Courtney v. Richmond

• Decision Date: 12 July 1983
• Docket Number: No. 1557,1557
• Citation: 55 Md.App. 382,462 A.2d 1223
• Parties: . John Henry RICHMOND. Court of Special Appeals of Maryland
• Court: Court of Special Appeals of Maryland

Page 382

55 Md.App. 382

462 A.2d 1223

Vernon R. COURTNEY v.John Henry RICHMOND.

No. 1557.

Court of Special Appeals of Maryland.

July 12, 1983.

Melvin Hoffman, Glen Burnie, for appellant.

Allen W. Cohen, Annapolis, with whom were Goodman, Cohen & Bennett, P.A., Annapolis, on brief, for appellee.

Argued before LISS and BISHOP, JJ., and PINES, JOSEPH I., Specially Assigned Judge.

BISHOP, Judge.

The appellant, Vernon R. Courtney, filed in the Circuit Court for Anne Arundel County a Petition for Adoption of his step-daughter, Lamanda Delores Richmond.Appellant's wife, Mary Ellen Courtney, the child's biological mother, joined in the petition, consenting to the adoption, but reserving her rights.The appellee, John H. Richmond, the biological father of the child, filed a "Counter-Claim and Cross-Petition to Establish Visitation Rights" containing a prayer for reasonable visitation to "include eight (8) weeks during each summer and alternating Christmas holiday periods," and a prayer for general relief.In response to this latter pleading, Mary Ellen Courtney filed an answer and cross-petition along with a petition to hold John H. Richmond in contempt of court for his failure to make support and maintenance payments, the arrearage of which amounted to $7,200.00 as of March 31, 1982.The chancellor (Goudy, J.) made the following rulings:

1.Denied the petition for adoption.

2.Granted the appellee visitation rights.

3.Refused to hold the appellee in contempt.

The appellant raises two basic questions:

Did the chancellor err in refusing to grant the adoption?

Did the chancellor err in refusing to hold the appellee in contempt?

The Adoption

Lamanda was born on December 18, 1974, as a result of the marriage of the appellee and the wife of the appellant.Lamanda's natural parents had a rather stormy marriage, which culminated in a final separation in the spring of 1976, when Lamanda was less than eighteen months of age.On October 23, 1975, some months before the final separation, the mother enlisted in the National Guard.While the mother was on active duty with the National Guard before the separation, either the paternal grandmother or a baby-sitter cared for Lamanda.After the separation, in July 1976, when Lamanda was eighteen months old, her mother went on active duty with the United States Army.Thereafter, for about one year the maternal grandmother cared for the child, who received regular support payments from her mother.The appellee sent either no money, according to the grandmother, or $50.00 or $75.00 per month according to the appellee.As a result of an action instituted by the wife, the Richmonds were divorced on March 17, 1978, by the District Court of Gary County, Kansas.The decree provided for child support, alimony, attorney's fees and court costs.Appellee received a copy of the decree and he was aware that he had been ordered to support Lamanda.

Sometime thereafter the mother received an overseas assignment to Germany.The father offered to care for Lamanda, but the mother refused, stating that she would not go overseas without the child.Lamanda was taken to Germany and remained there with her mother until June 1981, when she was flown home to spend some time with her maternal grandmother.Her mother returned in July 1981 and the appellant in August 1981.While overseas the mother and the appellant had married on June 28, 1979, in Copenhagen, Denmark.

The chancellor filed the following Memorandum of Opinion and Order on August 16, 1982:

"Vernon R. Courtney petitioned this Court to adopt LAMANDA DELORES RICHMOND, born in Missouri, on December 18, 1974.She was the natural daughter of JOHN HENRY RICHMOND and MARY-ELLEN FRANCES RICHMOND who were married on October 5, 1974, but divorced by Decree of the District Court of Gear County, Kansas on March 17, 1978.The mother has now married the Petitioner and joined in the Petition for Adoption.

The Divorce Decree granted custody to the mother and granted visitation to the father.

Since the Decree, visitation and contact with the child has been minimal.He saw the child only once until the filing of these adoption proceedings.He then re-established contact.He has not seen the child but has talked to her on the phone.They have exchanged letters and other correspondence.The Decree ordered the father to pay $150.00 per month in child support.He has not done so.He started making child support payments in December of 1981 after being advised of these proceedings.Since December he has made payments totaling $775.00.

