In Re Melissa C.

516 A.2d 946, 1986 Me. LEXIS 895

• Court: Supreme Judicial Court of Maine
• Decided: October 10, 1986
• Status: Published

Opinions

ROBERTS, Justice.

The Department of Human Services appeals from the judgment of the Androscog-gin County Probate Court granting the petition for adoption of Melissa C. filed by Melissa’s maternal grandparents. The petition was granted without consent of the department, Melissa’s legal custodian. The department moved to dismiss the petition on the ground that its consent was required under 19 M.R.S.A. § 532(1)(C) (1981),¹ but the court denied the motion. The court determined that the refusal of the department to consent was arbitrary, capricious and unreasonable. Because we agree with the department that section 532 does not authorize the Probate Court to review the department’s refusal, we vacate the judgment.

I.

When Melissa C., now age nine, was approximately six weeks old, she was removed from the custody of her natural mother after Melissa’s father allegedly physically abused her. Melissa was placed in a foster home for approximately two years, and then returned to the physical custody of her mother in an attempt to reunite the family. After a report that Melissa had been struck on the head by her stepfather, the department returned her to a foster home.

Several months later Melissa was placed with the petitioners, her maternal grandparents, and the department agreed to explore the possibility of adoption by them. While Melissa was living with her grandparents, she exhibited behavioral problems characterized by lack of interest in school, a short attention span, and other “hyperactive” behavior. Melissa was placed in a child development program, and the grandparents cooperated with the department in a counseling program to improve their parenting skills. Despite' this cooperation, progress in managing Melissa’s behavior was slow, and her grandparents’ handling of the problem may have hindered that progress. Throughout the time that counseling was taking place, a plan to have the grandparents adopt Melissa was still in place.

Approximately two and one half years after Melissa began living with her grandparents, the department received information that she may have been sexually abused by her stepfather during an unsupervised visit at her mother’s home. After an interview with the child at the grandparents’ home, a department caseworker informed the grandparents that Melissa should be taken to a doctor for a physical examination. The grandparents did not immediately take Melissa to the doctor. Two days later a department social worker expressed concern that Melissa had not yet been examined and herself took the child to the examination. Thereafter, the department temporarily removed Melissa from the grandparents’ home until the sexual abuse allegations were resolved. By November, 1983 the department had decided that the temporary removal of Melissa from her grandparents’ home should be permanent because her grandparents were not able adequately to protect her.

Before the department could place Melissa in an adoptive home, her grandparents filed a petition for adoption. The department moved to dismiss the petition on the ground that the Probate Court had no jurisdiction over adoption petitions of the department’s wards until the department gave its consent to the adoption. The department determined that adoption by her grandparents would not be in Melissa’s best interests and withheld its consent for two reasons: (1) the grandparents did not demonstrate the ability to protect Melissa from jeopardy and (2) the grandparents did not possess the necessary parenting skills required to meet Melissa’s needs. After hearing, the Probate Court concluded that the department’s refusal to consent to the adoption was unreasonable and granted the adoption petition.

II.

Section 532(1)(C) of the adoption statute requires consent of the person or agency having legal custody of the child to be proven as an element of the adoption petition. A legal adoption results if the statutory procedures are followed, but an adoption fails if any essential requirement of the operative adoption statute is not fulfilled. Blue v. Boisvert, 143 Me. 173, 179, 57 A.2d 498, 501 (1948). Thus, absent consent of the department, the Probate Court cannot grant the adoption petition.

Nowhere in the adoption statute has the Legislature provided for review of the decision should the custodial agency not give its consent to the adoption. We have previously stated that a Probate Court is a statutory court, and as such does not have the authority to extend its power beyond statutory limits. E.g., In Re Adoption of G., 502 A.2d 1044, 1045-46 (Me.1986). Without legislative authorization, the Probate Court had no power to review the decision of the department to withhold its consent to the adoption of Melissa C.

The entry is:

Judgment vacated.

Remanded to the Probate Court for entry of judgment denying the petition.

McKUSICK, C.J., and NICHOLS and SCOLNIK, JJ., concurring.

1 . 19 M.R.S.A. § 532(1)(C) provides:

1. Consent required. Before any adoption is granted, written consent to the adoption must be given by:

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C. The person or agency having legal custody or guardianship of the child or to whom the child has been surrendered and released;