MAINE SUPREME JUDICIAL COURT                                                          Reporter of Decisions
Decision: 2016 ME 78
Docket:   Cum-15-292
Argued:   February 10, 2016
Decided:  May 26, 2016

Panel:        SAUFLEY, C.J., and ALEXANDER, MEAD, JABAR, HJELM, and HUMPHREY, JJ.



                                        TODD A. KILBORN

                                                     v.

                                       NICOLE CAREY et al.

HUMPHREY, J.

         [¶1] This appeal challenges a court’s findings and conclusions resulting

from its application of the test for establishing de facto parenthood that we

enunciated in Pitts v. Moore, 2014 ME 59, ¶¶ 27-30, 90 A.3d 1169. Under the

Pitts test, “To obtain parental rights as a de facto parent, an individual must show

that (1) ‘he or she has undertaken a permanent, unequivocal, committed, and

responsible parental role in the child’s life,’ and (2) ‘there are exceptional

circumstances sufficient to allow the court to interfere with the legal or adoptive

parent’s rights.’”1 C.L. v. L.L., 2015 ME 131, ¶ 20, 125 A.3d 350 (quoting Pitts,


    1
       On July 1, 2016, the Maine Parentage Act, 19-A M.R.S. §§ 1831-1938, will become effective, and
thus it does not apply in this case. See P.L. 2015, ch. 296, §§ A-1, D-1. However, section 1891 of the
Act, entitled “De Facto Parentage,” largely codifies our two-part test outlined in Pitts v. Moore,
2014 ME 59, ¶¶ 27-30, 90 A.3d 1169, with the exception that the statute will not require a showing of
harm or potential harm to the child before a court may grant de facto parentage; it requires only that “[t]he
continuing relationship between the person and the child is in the best interest of the child.” 19-A M.R.S.
§ 1891(3)(E) (2015); see Pitts, 2014 ME 59, ¶¶ 42-58, 90 A.3d 1169 (Jabar, J., concurring).
2

2014 ME 59, ¶ 27, 90 A.3d 1169.) “[T]he petitioner must make those showings by

clear and convincing evidence.” Pitts, 2014 ME 59, ¶ 27, 90 A.3d 1169.

        [¶2] Nicole Carey appeals from a judgment entered in the District Court

(Portland, Kelly, J.) finding that Todd A. Kilborn is her daughter’s de facto parent.

She contends that the court erred in determining that Kilborn met his burden, by

clear and convincing evidence, of satisfying both prongs of the Pitts test. We

disagree and affirm the judgment.

                                     I. BACKGROUND

        [¶3] The court found the following facts after a two-day testimonial hearing,

and its findings are supported by competent evidence in the record.                            See

Ireland v. Tardiff, 2014 ME 153, ¶ 1, 107 A.3d 618.

        [¶4] A daughter, now six, was born to Nicole Carey and Benjamin Knight in

Massachusetts in February 2010. The child was hospitalized with a serious illness

when she was about a month old, and Knight ended his relationship with Carey and

removed himself from his daughter’s life during her hospitalization.2 Carey moved

into Todd Kilborn’s home in Maine in April or May 2010, when the child was just

two months old. Carey and Kilborn were married in September 2010. As part of

the wedding ceremony, they included an informal “adoption” ceremony called


    2
      The child received social security disability benefits through Knight, but he was otherwise an
absentee parent, visiting with his daughter only once between April 2010 and August 2014.
                                                                                       3

“sprouts and roots,” which celebrated their union as a family and held the child out

to their family and friends as Kilborn’s “adopted” daughter in spirit and intention.

      [¶5] From the beginning of their relationship, Carey made clear to Kilborn

that she wanted him to serve as the child’s father, and she ushered him into her life

in a full parental role. Kilborn rose to the occasion. He actively participated in the

child’s life, including providing day-to-day care such as feeding her, bathing her,

and changing her diapers. Kilborn and Carey discussed formal adoption, but he

understood that they could not proceed because the biological father, Knight, was

unwilling or unable to consent. Kilborn and Carey subsequently had two children

together, a daughter and a son, and all three children were raised as full siblings.

They shared a family bed until 2013, shortly before the youngest child was born.

      [¶6] Carey’s daughter refers to Kilborn as “daddy,” and his parents have

acted as grandparents to all three children. Aunts, uncles, and cousins on Kilborn’s

side were equally the child’s aunts, uncles, and cousins and were so named by her.

