Surrender of Minor Children, In re

• Decision Date: 26 April 1962
• Citation: 181 N.E.2d 836,344 Mass. 230
• Parties: In re SURRENDER OF MINOR CHILDREN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 836

181 N.E.2d 836

344 Mass. 230

In re SURRENDER OF MINOR CHILDREN.

Supreme Judicial Court of Massachusetts, Hampden.

Argued Sept. 27, 1961.

Decided April 26, 1962.

David R. Pokross, Boston (Edward A. Saxe, Boston, with him), for petitioner.

Michael J. Donohue, Holyoke, for respondent.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER, and KIRK, JJ.

WHITTEMORE, Justice.

The mother, who had never married, on April 4, 1960, executed four documents, each purporting to 'surrender * * * to the Massachusetts Society for the Prevention of Cruelty to Children [the Society] * * *, for the purpose of adoption,' the minor child of the mother named therein, and to 'give * * * [the mother's] consent irrevocably to any adoption proceedings approved by the said charitable institution.' The mother on April 26, 1960, sent to the Society a purported revocation of the surrenders. The Society on June 1, 1960, acting under G.L. c. 210, § 3A, inserted by St.1953, c. 593, § 1, petitioned the Probate Court for the county of Hampden to determine whether the mother's consent was required for subsequent petitions for adoption. The judge in the Probate Court decreed that the surrenders are void and that the petition be dismissed.

Additional facts, as found in a report of material facts, are stated in this and following paragraphs. The mother, classified as a moron with an I.Q. of 60, had been confined to the Belchertown State School for six years from January 20, 1949, to April 24, 1955, and had been discharged 'against the recommendation of the school authorities.' In March, 1960, she was pregnant and in jail awaiting trial for fornication. She was also then the complainant in a bastardy proceeding. The Society on March 25 brought a proceeding under G.L. c. 119, §§ 24-26, as appearing in St.1954, c. 646, § 1, which authorize that a neglected child be committed to the custody of the department of public welfare or other appropriate order made. The petition alleged in substance that the children were growing up under conditions or circumstances damaging to their sound character development, and that they lacked proper attention.

The surrenders of April 4 followed a talk of the mother on March 25, 1960, with an agent of the Society and with the investigator appointed in the c. 119 proceeding and also a later talk with the investigator. The investigator's report dated April 1, 1960, concluded: 'It is my feeling that the needs of these children would be best served by: removing them permanently from this mother's and grandmother's influence by permanent adoption * * *. This could be accomplished either by this mother signing an adoption surrender * * * or, if she is unwilling * * * by committing all four children to the Division of Child Guardianship * * * [which] could get an order from a Probate Court * * * [dispensing with] the mother's signature * * *. In any event, I do not feel it is in the best interests of these children to remain with the grandmother because of her age and limited abilities. I further feel it would be beneficial to this mother and her coming child * * * [for her] to be placed at the Massachusetts Correctional Institution for Women in Framingham where she could receive institutional care and casework services, and from where, after the birth of her coming child, she could be recommitted to the Belchertown State School.' These recommendations were dictated by the Society's agent inasmuch as the investigator did not feel competent to make a recommendation and adopted those of the agent as her own. On April 12, 1960, by an order in the proceeding under c. 119, the District Court placed the children in the custody of the department of public welfare, thus, we assume, finding 'the allegations in the petition proved within the meaning of this chapter' (§ 26). The department thereupon arranged with the Society to place the children in foster homes. The order of April 12 was confirmed on appeal to the Superior Court. The mother on April 12 pleaded guilty to fornication; her appeal from the sentence of two months in the house of correction was pending at the time of the Probate Court hearing. The fifth child was born in September, 1960, and remained in the mother's care and custody.

No threats were made in the talk on March 25. There 'was talk of * * * the mother's going to joil for two years.' The investigator said arrangements could be made at the reformatory in Framingham for the birth of the baby. At the later talk the investigator pointed out the advantages of releasing the children for adoption and recommended this course. The mother, because of her pregnancy and arrest, was 'less resistive' to the idea of releasing her children than she had been earlier from 1957 to 1959 when the Society had urged that course. After April 5, 1960, when she retained an attorney, she learned for the first time that the maximum sentence for fornication was three months. On April 4, she 'was completely convinced that she was facing a jail sentence of at least two years. She was also aware that * * * [the grandmother] could not care for her four children alone.' The notary who took the mother's acknowledgment on the instruments of surrender testified that she was hesitant 'because it would be against * * * [the grandmother's] wishes.'