Vernon R. Courtney presented himself as a mature adult who has married the Mother and established a close relationship with the child.He is earnestly concerned with the child's welfare and there is no contest that he would be a fit Father.

Mary-Ellen Courtney supports her present husband's plea.She separated from her ex-husband in 1976, had sporadic reconciliations but was divorced in March of 1978.In 1976, she joined the Army and was sent to Europe where she met Mr. Courtney.She took the child with her which prevented the natural Father from visiting.The child did not return to the States until June of 1981 when she stayed with her maternal grandparents in California.

The child knows of her father, has talked with him at times over the phone and has exchanged correspondence and photographs.She calls both Mr. Courtney and her natural Father, Daddy.

John Richmond is 30 years old, still in school, employed as a surgical technician and taking nursing courses in his local community college in Midwest City, Oklahoma.He states he paid some support to the maternal grandmother but if he did this Court finds the amount very small and inadequate.He says he sent some letters and packages to the child but they were returned.He does not have the returned letters nor does he have the returned cancelled checks he claims he used for support.He says he did not send support to the child while she was out of the country due to legal advice.The Court disbelieves this.He now lives in a two bedroom house with a fenced backyard.He did not see the child for the last three to four years because she was in Europe.

The Court continued the matter to review the Department of Social Services investigative report which was not available at the time of hearing.It was ultimately received on July 8, 1982 and confirms the Court's previous findings of Mr. Courtney's fitness.The Department recommends adoption, however, it is noted that this recommendation was made without the benefit of interviewing the natural Father.

The question before the Court is whether the consent to adopt has been withheld contrary to the child's best interest.The evidence must be such that it is clear and convincing before the rights and relationship of both child and parent will be disturbed.The Court finds the evidence fails to meet this test and will, therefore, deny the adoption.

The father and child relationship having been maintained it is important that visitation be established.This must be done gradually but with tact.The Court will, therefore, order a one week visit in the summer of 1982, provided that prior to the said visit the father visit with the child for two days.Visits will also be ordered for a one week period on alternate Christmases beginning with Christmas 1982.If the child shall be taken out of state, the father is to pre-pay the child's transportation.Starting with the summer of 1983, the visits shall be for the period of thirty days and for a like period each summer thereafter.

The Court finds the form [sic ] inappropriate for the determination of Contempt.

It is, therefore, this 16th day of August, 1982, by the Circuit Court for Anne Arundel County,

ORDERED, the Petition for Adoption is hereby denied, and it is further,

ORDERED, the Father shall be granted visitation with the child for the period of one week (seven days) during the summer of 1982, provided the Father visit the child for a two day period before the one week visit.The Father shall have alternate Christmas visits for a period of one week beginning the Christmas of 1982.The Father shall bear all transportation expenses of the child and pre-pay the same...."

Based on our review of the testimony, we cannot hold that the factual findings of the chancellor were clearly erroneous, as we must for us to arrive at a different factual conclusion.Maryland Rule 1086.Coffey v. Department of Social Services, 41 Md.App. 340, 397 A.2d 233(1979).In spite of the foregoing, we shall remand since the chancellor did not appear to have applied the facts to the law in force at the time of his order.Section 77 of Article 16, Annotated Code of Maryland(1981 repl. vol., 1982 cum. supp.) is a part of the general revision of our adoption laws, contained in Chapter 514, Acts of 1982, which became effective on July 1, 1982, and is entitled "Independent Adoptions."It applies "only to independent adoptions where parental consent is withheld."This case was heard on June 14, 1982, and was continued for the purpose of receiving the report on the adoption from the Department of Social Services and for consideration of memoranda of law from the parties.The opinion and order of the court was filed on August 16, 1982.Because of the proximity of these dates to July 1, 1982, and the lack of any reference to section 77 in the legal memoranda of the court or counsel, or anywhere in the record, we must conclude that the chancellor did not consider the new law.There are criteria contained in section 77 which appear not to have been applied to the facts in this case.

The statute provides that a court may grant a decree of adoption without parental consent

"... if the court finds by clear and convincing evidence that termination of the natural parent's rights is in the child's best interest, and:

(1) The child has been out of the custody of the parent for at least 3 years;

(2) The...