Ross v. Hoffman

Lowe, J., delivered the opinion of the Court. We are called upon to review a Circuit Court of Baltimore City’s award of custody of a child to the appellees, who are ³³⁴ consanguineously unrelated to the child, over the protest of her natural mother. The child (Melinda) was born to Karen Ross (the appellant) on April 16,1967. Mrs. Ross was twenty-one years of age at the time.

Inasmuch as financial necessity required her to work, she retained Mrs. Oneida Hoffman, one of the appellees, 1 as a “babysitter”. Mrs. Ross’ schedule of night work created a difficult situation, for she had to deliver Melinda to the Hoffmans late at night and, after working all night, pick the child up by 7:00 o’clock in the morning. The obvious implication is that either Mrs. Ross received little or no rest or the child received proportionately little maternal attention. To overcome this fatiguing schedule Mrs. Ross, at Mrs. Hoffman’s suggestion, permitted the child to stay with the Hoffmans both day and night throughout the working week.

Mrs. Ross would reassume her parental role by taking her child on weekends and her days off. The compensation paid by Mrs. Ross remained the same. Although Mrs. Ross’ working shifts varied between 1967 and 1971, the custodial arrangement apparently did not. Furthermore, Mrs. Ross assumed a life style which, had she taken Melinda for longer than weekends and days off, would have been incompatible with the best interests of the child.

The record indicates that she may not have maintained her regular contact with Melinda during this period. 2 In addition to involvement with drugs, Mrs. Ross had several abortions. Presumably, however, because of the agreed custodial arrangement, Melinda was never exposed to these undesirable undertakings. After 1971 it appeared that a reformation may have occurred in Mrs. Ross’ way of life. The trial judge found as a fact that she was no longer involved in her former dissolute ways and, indeed, expressly stated that she was now “a very fit and proper person.. .. she is emotionally sound and a ³³⁵ healthy person to be a mother to this child.” Although we are not bound by the clearly erroneous rule, Md. Rule 1086, and may exercise our best judgment in determining whether the chancellor’s conclusion was the best one, Melton v. Connolly, 219 Md. 184, 188 (i.e., best for the welfare of the child), we must and do accept the factual findings and the chancellor’s view of the evidence if they are not clearly wrong.

Sullivan v. Auslaender, 12 Md. App. 1, 5 . There is neither indication nor allegation that any of the chancellor’s views of the evidence or findings of fact were clearly wrong, and we accept his finding as to Mrs. Ross’ reformation. Mrs. Ross changed her employment on three occasions between 1971 and 1974, finally settling upon employment at a nursing home. Haply, she there met her present husband whom she married on July 12, 1975.

The present action was brought about soon thereafter when the Rosses, having taken Melinda for the Labor Day weekend, returned her to the Hoffmans only when the Hoffmans obtained a court order directing the return of Melinda to them. The court has, by order, since controlled further visitation by the Rosses. The case comes to us upon appeal of an order of the court below granting permanent custody to the Hoffmans with liberal visitation privileges to Mrs. Ross, and directing the continued payment of $20.00 per week child support. 3 Appellant relies heavily upon Powers v. Hadden, 30 Md. App. 577 , decided on March 24, 1976. In Powers this Court reasserted as still viable the presumption, repeated frequently if not recently by the Court of Appeals, that a child’s welfare will be best served in the custody of the natural parents rather than in the custody of others.

Id. at 581 . Although this presumption was argued to the chancellor, Powers had not been published by the time the chancellor rendered his opinion, and appellant contends that his decision was predicated upon the erroneous assumption ³³⁶ that the natural parent presumption had atrophied by disuse. For that reason, contends appellant, the chancellor did not place a sufficient burden upon the Hoffmans to overcome the presumption. We find no such erroneous assumption in the chancellor’s opinion.

The chancellor cited many of the cases upon which we relied in Powers , and expressly recognized that the Hoffmans had the burden of overcoming the natural parent presumption. He then stated: “In that context, I have analyzed the facts of this case, and I have concluded that Mrs. Hoffman has overcome that burden.” Appellant then argues that the chancellor erred in concluding that the presumption was overcome, and that he erroneously relied upon the theory of “psychological parenthood.” We do not agree with either contention. The chancellor reviewed at great length the facts and testimony upon which he relied in deciding that the natural parent presumption had been overcome. He was particularly influenced by the testimony of a psychologist and by his own observations of the parties.

