Schwartz v. Hudgins

Orth, J., delivered the opinion of the Court. By its decree of 16 November 1970 the Circuit Court for Baltimore County in Equity denied the adoption of Angela Marie Houser by James F. Schwartz and Patricia Ann Schwartz, his wife. It awarded the guardianship and custody of the child to Mr. and Mrs. Schwartz with a right of visitation in the natural mother, Frances Hudgins, formerly Frances Houser, all subject to its further order. Mr. and Mrs. Schwartz appealed. 1 Angela’s natural father, Frank Houser, consented to the adoption.

Her natural mother refused to give her consent. In reaching his conclusion the chancellor made factual findings which we accept. Maryland Rule 1086; Sullivan v. Auslaender, 12 Md. App. 1 (1971). He set them out in a memorandum opinion. “The natural mother of the child proposed for adoption had three children: BERNARD ANTHONY HOUSER, born November 21, 1955; MARY TERESA HOUSER, born July 26, 1957, ⁴²¹ and ANGELA MARIE HOUSER, born December 30, 1964.

In February, 1965, when Angela was two months old, the mother left the home where the children and her husband resided and moved to an address on Calvert Street in Baltimore City. She made no effort to contact the children, husband, or any public authority for about two months. She explained her actions as caused by a sense of hopelessness and desperation arising from her husband’s indolence and intoxication. These events triggered a Juvenile Court hearing, attended by the mother, at which the three children were found to be neglected and dependent and were committed to the Baltimore County Welfare Board for foster placement on April 30, 1965.

JAMES F. SCHWARTZ and PATRICIA ANN SCHWARTZ, his wife, were chosen as foster parents of all three children shortly thereafter, when Angela was but a few months of age. At that time the Schwartzes were childless. Three children subsequently were born to the couple, namely: JAMES JOHN SCHWARTZ, age 4; AMY LOUISE SCHWARTZ, age 2, and GINA ROSE SCHWARTZ, age 7 months, who reside in the home with Angela. Mr. Schwartz is an Officer of the Baltimore County Police Bureau.

Mrs. Schwartz is not employed, except as housewife and mother. Both bear the highest reputation. Their present home is a four bedroom, detached dwelling on a lot 75 feet by 105 feet. It was manifest that both have the same deep affection for Angela as for their own children.

The interrelationship of these children was described as extremely close. Angela was described as a happy, well adjusted child. The Schwartzes have resided in their present home for about one year. In the first year, visitations by the natural mother to her children occurred monthly with reasonable regular-' ity.

The visits decreased thereafter and by August, 1968 had become very infrequent. At that time her son, Bernard, left the Schwartz household to live with his mother and her present husband, FREDERICK ALLAN HUDGINS. There were no visitations by the natural mother thereafter. She never thereafter sent Angela a ⁴²² letter or greeting card on holidays or birthdays.

Sometime prior to the time that Bernard returned to the home of his mother, the other daughter, MARY TERESA HOUSER, had been taken from the Schwartz home and placed in other foster care. The reason for that course is in dispute — Mrs. Hudgins suggests that the child was unhappy because of unfair treatment by the Schwartz family; the Schwartzes contend that the admitted difficulty with Mary Teresa within the household was caused by a feeling by the child that she had been rejected by her mother. Mary Teresa now resides with her mother. She did not testify.

The evidence is strong and fully believed by the Court, that the natural mother never, by word or deed, expressed or evidenced love and affection for Angela. Once, in the course of a long delayed visitation, Angela, in the presence of her natural mother, inquired ‘who is this lady?’ The mother did not even respond. At or about the time when the mother’s visitations had ceased altogether, when Angela was about three years old, the child was told by Mrs. Schwartz that she was not the real mother. This apparently caused the child to become quite emotionally upset, for which medical attention was required.

Thereafter, no comment about Angela’s true parentage ever was made by the Schwartzes. She was known within the family and the community as ‘Angela Schwartz’. When Mrs. Hudgins learned [apparently from her son, Bernard] that Angela was being called a ‘Schwartz’ she protested to a representative of the Welfare Department. Discussions took place between the Schwartzes and the Welfare Department on the subject.

It was agreed that meaningful visitations by the mother to the child were necessary and desirable if the child were to achieve an appropriate parent-child relationship. The visitations never took place. The relationship between the natural mother and Angela appears to have been different than with her son, Bernard. On her infrequent visitations her interest and affection seem to have been directed exclusively to the son — the daughter was ignored.

