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08/29/78 PETITION DEPARTMENT PUBLIC WELFARE TO

August 29, 1978

PETITION OF THE DEPARTMENT OF PUBLIC WELFARE TO DISPENSE WITH CONSENT TO ADOPTION


Middlesex. Petitions filed in the Probate Court for the county of Middlesex on March 8, 1974. The cases were heard by Freedman, J. After review was sought in the Appeals Court, the Supreme Judicial Court, on its own initiative, ordered direct appellate review.

Hennessey, C.j., Braucher, Kaplan, Wilkins, & Liacos, JJ.

SYLLABUS BY THE COURT

Adoption, Dispensing with parent's consent. Due Process of Law, Adoption.

The opinion of the court was delivered by: Hennessey

Upon petitions by the Department of Public Welfare under G. L. c. 210, § 3 (b), as appearing in St. 1972, c. 800, § 2, to dispense with the consent of the respondent parents to adoption of their two minor children, where it appeared that the respondents were unable "to assume parental responsibility" for the children, and the department submitted a plan calling for separate placement of the children in different types of environments, the older child in a therapeutic environment and the younger child in a permanent family milieu, and the children's guardian ad litem and the respondents recommended placement of the children with their maternal aunt and her husband as their extended family and guardians, the Probate Court Judge, after an even-handed assessment of all the relevant facts, properly determined that the department's plans for adoption served the best interests of each child, and decrees allowing the petitions were affirmed on appeal. [260-262]

State and Federal mandates in the area of child welfare were not inconsistent with Probate Court decrees under G. L. c. 210, § 3, as amended, rejecting proposals of the respondent parents to place their two minor children with their maternal aunt and her husband as the children's extended family and guardians, and allowing petitions of the Department of Public Welfare facilitating adoption of the children. [262-264]

Where evidence amply warranted a finding that the parents of two minor children were unable "to assume parental responsibility" for them, the State's power to intervene to protect them in a manner reflecting, as closely as possible, the precise needs of each individual child was not impeded by any constitutional requirement of due process that the State must prove that the means chosen were those "least restrictive" of parental rights. [264-267]

On evidence on petitions by the Department of Public Welfare under G. L. c. 210, § 3, as amended, reflecting a long history of family difficulties to which the department responded reasonably, the Probate Court Judge properly concluded that dispensing with parental consent to the adoption of the respondents' two minor children served the children's best interests, and that agency action with respect to the family was not so arbitrary and irrational as to warrant dismissal of the petitions. [267-269]

Upon petitions by the Department of Public Welfare under G. L. c. 210, § 3, as amended, where all the evidence supported Conclusions that the plans submitted by the department for the respondents' two children served the children's best interests and that the petitions should be allowed, there was no abuse of discretion on the part of the Probate Court Judge in failing to consider as conclusive expert testimony indicating that, from a psychiatric point of view, the plans submitted by the department were inadequately supported. [269]

The respondent parents appeal from two Probate Court decrees allowing petitions brought by the Department of Public Welfare (DPW) to dispense with parental consent to adoption. The petitions were brought pursuant to G. L. c. 210, § 3, on behalf of the respondents' two minor children. *fn1

The DPW originally filed the petitions in March, 1974. In June, 1974, the respondents obtained a continuance so that psychiatric evaluations could be made. In 1975, the Judge appointed a guardian ad litem for the children and the cases were again continued pending the guardian ad litem's investigation and report. The petitions were not heard until June, 1976.

By the time of trial, no party contested the DPW's allegations that the respondents were unable "to assume parental responsibility" for their two children. Rather, the question for determination was whether the DPW's plans for adoption represented an appropriate response to this family's situation. The position of the various parties on this issue may be summarized briefly as follows.

According to a plan submitted to the Probate Court pursuant to G. L. c. 210, § 3, the DPW believed that the best interests of each child call for separate placement in different types of environments. According to the DPW, the older child had emotional problems which made a family placement inadvisable. In the opinion of the DPW, this child was in need of a highly structured group setting, a therapeutic environment in which he could work gradually toward permanent placement with an adoptive family. As to the younger child, the DPW thought that a permanent family placement was both possible and highly desirable. The DPW recommended one particular family as "ideal for meeting [this child's] needs," and reported that, on the basis of weekly visits with the child, "a bond of affection is developing both ways."

The guardian ad litem's report, submitted to the Probate Court on June 22, 1976, also concluded that the children should not be returned to the custody of their natural parents. However, the guardian ad litem sharply differed with the DPW's views with respect to placement. The report pointed out that the children's maternal aunt, one Mrs. C, had demonstrated a long-standing interest in the children, and had repeatedly sought custody of both of them. After an investigation, the guardian ad litem recommended placement with the C's, noting that, in such an environment, the children could grow up together, and could remain within the extended family.

The respondent parents also opposed the DPW's plans for adoption, alleging that the agency sought to separate the children permanently -- both from their extended family and from each other -- without first exploring "less drastic alternatives." The parents agreed with the guardian ad litem that the best placement for the children was with their maternal aunt. To that end, the parents sought a continuance to allow the C's time to file a petition for guardianship, which motion was denied. Additionally, the Judge did not permit the appearance of an attorney on the C's behalf.

The Judge allowed the DPW's petitions on July 19, 1976, after considering the report of the guardian ad litem, the DPW's plan, and the testimony of several witnesses. At the request of the respondents, however, the Judge stayed the decrees pending appeal.

The respondents challenge the Judge's decision on several grounds. The parents primarily contend that the ruling below allowed the DPW to separate the children permanently from their family without requiring the agency to explore less intrusive alternatives to adoption. They claim that such a result is inconsistent with the various Federal and State statutes which seek to promote child welfare, not by dispersing, but by strengthening and encouraging the family unit. They further argue that such a result necessarily restricts their fundamental rights to family integrity, thereby violating their rights under the due process clause of the Fourteenth Amendment to the United States Constitution. Second, the respondents claim that the Judge erred in denying their motion to appoint an ...


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