Frantum v. Department of Public Welfare of Baltimore City, 205

• Decision Date: 25 June 1957
• Docket Number: No. 205,205
• Citation: 214 Md. 100,133 A.2d 408
• Parties: In the Matter of the Petition of Frank H. FRANTUM, et al., etc. v. DEPARTMENT OF PUBLIC WELFARE OF BALTIMORE CITY.
• Court: Maryland Court of Appeals

Page 100

214 Md. 100

133 A.2d 408

In the Matter of the Petition of Frank H. FRANTUM, et al., etc. v. DEPARTMENT OF PUBLIC WELFARE OF BALTIMORE CITY.

No. 205.

Court of Appeals of Maryland.

June 25, 1957.

Dissenting Opinion July 5, 1957.

I. Sewell Lamdin, Baltimore, for appellants.

Carl H. Lehmann, Jr., Asst. City Solicitor, Baltimore (Hugo A. Ricciuti, Deputy City Solicitor and Thomas N. Biddison, City Solicitor, Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and COLLINS, HENDERSON, HAMMOND and PRESCOTT, JJ.

BRUNE, Chief Judge.

This is an appeal from an order of the Circuit Court of Baltimore City dismissing the petition of the appellants, Frank H. Frantum and Minnie E. Frantum, his wife, which sought the adoption of an infant, white, male child, Burton Stevens ('Burton').

The child, the illegitimate son of Betty Ann Stevens, was born November 5, 1955. Prior to the birth of Burton his mother voluntarily applied to the Department of Public Welfare ('Welfare Department') for adoption service. Burton was adjudicated to be a dependent child and was committed to the Welfare Department on December 15, 1955. On December 31st he was placed in the home of the appellants for foster care. At the time of his placement and for sometime thereafter, Burton was physically in poor condition. He suffered a fracture of the left humerus at birth and was anemic. He also had other physical ills, including bad adenoids and respiratory infections. The appellants nursed him to health, and becoming very attached to him, they asked the Welfare Department for permission to adopt him. This request was refused by the Welfare Department, but the appellants nonetheless filed their petition in the Circuit Court of Baltimore City seeking to adopt him.

The trial court ordered its Probation Division to make an investigation and submit its recommendations as to whether or not to grant the petition for adoption. The Probation Division did so; it favored the adoption, but suggested a hearing in open court since the Welfare Department as legal guardian had refused to give its consent. The hearing was held and shortly thereafter the Chancellor signed an order dismissing the petition. The appeal is taken from this order.

The Chancellor in a 'Memorandum of Court' set forth his findings which were the basis of denying the appellants' petition. He found that the arguments and testimony show that the appellants are 'fine people, have a good home, and have done an excellent job in raising the child from a sickly child to good health. They are to be commended for that. There is no argument about their fitness as foster parents.' He then stated the primary considerations that influenced his decision as follows: 'I am influenced by the fact that his legal guardian [Welfare Department] refuses to consent * * *. Another persuasive element, and unfortunately for the Frantums, is the age of these foster parents. Mrs. Frantum will be forty-eight years of age in the next several months, and Mr. Frantum will be fifty-four years of age within the next several months. While at a good age as foster parents, unfortunately it is not an ideal age as adoptive parents for this infant. * * * When Mr. Frantum is sixty-four years of age and Mrs. Frantum is fifty-eight years of age, this child will be eleven years old. In his adolescence, this child may present problems with which the Frantums at their age may not be able to cope. Younger prospective adopting parents present a better future for him.' The Chancellor also stated, as a secondary issue in the case, the question of religious affiliation, saying: 'The matter of religion has been brought into the case. A child should be placed, wherever possible, with people of the same religion. This child was born to a woman who professed to be a Catholic and requested that her child be raised a Catholic. The Frantums are of the Lutheran faith * * *. While I have given some consideration to this phase of the case, it was not the determining factor for my conclusion that this petition should be dismissed.'

