De Angelis v. Kelly

Marbury, C. J., delivered the opinion of the Court. This is an appeal from an order of Judge Dickerson, sitting in the Baltimore City Court. It was passed in a habeas corpus case, brought by the appellees, to determine the custody of an infant. The appellants are the mother and adopting father of the child, and the appellee, Frances W. Kelley, is a great aunt.

Mrs. Kelly had the custody of the child from the time she was three months old, until November, 1943, when she was transferred to the appellants on writ of habeas corpus, by Judge Moylan, sitting in the Baltimore City Court. She is now about four and one-half years old. After the decision by Judge Moylan, the appellants filed a petition in the Circuit Court No. 2 of Baltimore City, and on January 24, 1944, Judge Conwell Smith, sitting in that Court, by his decree, directed her adoption by the appellants, one of whom, as previously stated, was her natural mother. The order appealed from in this case, passed on May 5, 1944, gives the child to Mrs. Kelly from 10 A. M. on Saturday of each week until 6 P. M. on the following Sunday, and to the appellants for the remainder of the time. ¹⁸⁵ The appellants contend that Judge Dickerson had no power to pass upon the case, since, by Chapter 818 of the Acts of 1943, the Circuit Court of Baltimore City was given jurisdiction in juvenile causes, and the Judge of the Supreme Bench of Baltimore City, assigned to exercise such jurisdiction (who is not Judge Dickerson), was given original and exclusive jurisdiction concerning any child who is dependent, delinquent, neglected or feeble-minded.

Chapter 818 is a comprehensive statute conferring special jurisdiction in juvenile and related causes to the Circuit Court of Baltimore City, directing the Supreme Bench to assign a judge to exercise such jurisdiction, who need not be subject to rotation as are the other judges, and who is given, by Section 420(C), except as otherwise provided in the Act, “original, exclusive jurisdiction concerning any child who is dependent, delinquent, neglected or feeble-minded.” In the same section 420(C), there is this sentence, “Nothing herein contained shall deprive other courts of the right to determine the custody of children upon writs of habeas corpus or to determine the custody or guardianship of children when such custody or guardianship is incidental to the determination of cases pending in such other courts.” The proceeding in this case was taken under Section 21 of Article 42, title “Habeas Corpus”, of Flack’s Annotated Code, 1939. That section was enacted in its present form by Chapter 70 of the Acts of 1890 and originally by Chapter 57 of the Acts of 1886. It has been used extensively throughout the State, for nearly 60 years, for the purpose of determining the proper custody of children. Prior to its enactment, minors were, of course, subject to the application of the writ of habeas corpus, just as are all other persons, with respect to the legality of their custody and control.

Section 21, however, gave the Court or the Judge a parental character. The custody of the minor was to be