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Dad was 1 day too late to stop son’s adoption

A man who was one day late in objecting to the proposed adoption of his son by the boy’s stepfather was validly stripped of his parental rights, Maryland’s highest court unanimously held Friday.

The biological father, identified in court papers as William H., raised his objection 31 business days after receiving notice of the proposed adoption. State law sets the deadline at 30 days.

The Court of Appeals, in ruling against William H., said the 30-day limit comports with the due-process requirements of giving a parent notice and an opportunity to object to a proposed adoption.

Philip J. Sweitzer, William H.’s lawyer, criticized the opinion for favoring a rigid 30-day waiver rule over a father’s fundamental right to raise his child.

“If you are going to constrain a fundamental right, you have to show a compelling governmental interest,” such as protecting the child from a dangerous parent, said Sweitzer, of Philip J. Sweitzer LLC in Baltimore.

However, the top court noted that the best interest of the child, not the natural parent’s right to raise the child, is a guiding principle in adoption law.

Therefore, “the state has a compelling interest in protecting the child’s best interests in a disputed adoption case by establishing an effective and predictable (as much as possible) adoption process,” Judge Glenn T. Harrell Jr. wrote for the court.

“One method by which the state may create an adoption procedure consistent with a child’s best interest (after providing the natural parent the opportunity to object) is by rendering the parent’s untimely objection to the adoption as an irrevocable consent to the adoption, thereby enabling the adoption process to proceed in a timely and orderly manner.”

Sweitzer declined to discuss whether he plans to seek review of the constitutional issue by the U.S. Supreme Court.

By contrast, the attorney for the mother and stepfather praised the Court of Appeals for recognizing the need for finality in adoption proceedings.

“It is important to tie down the rules and regulations for adoption,” said Thomas F. Ellis III. “It’s important to handle adoptions in a prompt and certain way. Children need stable homes.”

Ellis said the mother and stepfather have endured “a long process” as the case wound its way to the Court of Appeals.

“All this time the child is living with them, but they don’t know how it is going to turn out,” said Ellis, of the Law Office of Thomas F. Ellis III, J.D. LLC in Annapolis. “My clients want the adoption to be final.”

At issue before the high court was the scope of Section 5-3B-20 of Maryland’s Family Law Article, which enables courts to enter adoption orders if “each of the prospective adoptee’s living parents consents [either] in writing or … by failure to timely file notice of objection after being served with a show cause order.”

Receipt rule

The Maryland Judiciary’s procedural Rule 9-105 sets the time limit at 30 days. The rule also requires that all show-cause orders state that “if you do not make sure that the court receives your notice of objection on or before the stated deadline, you have agreed to a termination of your parental rights.”

Harrell stated that the Family Law Article’s language shows the General Assembly “intended for a late filing of notice of adoption to become a consent to that adoption arising under operation of law.” The “failure to adhere to the rule’s deadline constitutes a deemed consent in the context of guardianship cases and independent adoption cases,” Harrell added.

According to the opinion, William H. did not dispute that he missed the 30-day deadline, nor did he claim any disability or act of God prevented him from filing on time.

In addition, William H. was an attorney who “should have understood the importance of complying with court-ordered deadlines,” Harrell wrote.

From April to November 2008, William H. had a romantic relationship with Moira M., as the mother is identified in court papers. That relationship resulted in the boy’s birth in June 2009.

Moira married the stepfather, Jeffrey K., in October 2011.

The boy, Sean M., has lived with his mother and stepfather since November 2009, according to the high court’s opinion.

The legal proceedings began on March 30, 2011, when the stepfather filed a petition to adopt Sean in Queen Anne’s County Circuit Court.

William H. was personally served with a show-cause order on April 29, 2011, which gave him 30 days to enter an objection. Not counting the final Sunday and the Memorial Day holiday, the written objection was due on May 31, 2011. The circuit court received the objection on June 1, 2011, the opinion stated.

Sweitzer said William H. believed he had complied with the time limit because he mailed his response within the 30 days. The circuit court, however, held that a written objection must actually be received by the court within the 30 days to be considered, Sweitzer added.

On Aug. 8, 2011, Circuit Judge J. Frederick Price granted the stepfather’s motion that the adoption proceed as uncontested due to the late objection.

The intermediate Court of Special Appeals upheld Price’s decision in a reported opinion on April 27, saying the late filing amounted to the father’s consent to termination of his parental rights.

William H. then sought review by the Court of Appeals, focusing on his due process argument.

William H. is described in the high court’s opinion as the “putative” father. However, neither Moira M. nor Sweitzer has denied that William H. is Sean’s father.

Sean’s birth certificate does not identify a father, according to the opinion.




In re Adoption of Sean M., CA No. 54, Sept. Term 2012. Reported. Opinion by Harrell J. Argued Feb. 8, 2013. Filed March 22, 2013.


Does Family Law 5-3B-20, which provides that a natural parent’s failure to file a timely objection to a proposed adoption constitutes consent to that adoption, satisfy the due process rights of a natural parent who objects one day late?


Yes; the law provides notice and an opportunity to be heard, and serves the state’s compelling interest in protecting the child’s best interests by establishing an effective and predictable (as much as possible) adoption process.


Philip J. Sweitzer for petitioner; Thomas F. Ellis III for respondents.

RecordFax # 13-0322-22 (22 pages).