In Re Adoption No. 9979

591 A.2d 468, 323 Md. 39, 1991 Md. LEXIS 104

• Court: Court of Appeals of Maryland
• Decided: June 25, 1991
• Docket: 59, September Term, 1990
• Status: Published

Opinions

McAULIFFE, Judge.

This-appeal involves the interpretation of § 5-327 of the Family Law Article, Maryland Code (1984), which prohibits certain payments in connection with adoption placement. Appellants, the adopting parents, question whether the trial judge was correct in ruling that § 5-327 prohibits payment by the adopting parents to the natural mother of the cost of maternity clothes. We hold the payment is prohibited by the statute.

I.

This case involves a direct adoption—an adoption not involving a licensed agency. The petition for the adoption of an infant child was filed in the Circuit Court for Montgomery County, Maryland. Each natural parent filed a consent to the adoption. An adoption investigation was conducted by a court investigator, who recommended that the petition be granted. The investigator requested, however, that the prospective adopting parents, personally or through their attorney, send to the investigator’s office itemized bills for all payments made in connection with the adaption. Subsequently, appellants filed a statement of expenses, listing, in addition to attorneys’ fees and court costs, payments to the natural mother of $378.35 for “reimbursement of hospitalization insurance,” and $488.00 for “maternity clothes and related expenses.”

At the adoption hearing, the trial judge questioned the appellants and their attorney concerning payments made to the natural mother. Appellants testified that all such payments were made through their attorney. Appellants’ attorney submitted an affidavit from the natural mother, who said she had not kept any of the bills for maternity clothing because she did not anticipate placing the baby for adoption when she made the purchases. She did, however, itemize purchases totalling $488.00, for maternity clothes.¹ No explanation was given as to why the original expense item had been characterized as maternity clothes “and related expenses.”²

At the conclusion of the hearing, the trial judge signed an order approving the adoption, but expressed concern about the payments that had been made to the natural mother for maternity clothes. He took that matter under advisement, and requested a memorandum of points and authorities. Subsequently, he entered an order finding that reimbursement for maternity clothing is not a permitted expense in adoption, and disallowing the payment. The adopting parents appealed to the Court of Special Appeals, and we issued a writ of certiorari on our own motion prior to consideration by that Court.

Appellants raise only one question in their brief:

Does Maryland law prohibit adoptive parents from reimbursing a natural mother for maternity clothes expenses?

The statute in question, § 5-327 of the Family Law Article, provides in pertinent part as follows:

(a) In general—

(1) An agency, institution, or individual who renders any service in connection with the placement of an individual for adoption may not charge or receive from or on behalf of either the natural parent of the individual to be adopted, or from or on behalf of the individual who is adopting the individual, any compensation for the placement.

(2) This subsection does not prohibit the payment, by any interested person, of reasonable and customary charges or fees for hospital or medical or legal services.

* # * * *

(c) Prosecution by State’s Attorney.—The State’s Attorney shall prosecute any violation of this section.

(d) Penalty.—A person who violates this section is guilty of a misdemeanor and on conviction is subject to a fine not exceeding $100 or imprisonment not exceeding 3 months, or both, for each offense.³

Appellants argue that the statute has no application to the payment made in this case for three reasons: 1) the statute does not apply to payments made to a natural parent; 2) the statute prohibits only payments that result in a profit to the recipient, and therefore does not prohibit reimbursement of expenses incurred; and, 3) in any event, payment for maternity clothing qualifies as a payment of reasonable and customary charges for “medical ... services” within the meaning of the statute. We disagree with appellants on all counts.

II.

As we recently noted, adoptions were unknown at common law and are permitted only by statute. In re: Lynn M., 312 Md. 461, 463, 540 A.2d 799 (1988). The statutory provision with which we are here concerned was originally enacted as § 85P of ch. 599 of the Acts of 1947. In its original form, it provided in pertinent part as follows:

It shall be unlawful for any agency, institution, or individual rendering any service in connection with the placement of a child for adoption to charge or receive from or on behalf of either the natural parent or parents of the person to be adopted, or from or on behalf of the person or persons legally adopting such person, any compensation whatsoever for the placement service, but this shall not be construed to prohibit the payment by any interested persons of reasonable and customary charges or fees for hospital or medical or legal services.

That section was amended by ch. 648 of the Acts of 1970, which exempted certain payments made to licensed adoption agencies or institutions. The 1970 amendment also changed the description of prohibited payments from “any compensation whatsoever for the placement service” to “any compensation whatsoever for adoptive placement----” Originally codified in Art. 16, this provision was rewritten as a part of the Code revision process, and recodified as § 5-327 of the Family Law Article. See ch. 296 of the Acts of 1984. According to the Revisor’s Note, only changes of style were made in the 1984 revision.

