Sylvander v. New England Home for Little Wanderers

• Decision Date: 29 September 1978
• Docket Number: Nos. 78-1081,78-1082,s. 78-1081
• Citation: 584 F.2d 1103
• Parties: Gail SYLVANDER et al., Plaintiffs, Appellants, v. NEW ENGLAND HOME FOR LITTLE WANDERERS, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 1103

584 F.2d 1103

49 A.L.R.Fed. 659

Gail SYLVANDER et al., Plaintiffs, Appellants, v. NEW ENGLAND HOME FOR LITTLE WANDERERS, Defendant, Appellee.

Nos. 78-1081, 78-1082.

United States Court of Appeals, First Circuit.

Argued June 9, 1978.

Decided Sept. 29, 1978.

Lucien Wulsin, Jr., East Boston, Mass., with whom James H. Wexler, Boston, Mass., was on brief, for plaintiffs, appellants.

Robert C. Silver, Boston, Mass., with whom Hale, Sanderson, Byrnes & Morton, Boston, Mass., was on brief, for defendant, appellee.

Before CAMPBELL and BOWNES, Circuit Judges, PETTINE, District Judge. ^*

LEVIN H. CAMPBELL, Circuit Judge.

Gail Sylvander appeals from a judgment of the district court dismissing both her civil rights complaint brought under 42 U.S.C. § 1983 and her habeas corpus petition brought under 28 U.S.C. §§ 2241 and 2254. Ms. Sylvander sued in the federal district court after the Massachusetts state courts had ruled against her in a dispute over the right of the New England Home for Little Wanderers, a state-licensed, privately-run charitable organization, to place her child for adoption without her consent. In re New England Home for Little Wanderers, 367 Mass. 631, 328 N.E.2d 854 (1975). Ms. Sylvander contends that the state statute, Mass.Gen.Laws c. 210, § 3 (1972), ¹ under which a Massachusetts probate judge decreed that her consent to the child's adoption was unnecessary, is unconstitutional, in that it allows a child to be taken from its natural mother without a showing of parental unfitness if the court finds that it is in the child's "best interests." After the Massachusetts Supreme Judicial Court rejected her arguments under the federal Constitution as well as under Massachusetts law, Ms. Sylvander did not seek review in the United States Supreme Court. She instead brought these proceedings. The district court ruled that the § 1983 complaint was barred by res judicata and that federal habeas corpus jurisdiction did not encompass Ms. Sylvander's custody dispute with the Home. She contends on appeal that the lower court was wrong on both counts.

I

In the spring of 1972, Gail Sylvander, then about 30 years of age, entered the Crittenton Hastings House, a temporary home for unmarried mothers-to-be after finding that she was pregnant. While awaiting the birth of her child, she discussed possible alternatives for caring for the child with a social worker from the New England Home for Little Wanderers. The Home is not a state agency, but is licensed by the Commonwealth to furnish child-care services. See Mass.Gen.Laws c. 28A, §§ 9-16; c. 119, § 23; c. 180. Ms. Sylvander, who was living with her two unmarried brothers and her retired, seventy-year old father, had been told by her father that she could not bring the expected child into the house. Her employment status was uncertain. She appears not to have been financially self-sufficient, having only worked sporadically in factory jobs. On May 12, 1972, she signed a document agreeing to put the child in the temporary charge of the Home for purposes of arranging foster care. ² On June 28, 1972, Ms. Sylvander bore a son, Michael. She left Crittenton Hastings House several days later, relinquishing Michael to the Home, which placed him with foster parents.

Although Sylvander had previously told the social worker that she planned to put her child up for adoption, a month after his birth she seemed to reverse her previous wish and expressed a desire to keep him. Over the next nine months she made further requests to the Home for Michael's return. At least one request was made through an attorney. This interest was discouraged by the Home on the ground that Sylvander's plans for Michael's care were too confused, vague, and unrealistic for her to assume responsibility for him. ³

During the same period, from July 1972 through April 1973, Sylvander made three appointments to visit her son at the foster family but failed to keep any of them. She did make several unheralded visits, however, contrary to the terms of the foster care agreement. ⁴ During this time her employment status was irregular, although she did maintain weekly payments of $18.00 towards Michael's support.

