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

• Decision Date: 09 February 1984
• Citation: 461 N.E.2d 186,391 Mass. 113
• Parties: PETITION OF the DEPARTMENT OF SOCIAL SERVICES TO DISPENSE WITH CONSENT TO ADOPTION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 186

461 N.E.2d 186

391 Mass. 113

PETITION OF the DEPARTMENT OF SOCIAL SERVICES TO DISPENSE

WITH CONSENT TO ADOPTION.

Supreme Judicial Court of Massachusetts Hampden.

Argued Dec. 5, 1983.

Decided Feb. 9, 1984.

J. Arthur Hickerson, Springfield, for the father.

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

Before HENNESSEY, C.J., and WILKINS, LIACOS, NOLAN and O'CONNOR, JJ.

LIACOS, Justice.

On September 14, 1981, a judge of the Probate and Family Court Department entered a decree allowing the petition of the Department of Social Services (department) to dispense with the need for parental consent for the adoption of a minor child. See G.L. c. 210, § 3. The father appealed this decree to the Appeals Court. On the motion of the department, the Appeals Court remanded the case to the Probate Court for further findings of fact. See Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Cf. Custody of a Minor, 389 Mass. 755, 766, 452 N.E.2d 483 (1983) (under Santosky, "[e]vidence that is at least 'clear and convincing' is constitutionally required for a finding of parental unfitness"). After further hearing, the judge issued further findings of fact and conclusions of law on November 30, 1982. He stated that it was his judgment that it had been clearly and convincingly shown that the father was unfit and that the best interests of the child would be served by allowing the department's petition. The father pressed his appeal before the Appeals Court, which concluded that it was error for the judge to have allowed the department's petition on the state of the record before him. It vacated the decree and remanded the case once again to the Probate Court for further findings on the effects of physical custody of the child remaining in the foster parents without a final decree of adoption, and whether present or future visitation by the father would contribute to the future welfare and best interests of the child. See Petition of the Dep't of Social Servs. to Dispense with Consent to Adoption, 16 Mass.App. 607, 608, 613, 453 N.E.2d 1236 (1983). We granted the department's application for further appellate review. We conclude that on the findings of fact and conclusions of law made by the Probate Court judge it was error for him to allow the department's petition. We vacate the decree and remand the case for entry of further orders consistent with this opinion.

We summarize the facts. The child was born on October 23, 1974. Her mother and father, though living together at the time, were not married. ¹ The child is black, as are both parents. The child has an older sister who was also living in the household in October, 1974. Within two weeks of the child's birth, the father returned from work to find that the mother, who was suffering from serious emotional problems at the time, had disappeared ² and that the child and her sister had been removed from the home by the department. On November 1, 1974, a care and protection petition was filed by the department in Springfield Juvenile Court on behalf of the two children pursuant to G.L. c. 119, § 24. In the course of a court investigation in connection with the care and protection proceeding, the father stated that "he was concerned about his child ... but felt that since he was a bachelor, living alone, he really wasn't able to care for the child." After a hearing it was determined that the mother was currently unfit to care for the children. ³ The children were placed in separate foster homes, and the Juvenile Court subsequently committed them to the legal custody of the department. The younger child was thirteen days old when she was placed with her foster parents, who are white. She has lived with them ever since. She regards them as her parents and their family as her family, and they likewise view her as their daughter. They desire to adopt her, and if parental consent to adoption is dispensed with, the department will support their petition to adopt the child. Since 1975 the foster family has lived in New Hampshire.

In June, 1975, the father married. In 1977, with the approval of the department, he and his wife adopted the child's older sister, who had been in two successive foster care placements. Also, two children have been born of the marriage. The department does not dispute that the appellant is a fit parent for these three children.

The petition whose allowance is before us was filed in the Probate Court in September, 1977. In January, 1978, an appearance of counsel on behalf of the father was filed in the Probate Court. The first hearing on the petition was in 1981. On January 19, 1981, in the courthouse, the father saw the child for the first time since she was an infant.

