consider in deciding whether de facto parenthood has been established. Father

a sserts that the court in this case erred when “it substituted a finding of ‘exceptional18

circumstances’ for the consent requirement which is a prerequisite to a finding of de facto parentage.” In refuting Father’s claim , the F osters call attention to the recent decision by the Court of Appeals in E.N. v. T.R. , 474 Md. 346 (2021) , which, they c ontend, clarifies that the first prong of the test to determine whether de facto parentage has been established may be met by a showing of “ exceptional circumstances. ” In the alternative, the Fosters contend that “implicit consent can clearly be extrapolated from Father’s conduct” because of his heroin use while the “Fosters were the primary caregivers for [C.] .” We begin ou r analysis with a broad outlin e of the fundamental rights at stake in a child custody case.
B. The Fundamental Right of Parents and the Child’s Best Interests The Supreme Court of the United States has recognized that the Due Process Clause of the Fourteenth Amendment necessarily “protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” Troxel v. Granville , 530 U.S. 57, 66 (2000); see also Stanley v. Illinois , 405 U.S. 645, 652 (1972) ( holding that parents have a “ cognizable and substantial . . . interest in retaining custody of [ their ] children”); Meyer v. Nebraska , 262 U.S. 390, 399 (1923) ( concl uding that, under the Due Process Clause, a parent’s liberty interest includes the rights of parents to “establish a home and bring up children” as well as to control their education)

. Indeed, the Supreme Court has classified the liberty “interest of pare nts in the care, custody, and control of their children[]” as “perhaps the oldest of the fundamental liberty interests recognized by this Court.” Troxel , 530 U.S. at 65.19

Maryland courts, in turn, have “ consistently echoed the Supreme Court, declaring a parent ’ s liberty interest in raising a child a fundamental one that cannot be taken away unless clearly justified.” In re Yve S. , 373 Md. 551, 566 (2003) (citations omitted). Our Courts have deemed the right to rear one’s children as “essenti al” and have included this right among a parent ’ s “basic civil rights.” Wagner v. Wagner , 109 Md. App. 1, 37 (1996) (citations omitted); see also Maryland Code (1984, 2019 Repl. Vol.), Family Law Article, § 5

- 203 (“p arents are the joint natural guardians of their minor child” ). Balanc ed against parents ’ liberty interest are child ren ’s “ indefeasible right to have their best interests fully considered ” in child custody case s . A.A. v. Ab.D. , 246 Md. App. 418, 422 (citing Flynn v. May , 157 Md. App. 389, 410 (2004)) , cert. deni e d , 471 Md. 75 (2020). We have repeatedly emphasized that in cases where the child’s best interest
standard applies, “ it is the central consideration.” Id. at 441 (quoting McDermott v. Dougherty , 385 Md. 320, 354 (2005) )

. While the best interest of the child standard is of “transcendent importance,” this standard “does not ignore the interests of the parents
and their importance to the child” as “in almost all cases, it is in the best interests of the
child to have reasonab le maximum opportunity to develop a close and loving relationship with each parent.” McDermott , 385 Md. at 354 (quoting Boswell v. Boswell , 352 Md. 204, 220 (1998)).
I n a custody dispute between two fit parents, a court may focus solely on the child ’s best interests and avoid this delicate constitutional balancing because “each fit parent ’ s constitutional right neutralizes the other parent ’ s constitutional right,” rendering the parents as “presumptive equals.” Id. at 353

. Correspondingly , as t he Court of Appeals20

recognized in Conover, “the rights of parents to custody of their children are generally superior to those of anyone else[.]” 450 Md. at 60. Indeed, the Court of Appeals recently reemphasized : Where the dispute is between a fit parent and a private third party, both parties do not begin on equal footing in respect to rights to “care, custody, and control” of the children. The parent is asserting a fundamental constitutional right. The third party is not. A private third party has no fundamental constitutional right to raise the children of others.
E.N. v. T.R. , 474 Md. 346, 371 (2021) (quoting McDermott , 385 Md. at 353 ). Historically, i n light of the custody interests involved, a third party seeking custody or visitation must, at the threshold, show unfitness of the natural parents or that extraordinary circumstances exist before a trial court may consider whether that third party should be awarded cu stody under the best interests of the child standard. Conover , 450 Md. at 61

. Our Court of Appeals has “explained that, in custody cases, ‘unfitness means an unfitness to have custody of the child, not an unfitness to remain the child’s parents; exceptional circumstances are those that would make parental custody detrimental to th e best interest of the child.’” E.N. , 474 Md. at 372 (quoting In re Adoption/Guardianship of
H.W. , 460 Md. 201, 217 (2018)). Recently , however, “courts across the country have recognized as de facto parents a narrow class of third parties who have a special relationship with a child.” Kpetigo v. Kpetigo , 238 Md. App. 561, 5 70 (2018)

. A de facto parent is “a party who claims custody or visitation rights based upon the party’s relationship, in fact, with a non

- biological, non

adopted child.” Conover , 450 Md. at 62 (quoting Janice M. v. Margaret K. , 404 Md. 661,21

680

- 81 (2008), overruled by Conover , 450 Md. at 66)

. Our Court of Appeals enunciated the standard for establishing de facto parenthood in Conover v. Conover. C. De Facto Par enthood
In Conover , th e Court of Appeals recognized de facto parenthood and adopted the following four

- part test set forth by the Supreme Court of Wisconsin in In re Custody of
H.S.H.

