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
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.
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
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 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
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 ... [the 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.
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,
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
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, 1953 House Doc. No. 118, accompanying their draft bill, 1953 House Doc. No. 124. The proceeding could be brought by the Department of Public Welfare or any appropriate child care agency having custody of the child. But the act was silent as to the standards to be applied in deciding when consent could be dispensed with, and in Consent to Adoption of a Minor, 345 Mass. 706 (1963), this court held that, in the absence of any other indication in the statute, the conditions set out in § 3 for direct adoptions were still to be met; specifically, the court held that a finding of parental "unsuitability," without a finding of
The department had evidently not intended the § 3 conditions to be read into the independent § 3A proceeding. Therefore the department immediately sponsored St. 1964, c. 425, which provided that consent could be dispensed with "if the court finds that the best interests of the child will be served by placement for adoption"; the court was not to be restricted by the § 3 conditions, but was to give "due regard to the ability, capacity and fitness of the child's parents ... and to the plans proposed by the department or other agency initiating such petition." This statute thus broadened the factors the court could consider in deciding whether to proceed over the parent's objections; unsuitability besides desertion or neglect was now clearly an available ground. In fact this was not a sharp or precipitate departure from the past, for our court had already begun a gradual process of developing a "best interests" approach to § 3 itself.
The last step in the evolution of the adoption laws took
It will be observed from this brief history that the explicit introduction of the "best interests" standard into the adoption statutes was occasioned by a judicial decision disallowing parental "unsuitability" as the ground for dispensing with consent to adoption. In writing the statute the department and the Legislature were concerned primarily with cases where unfit parents (although not within the categories of old § 3) were blocking the adoption of their children; we do not think they meant to allow fit parents to be deprived of their children, even if they had temporarily given up custody, unless some factor such as lengthy separation and a corresponding growth in the ties between the child and the prospective adoptive parents indicated that the child would be hurt by being returned to the natural parents.
We pass to the second part of our inquiry, a consideration of the law governing the transfer of custody of children under the guardianship law. By G.L.c. 201, § 1, the Probate Court may, "if it appears necessary or convenient" appoint guardians of minors; by § 5 (deriving from St. 1873, c. 367), the guardian may have custody of the child, though the parents are alive and do not consent, if the court finds the parents "unfit" to have custody.
That the language of "best interests" in the cases under the guardianship statute was not rhetoric but had real significance, however, was demonstrated by Wilkins v. Wilkins, 324 Mass. 261 (1949), which weighed heavily the fact that the child loved its guardian and distrusted and had nightmares about its parents. These circumstances, together with the emotional shock to the child were it to be uprooted, and the lack of experience or aptitude of the natural parents in dealing with the child, persuaded the court that the best interests of the child would be served by granting custody to the guardian with whom the child was residing. Thus by 1970 we could write in Kauch, petitioners, 358 Mass. 327, 329 (1970), that "[n]early all the relevant cases have considered the best interests of the child in determining whether the parents are unfit."
Our result, therefore, is that the tests "best interests of the child" in the adoption statute and "unfitness of the parent" in the guardianship statute reflect different degrees of emphasis on the same factors, that the tests are not separate and distinct but cognate and connected.
It remains to tie the teachings of the historical development to the present case. In invoking the "best interests of the child" the Legislature did not intend to disregard the ties between the child and its natural
As to the technical argument that once the mother withdrew her consent to custody there was no basis for a § 3 action, we note, first, that there is nothing in the statute to suggest that custody means anything other than physical custody, whatever the original basis for it. If it be argued that this opens the way to adoptions over the objections of parents from whom custody is being wrongfully withheld, the response is that the present is not such a case. The mother indeed now opposes the petition, but that in itself cannot amount to an effective withdrawal of consent to custody; if it were, most of the field of action of § 3 would disappear, since it would become inapplicable
As to the claim of lack of comprehension on the mother's part of the possible legal consequences of placing her child in foster care, with possible resulting undermining of the basis of the § 3 proceeding, we of course agree that it is desirable to inform a parent of the full meaning of a decision to place a child in foster care, and,
Our conclusion is that a § 3 proceeding was appropriate in this case, and the result correct. As we have suggested, the "best interests" standard of § 3 is a flexible one; the weight to be accorded the several considerations under it will vary with the circumstances. The decision
In reaching our conclusion to support the judge's finding we wish to point out with emphasis that we do not lend any approval to dispensing with parental consent for other than substantial reasons. The attitude to be taken by the department, the agencies, and the courts as well, was defined by the Legislature in G.L.c. 119, § 1, which 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
On the constitutional plane, we see no merit in the argument that the "best interests" standard is overly vague. Section 3 itself sets out factors to be taken into account in deciding if the standard is met. Moreover, as we have indicated in this opinion, the course of the legislative development of the standard and the associated case law provide further definition. Standards of mathematical precision are neither possible nor desirable in this field; much must be left to the trial judge's experience and judgment. Underlying each case are predictions as to the possible future development of a child, and these are beyond truly accurate forecast. In similar situations statutes with unavoidable penumbras of indefiniteness have been upheld, and we think this one, too, is valid. See Commonwealth v. Brasher, 359 Mass. 550 (1974) ("stubborn child"); A Juvenile, petitioner, 364 Mass. 531 (1974) (statute allowing trial of juvenile if "the interests of the public" require it); Guardianship of a Minor, 1 Mass.App.Ct. 392 (1973) ("unfitness" in guardianship custody statute).
