Thumma v. Hartsook

Sybert, J., delivered the opinion of the Court. The question presented in this appeal from two interlocutory orders in an adoption proceeding (such appeals being specifically permitted by Code (1957), Art. 16, sec. 84) is whether or not the Circuit Court for Montgomery County properly placed the subject child in the custody of the Montgomery County Welfare Board pending complete investigation, hearing and determination of the adoption petition. Since no testimony has as yet been taken in the proceeding, the only “facts” before us are those alleged in the pleadings (and as to these there is some dispute), the orders of the Chancellor, and the brief and oral argument of the appellants. The appellees filed no brief and made no oral argument before us.

It appears that Nell Doreen Thumma, the child in question, was born on May 30, 1963, to the appellants, Robert E. Thumma and Phyllis L. Thumma, his wife, both minors. (Their age is not given.) Being unable to provide a home for the child at that time, apparently because they were impecunious and living apart, the parents placed the child with a friend, Sarah Jean Herrington, a divorcee with three teen-age children, who later married William F. Hartsook. Some months later the county People’s Court for Juvenile Causes, after a hearing, found that the child had been without proper care and guardianship and placed her in the temporary custody of Mrs. Hartsook, with visitation privileges to the parents. About a year later the Hartsooks filed in the circuit court a petition for the adoption of the child.

The Thummas answered, and also filed a petition alleging that they were now able to care for the child and asking that her custody be awarded them, pendente lite and permanently. A hearing on an order to show ⁴¹ cause why the adoption petition should not be granted was held, at which arguments of counsel were heard but no testimony taken. The court requested an investigation by the county’s Department of Parole and Probation and received that agency’s report the next day. Thereupon the court passed an order on December 14, 1964, reciting that upon investigation it appeared that the best interests of the child would be served by forthwith placing her in the custody of the County Welfare Board pending final determination of the cause, and so ordering.

Shortly before the passage of the order the Thummas had obtained physical possession of the child from the Hartsooks. They failed to deliver her to the Welfare Board, and, after issuing and withdrawing a bench warrant for the infant’s father, the circuit court passed an order on January 13, 1965, directing the Thummas to deliver their child to the Welfare Department. The parents filed a motion for reconsideration, and, in its order denying the motion, the court recited that: “* * * The initial investigation reveals that the said Thummas had delivered the infant child over to the custody of