- K. , 533 N.W.2d 419, 421 ( Wis. 1995) , for determining when a person is a de facto parent : (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 fi nancial 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

. T he four

- part test adopted in Conover , although narrowly crafted, id. at 73

- 74 (recognizing that the test “used to determine de facto parenthood was narrowly tailored to avoid infringing upon the parental autonomy of a legal parent ” ), overturned Janice M. and significant ly reshaped the doctrine of standing in Maryland family law in holding that “ de facto parents have standing to contest custody or visitation and need not show parental unfitness or exceptional circumstances before a trial court can apply a best interests of the22

child analysis , ” i d. at 85

. Accordingly, given t he multiplex of parties and circumstances presented in family law cases, and the overlapping laws that govern the m, it is not surprising that issues of first impression w ould follow the Court’s decision in Conover

—

as both t he m ajority and c on curring opinions recognized. Id. at 75, n. 18 , (majority opinion), 88 (Watts, J., concurring)

. Here, the question is whether a third party can obtain de facto parent status where both the legal ( biological or adoptive) parents do not consent , by demonstrating “ exceptional circumstances ” or “ parental unfitness

. ” Father avers that de facto parenthood can only be established by parental consent and that consent “ cannot be swapped” for exceptional circumstances. The Fosters, quoting
E.N. , 474 Md. at 394

- 95, maintain that prospective de facto parenthood can be achieved when it is demonstrated that both legal parents’ consent to such a relationship, “ or that a

non - consenting legal parent is unfit or exceptional circumstances exist . ” ( E mphasis supplied by the Fosters ). To resolve this issue, we must delve deeper into the opinions by the Court of Appeals in Conover and E.N. v. T.R. 1. Conover v. Conover
In Conover , a same - sex couple, Michelle 6 and Brittany Conover, entered into a relationship in 2002 and decided to have a child together. 450 Md. at 55. Brittany

6 In Conover , Michelle noted that “she is now a ‘ transgender man ’ and states that the record does not reflect her gender identity because she transitioned to living as a man after the contested divorce hearing occurred. She further explained that she would refer to herself using female pronouns and her former name for consistency with the record and that her gender identity is not material to any legal issue in this appeal. ” 450 Md. at 55 n.1. Accordingly, consistent with the Court of Appeals, we also refer to Michelle “using female pronouns and her former name. ” Id.23

conceived a child through artificial insemination and gave birth to a son in April 2010. Id. Although the son’s birth certificate l isted Brittany as his mother, no one was identified as the father. Id. Michelle and Brittany married when the child was approximately six months old but separated a year later. Id. I nitially , Michelle had overnight and weekend access to the child, but eventually, Brittany prevented Michelle from visiting him

. Id. In February 2013, Brittany filed a complaint for absolute divorce and alleged that “there were no children shared by the couple from the marriage.” Id. Michelle subsequently filed a n answer and counter

- complaint and requested visitation rights but not custody. Id. Following an evidentiary hearing, the circuit court concluded that Michelle did not have standing to seek custody or visitation

. Id. at 57. While the court found that
M ichelle was a de facto parent to the child, relying on Janice M. , 404 Md. 661, the court concluded that Michelle did not have third

- party standing absent a showing “that Brittany was unfit or that exceptional circumstances existed to overcome the biological mother’s constitutionally protected interest in the care and control of her child.” Id. at 58. Michelle appealed the trial court’s order on vi sitation, and this Court affirmed in a reported decision. Id. at 59.
On certiorari , the Court of Appeals made “explicit that de facto parents are distinct from other third parties” and held that a de facto parent has “standing to c ontest custody or visit ation and need not show parental unfitness or exceptional circumstances before a trial court can apply a best interest of the child analysis. ” Id. at 85. In so doing, the Court overturned Janice M. as “clearly wrong and contrary to established principles ” and as “undermined by subsequent events.” Id. at 77

.24

The Court adopted the Supreme Court of Wisconsin’s H.S.H.

- K. test , observing that
i t w as consistent with Maryland law because it was “narrowly tailored to avoid infringing upon the parental autonomy of a legal parent.” Id. at 74. The Court explained that the doctrine “does not contravene the principle that legal parents have a fundamental right to direct and govern the care, custody, and control of their children because a legal parent does not have a right to voluntarily cultivate their child’s parental

- type relationship with a third party and then seek to extinguish it.” Id. at 75. Rat her, relying on the Supreme Court of South Carolina’s reasoning in Marquez v. Caudill , 656 S.E.2d 737, 744 ( S.C. 2008) , the
Court instructed : The first factor in the H.S.H.

- K. test is critical because it makes the biological or adoptive parent a participa nt in the creation of the psychological parent’s relationship with the child. This factor recognizes that when a legal parent invites a third party into a child’s life, and that invitation alters a child’s life by essentially providing him with another pa rent, the legal parent’s rights to unilaterally sever that relationship are necessarily reduced. Id. (quoting Marquez , 656 S.E.2d at 744) (emphasis added) (cleaned up)

. T he Court concluded that its holding “fortif[ied] the best interests standard by allowing judicial consideration of the benefits a child gains when there is consistency in the child’s close , nurturing relationships

. ” The Court explained that it was “carefully [] adopting the multi

part test first articulated by the Wisconsin Supreme C ourt in H.S.H.

