Adoption/Guardianship No. 3598, in Circuit Court for Harford County, In re

• Decision Date: 01 September 1995
• Docket Number: No. 672,672
• Citation: 675 A.2d 170,109 Md.App. 475
• Parties: In re ADOPTION/GUARDIANSHIP NO. 3598 IN the CIRCUIT COURT FOR HARFORD COUNTY. ,
• Court: Court of Special Appeals of Maryland

Page 475

109 Md.App. 475

675 A.2d 170

In re ADOPTION/GUARDIANSHIP NO. 3598 IN the CIRCUIT COURT FOR HARFORD COUNTY.

No. 672, Sept. Term, 1995.

Court of Special Appeals of Maryland.

April 5, 1996.

Reconsideration Denied May 28, 1996.

Certiorari Granted July 3, 1996.

Alfred N. Kramer, Aberdeen, for appellant.

Dawn Oxley Musgrave, Baltimore, for appellees, adoptive parents.

Mark Nelson, Bel Air, on the brief, for appellee, minor child.

Argued before BLOOM, CATHELL and HOLLANDER, JJ.

BLOOM, Judge.

Without the consent of the natural (biological) father of a child referred to in these proceedings as "Baby Girl S" and over his objection, the Circuit Court for Harford County granted to appellees, the adopting parents, a decree of adoption declaring them to be in law the parents of Baby Girl S. Appealing from that decree, the natural father presents this Court with three questions:

1. Did the Circuit Court for Harford County Maryland have jurisdiction to issue a decree of adoption in this case due to the Due Process and Full Faith and Credit Clauses of the United States Constitution, the Uniform Child Custody Jurisdiction Act, the federal Parental Kidnapping Prevention Act and the Interstate Compact for the Placement of Children as it deprived New York State of jurisdiction over this dispute and of the enforcement of a writ of habeas corpus issued by a New York court which ordered that the appellant have custody of the child?

2. In an independent adoption, is it permissible to unlawfully remove a child from another State and hold the child in Maryland until a sufficient time elapses so that the child's welfare dictates adoption?

3. Pursuant to the Annotated Code of Maryland, Family Law Article, Section 5-312 did the trial court err when it determined that it was in the best interests of the child to terminate the Natural Father's rights to the child, 1) when there were three other elements to be given equal weight to the best interests element, 2) when the clear and convincing evidence, based on the totality of the circumstances, weighed in favor of the Natural Father according to the majority of previous Maryland law and the applicable circumstances, and 3) that statutory limitations did not prevent such a determination?

We shall address appellant's first two questions together, because underlying both of them is the initial issue of whether dismissal of the petition for adoption is the appropriate sanction for a violation of the Interstate Compact for the Placement of Children ("ICPC").

Facts

Appellant lives in a three bedroom townhouse with his mother, in Poughkeepsie, New York. He works at Cosco Price Club as a cashier, earning $21,000 a year, with a potential of earning up to $32,000 a year. At the time of trial, appellant was approximately 24 years old.

Appellant met the natural mother of Baby Girl S. in 1991, at a dance club called "Let's Dance," in Dutchess County, New York. The two became friendly and would frequently meet at dance clubs. On one occasion in the summer of 1991, the couple had sexual intercourse, as a result of which the natural mother became pregnant. The natural mother was 18 years old and a senior in high school when she became pregnant. Baby Girl S. has been referred to as a multicultural baby throughout the trial; the natural mother is Caucasian, and appellant is partly Shinnicock Indian, partly African-American, and partly Hispanic.

After her sexual encounter with appellant, the natural mother moved from her father's house to the other side of Poughkeepsie to live with her mother and stepfather. The natural mother did not tell appellant where she was moving, and appellant was not able to contact her. Appellant did not learn that the natural mother was pregnant until he saw her at a dance club several months later. Appellant claims that she was then five months pregnant; she maintains that she was only three months pregnant at that time.

Appellant did not deny paternity; he offered to assist the natural mother. Appellant testified that he told her, "If you say I am the father, I am the father. I will live up to my responsibilities." The natural mother corroborated this by testifying that appellant offered to support her. Appellant took the natural mother to Vassar Brothers Hospital on three occasions according to his testimony, twice according to hers, for prenatal care. Appellant did not provide any financial assistance but instead helped the natural mother obtain medical assistance through social services. The natural mother testified that appellant never revealed his last name to her telling her that there was no need for her to know his last name. After a doctor's visit, appellant took the natural mother back to his house to meet his family, which supports his testimony that she could easily have learned his last name. Appellant's mother testified that she invited the natural mother to move in with the family.