He attached far less weight to the opinion of the adoption and custody investigator who was concededly new at her job. We find the chancellor’s factual analysis detailed and convincing. After reviewing the evidence adduced by the parties, the chancellor explained that his reasoning had, to some extent, been influenced by certain educational background factors to which he had been exposed extra-judicially, as that term applies to the evidentiary confines of this case. He said: “Now, very briefly, there is a book out, which is widely read, by three very well respected professional doctors, Drs.

Goldstein, Freud and Solnick, called ‘Beyond the Best Interest of the Child,’ and in that book they point out that whether any adult becomes a psychological parent over the child is based upon a day-to-day interaction, companionship and shared experiences. And if you ³³⁷ look at it from that view, Mrs. Hoffman has had this advantage. She was the day-to-day person while Mrs. Ross, from Mrs. Ross’ own testimony, she would go once or twice a week, and I believe Mrs. Hoffman when she said there were long periods of time, particularly during the 69-70 period where there were long periods of absences, and they say this role can be fulfilled by the psychological parent or by adopted parents or by any other caring adult, but never by absolute inactive adults, but everyday biological, whatever the relationship may be, and that they further say whatever beneficial qualities the psychological parent may offer the child to be is a wanted and needed member in a family structure, and I find that to be true in the Hoffman home. Further, there is something I use admittedly, I think it is from the Family Law Report on Child Custody Conciliation, but it is the language I have adopted in these cases.

They talk about mothering the young child. They said the word ‘mothering’ denoting function rather than a person. The function does not reside in the biological mother. There are tens of thousands of babies that have been reared in successful foster homes or adoptive parents or grandparents or aunts or professional representations over the notion that the biological mother is unfailingly most competent in the functioning of mothering.

Many other kinds of evidence also tends to the same direction. For example, the unwanted pregnancy, therefore, unwanted children who suffer from rejecting parents. There is also wide public opinion in the increasing amount of children suffering from the beaten child syndrome, most of whom are victims of their biological parents, so biological parents reject the children just as well. Then, they say, this article quotes from the age of six to twelve that the — that is the age of Melinda — the psychological and personality traits begin.

In ³³⁸ that period a sense of family and home and a sense of security and safety greatly influences the psychological development of a child. At this age, here again, the biological parents are not crucial. It is the adults within the home of the child, that is, stepparents, foster parents, grandparents, with whom the child can interact meaningfully, and I repeat that, to whom the child can interact meaningfully without unnecessarily fear of rejection or hostility, suppression or misunderstanding, and I think that is what Dr. Derivan had in mind, why risk it, because we know what this child can do in the home of the Hoffmans. She is well-developed and healthy, and if we change the custody, we are not sure whether Mrs. Ross and her new husband and this child can interact meaningfully with her.

What the relationship with the child would be with Mrs. Ross, and the Court feels, as Dr. Derivan feels, maybe we shouldn’t risk this at this time.” We find no error in the fact that a trial judge continues his general education by reading, or that his reasoning is influenced by such education or by his experiences during his lifetime. To expect either judge or juror to erase from memory all that he has read or experienced, not specifically related to the facts of a case, before deciding a case is an absurdity so apparent as to deserve no rebuttal. Error would result when the reasoning was obviously distorted, but not when sound reasoning is influenced by prior experience or education. The soundness of the chancellor’s reasoning here is apparent from the excerpt of his opinion.

We do not find that he gave undue weight to that particular underpinning of his reasoning. Rather, we commend him both for recognizing and expressing that which helped him to decide. Appellant then argues that our recent opinion in Powers v. Hadden requires us to apply the natural parent presumption rigorously and find that, on the facts of this case, the appellees could not have overcome the presumption. But our careful review of the record convinces ³³⁹ us that Powers militates far more heavily against, than for, appellant.

Perhaps appellant’s misinterpretation of Powers lies in the sense of rigidity, if not conclusiveness, with which the term “presumption” is viewed. Too often those skilled at law treat all presumptions as decisive irrespective of the evidence, and fail to recognize that for the most part they are merely guidelines by which to reason, conclusive only in the absence of evidence to the contrary and are aught but one more auncel weight in the judicial balance. In the natural parent context it is nothing more than a burden-placing device. It puts the burden of persuasion on the non-biological “parent” and is overcome when sufficient evidence is introduced and believed by the trier of