- K

. ,” because that test “accommodates . . . the dissonance between what is in the best interest of a child and a parent’s right to direct and govern the care, custody, and control of their children.” Id. at 85. Accordingly, the Court revers ed the judgment of this Court and directed us to remand25

the case to the circuit court “for determination of whether, applying the H.S.H.

- K. standards, Michelle should be considered a de facto parent.” Id. Judge Greene and Judge Watts wrote concurring opinions. In Judge Greene’s concurring opinion, he explained that, while he agreed that “ de facto parent status should be recognized in Maryland,” he did not agree “ that a person who qualifies as a de facto parent is not required, per se , to establish exceptional circumstances.” Id. at 86 (Greene, J., concurring). Judge Greene would consider, alongside other “probative factors,” whether a “psychological bond with the child . . . would warrant a finding of an exceptional circumstance, and could overcome the presumption in favor of the legal or adoptive parent to control access to the child.” Id. Judge Watts, joined by Judge Battaglia, agreed with “the recognition of de facto parenthood in Maryland” as e spoused by the M ajority, but explained that, in their view, the H.S.H

. - K. test is “too broad” and “could have a negative impact on children in Maryland

. ” Id. at 87 (Watts, J., concurring)

. Specifically, Judge Watts expressed concern that “the Majority holds that only one parent is needed to consent to and foster a parent

like relationship with the would

- be de facto parent.” Id. at 87

- 88

. While the H.S.H

. - K. test works when there is only o ne existing parent, it did not account for problems when there are two existing parents. Id. at 88

. Judge Watts explained: Where there are two existing parents, however, permitting a single parent to consent to and foster a de facto parent relationship could result in a second existing parent having no knowledge that a de facto parent, i.e. , a third parent, is created. Such s ituations may result in a child having three parents vying for custody and visitation, and being overburdened by the demands of multiple parents. Today, many children are not living in a classic nuclear family. Families include not only same

- sex married parents

— in which one26

parent had a child before marriage

— but also separated or divorced parents who conceived children during a marriage, as well as two parents who have never married. The Majority has written broadly a solution for de facto parents that w ill serve couples well under circumstances similar to the parties in this case, where there is only one biological or adoptive parent. The majority opinion, however, will have greater consequences in cases for children with two existing parents because a de facto parent request may occur without the knowledge or consent of the second existing parent. Children who already have difficulty with visitation schedules, or experience custody issues pertaining to two parents, will not be served well by the creat ion of a test that does not account for the second existing parent’s knowledge and consent. Id.
T he H.S.H

. - K. test , Judge Watts wrote, “creates the irreconcilable result . . . that one parent may consent to and foster a de facto (third) parent for a child without any sort of notice to, or consent from, a second existing parent.” Id. Judge Watts concluded with the following guidance:
To fill the obvious void left by the majority opinion, I would offer the following guidance. In every instance in which a trial court is confronted with a request for de facto parentship, the trial court should ascertain whether there are one or two existin g biological or adoptive parents. In the case of two existing parents, the trial court should require that the second parent have notice of the de facto parent request and ascertain whether the second parent consents to the de facto parent relationship. In satisfaction of the first prong of the H.S.H.

- K. test, an action for de facto parenthood may be initiated only by an existing parent or a would

- be de facto parent by the filing of a verified complaint attesting to the consent of the establishment of de facto parent status. The trial court should find by clear and convincing evidence that the parent has established: that the biological or adoptive parent consented to, and fostered, the petitioner’s formation and establishment of a parent - like relationship with the child, and in the event of two existing biological or adoptive parents, that both parents consented to th e establishment of a de facto parentship[.]27

Id. at 93 (cleaned up) (bold emphasis added)

. Although the M ajority urged trial courts to exercise caution in recognizing de facto parent hood and “ avoid having a child or family to be overburdened or fractured by multiple persons seeking access,” it did not specifically address the concern raised in Judge Watts’s

concurrence. Id. at 75 n.18 (majority opinion)

. 2. E.N. v. T.R. Five years later, i n E.N. v. T.R. , the Court of Appeals

— Judge Watts now writing for the Majority

—

returned to the issue of de facto parenthood and examined “the requirements necessary for establishment of de facto parenthood in Maryland where a child has two legal parents, specifically, whether both parents must consent to, and foster, a prospective de facto parent’s formation and establishment of a parent

- like relationship with the child.”
474 Md. at 351.
In E .N. v. T.R. , the biological mother of two minor children and the father’s fiancé e sought sole legal and physical custody of the children. Id. at 354. Following a five

- day trial, the circuit court granted the fiancé e ’s complaint for custody. Id. The cou rt determined that the biological mother “did not consent to or foster the children’s relationship” or “even know” the fiancé e . Id. at 354

- 55. I t was “clear” to the court that the fiancé e “did not establish that [ the biological mother] was unfit or that exceptional circumstances existed such that [ the fiancé e ] could be declared a de facto parent.” Id. at 355. Nevertheless, the circuit court found that the “four factors of the H.S.H.

