Petition of New England Home for Little Wanderers

• Decision Date: 05 May 1975
• Citation: 367 Mass. 631,328 N.E.2d 854
• Parties: Petition of the NEW ENGLAND HOME FOR LITTLE WANDERERS to Dispense with Consent to Adoption.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 854

328 N.E.2d 854

367 Mass. 631

Petition of the NEW ENGLAND HOME FOR LITTLE WANDERERS to

Dispense with Consent to Adoption.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 6, 1975.

Decided May 5, 1975.

Benjamin D. Lewis, Taunton, for defendant.

Robert C. Silver, Boston, for plaintiff.

Before TAURO, C.J., and REARDON, QUIRICO, HENNESSEY, KAPLAN and WILKINS, JJ.

KAPLAN, Justice.

The New England Home for Little Wanderers (Home), which had had custody of the unmarried mother's child from about the time of its birth ten months previously, filed a petition in the Probate Court for Suffolk County on April 23, 1973, to dispense with the need for the mother's consent to a subsequent adoption of the child. The petition was under G.L. c. 210, § 3, as amended through St.1972, c. 800, § 2. Subsections (b) and (c) of § 3 allow a licensed child care agency to commence such a proceeding with regard to any child in its 'care or custody'; the court is to approve the petition if it finds that 'the best interests of the child' will be served thereby, and in making this determination the court 'shall consider the ability, capacity, fitness and readiness of the child's parents . . . to assume parental responsibility, and shall also consider the plan proposed by the . . . agency initiating the petition.' ¹ In this case, the Home's plan was to sponsor adoption of the child by a specific family. After a hearing at which the mother was represented and the facts were brought out, the probate judge granted the Home's petition. The mother appeals, attacking the court's application of § 3 as well as the constitutionality of that statute.

The mother's major argument is that, since the Home's custody of the child originated in a voluntary consent given by her, and since she later changed her mind and now wishes to keep the child, the court must decide the case, not by applying the standard of 'best interests of the child' set out in § 3, but rather by bringing in the parental 'unfitness' test used in suits under the guardianship laws to remove children from the custody of their parents. See G.L. c. 201, § 5. ² In approaching the mother's contentions, it will be well first to set out the facts of the case as they appear from the probate judge's report of material facts; the evidence is not reported.

Finding she was pregnant, the mother entered the Crittenton Hastings House. There a social worker from the Home discussed with her possible alternatives for caring for the expected child. The mother said she planned to have the child adopted. Foster care was explained to her as an alternative which could provide time for her to make permanent plans for the child. After the birth of the child on June 28, 1972, the mother returned to the Crittenton for a short time and while there gave written consent to the Home's assuming care and custody of the child; she had by that time met the prospective foster parents with whom the Home was to place the child.

When she gave birth the mother was thirty years old and unmarried. Her mother was dead. She lived with her retired seventy-year old father and two unmarried brothers; her father was dependent for support on social security benefits and contributions from the brothers. Her employment since leaving high school after the second year had mostly been in factories. She returned to work in August, 1972, after the baby was born, but was laid off in April, 1973; at the time of the Probate Court hearing in January, 1974, she was still unemployed and was receiving unemployment compensation. She had a bank account of between $500 and $1,000, paid $18 a week toward the foster care of her child, had a car, and paid for the boarding of a horse which she owned.