On April 23, 1973, ten months after Michael's birth, the Home petitioned the Massachusetts Probate Court under Mass.Gen.Laws c. 210, § 3, for authority to dispense with the mother's consent to the child's adoption. Such an order would not obviate the need for a separate adoption proceeding, In re New England Home for Little Wanderers, supra, 328 N.E.2d at 857 n.3, but would render a petition for adoption a simple affair. The Home had already selected a young couple (not the foster family) as Michael's proposed adoptive parents. The couple had been married for eight years, had another adopted child, and, in the words of the Supreme Judicial Court, "An investigation of the background of that family had furnished convincing evidence that they were suitable as adoptive parents." Id. The Massachusetts statute under which the petition was brought, See note 1, Supra provides that, in the case of a child who is in the care or custody of the Department of Welfare or of a licensed child-care agency, the Department or agency may apply to the probate court for a decree that parental consent to the subsequent adoption of the child be dispensed with. The statute empowers the court to grant the petition and to enter such an order if it finds that the "best interests" of the child will be served thereby. Section 3(c) of the statute directs that,

"In determining whether the best interests of the child will be served by issuing a decree dispensing with the need of consent . . ., 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 department or other agency initiating the petition."

A hearing on the Home's petition to determine compliance with these standards was held in the probate court on February 21, 1974. ⁵ Sylvander was unemployed at that time, but her father had relented, with some reluctance, on allowing Michael to live in the home where he, his daughter, and the unmarried brothers resided. Her financial plans were unclear she at one time considered "selling" or raising Burmese kittens to earn money. The probate judge supportably found that Sylvander "took an unrealistic approach to her problems and never worked out a practical way to implement her plans for herself or the child." Concluding that it was "in the best interest of Michael . . . that he be placed with the prospective adoptive parents," the court ruled that consent would not be required upon a petition for adoption.

Sylvander noticed her appeal of the decree to the Massachusetts Appeals Court in March 1974. In October 1974, the Home applied for direct appellate review by the Supreme Judicial Court. On May 5, 1975, the Supreme Judicial Court, having accepted the case for direct review, issued a thoughtful opinion affirming the order of the probate court and upholding the constitutionality of the standards established in § 3. ⁶ The Supreme Judicial Court also sustained the probate court's actions as a proper interpretation and application of the statute. The court denied that § 3 permitted a child to be taken from a fit parent solely because of an agency's or judge's view that the child would be better off with another, saying,

"the tests 'best interests of the child' in the adoption statute and 'unfitness of the parent' in the guardianship statute (Mass.Gen.Laws c. 201 § 5) reflect different degrees of emphasis on the same factors, . . . (T)he tests are not separate and distinct but cognate and connected."

In re New England Home for Little Wanderers, supra, 328 N.E.2d at 860. The Massachusetts court said that it did not construe § 3 as permitting a parent to be "deprived unless some affirmative reason is shown for doing so, such as a finding of a serious problem with that parent . . . ." Id., 328 N.E.2d at 861. The court went on to emphasize,

"(W)e do not lend any approval to dispensing with parental consent for other than substantial reasons. . . . G.L. c. 119, § 1 . . . declares it 'to be the policy of this commonwealth to direct its efforts, first, to the strengthening and encouragement of family life for the protection and care of children; to assist and encourage the use by any family of all available resources to this end; and to provide substitute care of children only when the family itself or the resources available to the family are unable to provide the necessary care and protection.' Thus parents should be given ample opportunity to demonstrate an ability to provide proper care for their children before a § 3 proceeding is brought. Precipitate attempts to force adoption over parental objection simply because foster care has occurred are not consistent with the law and must be avoided. It is a condition of dispensing with parental consent that the parents be shown to have grievous shortcomings or handicaps that would put the child's welfare in the family milieu much at hazard."

Id., 328 N.E.2d at 863. So construed, the statute was held to survive constitutional and state law challenge. Id. Further, the court felt that Sylvander's consent could properly have been dispensed with under either a "best interests" or an "unfitness" standard. Id., 328 N.E.2d at 862-63. Sylvander's motions for rehearing, which sought to assert substantive due process arguments and to re-emphasize other constitutional claims, were denied. No appeal was taken to the United States Supreme Court, Compare 28 U.S.C. § 1257(2), and no petition for certiorari was filed.

Four months later, on September 24, 1975, Ms. Sylvander filed this petition for habeas corpus in the district court, joining with it a complaint under § 1983 for relief from enforcement of the order and for a declaration that the statute was...