- K. test were satisfied and that [ the fiancé e ] was a de facto paren t of the children

. ” Id. Th e court re ached28

this finding largely because the biological father consented to the establishment of a de facto relationship between his fiancé e and his children. Id. 354

- 55. The mother appealed , and this Court affirmed the j udgment of the circuit court in a reported opinion. E.N. v. T.R. , 247 Md. App. 234, 252 (2020), rev’d , 474 Md. 346 (2021). Specifically, we held that a “ de facto parent relationship can be created by only one legal parent consenting to and fostering a parent

- like relationship with a putative de facto parent.” Id. at 247. While recognizing that “ Conover did not expressly address” this issue, we found “no constitu tional infringement on Mother’s due process rights because, once [ the fiancé e ] achieved de facto parenthood status, [ the fiancé e ] qualified as a ‘legal parent’
entitled to co

- equal fundamental constitutional protections.” Id. at 249. We surmised that “su ch a rule strikes the proper balance between parents’ fundamental rights to care for their children and the children’s fundamental rights to be placed with caregivers who will promote their best interests.” Id. The Court of Appeals reversed , holding tha t “ under the first factor of the H.S.H.

- K. test adopted by this Court in Conover for establishment of de facto parenthood, where there are two legal (biological or adoptive) parents, a prospective de facto parent must demonstrate that both legal parents co nsented to and fostered such a relationship or that a non - consenting legal parent is unfit or exceptional circumstances exist .” 474 Md. at 394

- 95 (emphasis added). Central to the Court’s analysis was a parent’s “fundamental right, protected by the Fourteenth Amendment of the United States Constitution, to direct and govern the care, custody, and control of the parent’s children.” Id. at 395. “[C]ompletely disrega rding whether both legal parents have consented to and fostered a29

prospective de facto parent’s parent

- like relationship with a child, or that a parent is otherwise unfit or exceptional circumstances exist, not only runs afoul of a parent’s
constitutional rights, but also basic family law principles.” Id. at 396

- 97. The Court expounded further upon restating its holding:
I n light of the fundamental rights at stake and important principles expressed in our case law, we are compelled to hold that, for the well

- being of children and family relationships in Maryland, before establishing de facto parenthood where there are two existing legal parents, both parents must be shown to have consented to a third party’s formation of a parent

- like relationship with a child or, in the alternative, that one or both parents are unfit or exceptional circumstances exist. A parent has a fundamental constitutional right to raise and care for the parent’s child and where there are two legal parents, one parent’s knowing parti cipation in the formation of a third party’s de facto parent relationship with a child cannot suffice to serve as the consent of the second parent. Endorsing a holding that would permit de facto parenthood to be established with the consent of only one pa rent where there are two legal parents would intrude upon the second parent’s constitutional rights, be inconsistent with our case law concerning parental custody (case law holding that third party intervention for custody requires a showing of unfitness o r exceptional circumstances), and would potentially create circumstances that are untenable for all involved. Id. at 398.
T he Court noted that the biological mother did not “expressly or impliedly consent[]” to the relationship between her children and the fiancé e . Id. at 395. “In addition, [ the fiancé e ] did not establish that [mother] was an unfit parent or that exceptional circumstances existed such that [ the fiancé e ] would have standing to seek custody of the children.” Id. Consequent ly, the fiancé e could not meet the first factor of the H.S.H.

- K.
test , and the court erred in granting her de facto parent status. Id. Rather than conclude its analysis t here , the Court further explored application of the first factor of the H.S.H.

- K. t est in Conover

. Id. at 401

- 02. Among other things, the Court30

“recognized that de facto parenthood ‘cannot be achieved without knowing participation by the biological parent.’” Id. at 401 (quoting Conover , 450 Md. at 74). T he Court reiterated : . . . . [T]he first factor is not only critical because it makes a legal parent a participant in the creation of the de facto parent ’ s relationship with the child, but also because it “recognizes that when a legal parent invites a third party into a child’ s life, and that invitation alters a child’s life by essentially providing him with another parent, the legal parent’s rights to unilaterally sever that relationship are necessarily reduced.” Read to its logical conclusion, to satisfy the first factor, whe re there are two legal parents, both parents must knowingly participate in consenting to and fostering the third party’s formation of a parent

- like relationship with a child. Otherwise, we create the incomprehensible situation in which a de facto parentsh ip may be created by the knowing participation of only one legal parent while an equally fit legal parent is denied the same knowing participation in the process and denied the meaningful input that we deemed so critical for a parent to have in creating de facto parent status for a third party. Id. at 401 (quoting Conover , 450 Md. at 75). The Court emphasized that the “ first factor requires that the legal parent consented to and fostered, the prospective de facto parent ’ s formation and establishment of a parent

- like relationship with the child. ” Id. at 40 4

- 0 5. Judge Biran dissented, joined by Chief Judge Barbera. Id. at 414 (Biran, J., dissenting). According to Judge Biran, “[t]here is no sound basis in law or policy to require that both legal parents must consent to and foster a third party’s parental

- type relationship” but rather “[i]t should suffice that one of the legal parents has consented to the relationship.” Id. Judge Biran observed that in Conover , the H.S.H.

- K. factors “set forth a high bar for establishing de facto parent status, which cannot be achieved without knowing participation by the biological par ent.” Id. at 415

. Rather than view a “nonconsenting parent’s right to parent their child” as a “zero

- sum situation , ” the “nonconsenting legal31

parent remains a parent to the child.” Id. at 418 . Yet, this right is not absolute. According to Judge Biran, [T]he Majority’s position ignores a reality that all parents understand when they have a child: the union that produced the child may not last forever. Thus, it is reasonably foreseeable to any legal parent at the time a child is born that there may come a day when the other legal parent will “invite[ ] a third party into a child’s life,” and thereby “alter a child ’ s life by essentially providing him with another parent.” Marquez v. Caudill , 376 S.C. 229, 656 S.E.2d 737, 744 (2008). When they have the child, the two legal parents typically do not know whether the union will end and, if so, which one of them may consent to and foster a parental

- type relationship between the child and a new partner. Id. at 421. Judge Biran concluded that he “cannot join an opinion that will lead to the severing of parental

- type relationships without first giving a family court the opportunity to consider whether it is in the best interests of a child to allow a psychological parent to have some measure of access to t he child and, thereby, keep intact the bond that has formed. Instead, I would hold that the consent of one legal parent is sufficient to establish the
necessary ‘ consent ’ under the first part of the H.S.H.

