Petition of New Bedford Child and Family Service To Dispense With Consent To Adoption

• Decision Date: 02 March 1982
• Citation: 385 Mass. 482,432 N.E.2d 97
• Parties: PETITION OF the NEW BEDFORD CHILD AND FAMILY SERVICE TO DISPENSE WITH CONSENT TO ADOPTION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 97

432 N.E.2d 97

385 Mass. 482

PETITION OF the NEW BEDFORD CHILD AND FAMILY SERVICE TO

DISPENSE WITH CONSENT TO ADOPTION.

Supreme Judicial Court of Massachusetts, Bristol.

Argued Nov. 4, 1981.

Decided March 2, 1982.

James M. Cronin, New Bedford, for plaintiff.

James H. Fogarty, New Bedford (Barbara Heckman Hendrie, South Dartmouth, with him), for defendant.

Before HENNESSEY, C. J., and LIACOS, NOLAN and LYNCH, JJ.

NOLAN, Justice.

The New Bedford Child and Family Service filed a petition in a Probate Court seeking a decree under the provisions of G.L. c. 210, § 3, to dispense with the consent of the natural parents to the prospective adoption of their child. After a hearing, the probate judge dismissed the petition and ordered that physical custody of the child be given to the child's father. The New Bedford Child and Family Service appeals, arguing that the judge erred (1) in awarding custody to the father in a proceeding under G.L. c. 210, § 3, where the custody issue was not raised by the pleadings; (2) in failing to apply the standard of the best interests of the child; (3) in refusing to act on requests for rulings and (4) in making findings of fact which are plainly wrong and conclusions of law which are clearly erroneous. We have examined each of these contentions and find them to be without merit. We affirm the order of the Probate Court.

The facts are as follows. The New Bedford Child and Family Service (agency) is a licensed, incorporated agency entitled to bring petitions under c. 210, § 3. The child involved in this case is Alice Roe (also known as Alice Doe), who was born on November 4, 1978. She is the child of Maura Doe and Robert Roe. The parents have never married, but there is no dispute as to Robert's paternity of the child.

Maura was fifteen years old when Alice was born. After the child's birth, for a period of approximately four months, Maura cared for the child in her mother's home. During this time, Robert visited the child and mother daily. In March of 1979, Maura experienced emotional problems and admitted herself to the mental health unit of a hospital. During Maura's hospitalization, which lasted approximately two and one-half weeks, Robert and his mother cared for Alice in his mother's home. During her stay at the hospital, Maura decided to place her child for adoption and gave custody of Alice to the agency pursuant to G.L. c. 119, § 23. She did not, however, sign the adoption surrender form prescribed by G.L. c. 210, § 2. The agency placed Alice in foster care.

Robert Roe was sixteen years old when Alice was born and was eighteen years old at the time of the judge's decision. He dropped out of school when he was fifteen years old. At the time of the hearing he was living at his mother's home and was employed, working thirty to thirty-five hours a week. Prior to the child's birth, Maura discussed with Robert her wish to place the child for adoption. At that time Robert opposed the idea. In March of 1979 when Maura placed Alice with the agency, Robert smashed the windows of his mother's car and stole a stereo from the home of Maura's mother. He testified that he did these things because of his anger and frustration at Maura's decision to place the baby for adoption.

After Alice was placed in foster care, Robert, together with various members of his family, visited her on a number of occasions, sometimes bringing her gifts. Maura did not visit Alice at her foster home.

Shortly after Alice was placed in foster care, Robert developed a plan to raise Alice in his mother's home. His plan called for his mother to care for the child while he worked. Upon learning that the agency approved his home for visitation but not for placement, Robert developed another plan which involved having the child live with him at his paternal grandparents' home. At the time of the judge's decision Robert's grandmother was sixty-nine years old and his grandfather was seventy-three. Both were in good health and lived together in a three-bedroom house. The grandparents were supportive of Robert's plan and willing to assist him in raising Alice. Robert's mother and one of his aunts were also willing to assist him.

During the course of the hearing the probate judge heard testimony from a number of witnesses including Robert Roe, his mother and his grandmother, Maura Doe and her mother, two caseworkers from the agency, and the person having the foster care of Alice at the time of the hearing. The agency submitted a plan containing information on a prospective adoptive family. This family was not the foster family caring for Alice at the time of the hearing. The judge had appointed a guardian ad litem for the child on January 11, 1980, and on May 15, 1980, the guardian ad litem assented to the agency's petition.

