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McClary v. Follett

Decided: October 12, 1961.

MCCLARY ET AL.
v.
FOLLETT, JR.



Appeal from the Circuit Court of Baltimore City; Byrnes, J.

Henderson, Prescott, Horney, Marbury and Sybert, JJ. Prescott, J., delivered the opinion of the Court.

Prescott

Adoptive parents have appealed from an order of the Circuit Court of Baltimore City, which rescinded the decree that had granted them the adoption of a minor child, and awarded the custody of the child to its natural father.

The appellants raise two questions for our consideration:

(1) they argue that the trial court erred in failing to find as a fact that the appellee had relinquished his parental rights in relation to the child by abandonment, and (2) in awarding custody of the child to the father in derogation (they contend) of the best interests and welfare of the child, and without a Probation Department investigation.

The appellee and one Helen Hotalen were married in Baltimore in 1953, and thereafter lived together as man and wife. The wife had had an infant daughter by a previous marriage, who resided with them. The infant boy involved herein was born on August 25, 1956. The husband and wife continued to live together until April, 1957, when they separated, the children staying with their mother. Several weeks after the separation, the police warned the mother that unless she took better care of the daughter, steps would be taken to remove the child from her custody; whereupon, she telephoned the appellee and requested that he take the daughter, which he did, and she has remained with, and been supported by, him ever since. When he went for the daughter, he was told that his son was "down the country," but if he would return on the following Sunday, he could "pick up" the boy. His return on Sunday availed him nothing: his wife, as well as the son had disappeared. The chancellor found that, thereafter, the appellee made "repeated [but unsuccessful] efforts to locate the whereabouts of his wife," in an attempt to obtain custody of his son.

Early in 1959, the appellee entered the Veterans Hospital in Baltimore, and he was informed by the hospital authorities that they could find no record of his son's birth. Investigation at the Bureau of Vital Statistics revealed that the child, purportedly, had been adopted. This information was received by the appellee in May, 1959, and it was his first notice of any adoption proceedings. Counsel was promptly engaged, and a petition soon followed requesting that the adoption proceedings be opened to ascertain if any fraud had been perpetrated. Upon investigation thereof, it was revealed that the natural mother of the child had falsely sworn that she was unwed; that the child was born out of wedlock; that Follett was an assumed name of her "boy friend," who was the father

of the child; and that she did not know the location of the residence of the natural father.

The adopting parents were married in 1950; the wife, at the time of the adoption, worked in a tavern where she became acquainted with the natural mother; and the adopting father was, and still is, in the army, being now stationed in Texas.

The chancellor held that the natural mother had perpetrated a "gross fraud" in the adoption proceedings; that it was uncontradicted that the appellee received no notice of such proceedings, in accordance with Code (1957), Article 16, Section 75, and he did not consent thereto; and that, irrespective of the provisions of Section 79*fn1 of the same article of the Code, due to the fraud and lack of notice or consent, the decree of adoption should be declared null and void; and, as he was "convinced that the child would have a good home with his father and paternal grandparents," he ...


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