Bridges v. Nicely

• Decision Date: 01 September 1985
• Docket Number: No. 44,44
• Citation: 497 A.2d 142,304 Md. 1
• Parties: , 54 USLW 2219 Jerry Wayne BRIDGES v. Beverly Ann NICELY. ,
• Court: Maryland Court of Appeals

Page 1

304 Md. 1

497 A.2d 142, 54 USLW 2219

Jerry Wayne BRIDGES v. Beverly Ann NICELY.

No. 44, Sept. Term, 1985.

Court of Appeals of Maryland.

Sept. 10, 1985.

Paul W. Barnett, Cumberland, for appellant.

William J. Trozzo, Cumberland, for appellee.

Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, RODOWSKY, COUCH and McAULIFFE, JJ.

MURPHY, Chief Judge.

Maryland Code (1984), §§ 5-307(a) and 5-309(a) of the Family Law Article provide, respectively, that "[a]ny individual, whether a minor or an adult, may be adopted" and "[a]ny adult may petition a court to decree an adoption." ¹ The sole question presented in this case is whether Maryland law permits adoption by the natural father of a child born out of wedlock.

I

On October 3, 1980, a son was born to Beverly Ann Nicely who was then unmarried. The child was named Jerry Wayne Bridges, Jr.; the birth certificate stated that Jerry Wayne Bridges, Sr. was the child's father. On January 8, 1981, Jerry, Sr. acknowledged in writing that he was the child's father and eleven days later the Circuit Court for Allegany County issued a paternity decree to that effect. The decree granted legal custody of the child to Beverly and required Jerry, Sr. to provide for his son's support. Actual physical custody of the child over the past three years has been with Jerry, Sr. The child's custody is presently the subject of separate court proceedings between the parents.

On July 11, 1984, Jerry, Sr. filed a petition in the Circuit Court for Allegany County to adopt his son. Beverly did not consent to the adoption and moved to have the petition dismissed. The court (Sharer, J.) dismissed the petition on the ground that it was implicit that Maryland's adoption statute which permits "any person" to adopt another does not permit the adoption of one's own natural child. In so holding, the court defined "adoption" as an act by which the legal existence of the relationship of parent and child is established between persons not so related who are strangers in blood, citing In re Lund's Estate, 26 Cal.2d 472, 159 P.2d 643 (1945); Succession of Gambino, 225 La. 674, 73 So.2d 800 (1954); Green v. Paul, 212 La. 337, 31 So.2d 819 (1947); In re Jaren's Adoption, 223 Minn. 561, 27 N.W.2d 656 (1947); and Colpitt v. Cheatham, 267 P.2d 1003 (Okla.1954). Jerry, Sr. appealed to the Court of Special Appeals. We granted certiorari prior to consideration of the appeal by the intermediate appellate court to decide the significant issue presented in the case.

II

As appellant, Jerry, Sr. contends that nothing in the law of this State precludes him from adopting his own child. He maintains that the adoption will accomplish the legitimation of his son and "the creation of a legal relationship that goes far beyond the scope of a paternity decree." Without citation of authority, he asserts that an adoptee's rights to "INHERITANCE, SUPPORT AND MAINTENANCe, social security, pension plans, health insurance, estate administration and possibly even to a draft deferment" are greater than the rights of a child whose paternity has been acknowledged in a paternity proceeding. Appellant also suggests that the adopting party is entitled to greater rights to the adoptee's services and income, to inheritance, and to support and maintenance if the adoptive parent becomes destitute. Appellant also suggests that the natural father is denied paternal benefits and is placed in an inferior legal position to the natural mother in violation of Article 46 of the Maryland Declaration of Rights, commonly known as the Equal Rights Amendment. ²

In support of the lower court's determination, Beverly argues that a parent may not adopt his or her natural child because adoption is the taking of a child, not related by blood, to be one's own child, with all the rights, privileges and duties of a child and heir. She maintains that the appellant's attempted adoption is without purpose since a person cannot acquire, judicially or otherwise, the right to parenthood which he already possesses. Beverly suggests that if appellant is permitted to adopt their child, she will be divested by operation of law of all her parental rights, duties and obligations, contrary to the State's public policy of not unnecessarily separating a child from a natural parent.