The evidence compels the conclusion that ⁴²³ the child Angela regards herself and is regarded by the Schwartz family and the community generally as a child of that household. This is directly and exclusively the product of the natural mother’s failure ever to indicate affection for the child; the gross infrequency of her visitations in the early years; the seeming disinterest in the child during these infrequent visitations, and the complete absence of any contact either in person or by card or letter within the past two years. “The evidence shows abundant opportunity for the mother to maintain frequent and meaningful visitations with the child, particularly after Mrs. Hudgins’ marriage to her present husband on January 29, 1967. She is employed as a nurses aide at the Mercy Hospital at a net bi-monthly wage of $164.00. Her husband was said to have a take-home wage of $125.00 weekly, with gross wages of $9,500.00 in 1969.

She works five days a week, with regular work hours of 7:80 A.M. to 4:00 P.M. Her non-work days are variable, but occur chiefly in midweek. Her husband’s hours of employment generally extend from 7:00 A.M. to 3:00 or 4:00 P.M., with most Saturdays and Sundays off. She has two weeks vacation annually; her husband five weeks. It is true that the former residence of the Schwartzes was somewhat removed from public transportation — about five or six blocks away in hilly terrain — but the present home is only one block from such transportation.

It is simply beyond belief that the natural mother was barred, either by financial restraints or by travel difficulties from visitations with her child. Still, the natural mother has stated an ultimate desire to have Angela with her at some indeterminate future time. Mrs. Willin, of the Probation Department of Baltimore County, testified that during her interview Mrs. Hudgins presented no plan for her daughter to return to the home — that she just didn’t know, she couldn’t tell when such return would occur. Mrs. Willin also testified that the natural mother showed no evidence of love for the child in the course of her interviews.

The natural mother testified that she believed ⁴²⁴ that Angela would adjust toward her because the child knew that Mary and Bernard were her sister and brother. She stated that it was her purpose from the very beginning to have all of her children return and that this purpose has been achieved as to Mary and Bernard. She hoped that Angela will return after her husband ‘has more time to adjust.’ The natural mother’s explanation of her admitted failure to maintain any contact with Angela in the past two years, or to explain the infrequent contacts prior thereto is most unsatisfactory. Her explanation that cards were not sent because of fear that they may not be delivered by the Schwartzes is equally unimpressive.

The testimony in this case persuades the Court that the removal of this child from the household of the Schwartzes at this time would cause at least temporary harm to the child. This is solely a circumstance caused by the mother’s failures as a parent. She has not evidenced love and affection for the child.” The primary consideration of transcendent importance in child adoption cases, as in child custody cases, is firmly established — that action should be taken which sub-serves the best interests of the child. Lippy v. Breidenstein, 249 Md. 415, 420 .

Although in reviewing such cases we accept the factual findings of the chancellor if not clearly wrong, we exercise our best judgment in determining whether the conclusion the chancellor reached on those facts was the best one for the welfare, benefit and interests of the child. Sullivan v. Auslaender, supra. In so doing in adoption cases, however, we recognize that they are to be distinguished from custody cases. The distinction was pointed out in Walker v. Gardner, 221 Md. 280, 284 , quoted with approval in Lippy at 420 , in Beltran v. Heim, 248 Md. 397 , 401 and in Goodyear v. Cecil County Department of Social Services, 11 Md. App. 280 , 284: “Unlike awards of custody, (* * *), adoption decrees cut the child off from the natural parent, who is made a legal stranger to his off ⁴²⁵ spring.

The consequences of this drastic and permanent severing of the strongest and basic natural ties and relationships has led the Legislature and this Court to make sure, as far as possible, that adoption shall not be granted over parental objection unless that course clearly is justified. The welfare and best interests of the child must be weighed with great care against every just claim of an objecting parent.” The Court of Appeals has indicated that it will not permit trial courts to decree adoption over the expressed objection of the natural parent save “in very strong cases.” 2 The Legislature has provided for consent to be obtained in certain circumstances to any proposed adoption. Applicable here is the requirement that such consent shall be obtained from one natural parent, if the other has lost his parental rights through voluntary relinquishment. Code, Art. 16, § 74 (c).

But since the amendment of the