Adoption No. 10087 in Circuit Court for Montgomery County, In re

• Decision Date: 01 September 1990
• Docket Number: No. 92,92
• Citation: 597 A.2d 456,324 Md. 394
• Parties: , 15 A.L.R.5th 935 . ,
• Court: Maryland Court of Appeals

Page 394

324 Md. 394

597 A.2d 456, 15 A.L.R.5th 935

In re ADOPTION NO. 10087 IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY.

No. 92, Sept. Term, 1990.

Court of Appeals of Maryland.

Oct. 30, 1991.

Harvey Schweitzer (James A. Shrybman, Shrybman & Associates, on brief) Silver Spring, for petitioner.

No respondent.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, and KARWACKI, JJ., and CHARLES E. ORTH, Jr., Associate Judge of the Court of Appeals (retired), and BRUCE C. WILLIAMS, Chief Judge of the Fifth Judicial Circuit of Md., Specially Assigned.

CHASANOW, Judge.

In 1947, Chief Justice Eather of the Supreme Court of Nevada wrote,

"Unquestionably the most difficult and perplexing problems which ever come before a court for decision are those questions which, while involving no financial consideration, have to do with those vitally important but wholly imponderable questions of human relations involving ... the care, custody, control, and welfare of a minor child."

Ex parte Schultz, 64 Nev. 264, 181 P.2d 585, 585 (1947). His statement is no less true today. This case vividly presents the difficult issues that may arise in the private adoption of an out-of-state child. There are two facets to the problem: 1) regulation of independent adoptions by the individual states, and 2) cooperation between the states under the Interstate Compact for the Placement of Children (ICPC). Although this case may raise more questions than it answers, we believe it is appropriate to resolve the dilemma by examining the best interests of the child. We begin with a statement of the facts.

The case at bar involves an independent adoption facilitated by an attorney. ¹ Petitioners seek to adopt an infant boy who was born on May 28, 1989, in Virginia. They allege that, prior to the baby's birth, they were contacted directly by the natural mother in response to an ad they placed in a Potomac newspaper. In that ad, to protect their anonymity, petitioners identified themselves by a false surname and gave a post office box as their address. Both natural parents executed consents and affidavits to be filed in the anticipated adoption proceedings. At the time of execution, either the documents did not contain the names and address of the adoptive parents or their names and address were hidden from the natural parents' view. This was done openly with the express knowledge of the natural parents as set forth in the consents. The natural parents never knew the names or address of the adoptive parents, although petitioners aver that they met face-to-face and had several telephone conversations.

Prior to the birth of the child, petitioners sought to invoke the ICPC by notifying the compact offices in both Maryland and Virginia of the approaching adoption. The Virginia compact office notified the attorney for petitioners that it requires that the ICPC-100A form, which initiates the process, must be completed in the natural mother's handwriting, including the names and address of the adoptive parents. In instituting this requirement, the Virginia compact office relied on an opinion of the Virginia Attorney General, Adoption. Implementation of Interstate Compact for Placement of Children Requires Compliance with Virginia's Placement Laws, 1984-85 Report of the Attorney General 3 (July 6, 1984) (hereinafter Va. Att'y Gen.Op.). It appears that the Maryland compact office has no such requirement. Petitioners refused to file a handwritten 100A form in Virginia, and the Virginia compact office refused to "facilitate" the adoption. In the meantime, according to petitioners, the Maryland compact office received all the necessary paperwork to process and approve the placement, but it was unable to act until Virginia fulfilled its "obligations" under the ICPC.

When the child was released from the hospital, petitioners attempted by telephone to obtain the approval of the Maryland compact office to transport the child to Maryland, but they were told that the appropriate person was out of the office. They then, without the sanction of either the Maryland or the Virginia compact office, transported the baby across the state line in violation of Maryland law and the ICPC. ² The following day, petitioners notified the Maryland and Virginia compact offices that the placement had occurred.

Petitioners immediately filed their adoption petition with the Circuit Court for Montgomery County. After providing the judge with additional information he had requested, petitioners were notified by the court that the case was being referred for investigation to the court investigator. Before that investigation was complete, however, the judge dismissed the adoption petition. The judge found that the placement was made in violation of the ICPC and that the consents were "invalid in that the natural parents did not know the identity of the persons to whom they were giving consent and in that information of a material nature which purported to be a part of the consent was wrongfully added by other persons than the consenting parents after the signatures of the parents were obtained." The Court of Special Appeals affirmed the judgment of the circuit court in an unreported opinion. No further effort has ever been made by the Maryland or Virginia compact offices or by any other state agency to assess the placement or to remove the child from petitioners' care, where he remains to this day. Petitioners claim that they can no longer locate the natural parents.

