TODD A. KILBORN
NICOLE CAREY et al. v.
Argued: February 10, 2016
District Court docket number FM-2015-282
J. Drake, Esq., Drake Law, LLC, Auburn, for appellant Nicole
Heather T. Whiting, Esq., and Michael T. Devine, Esq.,
Drummond & Drummond, LLP, Portland, for appellee Todd A.
J. Drake, Esq., for appellant.
Carey Heather T. Whiting, Esq., for appellee Todd A. Kilborn
SAUFLEY, C.J., and ALEXANDER, MEAD, JABAR, HJELM, and
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.'" 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.
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
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.
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. 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.
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, ...