III

Adoption proceedings, unknown to the English common law, are solely of statutory origin in Maryland. In the Matter of Malmstedt, 243 Md. 92, 94, 220 A.2d 147 (1966); Walker v. Gardner, 221 Md. 280, 285, 157 A.2d 273 (1960); Falck v. Chadwick, 190 Md. 461, 467, 59 A.2d 187 (1948). ³ Whether the appellant can adopt his own son thus depends upon the applicable statutory provisions and the legislative intention in their enactment.

As earlier observed, §§ 5-307(a) and 5-309(a), read together, expressly provide that "[a]ny individual ... may be adopted" by "[a]ny adult." Section 5-308(b) specifies that an adopted individual becomes "the child of the petitioner for all intents and purposes; and ... is entitled to all the rights and privileges of and is subject to all the obligations of a child born to the petitioner in wedlock." This section further provides in subparagraph (b) that

"(2) each living natural parent of the individual adopted is:

(i) relieved of all parental duties and obligations to the individual adopted; and

(ii) divested of all parental rights as to the individual adopted; and

(3) all rights of inheritance between the individual adopted and the natural relatives shall be governed by the Estates and Trusts Article."

Section 5-310 defines a child's natural father to include a person adjudicated to be the father of the child or one who has acknowledged himself as such, orally or in writing, and the natural mother agrees that he is the individual's natural father. Section 5-311 provides that unless the natural parents' rights have been terminated by a judicial proceeding, an individual may not be adopted without the consent of both natural parents and the individual to be adopted, if at least ten years old. Section 5-312 permits issuance of a decree of adoption, notwithstanding a lack of consent by the child's natural parent, "to a stepparent, relative, or other individual who has exercised physical care, custody, or control of a child for at least 1 year, if by clear and convincing evidence" the court finds that a number of specified criteria have been satisfied, including that "it is in the best interest of the child to terminate the natural parent's rights as to the child." Underlying Maryland's adoption statutes is an express legislative finding in § 5-303(b) that, among other things, the child should be protected from "unnecessary separation from ... natural parents."

Under Code (1974), § 1-207 of the Estates and Trusts Article, an adopted child "shall be treated as a natural child of his adopting parent or parents." The section further provides that upon adoption, "a child no longer shall be considered a child of either natural parent," except that if the spouse of a natural parent adopts the child, "the child shall still be considered the child of that natural parent." Section 1-208(a) of the Article provides that a child born out of wedlock is considered to be the child of his mother. Such a child is considered the child of the father under § 1-208(b) only if the father

"(1) Has been judicially determined to be the father in an action brought under the statutes relating to paternity proceedings; or

(2) Has acknowledged himself, in writing, to be the father; or

(3) Has openly and notoriously recognized the child to be his child; or

(4) Has subsequently married the mother and has acknowledged himself, orally or in writing, to be the father."

That § 1-208(b) of the Estates and Trusts Article is a legitimating statute is clear from our cases. Dawson v. Eversberg, 257 Md. 308, 262 A.2d 729 (1970), involved, as here, an adoption petition filed by a natural father of children born out of wedlock. The father had been adjudicated as such under a paternity decree. The trial court, believing that adoption of the children was necessary to legitimize them, decreed the adoption, reserving to the mother in the decree all her parental rights. While we assumed, without deciding, that a natural father of an illegitimate child could adopt his own child, we held that that portion of the decree reserving the mother's parental rights was contrary to the adoption statute which terminated the legal relationship between the child and the mother. We expressed doubt that the trial court would have granted the decree had it known that it could not lawfully grant the adoption and, at the same time, preserve the mother's parental rights. In vacating the decree and remanding the case for further consideration, we observed that because of the harsh consequences of a decree of adoption, vis-a-vis parental rights, Maryland law provides that adoption should not be granted over parental objection unless that course is clearly warranted, bearing in mind the welfare and best interest of the child and all just claims of the objecting parent. 257 Md. at 313, 262 A.2d 729. In so disposing of the case, we said that if the only objective of the adoption was the legitimation of the children, what is now § 1-208(b) of the Estates and Trusts Article offered "a less traumatic approach to the problem." Id. at 314, 262 A.2d 729. We suggested that certain benefits that would be achieved through the adoption process could more simply be accomplished through legitimation of the child under this section of the statute.

In Thomas v. Solis, 263 Md. 536, 283 A.2d 777 (1971), the acknowledged father of an illegitimate child, who wished to protect his visitation rights and to assure entitlement to notice of any attempted adoption of the child, sought a declaratory judgment that he was the child's natural father. Citing Dawson, we said that compliance with any of the four methods set forth in § 1-208...