We emphasize at the outset the narrow scope of the issue before us. That issue is simply whether the Probate Court judge erred in allowing the department's petition to dispense with the need for the father's consent to the adoption of the child. In other words the question is whether any legal rights the father has with respect to this child may be cut off on this record, without his consent. ⁴

We note that the father of a child born out of wedlock is not one of the persons named in G.L. c. 210, § 2, without whose consent the child may not be adopted. ⁵ At first glance at the scheme of G.L. c. 210, the rights of the father of a child born out of wedlock seem to be protected not by § 2 but rather by the procedure provided for in § 4A, which comes into play only when the unwed mother has consented to adoption or the need for her consent has been dispensed with by decree. See Petition of the New Bedford Child & Family Serv. to Dispense with Consent to Adoption, supra 385 Mass. at 486, 432 N.E.2d 97. As we said in that case, however, § 4A itself contemplates that a father's rights can be adjudicated in a proceeding under § 3. See id. Here the department itself chose to litigate the father's rights by means of a § 3 petition and concedes that without the allowance of this petition the child may not be adopted.

The standard by which a judge is to rule on a petition to dispense with consent is set out in par. (c) of c. 210, § 3, which provides in part: "In determining whether the best interests of the child will be served by issuing a decree dispensing with the need of consent as permitted under paragraph (b), the court shall consider the ability, capacity, fitness and readiness of the child's parents or other person named in section two of chapter two hundred ten to assume parental responsibility, and shall also consider the plan proposed by the department or other agency initiating the petition." ⁶ In his first set of conclusions of law the probate judge stated: "Given the psychological attachment between this child and her prospective adoptive family ... a severing of such bond would be seriously detrimental to the present and the future welfare of the child.... To separate her from them would be a traumatic experience for the child." He also stated: "Solely on the basis of the length of time which has elapsed with no contact between [the appellant], who claims to be the father, and this child, I would find [the appellant] an unfit parent." After the second hearing in 1982, he further concluded: "Based on the length of time this child has remained in the home of the [foster family], the psychological bonds of love and affection that have developed, the security, care, kindness and understanding that have been afforded this child, to remove her at this time would cause serious mental upset, frustration and damage on the part of the child, and this is clearly and convincingly not in the best interest of the child. ⁷ [The appellant] has utterly failed to show by affirmative evidence that he did not in effect acquiesce to custody by the Department.... [I]t is the judgment of this Court that it was clearly and convincingly shown that said alleged parent, [the appellant], is unfit, and that the best interests of the child will be served by allowing the petition."

We have previously stated that "natural parents may not be deprived of the custody of their minor children in the absence of a showing that they 'have grievous shortcomings or handicaps that would put the child's welfare in the family milieu much at hazard,' or 'unless some factor such as lengthy separation and a corresponding growth in the ties between the child and the prospective adoptive parents indicate[s] that the child would be hurt by being returned to the natural parents' " (emphasis supplied). Petition of the Dep't of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 590, 421 N.E.2d 28 (1981), quoting Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 639, 646, 328 N.E.2d 854 (1975). We have not, however, recognized "a per se rule that prospective adoptive foster parents, who have become a minor child's psychological parents, shall automatically prevail in a custody dispute over a natural parent." Petition of the Dep't of Pub. Welfare to Dispense with Consent to Adoption, supra 383 Mass. at 591 n. 16, 421 N.E.2d 28. In custody disputes "[n]either the 'parental fitness' test nor the 'best interests of the child' test is properly applied to the exclusion of the other." Bezio v. Patenaude, 381 Mass. 563, 576-577, 410 N.E.2d 1207 (1980).

In cases such as the present one, however, we believe that it is error to base the allowance of a petition to dispense with parental consent on a finding that the child would be hurt by being returned to the natural parent. If the parent has the ability, capacity, fitness, and readiness to assume parental responsibility, see G.L. c. 210, § 3 (c), we believe that a petition to dispense with consent should be denied. ⁸ When a child is adopted, "all rights, duties and other legal consequences of the natural relation of child and parent ... except as regards marriage,...