Appellants’ first contention is that § 5-327 does not apply to payments made to a natural parent. They reason that when the General Assembly spoke of someone who “renders any service in connection with the placement of an individual for adoption,” the legislative body must have meant doctors, lawyers, intermediaries, and other third persons, and not those who are directly involved in the placement.⁴

We do not read the statute so narrowly. We believe that except for the very specific exceptions spelled out in the statute, the legislature intended to prohibit the payment of any compensation for an adoption placement. Any ambiguity in the language of the statute results from an attempt to include all forms of payment to all possible persons, rather than an intent to exclude those most logically intended to be covered. Excising language not applicable to the circumstances of this case, and substituting specific for general terms, § 5-327(a)(l) reads:

An ... individual who renders any service in connection with the placement of a [child] for adoption may not charge or receive ... from or on behalf of the [person] who is adopting the [child], any compensation for the placement.

Describing a natural parent who signs a consent and turns over a child for adoption as one who “renders any service in connection with the placement of a [child],” may not be the warmest possible prose, but it literally does include the natural parents. Indeed, it might be difficult to think of anyone capable of rendering a greater “service in connection with the placement” than the natural parents.

One of the amendments to the statute made in 1970, to which we have earlier referred, suggests that the emphasis of the prohibition is intended to be on compensation paid for an adoption placement, and not on the term “service.” While retaining the language relating to anyone “rendering any service” in the broad description of those intended to be covered by the statute’s proscription of payment, the legislature struck the word “service” from the operative language of the actual prohibition. Instead of prohibiting “any compensation whatsoever for the placement service,’’ the statute was amended to prohibit “any compensation whatsoever for adoptive placement.” ⁵ (Emphasis added.)

Contemporary interpretation of the statute strongly favors applicability of the prohibition to payments made directly to natural parents. A committee of Maryland judges recently filed a comprehensive report concerning independent adoptions, and devoted a section of the report to the problem of payments made for the benefit of natural parents.⁶ Although the Committee noted that there is some disagreement among judges concerning the type of payments that will qualify for the exclusion as “hospital or medical or legal services,” there is no suggestion in the report that the statute does not cover payments made directly to a natural parent. After discussing the potential evils of allowing expanded payments to or on behalf of natural parents, and the potential benefits of allowing “living expenses” to natural parents, as a few states do, the Committee said, at page 60 of its report:

The Committee feels that the present language of [§] 5-327 achieves a proper balance between the competing interests that the statute addresses and believes that any further extension of its language might invite abuses.

In a recent comment, Regulatory Options for Surrogate Arrangements in Maryland, 18 U.Balt.L.Rev. 110, 119-22 (1988), the authors refer to § 5-327 and to Art. 27, § 35C, Md.Code (1957, 1987 RepLVol., 1990 Cum.Supp.) (a criminal statute prohibiting the sale, barter, or trade of a child) and conclude that “[t]he overriding objective of these statutes is to regulate arrangements between a mother and strangers.” Id. at 121.

In 1988, Senator Barbara Hoffman introduced Senate Bill 436, which would have amended § 5-327 to permit the payment of

reasonable expenses associated with the pregnancy of the natural mother, including, but not limited to, lost wages, food, shelter, and clothing, provided that the payment is authorized by the court for good cause shown. The expenses shall be certified to the court and payment may be authorized before or after a petition for adoption is filed.

In her letter to the Department of Legislative Reference requesting that the appropriate bill be drafted, Senator Hoffman said “what I want to accomplish is that the natural mother in an adoption could receive payments that are now forbidden by Maryland law.”⁷ The Bill received an unfavorable report from the House Judiciary Committee, and was not passed.

Appellants argue that ch. 300 of Acts of 1989, codified at Art. 27, § 35C, was enacted because § 5-327 did not address compensation paid to a natural parent. Article 27, § 35C provides:

(a) In general.—A person may not sell, barter, or trade, or offer to sell, barter, or trade a child for money or property, either real or personal, or anything else of value.

(b) Violation constitutes misdemeanor; penalty.—A person who violates this section is guilty of a misdemean- or and on conviction is subject to a fine not exceeding $10,000 or imprisonment in the penitentiary not exceeding 5 years or both for each offense.

Chapter 300 of the Acts of 1989 enacted Senate Bill 58. That Bill, introduced by Senators Hollinger and Hoffman, originally would have amended § 5-327, initially by raising the possible penalty from a fine of $100 and imprisonment for three months, to a fine of $10,000 and imprisonment for five years. An early amendment would have added to § 5-827 language very similar to that which now appears at Art. 27, § 85C(a). As ultimately amended and enacted, Senate Bill 58 did not, however, amend § 5-827. Instead, it created the new criminal offense relating to the attempted or consummated sale, barter, or trade of a child.

