Lagumis v. Ex Parte Lagumis , 186 Md. 97 ( 1946 )

The adoption of children, although recognized by the civil law, was unknown to the common law, and is with us purely of statutory creation. Hillers v. Taylor, 108 Md. 148 at pages 155 and 156,69 A. 715. Until such a statute was passed, it has been held that there could be no adoption establishing the legal relation of parent and child. Zimmerman v. Thomas, 152 Md. 263, 136 A. 637. The first statute passed in Maryland was Chapter 244 of the Acts of 1892 which added six additional sections to Article 16 of the Code, numbered 62A to 62F, both included. Section 62A has been amended in several respects, but insofar as the questions before us in this case are concerned, it is practically identical with the present statute which is Section 78 of Article 16. That statute has been construed in a number of cases before this court, one of the most exhaustive of which is Spencer v. Franks, 173 Md. 73,195 A. 306, 309, 114 A.L.R. 263. The court in that case said, "The statute, however, confers jurisdiction with respect to the single subject matter of adoption, with a permitted change of the child's name if the petition contains a prayer to that effect," and "Since the general effect of the decree of adoption under the statute was to terminate the legal relations between the child and its natural parents, the statute contemplated that the custody of the infant * * * shall no longer be the right of the natural parents, but [shall] be the exclusive right of the adoptive parents." In that case, after an adoption had been perfected, the natural mother filed a petition for custody of the infant during a stated period. This court said that the privilege of seeing the child should have been left to the discretion and determination of the adoptive parents, and reversed an order which permitted the natural mother to have her seven-year-old boy on one Saturday in every month from nine o'clock in the morning until five in the afternoon. This case shows the length to which this court has gone in determining the respective rights of the adoptive parents and the natural parents after an adoption has been decreed. The old ties are severed, and so long as the adoptive parents treat the child properly, they do not have to permit the natural parents to see it at all, if, in their discretion they think it advisable not to. The result far transcends the effect of any decree of custody.

The statute Article 16, § 78, gives the court power to pass an adoption decree "upon such reasonable notice to the parent or parents, guardian or guardians, of such child" as the court may order to be given, with two provisos. The first is "that the court passing the decree shall become satisfied, upon careful investigation, in the case of a child, that the best interests and welfare of such child will be thereby promoted." The second proviso is "that the child if of sufficient intelligence and capacity give an understanding assent, * * * shall so desire."

In the case before us the father, of course, had notice. He objects. The child was asked to testify, and assented to the adoption. The statute in these two respects was satisfied, although it seems ridiculous to suppose that a boy, who did not even know his father and who had been living with his mother and step-father who had treated him kindly, could be expected to do anything less than assent to his adoption. If he objects it would be such an extraordinary circumstance that the Legislature was warranted in making this a prerequisite to the right of the court to pass a decree. If he assents, the requirements of the statute are satisfied, but little else is determined.

The question of custody arises in this case only if the adoption is granted. The mother now has the custody, although the father has tried to get it and has failed in his efforts. He has the privilege of seeing the child, but since he lives in New York and the child in Baltimore, and his means are not unlimited, it is a privilege which he is unable to exercise. He has not exercised it partly because of this fact, but primarily, as he states, because of the hostile attitude of his wife and her family towards him, and because of the fact, as he says, every time he goes near them there is a fight. Nevertheless, he has the privilege of seeing the child. This will be taken away from him by the action of the majority of the court affirming the decree of adoption, and the privilege of seeing the child will then be wholly contingent upon the discretion and determination of his wife and the step-father. Spencer v. Franks, supra.

The question then is adoption with change of name, change of father, and complete change of control. And the test is the other proviso that the court is satisfied that the best interest and welfare of the child will be thereby promoted. That is also the test in custody cases under Article 16, § 85, Kartman v. Kartman, 163 Md. 19,161 A. 269, but the application of such test in an adoption case is essentially different from its application in a custody case. In a custody case, the question is who shall have the immediate control, with the right in the court at any time, to change such control if the conditions warrant it. It is not permanent and it is at all times subject to change. Pitts v. Pitts, 181 Md. 182, at page 192, 29 A.2d 300. In an adoption case, the change from one father to another as (in this case) is permanent, the change of name is permanent, and permanent custody goes along with it, and the last is subject to the action of a court only to the extent that the custody of any child is subject to such action if a proper petition is filed. Now that the decree of adoption has been affirmed, young Lagumis will no longer be the son of his real father, but will be the son of the step-father, Triktis. He will become George Milton Triktis and step-father Triktis will become his adoptive father with full rights of control and custody over him, just as permanent as those of any natural father could be.