During the period between the birth of the baby and the filing of the petition by the Home, the mother consulted with the Home's social worker as well as with a family counselor. Her action, however, was vacillating and indecisive; no plan emerged with any definiteness that offered a realistic means by which she could raise and care for her child. Within a month of the baby's birth, she seemed to reverse her previous wish and expressed a desire to keep the child. But she could only suggest vaguely that she would have a friend care for the child or that she would go on welfare; she had no job at the time, her father was refusing to allow her to bring the child into his household, and she had no crib or clothing for the child. About the same time she failed to show up at a meeting with the foster parents that was set to allow her to see the child as she requested. In August, by contrast, she made an unannounced visit to the child. The following month the social worker again met with her to discuss plans for the child, but although she was employed by this time her thoughts remained vague and unrealistic. Later in the fall, she had an attorney write a letter to the Home saying she wished the child returned, but this was never followed up. In November she again failed to appear at a meeting arranged with the foster parents so that she could see the child; again this was followed by an unannounced visit. She expressed unhappiness with her job to her family counselor and mentioned she would prefer selling, perhaps cars or real estate, or working with animals. She thought of raising and selling Burmese kittens. An appointment was made for her to see a person who raised animals but she failed to keep the appointment. By the time of the hearing on the Home's petition, she had lost her job. Her father now said he was willing to allow the baby into the household. He had thought, however, that his daughter could not cope with a baby. The mother's plan as expressed at the hearing was to get a job and have her father or a babysitter care for the child.

On these facts, the judge concluded that the mother 'took an unrealistic approach to her problems and never worked out a practical way to implement her plans for herself or the child.' The judge therefore found that it was 'in the best interest of . . . t(he child)' to grant the petition to dispense with parental consent to adoption, so that the child could be adopted by the family the Home had selected, a young couple in their early thirties, eight years married, with another adopted child. ³

In her attack on the application of the 'best interests' test to her case, the mother points to the fact that the Home's custody of the child, the basis of the § 3 action, derived from her consent to temporary foster care, and argues that once she withdrew that consent and sought her child's return there was no basis for a § 3 action. She raises the possibility, if the 'best interests' test were applied literally in cases of voluntary custody, that a family obliged by temporary adversity such as illness to place its child in foster care might then be deprived of the child against its will if the agency decided that another family could better raise the child. She argues that the Legislature could not so have intended to disregard the ties between the child and the natural parent, and that indeed it would be unconstitutional to do so. Hence she would have us conclude that § 3's 'best interests' test can only be applied when the parent has already been deprived of custody of the child by court action, and that in cases where custody is based on voluntary surrender the consent of the parent may be dispensed with only on a showing of parental 'unfitness' like that required to deprive a parent of custody under the guardianship statute, G.L. c. 201, § 5. She adds the complaint that she was not fully informed of the possible consequences when she gave consent to foster care and so she denies there was a 'custody' to satisfy § 3. Finally, there are arguments that the § 3 'best interests' standard is unconstitutionally vague and that it violates the equal protection clause of the Constitution, in that it improperly discriminates against the poor, who are more likely to need foster care for their children.

While we find force in the mother's arguments, we believe they are based essentially on a misunderstanding of the relationship between the notions of 'best interests of the child' and parental 'unfitness.' The mother perceives the two criteria or tests as separate and distinct, with each to be applied in certain clearly defined circumstances. We think that the relationship is more subtle, that elements of parental 'unfitness' figure strongly in the 'best interests' test, while elements of 'best interests of the child' weigh in any consideration of whether a parent is fit to have custody of his child. When the interconnection or overlap is appreciated, the mother's case on the present facts is seen to be unavailing.

To trace the development of the standards: Adoptions by consent of the parents were recognized in the Commonwealth at least by the time of St.1851, c. 324, which described procedures for such adoptions. Promptly afterwards came St.1853, c. 402, which created the first exception to the rule that adoption required the consent of living parents; it dispensed with consent where the parent was 'insane.' In 1859, by St.1859, c. 61, consent was made unnecessary where the parent had 'wilfully deserted and neglected to provide for the proper care and maintenance . . . for one year'; this was eventually codified as part of G.L. c. 210, § 3, which also specified other grounds for dispensing with parental consent, such as current imprisonment of the parent for more than three years.

Chapter 593, § 1, of the Acts of 1953, codified as G.L. c. 210, § 3A, first provided for an independent proceeding, prior to adoption proceedings proper, at which it could be determined whether parental consent was to be necessary for the adoption. Its purpose was to facilitate and expedite the process of adoption of children being held in temporary foster care. See the Department of Public Welfare recommendations, ...