The legislative history of Senate Bill 58 indicates that it was intended “to address a concern raised by a representative of the Maryland States Attorney’s Association that current law does not explicitly prohibit baby selling by a parent,” and that the penalty for such conduct should be greater than the penalty provided by § 5-327. Floor Report, Senate Bill 58, Senate Judicial Proceedings Committee. The sponsors’ original concern grew out of a case involving a Pennsylvania couple who ran an advertisement in a Baltimore area magazine offering their child for sale. Undercover Maryland State Police officers, acting in concert with Pennsylvania authorities, agreed to buy the baby for $30,-000. Delivery of the baby occurred in Pennsylvania and the parents were prosecuted in that jurisdiction. See The Capital, 3 December 1988. Maryland officials became concerned when they realized that Maryland law did not include a specific prohibition against the sale of a child, and that the existing law relating to unpermitted compensation paid in connection with an adoption placement might be too narrow to cover an outright sale, and in any event provided for penalties that were not commensurate with the gravity of the offense of selling a child. During the course of the Bill’s consideration by the legislature, another case arose concerning the alleged sale of a child by its mother for cocaine and cash. An Anne Arundel County circuit judge held that the mother could not be prosecuted under § 5-327 for the sale of the baby, and this action apparently furnished additional impetus for the ultimate amendment of Senate Bill 58 to create a new criminal offense, and for the passage of the Bill. See Baltimore Sun, 1 April 1989.

We have no way of knowing whether the decision of the Anne Arundel County circuit judge was based upon the belief that the sale of the baby was not tied in with an adoption placement, and thus not embraced within the prohibition of § 5-327, or whether, as appellants suggest, the decision rested upon a belief that the prohibition of § 5-327 does not extend to payments made directly to a natural parent. If the decision rested on the latter ground, it was in error for the reasons already given. Additionally, we find it inconceivable that the legislature would have intended to exclude payments to natural parents from the only statute dealing with impermissible payments for adoption placements. We hold that payments to natural parents fall within the prohibition of § 5-327.

HI.

Appellants next argue that the word “compensation” in § 5-327 means “profit” and “does not in any way address the reimbursement for legitimate expenses that relate to the pregnancy, birth or adoption of the child.” Thus, they argue,

[t]he natural mother’s receipt of money in reimbursement for maternity clothes is not compensation. She is no better off after she was reimbursed for the maternity clothes than she was before. She is simply made whole.

Appellants’ Brief, 6-7.

Appellants are wrong. The basic meaning of compensation is reimbursement—reparation—that which makes whole. Compensation has been defined as:

The act or action of making up, making good, or counterbalancing: rendering equal____ Something that constitutes an equivalent or recompense____

Webster’s Third New International Dictionary 463 (1963).

The act of compensating____ Something given or received as an equivalent or as reparation for a loss, service, or debt; a recompense; an indemnity....

The American Heritage Desk Dictionary 211 (1981).

As used in § 5-327, the word “compensation” is undoubtedly broad enough to include profit, but it is most certainly not limited to profit. Giving the word its ordinary meaning, reimbursement for expenditures for maternity clothes is clearly “compensation.”

IV.

Appellants’ final contention is that reimbursement for maternity clothes falls within the statutory exemption for payment of “reasonable and customary charges or fees for hospital or medical or legal services.” § 5-327(a)(2). Appellants concede that reimbursement for maternity clothes cannot be considered a payment of hospital or legal services, but insist that it qualifies as payment of a medical service. Their argument is difficult to follow. Factually, and logically, the cost of maternity clothes is not a medical expense. Certainly, the lack of clothing could have an adverse effect upon the health and welfare of the natural mother, but the same could be said for the lack of food or shelter, and reimbursement for those expenses would not constitute payment of customary medical expenses.

We recognize that there is an ongoing debate concerning what should be permitted as a reasonable reimbursement of expenses to, or on behalf of, a natural mother in an adoption setting. See Report of the Subcommittee to Study Uniform Procedures for Handling Independent Adoptions, Committee on Juvenile and Family Law of the Maryland Judicial Conference, 57-66 (Nov. 1, 1988). It is the General Assembly, however, and not the courts, which must make the final decision on such matters. Currently, the law concerning compensation payable in connection with an adoption placement is strict. Section 5-327 contains a general prohibition against all payments, followed by a narrow exception for “reasonable and customary charges or fees for hospital or medical or legal services.” We will not, by artificially stretching the definition of commonly understood terms, broaden the exception beyond the obvious legislative intendment.

As to the single question raised by appellants, we hold that the payments of compensation to or on behalf of a natural parent are included within the prohibition of § 5-327 of the Family Law Article, and that reimbursement for the purchase of maternity clothing does not constitute a payment of customary medical charges within the meaning of the narrow exception contained in the statute.

