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IN THE COURT OF APPEALS OF MARYLAND NO. 40 SEPTEMBER TERM, 1996 _________________________________________

IN RE: ADOPTION/GUARDIANSHIP NO. 3598 IN THE CIRCUIT COURT FOR HARFORD COUNTY, MARYLAND _________________________________________ *Murphy, C. J. Eldridge Rodowsky Chasanow *Karwacki Bell Raker JJ. _________________________________________ Opinion by Bell, J. _________________________________________

FILED: October 10, 1997

*Murphy, C.J. and Karwacki, J., now retired, participated in the hearing and conference of this case while active members of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, they also participated in the decision and adoption of this opinion.

The instant case concerns the adoption of a female minor child born in Poughkeepsie, Dutchess County, New York. Over the objection of the biological father, pursuant to a private adoption agreement between the biological mother and prospective adoptive parents, the child was taken to Harford County, Maryland, where the adoptive parents, the petitioners, sought and were granted a decree of adoption. A divided panel of the Court of Special Appeals reversed the judgment of the Circuit Court for Harford County, finding that the trial court should not have granted the adoption, because of the petitioners' violation of the Interstate Compact on the Placement of Children (ICPC). In Re Adoption/Guardianship No. 3598, 109 Md. App. 475, 503, 675 A.2d 170, 184, cert. granted, 342 Md. 582, 678 A.2d 1047(1996). We shall hold that the best interest of the child standard continues to be the uncompromising standard in all adoption proceedings and, in relying on that standard, the trial court did not abuse its discretion in granting the adoption petition at issue. Accordingly, we shall reverse the Court of Special Appeals and affirm the judgment of the circuit court. We observe, however, that certain facts and circumstances may provide an adequate basis for the dismissal of an adoption petition as a penalty for violating the ICPC. I. In early 1991, Jerry C., the respondent and the natural father of Baby Girl S., and Amy S., her natural mother, both residents of State of New York, met at "Let's Dance," a night club located in Dutchess County, New York, and developed a casual friendship. The respondent and his brother were popular night club dancers; the natural mother frequented the area night clubs to dance and socialize with friends. As avid night club patrons, the

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respondent and the natural mother would meet at different clubs approximately twice a week. Over a short period of time, their casual relationship became intimate and, as a result, the natural mother, an eighteen year old high school senior, spent one night with the respondent and became pregnant. The respondent, known to the natural mother only by the nickname "Manny," was twenty-one years old at the time. A few days following the sexual encounter, the natural mother's father moved to Vermont, thus prompting the natural mother to move to the other side of the Hudson River to live with her mother and stepfather in a mobile home. The respondent had no knowledge of either the natural mother's relocation or her pregnancy until he saw her at a night club several months later.1 Upon learning of the pregnancy, the respondent did not deny paternity; rather, he expressed a willingness to support the child. According to his testimony, the respondent said, "If you say I am the father, I am the father. I will live up to my responsibilities." The respondent's assistance, as it turns out, materialized only in the form of casual services, not financial assistance. Although the natural mother was a high school student and the respondent was employed, the respondent never offered to pay any of the natural mother's medical expenses.2 The only overt acts by the respondent evidencing his

