Petition for Revocation of a Judgment for Adoption of a Minor

471 N.E.2d 1348, 393 Mass. 556, 1984 Mass. LEXIS 1885
CourtMassachusetts Supreme Judicial Court
DecidedDecember 19, 1984
StatusPublished
Cited by13 cases

This text of 471 N.E.2d 1348 (Petition for Revocation of a Judgment for Adoption of a Minor) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Petition for Revocation of a Judgment for Adoption of a Minor, 471 N.E.2d 1348, 393 Mass. 556, 1984 Mass. LEXIS 1885 (Mass. 1984).

Opinion

Abrams, J.

This is an appeal by the maternal grandmother of a minor from the denial of a petition for revocation of a judgment of adoption. Pursuant to G. L. c. 210, § 3, the child was adopted by foster parents. We transferred the case to this court on our own motion. We affirm.

The events leading to this appeal are as follows: The child was bom in 1975 and placed in the care of the Department of Social Services (department) in 1978, pursuant to a voluntary [557]*557agreement executed by the child’s mother.1 The department placed the child with the A’s, the child’s present adoptive family, with whom the child lived from November, 1978, to April, 1981, almost two and one-half years.

In July, 1979, the department obtained temporary custody of the child pursuant to G. L. c. 119, § 23. The grandmother filed a petition for guardianship of the child pursuant to G. L. c. 201, in January, 1980.2 In March, 1980, the department filed a petition to dispense with parental consent to the adoption. G. L. c. 210, § 3. The judge allowed the grandmother’s motion for visitation in December, 1980. The child’s natural mother died in January, 1981.

In April, 1981, the judge granted the grandmother permission to have the child visit with her for one week in New York. On April 22, two days after taking the child to New York, the grandmother initiated an action in a New York court to obtain custody of the child and also to obtain an ex parte temporary custody order. The department then filed a cross petition seeking return of the child to the Commonwealth.

On May 22, 1981, after allowing the department’s motions to amend its petitions to reflect the death of the natural mother, the judge allowed the department’s petitions for custody and to dispense with consent to adoption.3 The judge also instructed the department to file an adoption petition under G. L. c. 210, § 2, forthwith. The grandmother’s attorney was present for this hearing, although her counsel had not been given formal written notice. The judge instructed counsel that the grandmother was welcome to file her own petition for adoption. [558]*558Neither the judge nor the grandmother’s attorney recalls a specific date being set for a hearing on adoption proceedings.* *4

On May 26, 1981, the judge allowed the department’s petition sponsoring the A’s as adoptive parents of the child. Neither the grandmother nor her attorney was present at the hearing.

According to the grandmother, she learned the child had been adopted in June, 1981. No party appealed the adoption judgment. The grandmother filed a civil rights action against the A’s, two department officials, and the child’s attorney, which was dismissed by the New York Supreme Court. The custody action proceeded through the New York courts until it, and the related habeas corpus proceeding, were dismissed in November, 1982.5 The child was then returned to the A’s with whom the child has since continuously resided.6 The grandmother filed a petition on October 29,1982, in the Probate Court to set aside the adoption on the grounds of fraud and lack of due notice.

The judge based her denial of the grandmother’s petition on four rulings of law. First, the grandmother was not a party entitled to notice of the adoption proceedings or of the proceedings to dispense with consent under either the applicable statute or rules of the court. “Had [the grandmother] acted upon her Petition to be Appointed Guardian in a timely manner, she might then have become entitled to notice, but she did not.” Second, assuming that the grandmother was entitled to notice, it was received when her attorney was notified. Third, the grandmother waived any claim of prejudice or deprivation of due process from lack of timely notice because she failed to assert those claims until seventeen months following receipt of actual notice. Finally, the judge ruled that by waiting seventeen months after receiving notice of the adoption, a deliberate [559]*559decision based upon litigation strategy, the grandmother was not acting in the best interests of the child.