- K. test.” Id. at 438.
3. Analysis
E.N. v. T.R. presented “the first occasion” for the Court of Appeals to “address [the] application of the first factor of the four

- factor test adopted in Conover to circumstances where a child has two existing legal parents

. ” E.N. , 474 Md. at 395

. Here, we are p resented with the first occasion to address the application of the four

- factor test to circumstances that involve two existing parents, but neither consent to the formation of a parent

- like relationship between the ir child and the would

- be de facto parent s . Applying the principles and teachings imparted in Conover and E.N. , w e hold that where a child’s existing legal32

parents both do not consent to the formation of a parent

- like relationship between the child and a third party, the third pa rty has failed , under the first factor of the H.S.H.

- K. test , to establish a de facto parent relationship

. The first factor requires that “ the biological or adoptive parent consented to, and fostered, the petitioner’s formation and establishment of a parent

- like relationship with the child .” Conover , 450 Md. at 74 (citation omitted). The third party , however, may obtain custody of the child after establish ing that the parents are either unfit or that exceptional circumstances exist such that continued custody with th e parents would be detrimental to the child ’ s best interest. E.N. , 474 Md. at 372 ( describing requirement for third

- party standing in a custody case); Ross v. Hoffman , 280 Md. 172,
178

- 79 (1977) (holding that the presumption of custody with a parent may be overcome if

“ (a) the parent is unfit to have custody, or (b) if there are such exceptional circumstances as make such custody detrimental to the best interest of the child ”)

. Once a party has demonstrated unfitness or exceptional circumstances, the court can proceed to the best interests of the child analysis, and there is no need to show de facto parentage in order for the third party to have standing. 7
Her e , the circuit court found “ that [ de facto ] parenthood of [ C .] was established by the Fosters through exceptional circumstances, therefore they were able to meet the first
prong. ” Father rightly claims that the circuit court conflated the third

- party “ exceptional
circumstances ” analysis with the first prong of the de facto parentage test, when they are,

7 Our holding and the cir cumstances in this case do not require that we decide whether a party can obtain de facto parenthood status after a separate showing of exceptional circumstances

.33

in fact, separate constructs. There are at least two reasons why one cannot be subst ituted for the other. First, the requirements for obtaining status as a de facto parent , focus on the relationship between a third party “with a non

- biological, non

- adopted child” which the parent consents to and nurtures

. Conover , 450 Md. at 62, 85 . By contrast , the unfitness or exceptional circumstances analysis focuses on the parents ’ inability to continue to have custody of their chi ld because the continuation of custody is against the child’s best interests

. McDermott , 385 Md. at 325 . A third

- party can obtain standing to pursue custody of a child through either path, but they are not the same, and the distinction matters. As
pre viously noted, a de facto parent is accorded the same constitutional rights as a biological or adoptive parent, and with that, the presumption that the child’s best interests are to be with that parent. In third

- party custody cases, the third party does not have equal standing wi th a fit parent; that party must rebut the presumption and the court must undertake the delicate constitutional balancing that is avoided when “each fit parent’s constitutional right neutralizes the other parent’s constitutional right,” rendering the paren ts as “presumptive equals.” McDermott , 385 Md. at 353 ; see E.N. , 474 Md. at 371 (quoting McDermott , 385 Md. at 353). Second, t he term “exceptional circumstances” has different connotations and carries different meanings and requirements among the variou s types of third

- party custody34

proceedings. 8 S ee In re Adoption/Guardianship of Rashawn H. , 402 Md. 477, 498 (2007) (explaining that “[t] he notions of ‘ unfitness ’ and ‘ exceptional circumstances ’ have a different connotation in TPR cases than they do in custody and visitation disputes, however. In a custody case, unfitness means an unfitness to have custody of the child, not
an unfitness to remain the child ’ s parent; exceptional circumstances are those that would make parental custody detrimental to the best interest of the child. ” )

. As previously stated, t h e first factor requires “that the biological or adoptive parent consented to, and fostered, the petiti oner’s formation and establishment of a parent

- like relationship with the child.” Conover , 450 Md. at 7 4 (quoting H.S.H.

- K. , 533 N.W.2d at
4 35

- 36 ). Long held precedent r ecognizes the fundamental right s of parents , inherent in the Due Process Clause of the Fourteenth Amendment , to direct the care, custody, and control

8 For example, in light of the “important rights at stake” in a T ermination of Parental Rights (“TPR”) proceeding, the Court of A ppeals has “ described three elements of heightened protection provided to parents in a TPR proceeding”: First, we have recognized that there is the “presumption that the intere st of the child is best served by maintaining the parental relationship, a presumption that may be rebutted only by a showing that the parent is either unfit or that exceptional circumstances exist that would make the continued relationship detrimental to the child ’ s best interest.” Second, this presumption can only be overcome if the State establishes by clear and convincing evidence of unfitness or exceptional circumstances to justify a TPR. This is a heavier burden than the preponderance of evidence st andard utilized in a standard child custody case. Third, the General Assembly provided factors that the juvenile court must expressly consider in determining whether termination is in the child ’ s best interest. While a juvenile court is permitted to cons ider additional factors, the statutory factors are intended to provide the basis for any termination of parental rights. In re Adoption/Guardianship of C.E. , 464 Md. 26, 49

- 50 (2019) (cleaned up).35

of their children . T he Court of Appeals adopted the H.S.H.