On August 18, 1980, the probate judge dismissed the agency's petition, effective September 9, 1981. He ordered that the agency retain legal custody of Alice until the effective date and that Robert receive physical custody providing that Robert and Alice reside at the home of Robert's paternal grandparents. The judge suggested that prior to September 9, 1981, the parties file petitions to aid the court in determining the future legal status of Alice. The judge stated that, after September 9, 1981, he would review the situation to decide whether uniting the child with her father was in her best interests. The agency filed various motions including a motion to revoke the custody order, a motion for action on requests for rulings of law which had previously been submitted, and a motion to amend judgment and to vacate the order. All of these motions were denied, after hearing, by the probate judge. The agency then made a motion for entry of final judgment to permit an appeal. On December 19, 1980, the judge entered a decree of dismissal of the petition of the agency, stating that the issuance of a decree dispensing with the consent of Alice's parents would not serve her best interests. The agency has argued an assortment of issues which we treat de suite. ¹

1. Award of child's physical custody to Robert. The agency argues that the probate judge was in error in awarding physical custody to Robert, in a proceeding which arose under c. 210, § 3, because § 3 does not contain a provision authorizing the court to award custody to an unwed father, and because Robert did not file any pleadings seeking custody.

General Laws c. 210, § 2, provides that a decree of adoption shall not be made without the written consent of the mother of a child born out of wedlock. Section 3 of G.L. c. 210 allows a licensed child care agency having custody of a child to commence a proceeding to dispense with the need for consent to the adoption of the child of any person named in § 2. Section 3 further provides that the court shall issue a decree dispensing with the need for consent if it finds that the best interests of the child will be served by said decree. Section 4A allows an unwed father the right to petition for adoption or custody of his child when the unwed mother consents to an adoption under § 2 or when a decree has issued under § 3 dispensing with the need for her consent. Under a literal reading of the statute, the provisions of § 4A seem to apply only when one of these prerequisites has been met. However, we do not interpret this to mean that, once the issue of custody or adoption is before a probate judge under § 3, the judge is precluded from considering the putative father's rights in determining where the best interests of the child lie. Indeed, § 4A itself contemplates that a father's rights can be adjudicated in a proceeding under § 3, because § 4A states that it does not apply "when a decree has been issued pursuant to section three dispensing with the need of consent of said father."

The Probate Court, as a court of general equity jurisdiction under G.L. c. 215, § 6, as appearing in St. 1975, c. 400, § 55, has "both the power and the responsibility to care for and protect all those persons who, by virtue of some legal disability, are unable to protect themselves." Custody of a Minor, 375 Mass. 733, 744, 379 N.E.2d 1053 (1978). This court has recognized that when "dealing with matters concerning a person properly under the court's protective jurisdiction, '(t)he court's action ... is not limited by any narrow bounds, but it is empowered to stretch forth its arm in whatever direction its aid and protection may be needed.' " Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 755, 370 N.E.2d 417 (1977). Stated another way, "the powers of the court to act in the best interests of a person under its jurisdiction, Petition of the Dep't of Pub. Welfare to Dispense with Consent to Adoption, 371 Mass. 651, 358 N.E.2d 794 (1976), must be broad and flexible enough 'to afford whatever relief may be necessary to protect his interests.' " Superintendent of Belchertown State School v. Saikewicz, supra 373 Mass. at 756, 370 N.E.2d 417.

In the present case, the issue of Alice's welfare and best interests was squarely presented to the probate judge by the agency's petition. In deciding whether to allow the petition dispensing with parental consent, it was necessary under § 3 that the judge determine the child's best interests. Having made this required determination, the judge acted within his broad, equitable powers when he implemented his determination by awarding physical custody of the child to Robert. There is no merit to the agency's contention that the custody issue was not properly before the judge. When the agency filed its petition under § 3 and asked the court to determine the child's best interests, it placed the custody issue before the court.

It is also significant that the agency does not claim unfair surprise nor does it claim that it would have conducted its case differently had Robert filed a pleading seeking custody. A review of the hearing transcript reveals...