1. The critical element in child custody cases is a proper determination of the child’s best interests. “The paramount consideration [must be] the welfare of the child.” Petition of the Dep’t of Pub. Welfare to Dispense with Consent to Adoption, 316 Mass. 252, 266 (1978), quoting Adoption ofaMinor, 343 Mass. 292, 294 (1961). Although a petition to revoke an adoption is not a custody case, we cannot ignore the importance of the best interests of the child in a revocation proceeding. See Petition for Revocation of a Decree for Adoption of a Minor, 345 Mass. 663, 671 (1963). The record reflects the judge’s primary concern with the child’s best interests throughout the custody and adoption and revocation proceedings.

In entertaining the petition to dispense with consent to adoption, G. L. c. 210, § 3, the judge considered the plan proposed by the department for the child. Subsection (c) of c. 210, § 3, requires a court to determine the best interests of the child by considering the ability, capacity, fitness, and readiness of the persons proposed to take parental responsibility and the persons with whose consent the department is petitioning to dispense. This plan stated in pertinent part that: “[The A’s] have a stable relationship and a healthy family life. [Mr. A] has provided through his consistency and sensitivity the only father image [the child] has experienced. [Mrs. A’s] strength and warmth have enabled [the child] to feel cared for and secure. [The A’s] have provided [the child] with a loving and stable environment. If the pending petition is granted, it is our intention to implement the adoption by the foster parents.” The judge interviewed the child at least once.

The judge ruled that “[b]y waiting as long as [the grandmother] did to file her petition [seventeen months]7 after receiv[560]*560ing notice of the granting of the Petition for Adoption, a deliberate, not inadvertent, decision based upon a litigation strategy (New York proceeding), the Petitioner was not acting in the best interests of the child.” The grandmother’s argument that the judge improperly based her denial on loches or unclean hands is thus inapposite because the child’s welfare, rather than the grandmother’s litigation strategy, was the focus of the judge’s concern. The judge could conclude that the delay adversely affected the child’s best interests. Petition of the Dep’t of Social Servs. to Dispense With Consent to Adoption, 391 Mass. 113, 118 n.7 (1984).

2. The grandmother’s next argument relates to an allegation of lack of notice. The statutory notice provision sets forth who is to be notified. No notice of or consent to a judgment for adoption is required for a grandparent. Only the child to be adopted if over age twelve, the child’s spouse, if any, the lawful parents, or the mother, if the child was bom out of wedlock and not previously adopted, are accorded rights of consent and notice. G. L. c. 210, § 2.* **8 There is no question that the grandmother does not fit into any of these categories and therefore is not entitled to notice under the statute. Statutes “relating to adoption are in alteration of the common law and must be strictly followed in all essential particulars.”

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re Adoption Ulyssia
94 N.E.3d 438 (Massachusetts Appeals Court, 2017)
Adoption of a Minor
29 N.E.3d 830 (Massachusetts Supreme Judicial Court, 2015)
Adoption of Vito
712 N.E.2d 1188 (Massachusetts Appeals Court, 1999)
Champigny v. Commonwealth
661 N.E.2d 931 (Massachusetts Supreme Judicial Court, 1996)
Reynolds Bros. v. Texaco, Inc.
647 N.E.2d 1205 (Massachusetts Supreme Judicial Court, 1995)
Adoption of Pearl
610 N.E.2d 337 (Massachusetts Appeals Court, 1993)
State Ex Rel. Smith v. Abbot
418 S.E.2d 575 (West Virginia Supreme Court, 1992)
Edgar v. Edgar
549 N.E.2d 1128 (Massachusetts Supreme Judicial Court, 1990)
Century Fire & Marine Insurance v. Bank of New England-Bristol County, N.A.
540 N.E.2d 1334 (Massachusetts Supreme Judicial Court, 1989)
Broom v. Reese
1988 Mass. App. Div. 90 (Mass. Dist. Ct., App. Div., 1988)
Kerr v. Kerr
522 N.E.2d 983 (Massachusetts Appeals Court, 1988)
Petition of the Department of Social Services
491 N.E.2d 270 (Massachusetts Appeals Court, 1986)
Guardianship of a Minor
474 N.E.2d 192 (Massachusetts Appeals Court, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
471 N.E.2d 1348, 393 Mass. 556, 1984 Mass. LEXIS 1885, Counsel Stack Legal Research, https://law.counselstack.com/opinion/petition-for-revocation-of-a-judgment-for-adoption-of-a-minor-mass-1984.