# Petition of the New England Home for Little Wanderers > Massachusetts Supreme Judicial Court · May 5, 1975 · 367 Mass. 631 URL: https://www.frixlaw.com/law-library/cases/9541672 ## Case - **Full name:** Petition of the New England Home for Little Wanderers to Dispense With Consent to Adoption - **Court:** Massachusetts Supreme Judicial Court - **Decided:** May 5, 1975 - **Citations:** 367 Mass. 631; 328 N.E.2d 854; 1975 Mass. LEXIS 879 - **Precedential status:** Published - **Opinion:** Dissent by Hennessey - **Judges:** Tauro, Reardon, Quirico, Hennessey, Kaplan, Wilkins - **Cited by:** 143 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9541672 ## How later opinions describe it (automated extraction) - stating that “the tests . . . reflect different degrees of emphasis on that same factors” and “are not separate and distinct but cognate and connected” - applying the policy articulated in G. L. c. 119, § 1, to proceedings brought under G. L. c. 210, § 3 ## Opinion text 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. 1 *648 The majority opinion draws support for its interpretation of best interests from cases decided under predecessor statutes to § 3 (see, e.g., Beloin v. Bullett, 310 Mass. 206 [1941]; Adoption of a Minor, 357 Mass. 490 [1970]; Adoption of a Minor, 362 Mass. 882 [1972]) and cases decided in the guardianship context under c. 201, § 5 (see, e.g., Richards v. Forrest, 278 Mass. 547 [1932]; Stinson v. Meegan, 318 Mass. 459 [1945]; Kauch, petitioners, 358 Mass. 327 [1970]). However, my review of the cases decided under these predecessor statutes, specifying instances where consent to adoption was not required, indicates a qualitative difference in defining the burden of proof to be met under an “unfitness” as opposed to a “best interests” test. I note that these cases decided under the “unfitness” test appear to have borne results which under a governing best interests test would likely have been different. It seems that the conduct of the natural parents described in the cases cited above was definitely more egregious than that of the instant parent, yet the natural parents in several of those cases were rewarded with custody of a child they had given up for years. See, e.g., Richards v. Forrest, supra; Stinson v. Meegan, supra. 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 *649 of the child care agency accords with the legislative intent underlying the best interests amendment to § 3A, because that amendment was designed to facilitate adoption proceedings where a child had been left relatively permanently in the care or custody of an agency. 2 To that end the amendment served to prevent parents who had definitely given up their children to the care or custody of said agencies from blocking subsequent adoption proceedings. See Annual Report of the Commissioner of Public Welfare, 1964 House Docs. Nos. 64 and 69. See generally Consent to Adoption of a Minor, 363 Mass. 537, 546-547 (1973). 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 *650 a further period. There is no suggestion here that the child has been with the persons who hope to adopt the child, and so the problem will not be exacerbated by the passage of further time pending a final resolution. 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. 3 *651 I think that, although the case is a close and troublesome one and there is reason to believe that the child may have a more secure future if adopted, it nevertheless in my view is one of those which the main opinion warns of, viz., “[pjrecipitate attempts to force adoption over parental objection simply because foster care has occurred.” I do, however, agree with the majority opinion in so far as it suggests that unfitness is apparently an emerging concept and that it is unlikely that a finding of unfitness would today be exclusively limited to the special requirements of the earlier statutory and common law such as repeated drunkenness, prostitution, insanity, or desertion. Nevertheless, the definition of unfitness, although in flux, is not the equivalent of best interests; unfitness is a concept which, in *648 the absence of care or custody in the child care agency within the meaning of § 3, should be reckoned with in terms of a parent’s right to be with his or her child. The majority state that “there is nothing in the statute to suggest that custody means anything other than physical custody, whatever the original basis for it.” I do not agree. Although not controlling, it is interesting to note that custody in a charitable institution under former § 3 was established if inter alla the parent “has suffered such child to be supported for more than one year continuously prior to the petition [for adoption] by an incorporated charitable institution.” My resolution of the questions in this case means that I need not address the constitutional issues. However, I point out that where the State intrudes into matters affecting the heart of family relationships fundamental rights may be implicated. See, e.g., Meyer v. Nebraska, 262 U. S. 390, 399-403 (1923); Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (1925); Stanley v. Illinois, 405 U. S. 645, 658-659 (1972); Wisconsin v. Yoder, 406 U. S. 205, 234-236 (1972). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9541672. Public record. Not legal advice.