Adoption No. 9979, In re

• Decision Date: 01 September 1990
• Docket Number: No. 59,59
• Citation: 591 A.2d 468,323 Md. 39
• Parties: In re ADOPTION NO. 9979. ,
• Court: Maryland Court of Appeals

Page 39

323 Md. 39

591 A.2d 468

In re ADOPTION NO. 9979.

No. 59, Sept. Term, 1990.

Court of Appeals of Maryland.

June 25, 1991.

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

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and CHARLES E. ORTH, Jr., Judge of the Court of Appeals of Maryland, (Retired, Specially Assigned), JJ.

McAULIFFE, Judge.

This appeal involves the interpretation of § 5-327 of the Family Law Article, Maryland Code (1984), which prohibits certain payments in connection with adoption placement. Appellants, the adopting parents, question whether the trial judge was correct in ruling that § 5-327 prohibits payment by the adopting parents to the natural mother of the cost of maternity clothes. We hold the payment is prohibited by the statute.

I.

This case involves a direct adoption--an adoption not involving a licensed agency. The petition for the adoption of an infant child was filed in the Circuit Court for Montgomery County, Maryland. Each natural parent filed a consent to the adoption. An adoption investigation was conducted by a court investigator, who recommended that the petition be granted. The investigator requested, however, that the prospective adopting parents, personally or through their attorney, send to the investigator's office itemized bills for all payments made in connection with the adoption. Subsequently, appellants filed a statement of expenses, listing, in addition to attorneys' fees and court costs, payments to the natural mother of $378.35 for "reimbursement of hospitalization insurance," and $488.00 for "maternity clothes and related expenses."

At the adoption hearing, the trial judge questioned the appellants and their attorney concerning payments made to the natural mother. Appellants testified that all such payments were made through their attorney. Appellants' attorney submitted an affidavit from the natural mother, who said she had not kept any of the bills for maternity clothing because she did not anticipate placing the baby for adoption when she made the purchases. She did, however, itemize purchases totalling $488.00, for maternity clothes. ¹ No explanation was given as to why the original expense item had been characterized as maternity clothes "and related expenses." ²

At the conclusion of the hearing, the trial judge signed an order approving the adoption, but expressed concern about the payments that had been made to the natural mother for maternity clothes. He took that matter under advisement, and requested a memorandum of points and authorities. Subsequently, he entered an order finding that reimbursement for maternity clothing is not a permitted expense in adoption, and disallowing the payment. The adopting parents appealed to the Court of Special Appeals, and we issued a writ of certiorari on our own motion prior to consideration by that Court.

Appellants raise only one question in their brief:

Does Maryland law prohibit adoptive parents from reimbursing a natural mother for maternity clothes expenses?

The statute in question, § 5-327 of the Family Law Article, provides in pertinent part as follows:

(a) In general.--

(1) An agency, institution, or individual who renders any service in connection with the placement of an individual for adoption may not charge or receive from or on behalf of either the natural parent of the individual to be adopted, or from or on behalf of the individual who is adopting the individual, any compensation for the placement.

(2) This subsection does not prohibit the payment, by any interested person, of reasonable and customary charges or fees for hospital or medical or legal services.

* * * * * *

(c) Prosecution by State's Attorney.--The State's Attorney shall prosecute any violation of this section.

(d) Penalty.--A person who violates this section is guilty of a misdemeanor and on conviction is subject to a fine not exceeding $100 or imprisonment not exceeding 3 months, or both, for each offense. ³

Appellants argue that the statute has no application to the payment made in this case for three reasons: 1) the statute does not apply to payments made to a natural parent; 2) the statute prohibits only payments that result in a profit to the recipient, and therefore does not prohibit reimbursement of expenses incurred; and, 3) in any event, payment for maternity clothing qualifies as a payment of reasonable and customary charges for "medical ... services" within the meaning of the statute. We disagree with appellants on all counts.

II.