- K. test , in part, because it i s “narrowly tail or ed to avoid infringing upon” th ese constitutional right s . Id. at 74. Accordingly, the Court highlighted that the first factor in the H.S.H.

- K. test

— the consent
prong

— is “ critical because it makes the biological or adoptive parent a participant in the creation of the psychological parent’s relationship with the child . ” Id. at 75 ( quoting Marquez , 656 S.E.2d at 744) (emphasis added)

. Both the Conover and E.N. Courts “recognized that de facto parenthood ‘cannot be achieved without knowing participation by the biological parent.’” E.N. , 474 Md. at 401 (quoting Conover , 450 Md. at 74). Judge Biran’s dissent in E.N. equally recognized that the H.S.H.

- K. factors “set forth a high bar
for establi shing de facto parent status, which cannot be achieved without knowing participation by the biological parent.” Id. at 415 (Biran, J., dissenting).
A s Judge Watts’ s concurring opinion in Conover and her majority opinion in E.N. reveal , the concern of the Court of Appeals was not that the first factor necessary to establish de facto parenthood should be broadened , but rather , that this factor should be constrained to protect a parent’s constitutional rights. Id. at 93 (Watts, J., concurring) ; E.N. , 474 Md. at 398. To substitute the requirement that the existing legal parents consent to the formation of a parent

- like relationship between the child and a third party, with a finding of “exceptional circumstances,” would confer constitutional parental standing rights on potentially countles s parties . Consider, for example, as th is case demonstrates, 9

9 Days after the July 2020 overdose incident, the Fosters filed a complaint for custody and moved for emergency relief. At the hearing on the same day, a magistrate found that extraordinary circumstances existed and recommended granting temporary (Continued)36

the fact that our trial courts often find exceptional circumstances necessary to grant custody to a third party on a temporary basis. For the foregoing reasons, we do not read the holding in E.N. to mean that “exceptional circumstances” can substitute fo r consent under the first prong of the H.S.H.

- K. test

. Returning to Father and the Fosters, we conclude that de facto parenthood status
was not properly conferred on the Fosters because neither Father nor Mother consented to the development of a parent

- like relationship. Moreover, we are unpersuaded by the Fosters’ alternative argument that Father provided implied consent to the Fosters while he

was recov ering from heroin addiction

. T he Fosters do not direct us where the circuit court concluded that Father impliedly consent ed to the formation of a de facto parental relationship, and we have not found any such consent in our review of the record. An appellate court is ill

- equipped to and, indeed, cannot “substitute our judgment for that of
the fact finder

. ” Gordon v. Gordon , 174 Md. App. 583, 626 (2007).
W e turn now to examine whether the circuit court appropriate ly determined that exceptional circumstances permitted the court, after examin ing C. ’s best interests , to confer third

- party custody of C. with the maternal grandparents

.

custody of C. to the Fosters. Also that same day, the circuit court ratified the magistrate’s findings and recommendations. Our Courts often interchange “extraordinary” and “exceptional” circumstances in considering third

- party custody cases. See , e.g. , Burak v. Burak , 455 Md. 564, 659 (2017).37 II. Exceptional Circumstance s A. Parties’ Contentions Father avers that the “trial court additionally was clearly erroneous and/or abused its discretion when it found that ‘exceptional circumstances’ existed which entitled the Fosters to parental status superior to that of [Father].” Relying on Ross v. Hoffman , 280 Md. 1 72 (1977), and Burak v. Burak , 455 Md. 564 (2017), Father argues that “the 10 month interval in the present case [between the July 2020 overdoes incident and entry of the Parenting Plan] . . . fails to q ualify as a ‘long time’ for purposes of ‘exceptional circumstances.’” Father ur ges that this delay is “not sufficient to demonstrate abandonment or transfer of physical custody.” In response, the Fosters maintain that Father was not involved in C .’s car e and “relinquished parental duties for a child with special needs to the Fosters.” Concerning the length of time, the Fosters aver that it “is one factor for exceptional circumstances, and in this case, Father was absent and was found to have neglected t he child during the child’s

ent i re life up and until the Fosters were awarded custody.”
B. Analysis
In t he preeminent case on third

- party custody, Ross v. Hoffman , the Court of Appeals observed that, “Child custody disputes fall into two categories with respect to those seeking custody: disputes between the biological parents and disputes between a biological parent and a third party[.]” 280 Md. 172, 174 (1977) . Of course, the overarching and c ontrolling test in both categories of disputes is the best interests of the child standard.38

Id. at 175. Consequently, the Court observed, “[e]ven when father and mother are living together, a court has the power, if the best interests of the child requir e it, to take it away from both parents and commit the custody to a third person. In other words, a court of chancery stands as a guardian of all children[.]” Id. at 176. Still, the law accords a “prima facie presumption that the child’s welfare will be best [] served in the care and custody of its parents rather than in the custody of others, and the burden is then cast upon the parties opposing them to show the contrary.” Id. at 178 (quoting Ross v. Pick , 199 Md. 341, 351 (1952) )