Kilborn regularly undertook the bedtime routine, which included getting the

children into their pajamas, brushing their teeth, reading, and singing, with “Old

MacDonald” being a favorite. He was also responsible for bathtime, and the

children usually bathed together. Kilborn cut back on his work schedule to four

days a week in 2011, following the birth of his and Carey’s daughter, and to three

days a week following the birth of their son, so that he could provide additional
4

childcare. During the weekends, and when he was not at work during the week,

Kilborn was fully engaged in taking care of all three children. He also contributed

significantly to the household finances, and his income, combined with the Social

Security payments received for the child through Knight’s disability, were used to

run the household.

        [¶7]     Kilborn’s role in the family constellation was nurturing and

responsible. He very much enjoyed being a parent to the child and her two siblings

and was fully committed to the wellbeing of all three children. Carey personally

praised Kilborn’s skill, humor, and dependability as a father in her blog, in emails,

and on Facebook, writing once, “[a]nother smart move by me—I did hand pick the

best father I could have gotten for those young uns.”

        [¶8] Kilborn and Carey’s relationship deteriorated, and, in October 2014,

Kilborn filed a complaint for divorce.3 In his complaint, Kilborn requested that he

be declared the de facto father of Carey’s daughter, whom he had raised as his own

since she was two months old.                    Carey opposed Kilborn’s request and in

November 2014 denied him access to the child, though he continued to have

visitation with his two biological children. At that time, Carey was also actively

    3
       When Kilborn filed his complaint for divorce from Carey, Carey brought the child to see Knight at
the rehabilitation facility where he was residing. Knight subsequently filed a complaint seeking parental
rights to his daughter, and Carey and Knight agreed to entry of judgment allocating shared parental rights
and rights of contact. Following the issuance of that judgment, Knight has visited with his daughter once
or twice a month.
                                                                                                    5

encouraging and facilitating Knight’s reentry into the child’s life, notwithstanding

his voluntary absence for over four years and the fact that he was living in a

residential facility following an alleged suicide attempt.

       [¶9]    In a procedural order issued on March 16, 2015, the court, after

acknowledging that the process articulated in Pitts requires that a person seeking

de facto parenthood status must first establish standing to initiate the litigation “by

making a prima facie showing of de facto parenthood,” Pitts, 2014 ME 59, ¶ 35,

90 A.3d 1169, found that Kilborn had made out a prima facie case of de facto

parenthood in his affidavit and that, therefore, a separate hearing on the issue of

standing was not necessary.4

       [¶10] In April 2015, the court held a two-day evidentiary hearing. Kilborn,

Carey, and Knight testified, as well as a child psychologist, the child’s former

therapist, Kilborn’s mother, and several of Carey’s friends. The court found that

Kilborn’s participation in the child’s care was at least as equal to that provided by

Carey and sometimes more extensive, and also found that, from the child’s infancy

until Carey unilaterally denied him access to the child, Kilborn performed

substantial caregiving and otherwise undertook a permanent, unequivocal,

committed, and responsible role with respect to the child, and did so with the

   4
      In its procedural order, the court also required Kilborn to file and serve a separate complaint
seeking a determination of de facto parenthood on each biological parent, which he subsequently did on
March 25, 2015.
6

express consent and encouragement of Carey and with Knight’s tacit consent and

encouragement.

      [¶11] The child’s former therapist testified that she had seen the child for

twenty-three weekly counseling sessions; that Kilborn had brought her to several

of these sessions; that the child would refer to Kilborn as “Daddy”; and that her

drawings about her family always included him in the father role. Based on her

work with the child, it was the therapist’s opinion that having to watch her younger

siblings go off with Kilborn for their visits without her would be extremely

difficult for her, and that “there is no doubt that [the child] would be harmed” if

Kilborn were removed from her life.

      [¶12] The actual harm that the child suffered was demonstrated by audio

recordings entered into evidence in which the child, reacting to Kilborn’s arrival to

pick up her siblings for a visit, is heard crying, “Daddy, you’ve got to care about

me too” and “I want to come too.” In addition, after four years of positive family

unity, the court found that separating the child from her siblings based on her

biology, and denying her an ongoing relationship with Kilborn while her siblings

were able to enjoy a continued relationship with him, carried a high probability of

emotional and psychological harm to her.

      [¶13] The court found that Carey’s handling of the transition for the child

after separating from Kilborn, including the reintroduction of Knight back into her
                                                                                      7

life, increased the risk of harm to the child. Carey acknowledged that the child

struggled for some period of time following Kilborn’s abrupt removal from her

life, and she was aware that the child was upset. The therapist expressed a concern

about the potential harm to the child caused by rapidly switching father figures,

instead of a well thought-out and less abrupt reintroduction of Knight while

preserving Kilborn’s presence.

