Cockerham v. Children's Aid Society

Marbury, C. J., delivered the opinion of the Court. Appellants, father and mother of a daughter, now eighteen months old, filed a petition under Flack’s Anno ⁹⁹ tated Code, 1939, Article 42, Section 21, for a writ of habeas corpus, directed to the appellee, to secure the custody of their child, previously committed to the appellee by a trial magistrate of Cecil County. After a hearing in the Circuit Court for Cecil County, Judge Constable remanded the child to the custody of the appellee, subject to the further order of the Court. The case comes here on appeal from this order.

There are no questions of law involved, and the sole question for our determination is whether, on the testimony taken and at the time the case was heard, the order of the lower court was correct. Section 21 of Article 42 provides that when such a case as the present is brought, the Court or Judge in its determination “shall be guided and controlled by a parental consideration of what is demanded by the best interest of such minor, and the custody shall be determined without regard to technicalities of procedure and without reference to any alleged technical claim or right of custody.” The Section has been construed and passed upon in three recent cases, Tull v. Tull, 172 Md. 213 , 191 A. 572 ; Piotrowski v. State ex rel. Kowalek, 179 Md. 377 , 18 A. 2d 199 ; and De Angelis v. Kelley, 184 Md. 183 , 40 A. 2d 382 , and it is not necessary to discuss it further. In view of its provisions, we will not consider the authority of the magistrate to commit the child to the care of the appellee in the first instance, as any possible technical defect in such commitment has been cured by the order appealed from.

Nor can we, under the statute, give any weight to the fact that the appellants are the natural guardians of the child. The sole question is her welfare. The child was born on August 7, 1943. According to the testimony of the father, the mother went back to work about three or four weeks later.

The testimony is not quite clear who took care of the child immediately after the mother went back to work, but there is some indication that an older woman was in charge of it at home. The Secretary of the Cecil County Welfare Board testified that on January 31, 1944, the father asked the ¹⁰⁰ Welfare Board if there was any place where he could board the baby. As a result the authorities found a place for it in Elkton. The family with which it was placed moved to Sparrows Point and then to Detroit, taking the child with them.

As soon as the mother learned of its removal, she went to Detroit, and brought the child back. The people who took it to Detroit had it about five months. It was brought back in July, when it was about eleven months old. On the 13th of that month the father came in to see Miss Evans of the Children’s Aid Society, and, according to her very definite and clear evidence, he wanted to put the child in a foster home, saying that the mother was working and did not take care of the baby, that he was taking care of it, and he was afraid to leave it with the mother for fear she might harm it.

Mr. Cockerham now denies this. On July 12th, the day before Mr. Cockerham’s visit, Mrs. Cockerham had sworn out a warrant for Mr. Cockerham, charging him with assault and battery on her. He was subsequently tried before the magistrate and found guilty, but his sentence was suspended. On July 13th, the same day as his visit to the Children’s Aid Society, Mr. Cockerham swore out a warrant for Mrs.' Cockerham, charging her with disorderly conduct, and with disturbing the peace.

She was arrested and kept in jail in default of bail for about seven hours. She was released when her husband declined to prosecute. Mrs. Coles, the secretary of the County Welfare Board, was present at the hearing of Mr. Cockerham’s case, and as a result of this and of her conversations with the family, she swore out a warrant on July 17th for the child as a minor without proper care. And on the 18th of July it was committed to the appellee.

Appellants both signed an agreement on that date to pay for the child and made no objection to the child being taken. However, on October 19th they filed the petition in the instant case, and the hearing was held on November 10, 1944. There were witnesses called on both sides, some testifying tfiat appellants were perfectly proper people to ¹⁰¹ take care of their child and that conditions in their two-room home were good, and others testifying to a great deal of disorder and to bad home conditions. It is perfectly apparent on the record that appellants were not, at the time of the hearing, in any situation to properly care for a child of the age of the little girl whose custody is now being considered.

The father himself realized this and put in motion the proceedings which resulted in her commitment $o the appellee. The Cockerhams had a small two-room house, were preparing to