. In Hoffman , the Court of Appeals collected certain factors “which may be of probative value” in determining whether “exceptional circumstances” exis t in a dispute between a child’s actual or adoptive parent[s] and a third party

. Id. at 191. These factors include: (1) the length of time the child has been away from the biological parent; (2) the age of the child when care was assumed by the third

- party; (3) the possible emotional effect on the child of a change of custody; (4) the period of time which elapsed before the parent sought to reclaim the child ; (5) the nature and strength of the ties between the child and the third

- party custodian; (6) the intensity and gen uineness of the parent ’ s desire to have the child; and (7) the stability and certainty as to the child ’ s future in the custody of the parent. Burak v. Burak , 455 Md. 564, 659 (2017) ( c iting Hoffman, 280 Md. at 191). While not exclusive or mandatory, these factors have emerged as the “standards and guidelines that generate ‘exceptional circumstances

. ’” McDermott v. Dougherty , 385 Md. 320, 419 (2005)

. T he Court of Appeals has held that other factors may be relevant to an “e xceptional39

circumstances” analysis, including “the stability of the child ’ s current home environment, whether there is an ongoing family unit, and the child ’ s physical, mental, and emotional needs

. ” Sider v. Sider , 334 Md. 512, 532 (1994) (quoting Turner v. Whisted , 327 Md. 106,
116

- 17 (1992) ); see also Monroe v. Monroe , 329 Md. 758, 775

- 76 (1993) (concluding that
the child ’ s relationship with a third

- party is a relevant factor in exceptional circumstances inquiry). In custody cases, “exc eptional circumstances are those that would make parental custody detrimental to the best interests of the child.” In re Adoption/Guardianship of Rashawn H. , 402 Md. 477, 498 (2007) (emphasis in original)

. Judge Hotten, writing for the Court of Appeals , explained in Burak v. Burak , that the purpose of the first Hoffman factor, “is to determine whether the child [ ] has been outside the care and control of the biological parent for a sufficient period of time for a court to conclude that the constructive physical custody of the child has shifted from the biological parent to a third

- party

. ” 455 Md. at 663. Alternatively stated, the first factor concerns whether “ a biological parent has, in effect, abando ned his or her child.” Id. While this first factor is “not the exclusive consideration,” a “court must first determine that the child at issue has spent a long period of time away from his or her biological parent before considering the other Hoffman factors.” Id. at 662

- 63. Returning to our case, Father avers that the length of time here was not sufficient to demonstrate abandonment or transfer of physical custody. In support, Father asserts that prior cases reflect longer periods of separation t han the time in this case. See Hoffman , 280 Md. at 192 (finding first factor satisfied where there was a “protracted separation of mother from child, beginning at the child ’ s tender age of about four months and lasting for eight40

and half years”) ; Ross v. Pick , 199 Md. 341, 351 (1952) ( noting an “important feature of this case is that [foster parents] had the care and custody of the child from the time he was less than two years old until he was over eleven”)

. Although the time period reflected in the c ases referenced by Father is longer than the current situation, t he length of time is not controlling. Rather, as Burak directs, the relevant inquiry is whether the child “has been outside the care and control of the biological parent for a sufficient period of time for a court to conclude that the constructive physical custody of the child has shifted from the biological p arent to a third

- party.” 455 Md. at 663

. In applying th e first Hoffman factor, the court found that Father “ relinquished all parenting responsibility to the Fosters until May of 2021” after his overdosing on heroin while caring for C . During this peri od, which consisted of the majority of C. ’s life , the Fosters “bond[ed] with [ C. ] as parents.” Although the judge found that Father ha d made significant strides in his recovery, for a substantial period of C

. ’s life , the judge concluded that Father had abandoned C

. and “neglected him , ” requiring intervention by the State and the Fosters to protect C

. and c are for his needs. We conclude, based on the unique aspects of this case, that C. was away from Father for a sufficient tim e to shift constructive custody to the Fosters. Indeed, this shift is evident in the circumstances relevant to the other factors considered by the trial judge in her oral ruling. See In re Adoption/Guardianship of Darjal
C. , 191 Md. App. 505, 532 (2010) (“A court is ‘not required to recite the magic words of a legal test[] . . . as an adherence to form over substance, [which would] not cause the Genie to appear[,]’ and particular words are ‘neither required nor desired if actual consideration41

of the nece ssary legal considerations are apparent in the record.’” (quoting S. Easton Neighborhood Ass’n, Inc. v. Town of Easton , 387 Md. 468, 495 (2005)). Speci fic ally, regarding the “possible emotional effect on the child,” the court found that the Fosters had “bonded” with C . This conclusion is supported by substantial evidence in the record, including the testimony of the custody evaluator, Anita Tucker . Altern atively, the court recognized that Father was “at the beginning stages” of a parent/child relationship and that
visitation with Father had resulted in disruption to C

. ’s sleep schedule and other manifestations of separation anxiety, including nail biting. Finally, the court found that C

. ’s developmental delays required significant care.
While the court found that the Fosters were “primarily responsible for all aspects of [C

. ]’s daily care and long

- term care,” the court had concerns that Father had “yet to demonstrate an ability to care for [C ] without the assistance of his parents” and with Father’s “ability to
maintain a stable home for [ C. ], because he is heavily reliant on the family and is at the beginning stages of being self