The couple had minimal contact during the last couple of months before Baby Girl S. was born. The natural mother testified that she no longer wanted to speak to appellant; he testified that he tried calling her and going over to her house but to no avail because her stepfather or mother would always turn him away. On one occasion, appellant went to the natural mother's home and the stepfather approached him and told him to leave, stating that the natural mother did not want to see him anymore.

Meanwhile, the natural mother began meeting with a social worker, Jane Eisenburg, for advice on what to do with the child after birth. The social worker suggested that she consider putting the child up for adoption. Ms. Eisenburg learned about appellees' interest in adopting a child through a mutual friend. Appellees, Caucasians, have been married since October 1986 and are unable to have children of their own. They are licensed foster care parents. The adoptive mother, who was 39 years of age at the time of trial, is a college-educated computer programming analyst, earning $43,000 a year. The adoptive father, 42 years of age at the time of trial, is a college-educated computer network administrator, earning approximately $50,000 a year. After several telephone conversations and a personal meeting, appellees and the natural mother agreed on the adoption. The natural mother told appellees that the biological father was "out of the picture."

On 27 April 1992, in an effort to expedite adoption of her soon to be born child, the natural mother averred on the application that she submitted to the New York State Administrator of the Interstate Compact for the Placement of Children that the father of the child was "unknown." Prior to trial, it was stipulated by all parties that the natural mother knew at all times the identity and whereabouts of the natural father, appellant.

On 3 May 1992, the natural mother gave birth to Baby Girl S. Two days later, appellant, having been informed by one of the natural mother's friends about the birth, arrived at the hospital with balloons, flowers, and gifts. As soon as he reached the natural mother's floor, the natural mother's mother and the adoptive mother's father sent for hospital security personnel, who escorted appellant out the back door of the hospital. Appellant testified that the natural mother's mother said, "No [you can't see the baby], you are not supposed to be here," and the adoptive mother's father said, "You have to get out of here." Appellant was never able to see his own daughter.

On the same day, the adoptive mother was visiting the natural mother's mother when she learned about the natural father's attempt to see his child. She testified, "We were sitting, having a cup of tea, talking, and [the natural mother's mother] got a phone call from [her daughter]. She said that appellant and his family barged in on her and were harassing her." The adoptive mother went to the hospital and witnessed security guards escorting appellant out of the hospital. She said at trial, "I didn't want to get into the middle of it. It looked pretty hot." After appellant was removed from the hospital, the natural mother's attorney, Jack Zand, delivered Baby Girl S. to the adoptive mother. The adoptive mother then took the child to her father's house in New Paltz, New York, to await the Compact Administrator's approval to remove the child to Maryland.

Later that same day, the natural mother, represented by independent counsel, Jack Zand, filed an Affidavit Relating to Biological-Father's Consent and an Extrajudicial Consent Form 2-G with the Surrogates Court of the State of New York, County of Ulster, in order to get approval to place the child with adoptive parents out of state. The natural mother over her attorney's signature and notary seal, averred, falsely, in the affidavit:

2. The biological father of the child is unknown to deponent and no person has taken steps to establish legal responsibility for the child.

(Emphasis added.) The natural mother also falsely stated on Form 2-G, over her attorney's signature and notary seal, that the name and address of appellant were unknown to her. The natural mother never notified appellant about the proceeding before the Surrogate Court.

Two days later, on 7 May 1992, appellant petitioned the Family Court of the State of New York, County of Dutchess, for a Filiation Order declaring him to be the father of Baby Girl S. On 15 May 1992, the natural mother admitted that appellant was the child's father. Her attorney wrote a letter to Judge Adina C. Gilbert of the Dutchess County Family Court, declaring:

I represent [natural mother] of Gardiner, New York, who received a copy of a Summons and Petition of the above-captioned petitioner to be declared the father of a child born out of wedlock to my client on May 3, 1992. The matter is returnable before you for an initial appearance on June 15, 1992.

My client does not deny the allegations of the Petition (although she was unaware of the true...