McClary v. Follett, 16

• Decision Date: 12 October 1961
• Docket Number: No. 16,16
• Citation: 226 Md. 436,174 A.2d 66
• Parties: Dorence McCLARY et al. v. Loren F. FOLLETT, Jr.
• Court: Maryland Court of Appeals

Page 436

226 Md. 436

174 A.2d 66

Dorence McCLARY et al. v. Loren F. FOLLETT, Jr.

No. 16.

Court of Appeals of Maryland.

Oct. 12, 1961.

Louis Salzman and Harold Buchman, Baltimore (Lawrence B. Coshnear, Baltimore, on the brief), for appellants.

Marvin M. Polikoff, Baltimore (Leroy H. List, Baltimore, on the brief), for appellee.

Before HENDERSON, PRESCOTT, HORNEY, MARBURY and SYBERT, JJ.

PRESCOTT, Judge.

Adoptive parents have appealed from an order of the Circuit Court of Baltimore City, which rescinded the decree that had granted them the adoption of a minor child, and awarded the custody of the child to its natural father.

The appellants raise two questions for our consideration (1) they argue that the trial court erred in failing to find as a fact that the appellee had relinquished his parental rights in relation to the child by abandonment, and (2) in awarding custody of the child to the father in derogation (they contend) of the best interests and welfare of the child, and without a Probation Department investigation.

The appellee and one Helen Hotalen were married in Baltimore in 1953, and thereafter lived together as man and wife. The wife had had an infant daughter by a previous marriage, who resided with them. The infant boy involved herein was born on August 25, 1956. The husband and wife continued to live together until April, 1957, when they separated, the children staying with their mother. Several weeks after the separation, the police warned the mother that unless she took better care of the daughter, steps would be taken to remove the child from her custody; whereupon, she telephoned the appellee and requested that he take the daughter, which he did, and she has remained with, and been supported by, him ever since. When he went for the daughter, he was told that his son was 'down the country,' but if he would return on the following Sunday, he could 'pick up' the boy. His return on Sunday availed him nothing: his wife, as well as the son had disappeared. The chancellor found that, thereafter, the appellee made 'repeated [but unsuccessful] efforts to locate the whereabouts of his wife,' in an attempt to obtain custody of his son.

Early in 1959, the appellee entered the Veterans Hospital in Baltimore, and he was informed by the hospital authorities that they could find no record of his son's birth. Investigation at the Bureau of Vital Statistics revealed that the child, purportedly, had been adopted. This information was received by the appellee in May, 1959, and it was his first notice of any adoption proceedings. Counsel was promptly engaged, and a petition soon followed requesting that the adoption proceedings be opened to ascertain if any fraud had been perpetrated. Upon investigation thereof, it was revealed that the natural mother of the child had falsely sworn that she was unwed; that the child was born out of wedlock; that Follett was an assumed name of her 'boy friend,' who was the father of the child; and that she did not know the location of the residence of the natural father.

The adopting parents were married in 1950; the wife, at the time of the adoption, worked in a tavern where she became acquainted with the natural mother; and the adopting father was, and still is, in the army, being now stationed in Texas.

The chancellor held that the natural mother had perpetrated a 'gross fraud' in the adoption proceedings; that it was uncontradicted that the appellee received no notice of such proceedings, in accordance with Code (1957), Article 16, Section 75, and he did not consent thereto; and that, irrespective of the provisions of Section 79 ¹ of the same article of the Code, due to the fraud and lack of notice or consent, the decree of adoption should be declared null and void; and, as he was 'convinced that the child would have a good home with his father and paternal grandparents,' he ordered that the custody of the child be given to the natural father. From a decree, which put these holdings into effect, the appellants appealed.

I

This contention of the appellants has two prongs, but neither tine is very long nor deeply penetrating. They first insist that the chancellor was clearly in error in not finding that the natural father lost his parental rights in the child by abandonment, arguing that he made no sincere attempt to locate the child after he and his wife had separated, or to see that the boy was properly supported. They further claim that the father's only motive in regaining the child is the additional monetary assistance that he will receive from the government. The short, but complete, answer to this contention is that it, simply, is not supported by the record. In addition to detailing other efforts to locate his wife and through her his son, the appellant replied to a question as to how many times had he tried to locate them in 1957 and 1958 as follows: 'Well, it was more or less a continual thing trying to find out where she was.' The chancellor found, as we pointed out above, that the appellee made 'repeated efforts' to locate the wife, and, in this finding, we cannot say that he was clearly erroneous. Maryland Rule 886. In regard to the purported sinister motive of receiving additional compensation from the government, while the exact amount of additional money that he will receive is not shown, it is a matter of general knowledge that the amount awarded by the government to a disabled parent because of a dependent child, ordinarily, is not sufficient, in the present state of the economy, adequately to support and clothe it, much less to realize any gain or advantage from the award. The record shows that he now receives a monthly service-connected disability (presumably for himself and his stepchild) of $143. We think the record is sufficient to support the chancellor in his finding that the natural father had not lost, nor relinquished, his parental rights. Maryland Rule 886.

This ruling also answers the second segment of this contention, which is a claim that the chancellor should have decided the case in their favor 'inasmuch as the exception to statutory finality [namely, that fraud in the obtention of the adoption decree, which fraud resulted in the appellee not being notified of the adoption proceedings, created an exception to Article 16, Section 79, set forth in footnote 1] did not apply to this appellee.' The appellants state the quoted provisions of said Section 79; call attention to the fact that the welfare...