At trial, the respondent testified that the natural mother was five months pregnant at the time he learned of the pregnancy. Natural mother, however, testified that she was, in fact, three months pregnant. The respondent testified that he took natural mother to the Department of Social Services to obtain public assistance for her medical expenses. Natural mother denies this. In any event, it is undisputed that at the time natural mother applied for public assistance she still did not know respondent's full name, and respondent did not volunteer such information.
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willingness to assist the natural mother during her pregnancy consisted of driving the natural mother, on two occasions, from school to Vassar Brothers Hospital for prenatal care. On the first occasion, the respondent waited outside and then drove the natural mother home. On the second occasion, when they left the hospital, the respondent took the natural mother to his home, where she met his mother and other family members. Because the natural mother was experiencing difficulties in connection with the pregnancy at her mother's home, the respondent's mother invited the natural mother to move in with the respondent's family, an invitation that, for reasons not in the record, the natural mother declined. On that occasion, after introducing the natural mother to his family, the respondent went out for the remainder of the evening without informing the natural mother of his whereabouts. In fact, when he had not returned by the next morning, and the natural mother had not received a phone call from him, the natural mother walked back to Vassar Brothers Hospital, where she called her relatives to come take her home. Aside from the hospital visits, the respondent and the natural mother had minimal contact, especially during the last few months of the pregnancy. The respondent testified that the natural mother was responsible for the lack of contact, as he tried calling and visiting the natural mother, but the natural mother's mother and stepfather told him to stay away. On one occasion, the respondent and his mother visited the natural mother's mobile home, but

Consequently, at the Department of Social Services, natural mother was able to provide only respondent's first name. The Department had to call respondent's place of employment to obtain his full name.

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were told by her stepfather to leave and that the natural mother did not want to see the respondent. The natural mother confirmed this incident, testifying that she was at home on that occasion, but that she did not want to see the respondent. During the last couple of months of the pregnancy, the natural mother received hometeaching and began meeting with a school-sponsored social worker. The latter advised her to consider adoption as an option for the child after birth. Coincidentally, the social worker learned through a mutual friend that the petitioners, Paul and Deborah M.3, were interested in adopting a child. The natural mother testified that, faced with a Hobson choice, she concluded that, rather than rearing a child without financial support from the respondent, adoption was the optimal course of action for her. Therefore, she telephoned the petitioners and they began negotiating the terms of the adoption.4 Throughout the negotiations, which included several telephone conversations and a personal meeting, the natural mother told the petitioners that the father of the child was "out of the picture" and was not interested. She

Mr. and Mrs. M. were married in 1986. Being unable to have children of their own, they became interested in adopting a child. The M's are licensed foster care parents, who have had nine foster children placed with them, for periods ranging from one night to eight months. Mrs. M., who was 39 years old at the time of trial, is a computer programming analyst, earning an annual salary of $43,0000. Mr. M., who was 42 years old at the time of trial, is a computer network administrator, earning approximately $50,000 per year. This arrangement is termed an "independent adoption." As this Court has stated, "[i]n independent adoptions the natural parents and prospective adoptive parents negotiate either directly or through attorneys. Since no agency is involved the natural parents have greater control over the selection of the adoptive parents and often release the child into the temporary custody of the adoptive parents pending the final act of the court granting adoption." In Re Adoption No. 10087, 324 Md. 394, 400 n.1, 597 A.2d 456, 459 n. 1 (1991) (quoting In Re Lynn M., 312 Md. 461, 464 n.1, 540 A.2d 799, 800 n.1 (1988)).
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also told them that she did not know his name. In late April 1992, after the petitioners and the natural mother had agreed on the terms of the adoption, the petitioners engaged counsel in New York to represent the natural mother and to prepare and file the necessary documents to comply with the ICPC. On the application submitted to the New York State ICPC Administrator, the natural mother indicated that the father of the child was "unknown." Prior to trial, it was stipulated by all parties that the natural mother knew at all relevant times the identity and whereabouts of the respondent, the natural father. On May 3, 1992, the natural mother gave birth to a female child, Baby Girl S., in Poughkeepsie, New York. Two days later, the respondent, accompanied by his mother and other family members, came to the hospital to see Baby Girl S. carrying balloons, flowers, and gifts. As soon as they reached the natural mother's floor, however, and, thus, before they were able to see new born Baby Girl S., at the behest of the natural mother's mother and one of the petitioners' relatives, pursuant to a complaint from the natural mother, hospital security escorted the respondent and his relatives out of the hospital. As the respondent and his family were being escorted out of the hospital under protest, Mrs. M., who had been in New York since the natural mother went into labor and who had spent time with Baby Girl S. the previous day, was waiting in the hospital lobby to take possession of Baby Girl S. Upon receiving custody of Baby Girl S. from the natural mother's attorney, Mrs. M. went to her father's house in New Paltz, New York to await permission from the ICPC Administrator to transport Baby Girl S. to Maryland.