This case may not be resolved by any simple application of law to facts. Society's interest in providing a mechanism for adoption of children whose parents are unable or unwilling to care for them by persons who desire that responsibility is profound. Equally significant is the state's obligation to regulate adoptions in order to protect the interests of the child, as well as the interests of the natural parents and the adoptive parents, and to prevent the black market trade of infants. "[T]he black market, which has been well described as a 'taint on civilized society,' involves a marketeer who is simply trafficking in babies. The welfare of the child is subordinated to the profit...." G. Douthwaite, Unmarried Couples and the Law 46-47 (1979) (footnote omitted). In contrast to the black market, however, a "gray" baby market exists "where the intermediary, perhaps an attorney, a physician or a well-meaning friend of the parties, receives no fee, though perhaps the adopting couple pay the expenses of the mother's confinement and delivery. Most states, though not actually prohibiting this form of transaction, regulate it in some way...." Id. at 47 (footnote omitted); see also B. Hartfield, The Role of the Interstate Compact on the Placement of Children in Interstate Adoption, 68 Neb.L.Rev. 292, 304 (1989) (hereinafter Hartfield). This case presents the question whether this type of interstate "gray" market adoption is governed by the regulations of the state where the child is born, the state where the adoptive parents reside, or both.

I. INTERSTATE COMPACT FOR THE PLACEMENT OF CHILDREN

"An interstate compact is basically an agreement, between two or more states, entered into for the purpose of dealing with a problem that transcends state lines." P. Hardy, Interstate Compacts: The Ties That Bind 2 (1982); see Dutton v. Tawes, 225 Md. 484, 500, 171 A.2d 688, 696, cert. denied, 368 U.S. 345, 82 S.Ct. 385, 7 L.Ed.2d 342 (1961); Canal Co. v. Rail Road Co., 4 G. & J. 1, 128-29 (1832). A compact arises when two or more states enact essentially identical statutes which govern an area of mutual state concern and define the compact, its purposes, and policies. P. Hardy, supra, at 2; see Canal Co., 4 G. & J. at 130-34. Thus, a compact serves a dual role. It is the law of each state that enacts it, and it is an agreement between those states. In this case, there are two aspects to our treatment of the ICPC. First, we deal with that aspect that involves an agreement between states. Second, we are concerned with that aspect of the ICPC that constitutes the law of Maryland, its violation and enforcement. C.T. Hellmuth v. Washington Metro. Area Trans., 414 F.Supp. 408, 409 (D.Md.1976).

The ICPC has been enacted in 49 states, Hartfield at 293 n. 1, including Maryland, Maryland Code (1984 & 1990 Cum.Supp.), Family Law Article, §§ 5-601 to 5-611, and Virginia, Virginia Code (1949, 1987 Repl.Vol.), Chapter 10.1, §§ 63.1-219.1, 63.1-219.2. It was "intended to facilitate interstate adoption, thereby increasing the pool of acceptable homes for children in need of placement." Hartfield at 293. To accomplish this purpose, the ICPC "extend[s] the jurisdictional reach of a party state into the borders of another party state for the purpose of investigating a proposed placement and supervising a placement once it has been made." Hartfield at 296. To accomplish these goals, the ICPC requires that

"[n]o sending agency shall send, bring, or cause to be sent or brought into any other party state any child ... as a preliminary to a possible adoption unless the sending agency shall comply with each and every requirement set forth in this section and with the applicable laws of the receiving state governing the placement of children therein."

Family Law Art., § 5-604(a). "Sending agency" is defined in section 5-603(2) as "a party state, officer or employee thereof; a subdivision of a party state, or officer or employee thereof; a court of a party state; a person, corporation, association, charitable agency or other entity which sends, brings, or causes to be sent or brought any child to another party state." (Emphasis added.) Petitioners admit that "[t]he 'sending agency' was the natural parents." This conclusion follows from the inclusion of the word "person" in the statute. As recognized in Cornhusker Chr. Ch. Home v. Dept. of Soc. S., 229 Neb. 837, 429 N.W.2d 359, 362 (1988): "There is nothing within the compact to indicate that,...