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Kilborn v. Carey

Supreme Court of Maine

May 26, 2016

TODD A. KILBORN
v.
NICOLE CAREY et al. v.

          Argued: February 10, 2016

         Portland District Court docket number FM-2015-282

         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

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

          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, 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 "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, ...


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