The law is firmly established in this State that in adoption cases such as the one before this Court the welfare and best interest of the child is the primary consideration. Haney v. Knight, 197 Md. 212, 218, 78 A.2d 643, 646, and cases there cited; Ex parte Anderson, 199 Md. 316, 322, 86 A.2d 516.

Adoption in this State is wholly a matter of statute. Spencer v. Franks, 173 Md. 73, 195 A. 306, 114 A.L.R. 263; Falck v. Chadwick, 190 Md. 461, 59 A.2d 187. Our adoption law fixes the minimum age for adoptive parents at twenty-one years, but it does not impose a maximum age limit. Code 1951, Article 16, Section 79. The general rule appears to be that under such statutes, advanced age alone will not amount to a disqualification. See 2 C.J.S. Adoption of Children § 8; In re Brown's Adoption, Fla., 85 So.2d 617. This also seems implicit in the opinion of this Court in Ex parte Anderson, supra. It likewise appears from the opinion in that case that the age of the prospective adoptive parents is an important factor to be considered in determining what is for the good of the child. This is the view of the Department of Welfare of Baltimore City, as is shown by the testimony of workers in that Department given in this case. Similar views are expressed in the Proceedings of the Maryland Adoption Conference of April, 1956, which were published by the State Department of Public Welfare. In a discussion of the subject of 'Early Placements', page 12 of the above Proceedings, it is said: 'We need young couples for the young infant. The group agreed that flexibility about age was important but acknowledged that there was an age beyond which people should not take a tiny infant. It was agreed that most adoptive parents realize the validity of this. While a lot of people feel young at 40, they can foresee what it will be like to be dealing with an adolescent 15 years later. It was agreed that our age policies need careful interpretation to the community. If we are ready to explore the possibility with each applicant and keep in mind the principle of flexibility, it seems possible to handle the question of age with minimum damage to applicant.'

In Waller v. Ellis, 169 Md. 15, 179 A. 289, the age of an uncle seeking to adopt a nine-year old, full orphan girl and (presumably) to take her away from the custody of her maternal grandfather, and the ages of the uncle's sister and of his feeble-minded brother who were the only other residents of the uncle's home, were among the reasons, though by no means the only reasons, for reversing a decree of adoption which the uncle had obtained. At the time of institution of the suit in 1931 the uncle was 58 years old, his sister was 60 and the feebleminded brother was 61. The petitioning uncle was 62 when the case reached this Court.

In the Anderson case above cited, a physical ailment of the would-be adoptive mother apparently affected adversely her ability to care for the child. He had been over protected or 'babied' to an extent which retarded his development. In the present case there is no such difficulty.

There is, however, the religious preference clause of Section 76. By that Section, 'The General Assembly hereby declares its conviction that the policies and procedures for adoption contained in this subtitle are socially necessary and desirable, having as their purpose the three-fold protection of (1) the adoptive child, from unnecessary separation from his natural parents and from adoption by [an unfit] person * * *, and (except in Allegany, Garrett and Washington counties), whenever practicable, from adoption by persons of a different religious belief than that of the minor or his parents, unless the natural parent or parents specifically indicate or consent to a different choice; * * *.' Though the religious preference clause does not impose an absolute requirement in those portions of the State not excepted from its operation, and though its force may be somewhat weakened by the very fact that three counties (for no stated reason) are excepted from its application, we think that it cannot be disregarded. The evidence shows that the mother of the child professed adherence to the Catholic faith and expressed the desire that the child be brought up in it. It further seems that it is practicable to place the child with younger adoptive parents who are members of the Roman Catholic Church.

We are of the opinion that the same rule should apply to appellate review of the decision of the Chancellor in an adoption case as in a custody case. Hence, where on appeal, the facts are undisputed and plain, this Court must exercise its best judgment in determining whether the conclusion reached by the Chancellor was the best one. See Butler v. Perry, 210 Md. 332, 123 A.2d 453 (a custody case); ...