- sufficient.” We hold that the circuit court properly considered whether exceptional circumstances were present and that the circuit court did not abuse its discretion. 10

10 Father does not contest the circuit court’s best interest s analysis.42 II I . AWARD OF FUTURE CUSTODY A. Parties’ Contentions Father avers that the “trial court abused its discretion when it entered an order under which [Father] cannot increase his time with the child, absent consent or a change in circumstances.” According to Father, the court “provided for less visitation than the parties agreed” and “failed to include an y provision whereby [Father] could increase his visitation time.” Relying on Boswell v. Boswell , 118 Md. App. 1, 31 (1987) , Father contends that the judge abused her discretion by failing “to articulate why [Father]’s visitation of one week per month is l imited, without any provision for an increase in time

. ” In opposition, after distinguishing Boswell , the Fosters aver that the “schedule implemented with phases and conditions . . . was to provide safety and stability in light of [C

. ] having been neglected and maltreated at 6 months of age as a result of Father’s heroin overdose.” According t o the Fosters, “[i]t does not require further explanation of the [c]ourt that for so long as Father lives in New Jersey, and the child’s life is in Maryland, an increase of time is not reasonable or child centered.” Further, relying on Schaefer v. Cusack , 124 Md. App. 288 (1998), the Fosters contend that “ in futur o custody determinations are considered an abuse of discretion.” Finally, the Foster s argue that there are “proactive steps” that Father may undertake to “better situate himself to be a primary caregiver” for C

. but the court “need not outline them.”43 B. Analysis Father’s question narrowly asks us to consider whether “ the trial court abuse d its discretion when it entered an order under which [Father] cannot increase his time with the child, absent consent or a change in circumstances.” We conclude that the circuit court did
not abuse its discretion by entering a custody order that does not provide for an increase in Father’s time with C

. Indeed, had the court done what Father proposes, it would have abused its discretion. We explain. In making a custody determination, “courts look to the situation as it exists at the time.” Schaefer v. Cusack , 124 Md. App. 288, 295 (1998). In Schaefer , this Court analyzed a custody order which granted physical custody of a minor child , then five years later , to his mother until completion of the fifth grade and then to his father until his eighteenth birthday. Id. at 291

- 92. In determining that the circuit court abused its discretion, we explained: We have not the faintest idea of what the situation of the parents may be at the time when this child completes the fifth grade, obviously a number of years hence. We know not what the living conditions of the parties at that time will be. We know not where the parties will be living. We do not know what their incomes will be. We have no idea of what kind of physical condition the parents or child will be in at that time. We do not know what the preference of the child at that time may be. We have no idea whatever as to the condition under which the parents will be living. Although thus far there has been no hint of immorality, we do not know what the situation will be at the time of the contemplated change in custody. We do not know what effect a change in custody might have on the child. All of these are relevant considerations. It is hard enough to look into the future and to determine what may be perceived as the best interest of the child on the basis of circumstances as they exist at the time of a custody hearing. We consider it to be an abuse of dis cretion to attempt to look ahead and to determine now that it will be in the44

best interests of a child who has not yet entered kindergarten to have his custody changed upon completion of the fifth grade. Id. at 297

- 98. We see no reason to diverge from our reasoning in this case. To the extent Father complains that the court abused its discretion in granting him a week of visitation a month , as opposed to some greater number, we first observe that the trial judge thoroughly reviewed the relevant custody factors and offered the reasons for her decision in great detail. The Court noted that C., who has developmental delays, had been obtaining services from the Anne Aru n del County Infant and Toddlers Program, where “care g ivers learn daily strategies and tasks to work with [C.].” The court noted that it was in [C.’s] best interests to receive these early intervention services in Anne Arundel Co unty. The court further found that Father has moved back with his parents in New Jersey, has demonstrated a “lack of involvement” in C.’s treatment strategies, and that no similar support services were in place for C. in New Jersey. It is clear to us, fro m the judge’s findings, that she presented a visitation schedule that would allow C. to obtain the treatment he needs in Maryland, and still visit his Father one week out of the month. Moreover, in regard to the holiday schedule, t he court specifically fo und: “Given my concerns regarding the importance of maintaining stability for [C.] and to ensure that it does not negatively impact his ability to receive services, I believe that the holiday schedule is an opportunity to increase [Father]’s access with [C .] in a way that minimizes a negative impact[.]” W e discern no abuse of discretion in the court’s custody d etermination and visitation schedule

.45 CONCLUSION We hold that b ecause neither Father nor Mother consented to the development of a parent

- like relationship, de facto parenthood was not properly conferred on the Fosters under the first factor of the H.S.H.

- K. test adopted in Conover

. However, based on the
circumstances of this case, we hold that the circuit court did not abuse its discretion in finding exceptional circumstances sufficient to award the Fosters third

- party custody of C. Accordingly, we remand the case to the circuit court with instruction to vacate the p ortion of its custody order granting the Fosters de facto parenthood status of C . The remaining provisions of the court’s order remain in full force and effect. JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED IN PART AND AFFIRMED IN PART; CASE REMANDED WITH INSTRUCT I ON TO THE CIRCUIT COURT TO VACATE PORTION OF ORDER GRANTING DE FACTO PARENTHOOD STATUS TO APPELLEES; CO STS TO BE PAID ONE HALF BY APPELLANT AND ONE HALF BY APPELLEES.