The firm but 'mistaken view' of the mother (held 'because of * * * talks * * * with the representatives' of the Society) that she was to be committed to jail for two years on the day following April 4, 'was the trigger mechanism which prompted her to execute these surrenders.' She was not then 'in full possession of all her faculties and free from any influence, coercion or duress.' The facts and her limited mental capacity and her awareness that the grandmother was unable alone to provide adequate care put the mother 'in a state of mind where the slightest influence brought to bear on her to release said children for adoption, would be effective.' The judge 'therefore * * * [found] that to honor surrenders made under these circumstances would not tend to the doing of justice and declare[d] them void.'

He also ruled that '[b]ecause of the improper manner in which the acknowledgments were taken * * * the surrender of * * * Cheryl Ann, who was then less than one year old, was in direct violation of G.L. c. 210, § 2, and therefore void.'

General Laws c. 210, § 3, as amended through St.1955, c. 89, provides, inter alia, in respect of the requirements in § 2 of certain assents to adoption, that 'a giving up in writing of a child, for the purpose of adoption, to an incorporated charitable institution or the department of public welfare shall operate as a consent to any adoption subsequently approved by such institution or said department.'

We hold that the rule is applicable which has been formulated for cases of voluntary assent of a parent to a specific adoption; if given 'with a full understanding of every fact necessary to such consent' it may be withdrawn only with the consent of the probate judge. Wyness v. Crowley, 292 Mass. 461, 464, 198 N.E. 758; Kalika v. Munro, 323 Mass. 542, 83 N.E.2d 172; Ellis v. McCoy, 332 Mass. 254, 258, 124 N.E.2d 266; Adoption of a Minor, 338 Mass. 635, 642, 156 N.E.2d 801. See Dumain v. Gwynne, 10 Allen, 270; Hurley v. St. Martin, 283 Mass. 415, 186 N.E. 596; 28 U. of Chicago L.Rev. 564, 571. The judge in granting or withholding assent is to 'be guided by the established principles governing the disposition of petitions for adoptions, the most fundamental of which is that the paramount issue is the welfare of the child.' Erickson v. Raspperry, 320 Mass. 333, 335, 69 N.E.2d 474. See Richards v. Forrest, 278 Mass. 547, 553-555, 180 N.E. 508.

The decisive issue on this appeal is whether the other's assent was voluntary and with the requisite 'full understanding.'

The findings of fact do not in our view, for the reasons next stated, permit the ruling of law that the surrenders were 'void,' as the judge ruled. On the contrary, they require the conclusion that the mother's act was voluntary and 'with a full understanding of every fact necessary to such consent.'

There is no finding or basis for a finding of undue influence. It was the duty of the agent of the Society to put before the mother those considerations which tended to show that the welfare of her children required adoption. It was not undue influence to show the mother (1) the adverse effects on her growing children of a pattern of conduct to which she appeared committed, (2) the likelihood that she would be unable to care for the children because, in their interests and her own, it was probable that she would be confined for some time, (3) the inability of relatives to provide care, and (4) the advantages of adoption in the circumstances. There is no basis for inferring that more than this was done. As in will cases, to be undue the influence must so far dominate the will of the other that the resulting action is not 'the act of the person whose act it is in form, but the act of the person exercising the undue influence.' Phillips v. Chase, 203 Mass. 556, 560, 89 N.E. 1049, 1050, 30 L.R.A.,N.S. 159, (an adoption case). '[I]nfluences may be persuasive and effective, but, so long as not coercive, they are not undue.' Neill v. Brackett, 234 Mass. 367, 370, 126 N.E. 93, 94.

The findings do not justify a conclusion that the surrenders were void for mental weakness or insufficiency. The test is, 'was the party * * * in such a state of insanity * * * as to render him incapable of transacting the business.' Reed v. Mattapan Deposit & Trust Co., 198 Mass. 306, 314, 84 N.E. 469, 471. That test is not met, nor is the criterion stated in Sutcliffe v. Heatley, 232 Mass. 231, 232-233, 122 N.E. 317, 318: 'If she could not understand the nature and quality of the transaction or grasp its significance, then it was not the act of a person of sound mind.' The findings, although they establish the mother's...