Nor do we find a violation of the equal protection clause. If the argument be made that under § 3 State interposition in the parent-child relationship will occur more frequently in poor families than in wealthy ones, we can say no more than that the statute's classification is not directly based on wealth, and a differential effect in practice on families with varying incomes occurs also
HENNESSEY, J. (dissenting).
Like most contested cases concerned with the custody of young children, this case calls for Solomonic wisdom. The probate judge, and the Justices of this court who joined in the main opinion, obviously appreciate this requirement, as shown by their exhaustive attention to factual details. The resulting analysis of the majority would be persuasive to me if I believed that this child was in "the care or custody" of the Home, for purposes of G.L.c. 210, § 3. As the majority rightfully conclude, the "best interests" standard is, under § 3, determinative of whether parental consent to an adoption is required. See 1964 Ann. Surv. of Mass. Law, § 8.3. See also Consent to Adoption of a Minor, 363 Mass. 537, 546-547 (1973). However, before that section comes into play it must be shown that the child is within the care or custody of the child care agency.
This finding is important because unless the child is found to be in the care or custody of the agency for purposes of § 3 the standard to be applied under the prevailing law is parental unfitness. The majority opinion equates best interests under § 3 with unfitness and thus assumes that the parent suffers no adverse effect by being held subject to the best interests standard with respect to the need for her parental consent to an involuntary adoption. I disagree.
Under a best interests test the rights of the parent are likely to be heavily subordinated to those of the child while under an unfitness test the focus of inquiry is more on the conduct and character of the parent as it affects the child, although, of course, unfitness involves the interests of the child. Not uncommonly as stated in Richards v. Forrest, supra, at 552 "the word ... [unfitness] imports something of moral delinquency." So also egregious faults in parental character might rise to the level of unfitness.
Application of the best interests standard in cases where the child has been shown to be within the care or custody
However, to apply that standard in this case without more regard for parental rights is in my opinion improper because, in circumstances such as we have in this case, the requisite giving up of the child to the care or custody of the agency has not been established. The passage of only ten months' time, during which time the parent apparently paid weekly amounts in support of the child, appears to me to be the nub of the case. In that short span, a custody, which can only be said in fairness to be a temporary one voluntarily conferred by the mother, has ripened into a foreclosing of the mother's rights. Although her economic plans may have been somewhat eccentric and although, under what must have been intense pressures, she vacillated in her resolve to keep her child, the conduct of this mother is certainly not the equivalent of wilful neglect or unfitness generally. In my view, the case would be more clearly proved with the passage of more time. Foster care could be continued for
It occurs to me that this parent would most likely not have "lost" her child had she not temporarily placed the child in the New England Home while she attempted to settle her life, an act which in her judgment was best for the child. Yet that is the result reached by the decision rendered in this case. To extend the best interests standard to these facts would in my opinion go further than the Legislature intended. As this case indicates, the best interests standard may bring to the fore considerations different in kind and degree from unfitness, considerations perhaps decisive as to whether the parent will lose his or her right to protest the taking away of a child through an involuntary adoption.
Since I perceive the best interests standard to be less protective of parental rights and since I do not see this child as having been shown to be within the care or custody of the Home, I would deny the petition to dispense with parental consent to the adoption unless the parent had been shown unfit, a finding not supported by the facts as reported.
It may be that the best interests standard should apply across the board to all cases involving the custody of children, yet that is in my view a more substantial step than the Legislature accomplished by the addition of best interests to § 3. Hence I would give the mother's rights in this case more weight than accorded them under the best interests standard.
The decree itself of course did not consummate the adoption. A fresh petition in the Probate Court for adoption under G.L.c. 210, § 1, remains necessary, see also § 5A (requiring report by Department of Public Welfare or adoption agency on child and adoptive parents), but the § 2 requirement for parental consent was eliminated by the proceedings here in question, thus making the petition for adoption a simple proceeding.