As we recently noted, adoptions were unknown at common law and are permitted only by statute. In re: Lynn M., 312 Md. 461, 463, 540 A.2d 799 (1988). The statutory provision with which we are here concerned was originally enacted as § 85P of ch. 599 of the Acts of 1947. In its original form, it provided in pertinent part as follows:

It shall be unlawful for any agency, institution, or individual rendering any service in connection with the placement of a child for adoption to charge or receive from or on behalf of either the natural parent or parents of the person to be adopted, or from or on behalf of the person or persons legally adopting such person, any compensation whatsoever for the placement service, but this shall not be construed to prohibit the payment by any interested persons of reasonable and customary charges or fees for hospital or medical or legal services.

That section was amended by ch. 648 of the Acts of 1970, which exempted certain payments made to licensed adoption agencies or institutions. The 1970 amendment also changed the description of prohibited payments from "any compensation whatsoever for the placement service" to "any compensation whatsoever for adoptive placement...." Originally codified in Art. 16, this provision was rewritten as a part of the Code revision process, and recodified as § 5-327 of the Family Law Article. See ch. 296 of the Acts of 1984. According to the Revisor's Note, only changes of style were made in the 1984 revision.

Appellants' first contention is that § 5-327 does not apply to payments made to a natural parent. They reason that when the General Assembly spoke of someone who "renders any service in connection with the placement of an individual for adoption," the legislative body must have meant doctors, lawyers, intermediaries, and other third persons, and not those who are directly involved in the placement. ⁴ 4]

We do not read the statute so narrowly. We believe that except for the very specific exceptions spelled out in the statute, the legislature intended to prohibit the payment of any compensation for an adoption placement. Any ambiguity in the language of the statute results from an attempt to include all forms of payment to all possible persons, rather than an intent to exclude those most logically intended to be covered. Excising language not applicable to the circumstances of this case, and substituting specific for general terms, § 5-327(a)(1) reads:

An ... individual who renders any service in connection with the placement of a [child] for adoption may not charge or receive ... from or on behalf of the [person] who is adopting the [child], any compensation for the placement.

Describing a natural parent who signs a consent and turns over a child for adoption as one who "renders any service in connection with the placement of a [child]," may not be the warmest possible prose, but it literally does include the natural parents. Indeed, it might be difficult to think of anyone capable of rendering a greater "service in connection with the placement" than the natural parents.

One of the amendments to the statute made in 1970, to which we have earlier referred, suggests that the emphasis of the prohibition is intended to be on compensation paid for an adoption placement, and not on the term "service." While retaining the language relating to anyone "rendering any service" in the broad description of those intended to be covered by the statute's proscription of payment, the legislature struck the word "service" from the operative language of the actual prohibition. Instead of prohibiting "any compensation whatsoever for the placement service," the statute was amended to prohibit "any compensation whatsoever for adoptive placement." ⁵ (Emphasis added.)

Contemporary interpretation of the statute strongly favors applicability of the prohibition to payments made directly to natural parents. A committee of Maryland judges recently filed a comprehensive report concerning independent adoptions, and devoted a section of the report to the problem of payments made for the benefit of natural parents. ⁶ Although the Committee noted that there is some disagreement among judges concerning the type of payments that will qualify for the exclusion as "hospital or medical or legal services," there is no suggestion in the report that the statute does not cover payments made directly to a natural parent. After discussing the potential evils of allowing expanded payments to or on behalf of natural parents, and the potential benefits of allowing "living expenses" to natural parents, as a few states do, the Committee said, at page 60 of its report:

The Committee feels that the present language of [s] 5-327 achieves a proper balance between the competing interests that the statute addresses and believes that any further extension of its language might invite abuses.

In a recent comment, Regulatory Options for Surrogate Arrangements in Maryland, 18 U.Balt.L.Rev. 110, 119-22 (1988), the authors refer to § 5-327 and to Art. 27, § 35C, Md.Code (1957, 1987 Repl.Vol., 1990 Cum.Supp.) (a criminal statute prohibiting the sale, barter, or trade of a child) and conclude that "[t]he overriding objective of these statutes is to regulate arrangements between a mother and strangers." Id. at 121.

In 1988, Senator Barbara Hoffman introduced Senate...