Department of Public Welfare

Massachusetts Appeals Court

Department of Public Welfare

392 N.E.2d 538, 8 Mass. App. Ct. 872, 1979 Mass. App. LEXIS 1034

CourtMassachusetts Appeals Court

DecidedJuly 2, 1979

StatusPublished

Cited by2 cases

This text of 392 N.E.2d 538 (Department of Public Welfare) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Department of Public Welfare, 392 N.E.2d 538, 8 Mass. App. Ct. 872, 1979 Mass. App. LEXIS 1034 (Mass. Ct. App. 1979).

Pincite

Opinion

This is an appeal from the denial of a motion to vacate a decree entered under G. L. c. 210, § 3, dispensing with the consent of a mother to her daughter’s adoption. The motion as filed in the Probate Court alleged improper service of process and lack of knowledge or notice of this proceeding.

1. The mother’s claim of improper service cannot be sustained. By filing a general appearance and by failing to raise the defense of insufficiency of service of process in her answer, she has waived such defense. Buckley v. John, 314 Mass. 719, 722 (1943).

2. Counsel for the mother when questioned by this court acknowledged that she had had actual notice of the proceedings and that the only claim being asserted was a lack of knowledge as a matter of law because of improper service. Thus, the only question raised by this appeal which was also before the judge on the motion to vacate was the defense of improper service, a defense which was waived as a matter of law. There is, therefore, no issue upon which findings of fact were necessary. Contrast Custody of a Minor (No. 1), 377 Mass. 876, 877, 885-886 (1979).

3. The mother also attempts to challenge as unconstitutional the presumption contained in the third paragraph of G. L. c. 210, § 3(c), namely, that if certain conditions are met, the best interests of the child will be served by the issuance of a decree dispensing with the need for parental consent. However, this claim was not raised before the probate judge and is, therefore, not properly before us. Commonwealth v. Proctor, 355 Mass. 504, 506 (1969). Milton Sav. Bank v. Amelung, 5 Mass. App. Ct. 801 (1977).

Decree affirmed.

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This is an appeal from the denial of a motion to vacate a decree entered under G. L. c. 210, § 3, dispensing with the consent of a mother to her daughter’s adoption. The motion as filed in the Probate Court alleged improper service of process and lack of knowledge or notice of this proceeding.

1. The mother’s claim of improper service cannot be sustained. By filing a general appearance and by failing to raise the defense of insufficiency of service of process in her answer, she has waived such defense. Buckley v. John, 314 Mass. 719, 722 (1943).

2. Counsel for the mother when questioned by this court acknowledged that she had had actual notice of the proceedings and that the only claim being asserted was a lack of knowledge as a matter of law because of improper service. Thus, the only question raised by this appeal which was also before the judge on the motion to vacate was the defense of improper service, a defense which was waived as a matter of law. There is, therefore, no issue upon which findings of fact were necessary. Contrast Custody of a Minor (No. 1), 377 Mass. 876, 877, 885-886 (1979).

3. The mother also attempts to challenge as unconstitutional the presumption contained in the third paragraph of G. L. c. 210, § 3(c), namely, that if certain conditions are met, the best interests of the child will be served by the issuance of a decree dispensing with the need for parental consent. However, this claim was not raised before the probate judge and is, therefore, not properly before us. Commonwealth v. Proctor, 355 Mass. 504, 506 (1969). Milton Sav. Bank v. Amelung, 5 Mass. App. Ct. 801 (1977).

Decree affirmed.

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Bluebook (online)

392 N.E.2d 538, 8 Mass. App. Ct. 872, 1979 Mass. App. LEXIS 1034, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-public-welfare-massappct-1979.

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