This is a drastic change and cannot be justified on the ordinary ground that it is for the best interest of the child to be reared by his mother and step-father. That is the case now. To justify the further change it must be shown that for some reason it is best for the child that he be cut off entirely from his father, and that he bear a new name. What are the facts? The father deserted the wife and the child when still an infant. The circumstances of that desertion are not shown. After a lapse of a period of several years, during which the mother had custody of the child, she brought suit for a divorce, which she obtained, and immediately married her present husband. Thereupon the father applied for the custody of the child, but the court refused to give it to him, and there is no criticism of that action in the present case. The child was of tender years and the father was a non-resident. Nor is there any contention before us that the father, who has since married again, should now have custody of the child, although he does desire the right to see his son at reasonable times and under proper circumstances. Neither the father nor the step-father are wealthy. Both are apparently of the same national origin; the father is employed as a bartender, and the step-father as a chef. The latter makes somewhat better wages, but there is not enough difference to justify a finding that this would warrant the change of parent and the change of name. The father has no other child and the step-father has no children. But the question is not to be decided on terms of leaving the father without a child or giving a child to the step-father. Their respective reactions are not controlling. The father has done little for the child, which he excuses by the fact that his wife did not want him to have anything to do with it and was able to support it. The step-father has, of course, supported the boy since he has been married to its mother, which was an obligation he took upon himself by marriage.

The question therefore presented is whether, because a mother wants it and because a step-father wants it, and where there is no particular pecuniary or other advantage to be gained by it, a boy should be taken permanently from his father's name and his father's relationship and given the name and parenthood of his step-father. We have found no reported case, and have been referred to none, in which a step-father has been allowed to adopt a child over the objection of a father. There is, however, a case in this court which seems to point the way. In that case the child concerned was a seven-year-old girl. The father was able to obtain only odd jobs, was dependent upon charity and was not able to maintain a home. The mother had become insane and died. The child's great-aunt and her husband took care of the child and the father visited it only infrequently, because of lack of means. For the same reason he had contributed very little to its maintenance. This court said if the question was one of care and custody the child might well be left with the great-aunt. "But the petition filed by the appellees goes far beyond the question of care and custody; it seeks a permanent severance of the legal relation of the parent and his child. For that extreme measure the facts show, in the opinion of this court, no justification. Whatever shortcomings the father may have, there is no such unworthiness suggested as would require or justify depriving him of his relation to his child. And the child, now too young to be consulted, has an interest to be protected. In all probability she will in the course of time grow to cherish the natural tie with her own father, and the severance of it now may prove no small grievance to her.

"The statutory provisions for adoption of children, Code, Art. 16, Secs. 4 to 76, themselves contain no references to the natural right of the parents, but it requires no argument to support the implication that the laws do not mean to deprive parents of their own children except under extraordinary conditions, such as do not exist in this case. Alston v.Thomas, 161 Md. 617, 620, 158 A. 24; Kartman v. Kartman,163 Md. 19, 161 A. 269." Connelly v. Jones, 165 Md. 544,170 A. 174, 175.

It seems to me that the words of Chief Judge Bond, just quoted, should settle this case. There is no justification in the evidence for the extreme measure asked for. The father has shown no such unworthiness as would require or justify the severance of the relationship between him and his child, and the consent of the child carries no weight except that of satisfying the statute. When he becomes older, he may want and need the blood relationship which the court below has denied him. Now he has both the care and kindly attention of his step-father and the relationship with his own father to which he is entitled by blood and inheritance. He should not be deprived of the one without some compensating factor on the other side. I am able to find none, and I think the court should adhere to the rule that has already been laid down, that the son should not be deprived of his relationship with his own father and of that own father's name, unless some condition has arisen by the conduct of the father or otherwise which makes it imperative for the best interest of the child that such action be taken. I think the decree of the lower court should be reversed.

On Motion for Modification of the Opinion, the following was filed per curiam:

Appellant has filed a motion for modification of the opinion in this case. The Court has considered the motion and it is denied. In addition to the motion, appellant filed certain reasons therefor which are couched in such intemperate and impertinent language that the Court unanimously feels that the motion and such reasons should be expunged from the record of this case, and it is hereby ordered that this be done.