6 Later that day, the natural mother, through counsel, filed an Affidavit Relating to the Biological-Father's Consent and an Extrajudicial Consent Form 2-G with the Surrogate's Court of Ulster County, New York. Those forms were necessary in order for the natural mother to obtain approval to place Baby Girl S. with the petitioners. The natural mother's affidavit, signed over her attorney's signature and notary seal, states, in pertinent parts: 2. The biological father of the child is unknown to [the natural mother] and no person has taken steps to establish legal responsibility for the child. 3. The biological father, if known, has not made payment of pregnancy nor birth expenses. 4. The biological father, if known, has not publicly acknowledged paternity. 5. The biological father, if unknown, has taken no other steps to evince a commitment to the child. Likewise, in the Extrajudicial Consent Form, the natural mother stated that the respondent's full name and address were "unknown." That statement, like its counterpart in the affidavit, was false. Moreover, the respondent was never notified of the proceedings in the Surrogate's Court. Thus, it is clear, and the petitioners do not dispute, that the natural mother's purpose in making these false statements was to obtain certification from the Surrogate's Court in order to effectuate the placement of the child and ultimately to facilitate the adoption. Two days after the incident at the hospital, on May 7, 1992, the respondent filed a petition in the Family Court of Dutchess County, New York, for a Filiation Order, declaring him to be the father of Baby Girl S. In response to this petition, by letter dated May 15,

7 1992, addressed to the court, the natural mother's attorney informed the court that the natural mother admitted that the respondent was Baby Girl S.'s natural father. The letter states as follows: I represent [the natural mother] of Gardiner, New York, who received a copy of a Summons and Petition of the above-captioned petitioner to be declared the father of a child born out of wedlock to my client on May 3, 1992. The matter is returnable before you for an initial appearance on June 15, 1992. My client does not deny the allegations of the Petition (although she was unaware of the true name of petitioner) and would consent to the entry of a decree of paternity at this time. There are two reasons for this request. My client entered into an agreement, before the birth of the child, to place the child for adoption with an out-of-state couple. As of this writing, the requirements for the Interstate Compact approval are near completion and we expect the child to be released to the adoptive parents. We have simultaneously scheduled an appearance by the birth mother at the Ulster County Surrogate's Court to formalize her surrender. In light of the recent Court of Appels decision [sic] in Matter of Raquel Marie X. (76 NY2d 387), it appears likely that the putative father would be entitled to notice of the Surrogate's Court proceeding and an order in the Dutchess County Family Court at this time acknowledging paternity would enable us to proceed in the Ulster County Surrogate's Court without further delay, now that my client is aware of the name and address of the putative father. This letter had no effect on the paternity case. Notwithstanding the letter,5 the respondent was not declared to be the father of Baby Girl S. until June 7, 1993. Indeed, during the paternity proceedings, the natural mother contested the respondent's paternity,

Despite the acknowledgment that the respondent was entitled to notice of the Surrogate's Court proceedings, the respondent never received notice of those proceedings. Nor was the previously-filed affidavit and Extrajudicial Consent Form 2-G ever amended to reflect the natural mother's admission that the respondent was the natural father of Baby Girl S.