      [¶14] The court found, by clear and convincing evidence, that the child’s

life would be substantially and negatively affected by Kilborn’s absence and that

Kilborn had satisfied his burden of showing that he is the child’s de facto parent.

      [¶15] The court held a testimonial hearing on June 11, 2015, to determine

interim parental rights and responsibilities for Kilborn as to the child. However,

before it could enter an order regarding rights of contact and the appointment of a

guardian ad litem, Carey filed this appeal and a motion to stay enforcement of the

order granting de facto parenthood and “the anticipated order awarding Plaintiff

temporary visitation, pending the appeal of both Orders.”            See 14 M.R.S.

§ 1901 (2015) and M.R. App. P. 2. The court did not act on the motion to stay

because of the pending appeal, see M.R. App. P. 3(b), and it took no further action

on the matter pending the outcome of this appeal.
8

                                       II. DISCUSSION

         [¶16] Carey contends that the court erred in determining that Kilborn met

his burden, by clear and convincing evidence, of satisfying both prongs of the

two-part test set out in Pitts, 2014 ME 59, ¶¶ 27-30, 90 A.3d 1169. We review the

court’s findings of fact for clear error and its conclusions of law de novo. Id. ¶ 9.

         [¶17] To protect a parent’s fundamental right to the care and custody of his

or her children, see Davis v. Anderson, 2008 ME 125, ¶ 18, 953 A.2d 1166, we

have established the standard by which petitions for de facto parenthood must be

analyzed. “To obtain parental rights as a de facto parent, an individual must show

that (1) he or she has undertaken a permanent, unequivocal, committed, and

responsible parental role in the child’s life, and (2) there are exceptional

circumstances sufficient to allow the court to interfere with the legal or adoptive

parent’s rights.”      C.L., 2015 ME 131, ¶ 20, 125 A.3d 350 (quotation marks

omitted).5

A.       Permanent, Unequivocal, Committed, and Responsible Parental Role

         [¶18] We have defined a “permanent, unequivocal, committed, and

responsible parental role” as one in which the de facto parent has participated in

the child’s life as a member of the child’s family, has resided with the child, “and,


     5
      See Gordius v. Kelley, 2016 ME 77, ¶ 18, --- A.3d --- (Saufley, C.J., concurring), for a further
discussion of the term “exceptional circumstances.”
                                                                                      9

with the consent and encouragement of the legal parent, performs a share of the

caretaking functions.” Pitts, 2014 ME 59, ¶ 28, 90 A.3d 1169 (emphasis added)

(quotation marks omitted).      More specifically, this standard can be met by

demonstrating that the legal parent and the putative de facto parent intended to

co-parent, or that a legal parent intended for the nonparent to act in place of the

legal parent. Id. Carey acknowledges that Kilborn “was a wonderful caregiver for

the child,” but she argues that, because Knight maintained contact with Carey and

never gave his consent for Kilborn to assume a “parental role,” Kilborn could not

establish that he undertook an “unequivocal” parental role in the child’s life. Id.

      [¶19] Contrary to Carey’s contention, the court found, and the evidence

established, that Carey intended for Kilborn to act as a parent in place of Knight,

and further, that Knight had “implicitly, if not explicitly, consented to and

encouraged Kilborn’s parental role.”      For example, in her blog, Carey wrote,

describing her move to Maine and impending marriage to Kilborn: “So in about a

month we will all become a family.          At least for formal law-abiding filing

purposes. But between you and I, we were a family the moment we pulled in the

driveway with our small SUV, crammed with the little amount of life possessions

we had on our own.” Carey also wrote on social media that she would be “the

luckiest” when her “complete family [was] born” upon her marriage to Kilborn,

and she testified that she “wanted Kilborn to act as a parent . . . to the child.”
10

Kilborn’s mother also testified that, right from the beginning, Kilborn was being

referred to as Dad, and she was Grammy.

         [¶20] As to Knight’s “implicit” consent, he testified that, after he left the

child and her mother at the hospital following the child’s admission, he allowed

Carey to have a different parenting figure in the child’s life. He admitted that he

only saw his daughter twice over the course of four years, he was not there for any

of her “firsts,” and he respected the role that Kilborn played in her life during that

time. The court found that Knight was fully aware of the parental role that Kilborn

was playing in the child’s life, and that while he did not wish to allow the child to

be adopted, he was not opposed to Kilborn effectively serving as her father.