V.

There is an additional issue, not raised by appellants, that we elect to consider and decide. See Maryland Rule 8-131. That issue concerns the validity of the order of repayment entered by the trial judge.

The hearing on the adoption was held on 25 October 1989. Appellants and their attorney were present, but the natural parents and their attorney were not. The trial judge questioned the propriety of the payments made to the natural mother for maternity clothing and indicated his provisional belief that the payments were contrary to Maryland law. He decided to grant the adoption, but to retain jurisdiction to decide the legality of the payments. The trial judge told appellants’ attorney:

I am signing the decree of adoption. I am going to give you 10 days to give me authority to justify the payment of the maternity clothes expenses and if I am not convinced, I am going to order you to reimburse the [appellants] the $488.

The signed adoption order, however, made no mention of the maternity clothing issue.

On 14 November 1989, counsel for the appellants submitted a memorandum of law to the circuit court concerning the maternity clothing reimbursement. The circuit court, on 14 December 1989, signed an order requiring the natural mother to pay to the appellants $488, representing reimbursement for the maternity clothing expense.⁸ Until this order, there had never been a hint in the case that a money judgment or order to pay money might be entered against the natural mother. The December 14 order shows on its face that copies of the order were mailed to the attorneys for the adopting parents. There is no indication on the order, or elsewhere in the record, that a copy of the order was sent to the natural mother or to her attorney in New Jersey.

It was entirely appropriate for the trial judge to consider, in determining whether the adoption should be granted, whether § 5-827 had been violated. The illegal payment of compensation to a natural parent could have considerable bearing on the question of the voluntariness of that parent’s consent to adoption, and could also impact on the trial judge’s determination of the fitness of the prospective adopting parents. Here, however, notwithstanding his misgivings concerning the legality of the payments, the trial judge determined that the adoption should be granted, and he signed an order to that effect.

Section 5-827 is a penal statute, and enforcement of its terms should ordinarily be by criminal proceedings. We need not consider whether the statute may also be used to support a civil action, or to support ancillary civil relief in an adoption action, because it is clear in the case before us that core concepts of due process would be violated by the entry of an order directing repayment by the natural mother when she had been given no notice that such an order might be entered and no opportunity to contest it. See Travelers v. Nationwide, 244 Md. 401, 410-11, 224 A.2d 285 (1966) (“[w]here a judgment was outside the cause of action stated in the complaint and the defendant was not given a fair opportunity to defend against the claim on which the judgment was based, the judgment is invalid and subject to collateral attack”). We shall vacate the order directing repayment.

ORDER OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY DATED 14 DECEMBER 1989 VACATED; COSTS TO BE PAID BY APPELLANTS.

Concurring Opinion by ELDRIDGE, J., in which RODOWSKY, J., joins.

1 . The natural mother reconstructed her expenses for maternity clothing as follows:

8 maternity blouses @ $15.00 $120.00

9 maternity slacks @ $18.00 162.00

1 maternity dress @ $28.00 28.00

1 maternity dress @ $36.00 36.00

1 winter coat @ $78.00 78.00

8 maternity bras @ $6.00 48.00

2 pkgs. underwear @ $8.00 16.00

TOTAL $488.00

2 . Interestingly, although appellants’ statement of expenses lists only the maternity clothing and reimbursement of hospital insurance as amounts paid to the natural mother, the natural mother concluded her affidavit by stating that appellants “have paid for all of my expenses directly related to the pregnancy, birth, and adoption of the baby. The above itemization is one such pregnancy expenditure that I have made and for which I requested reimbursement.”

3 . Subsection (b) exempts from the operation of the statute certain payments made to licensed adoption agencies and institutions.

4 . Appellants offered this interpretation of the statute for the first time during oral argument before this Court. They made no such contention in the trial court. Indeed, in their memorandum of points and authorities submitted to the trial judge, they argued that § 5-327 “clearly prohibits the payment of any ‘compensation’ to the natural parents by anyone in return for the adoptive placement,” but went on to argue that "compensation” means profit. Their brief in this Court is to the same effect.

5 . By reason of the Code revision amendment of 1984, the prohibition now is of payment of "any compensation for the placement.” As previously noted, this change is one of style only.

6 . Report of the Subcommittee to Study Uniform Procedures for Handling Independent Adoptions, Committee on Juvenile and Family Law of the Maryland Judicial Conference, 57-66 (Nov. 1, 1988).

7 . Letter from Senator Barbara A. Hoffman to Mr. Carvel Payne, Department of Legislative Reference (Jan. 4, 1988), on file with the Department of Legislative Reference, Annapolis, Legislative History file of Senate Bill 436.

8 . The 14 December 1989 order concluded as follows: "ORDERED, that the natural mother return to the adopting parents the monies paid out for maternity clothes.”