Petition of Dept. of Social Services to Dispense With Consent to Adoption

• Decision Date: 02 November 1983
• Citation: 16 Mass.App.Ct. 607,453 N.E.2d 1236
• Parties: Petition of The DEPARTMENT OF SOCIAL SERVICES TO DISPENSE WITH CONSENT TO ADOPTION.
• Court: Appeals Court of Massachusetts

Page 1236

453 N.E.2d 1236

16 Mass.App.Ct. 607

Petition of The DEPARTMENT OF SOCIAL SERVICES TO DISPENSE

WITH CONSENT TO ADOPTION.

Appeals Court of Massachusetts Hampden.

Argued June 13, 1983.

Decided Sept. 7, 1983.

Further Appellate Review Denied Nov. 2, 1983.

J. Arthur Hickerson, Springfield, for the father.

Judith S. Yogman, Asst. Atty. Gen., for Dept. of Social Services.

Before BROWN, PERRETTA and KASS, JJ.

BROWN, Judge.

This is an appeal by the putative biological father (the only interested parent) from a decree of the Probate and Family Court allowing a petition of the Department of Social Services (Department), pursuant to G.L. c. 210, § 3, to dispense with the need for his consent to the adoption of his putative daughter. In addition to refusing to consent to the adoption, the putative father seeks "to adopt the child, or at least be granted visitation rights."

In proceedings under G.L. c. 210, § 3, the paramount consideration must be the future welfare of the child. Thus the crucial question for the Probate Court and this court in these matters is "whether the [biological] parents are currently fit to further the welfare and best interests of the child." Bezio v. Patenaude, 381 Mass. 563, 576, 410 N.E.2d 1207 (1980). "The unfitness of parents ... must be determined with respect both to their own character, temperament, capacity, and conduct, and to the welfare of the child in connection with its age, environment and affections." Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, ---, Mass.Adv.Sh. (1981) 1157, 1174, 421 N.E.2d 28, quoting from Richards v. Forrest, 278 Mass. 547, 553-554, 180 N.E. 508 (1932). See also Custody of a Minor (No. 1), 377 Mass. 876, 883, 389 N.E.2d 68 (1979) (the critical inquiry is "current parental" unfitness). In a ruling, supplemented by additional findings made pursuant to the mandate of Santosky v. Kramer, 455 U.S. 745, 747-748, 769-770, 102 S.Ct. 1388, 1391, 1402-1403, 71 L.Ed.2d 599 (1982), the judge determined essentially on the "sole[ ] ... basis of the length of time which has elapsed with no contact" between the putative father and the child that the father was "an unfit parent," and "to remove her at this time would cause mental upset, frustration and damage on the part of the child." We conclude that it was error to allow the Department's petition on the state of the record before the judge. ¹

The child was born on October 23, 1974. As in Petition of the New Bedford Child & Family Service to Dispense with Consent to Adoption, 385 Mass. 482, 483, 432 N.E.2d 97 (1982), there seems to be no dispute among the parties that the putative father is, in fact, the biological father of the minor child. Expressing concern for, but claiming inability to care for the child because "he was a bachelor, living alone," the father acquiesced to the Department's taking care and custody of the child on November 5, 1974. See G.L. c. 119, § 24. The child has a biological sister, and the father with his present wife (whom he married in June, 1975, after asserting paternity of the sister) adopted that sibling in 1977.

This action was commenced by the Department in September, 1977. The prospective adoptive parents are the foster parents who have cared for the minor child since she was two weeks old. The mother, the father, and the minor child are black, and the prospective adoptive parents are white. See Grossman, A Child of a Different Color: Race as a Factor in Adoption and Custody Proceedings, 17 Buffalo Law Rev. 303 (1968). See generally Bell, Race, Racism and American Law § 2.7 (2d ed. 1980). The judge found that the father has been prevented since November 5, 1974, from having any contact with the child by the Department and its predecessor agency. See note 3, infra.

We recognize that the lengthy separation of a biological parent and child and a corresponding growth in the ties between the child and foster parents may in some circumstances indicate that a change in the custodial status would be seriously detrimental to the child, with the result that the biological parent should be deemed not fit to care for the child. See Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. at ---, Mass.Adv.Sh. (1981) at 1175, 421 N.E.2d 28. But "[i]n resolving this issue we are guided by the underlying premise that natural parents have a fundamental right to the custody of their children." Petition of the Dept. of Social Services to Dispense with Consent to Adoption, 389 Mass. 793, 799, 452 N.E.2d 497 (1983). Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. at ---, Mass.Adv.Sh. (1981) at 1171, 421 N.E.2d 28. "[T]he natural bond between parents and children should be accorded great weight." Bezio v. Patenaude, 381 Mass. at 576, 410 N.E.2d 1207. "Mere failure to exercise custodial rights in the past, particularly where a parent has voluntarily relinquished custody 'for appropriate reasons' [citation omitted], does not support a conclusion tht such parent is unfit to further the welfare of the child." Id. at 577, 410 N.E.2d 1207. These principles must be viewed in conjunction with the Supreme Judicial Court's oft-repeated statement that "[p]recipitate attempts to force adoption over parental objection simply because foster care has occurred are not consistent with the law and must be avoided." Petition of the New Bedford Child & Family Service to Dispense with Consent to Adoption, 385 Mass. at 490, 432 N.E.2d 97 quoting from Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 646, 328 N.E.2d 834 (1975).

From the interplay of the primacy of parental rights and a child's need for stability and continuity has emerged the principle that the Commonwealth "amy not attempt to force the breakup of a natural family without an affirmative showing of parental unfitness." Custody of a Minor (No. 1), 377 Mass. at 882, 389 N.E.2d 68. "The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State." Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599 (1982). This is especially so when the State is seeking to sever completely and permanently the relationship. Unfitness of the parent, however, is a function of what is, at present, in the best interests of the child. The interests of the child and the fitness of the parents are to be considered together, as they merely "reflect different degrees of emphasis on the same factors." Little Wanderers, 367 Mass. at 641, 328 N.E.2d 854. Thus the "tests are not separate and distinct but cognate and connected." Ibid. Custody of a Minor (No. 2), 13 Mass.App. 290, 306, 432 N.E.2d 546 (1982), and cases cited.

The "best interests" standard set out in G.L. c. 210, § 3, is a flexible one, which requires the court "to focus on the various factors unique to the ... [particular] individual for whom it must act." Petition of the Dep. of Pub. Welfare to Dispense with Consent to Adoption, 376 Mass. 252, 266, 381 N.E.2d 565 (1978), quoting from Custody of a Minor, 375 Mass. 733, 753, 379 N.E.2d 1053 (1978). In considering the "best interests" of the child, the judge here should have considered, among other factors, the "fitness" of the father to assume parental responsibility, not just in the abstract, but in relation to this particular child. The judge should have considered the needs of the child, in light of her age, and what the positive and negative effects upon the child would be of allowing or denying the petition for adoption given the circumstances in this case. In general terms, the judge was well aware of the criteria which were to guide him in his difficult task. We think, however, that particularly in the light of Custody of a Minor, 389 Mass. 755, 768-769, 452 N.E.2d 483 (1983), decided after he acted, there was insufficient exploration of whether, in these circumstances, it would be in the best...