         [¶21] Because there was ample evidence in the record to support the court’s

finding that Kilborn’s parental role was unequivocal, despite Knight’s peripheral

presence and objection to formal adoption, we conclude that the court did not err in

finding that Kilborn met his burden under the first prong of the Pitts analysis.6




     6
       Although Carey argues that a “permissive standard that would enable caretaking to trump biology
opens parents to endless litigation from interlopers with seemingly valid legal claims,” such as
“long-standing day-care providers, relatives, successive sets of stepparents, or close family friends,” there
are sufficient protections contained within the Pitts test to defeat the claims of individuals who have
played a lesser role in the children’s lives than a de facto parent, and in any event, the evidence clearly
establishes that Kilborn is far from being an “interloper” in the child’s life. See C.L. v. L.L.,
2015 ME 131, ¶¶ 11-15, 21-22, 125 A.3d 350; Pitts, 2014 ME 59, ¶¶ 27-29, 35-37, 90 A.3d 1169.
                                                                                   11

B.    Exceptional Circumstances and Harm to the Child

      [¶22] We stated in Pitts that a court may not constitutionally recognize a

person’s status as a de facto parent unless the court determines by clear and

convincing evidence “that the child’s life would be substantially and negatively

affected if the person who has undertaken a permanent, unequivocal, committed,

and responsible parental role in that child’s life is removed from that role.” Id.

¶ 29. Carey contends that the trial court erred in concluding that Kilborn carried

his burden of establishing that the child would be substantially and negatively

affected if Kilborn were removed from her life because the trial court oscillated

between concluding that the child was definitely harmed by Kilborn’s absence and

that the child would possibly be harmed by Kilborn’s absence.

      [¶23] Here, the court observed that it is not clear, “in practical terms,” how

      this standard may be met and harm determined. It remains unclear
      whether the parties need to obtain expert testimony on the issue,
      whether the court has the authority to appoint a guardian ad litem for a
      child . . . and whether the court has authority to preserve the status
      quo during litigation by providing for continued contact between the
      child and de facto claimant once the threshold question of standing
      has been met.

Notwithstanding the reference to a lack of clarity on this issue, the court found that

Kilborn had met his burden, giving particular weight to testimony that the child’s

former therapist would “lose sleep” if she thought the child would be deprived of

contact with Kilborn.
12

         [¶24] The court also found compelling the audio recording of the child

calling after “Daddy” when he was picking up her siblings but not her, and the fact

that the child, who already has a history of anxiety, could be further harmed if

Kilborn were removed from her life. The guardian ad litem for the child’s siblings

also testified that it is particularly difficult for children close in age to have their

family unit separated. Finally, the court found that the conduct of Carey and

Knight, specifically Carey’s handling of the transition between Kilborn’s departure

and Knight’s reintroduction, and Knight’s earlier pattern of absenting himself

almost entirely from the child’s life for a period of over four years, were

contributory adverse factors in assessing the substantial risk of harm in this case.

         [¶25]    While there is some merit to Carey’s assertion that the salient

questions concern the depth and persistence of the harm, and those questions have

no answers without pertinent information regarding the specific child, especially

given the lack of jurisprudential or legislative guidance at the time this matter

arose, we discern no clear error in the court’s findings nor in the court’s conclusion

that Kilborn met his burden under the second prong of the Pitts test.7 We conclude

     7
       Carey’s final argument urges us to overrule the Pitts plurality opinion and adopt the requirement of
a threat of long-term harm suggested by the dissent. Pitts, 2014 ME 59, ¶¶ 62-63, 90 A.3d 1169 (Levy,
J., dissenting). Because the Legislature has enacted the Maine Parentage Act, which will eliminate any
requirement of a showing of harm to the child when determining de facto parentage, adopting a standard
of long-term harm would be senseless. See 19-A M.R.S. § 1891(3)(E); Pitts, 2014 ME 59, ¶¶ 42-58, 90
A.3d 1169 (Jabar, J., concurring). Beyond that, the evidence of prospective long-term harm to the child
here is of such a magnitude to satisfy even the higher standard described in the Pitts dissent that Carey
urges us to adopt here.
                                                                                   13

that it is difficult to envisage a more clear case establishing de facto parenthood

and illustrating the proper application of the Pitts two-part test than the one before

us.

        The entry is:

                           Judgment affirmed.



On the briefs:

        Jamesa J. Drake, Esq., Drake Law, LLC, Auburn, for appellant Nicole Carey

        Heather T. Whiting, Esq., and Michael T. Devine, Esq., Drummond &
        Drummond, LLP, Portland, for appellee Todd A. Kilborn


At oral argument:

        Jamesa J. Drake, Esq., for appellant Nicole Carey

        Heather T. Whiting, Esq., for appellee Todd A. Kilborn



Portland District Court docket number FM-2015-282
FOR CLERK REFERENCE ONLY