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8 necessitating that she, the respondent and Baby Girl S. undergo blood analysis. This caused a significant delay: blood could not be drawn from Baby Girl S. until she was at least six (6) months old, and thereafter, the petitioners canceled two scheduled blood examinations. Between May 16, 1992 or May 18, 1992, about two weeks after the birth of Baby Girl S., the petitioners transported Baby Girl S. from New York to Maryland. The petitioners testified that they did so only after their attorney in Maryland told them that she had received verbal approval from the ICPC Administrator.6 As it turns out, neither New York nor Maryland ever approved the application. A handwritten letter dated May 27, 1992, from Maryland's ICPC Administrator to New York's ICPC Administrator, with a copy to the petitioners' attorney, confirms that no approval was ever granted: Somehow a mixup occurred and this couple came to MD with the baby prior to approval. Referral is incomplete. I received only 100 A's from your office. Please send special medical history of birth parents, home study of adoptive parents, delivery and discharge hospital information, and statement from the NY attorney as to how the birth father's rights will be addressed. To date, neither the Maryland nor the New York ICPC administrator has approved the placement of Baby Girl S. with the petitioners in Maryland. On May 22, 1992, a few days after the petitioners arrived in Maryland with Baby Girl S., the petitioners filed a Complaint for Adoption and Change of Name in the Circuit Court

It was revealed at trial that what happened was that the New York ICPC Administrator left a message with the petitioners' attorney's office, stating that approval had been granted. The petitioners' attorney understood the message to mean that both New York and Maryland had approved the placement.

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9 for Harford County.7 The Complaint named the respondent as the natural father of Baby Girl S and acknowledged that he had not consented to the adoption. Accompanying the Complaint were the natural mother's signed consent to the adoption, and a Show Cause Order and Notice of Objection to be served upon the respondent. On June 18, 1992, the circuit court granted temporary custody of Baby Girl S. to the petitioners. On the same day, the Show Cause Order was issued, notifying the respondent that he had the right to object to the adoption. Service of the show cause order was first attempted in early July by restricted certified mail. The show cause order was returned marked "unclaimed." In August 1992, service of the show cause order by private process server was again attempted. Unable to serve the respondent, the process server swore in his affidavit that, "Numerous attempts were made at the [respondent's] home address. Never able to find him home. According to neighbors, he works very late in evening and leaves early morning. Tried setting up appointment but he never returned call." A third show cause order was issued, but not served, in November 1992. The respondent was finally served in April 1993, by the natural mother's attorney, at a paternity hearing in New York. Although not served until April 1993, the respondent had knowledge of the pending adoption action in Harford County. At trial, the respondent testified that he learned about

The Court of Special Appeals points to the fact that, while Mr. M. testified that Baby Girl S. was brought to Maryland on or before May 18, 1992, the Complaint for Adoption and Change of Name, which is date-stamped May 22, 1992, states that the petitioners "are awaiting final approval from the Maryland Interstate Compact Administrator before bringing [Baby Girl S.] to Maryland." The intermediate court, not the trial court, found that this evidences foul play.

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10 the adoption proceedings in August 1992 when, at a paternity hearing, the natural mother told him. She explained that she no longer had Baby Girl S. Also, in late November 1992, the petitioners contacted and met the respondent, his mother, and his aunt at a diner in New Paltz, New York. At that meeting, which both parties described as amicable, the petitioners showed the respondent pictures of Baby Girl S., whom, he testified, he knew beyond doubt, was his biological child, as soon as he saw the pictures. That meeting did not resolve the differences between the petitioners and the respondent, however; both sides maintained their desire to have Baby Girl S. The blood analysis indicated that the probability of the respondent's paternity was 98.19% and, accordingly, on June 7, 1993, the Dutchess County court entered an Order of Filiation declaring the respondent to be the natural father of Baby Girl S. Shortly thereafter, on June 11, 1993, the respondent filed his notice of objection to the adoption, accompanied by with a copy of the filiation order, in the Circuit Court for Harford County. On July 26, 1993, the circuit court appointed counsel to represent the interest of Baby Girl S., conduct an investigation of the case, and make a recommendation to the court. The court also appointed a social worker to conduct an investigation as required by Maryland Code (1991 Repl. Vol., 1997 Supp.)

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