408 Mass. 522 | Mass. | 1990
The putative father of a child born out of wedlock appeals from the dismissal by a judge in the Probate and Family Court Department of his paternity complaint and of his petition to revoke the adoption by the child’s mother and her husband. The appeals were consolidated in the Appeals Court for the purposes of briefing and oral argument. This court granted direct appellate review. The father also seeks to appeal the order of a single justice of this court, denying a petition for leave to appeal the judgment of adoption pursuant to G. L. c. 210, § 11 (1988 ed.).
The putative father and the mother met in 1978 and resided together from June, 1979, until December, 1984.
In March, 1989, the appellant filed with the Supreme Judicial Court for the county of Suffolk a petition for leave to appeal from the judgment of adoption pursuant to G. L. c. 210, § 11. On June 2, 1989, a single justice denied the appellant’s petition for leave to appeal from the judgment of adoption.
1. The appellant argues that the single justice erred in denying his petition for leave to appeal the judgment of adoption. Even if we assume that such a ruling is subject to appellate review, see Leaster v. Commonwealth, 385 Mass. 547, 549-550 (1982) (denial of leave to appeal under G. L. c. 278, § 33E, is not appealable), appellant did not appeal the single justice’s order, as he would be required to do under Mass. R. A. P. 3 (a), as amended, 378 Mass. 927 (1979), and Mass. R. A. P. 4 (a), as amended, 395 Mass. 1110 (1985). Therefore, the order of the single justice is final. See Kellermann v. Kellermann, 390 Mass. 1007, 1008 (1984) (failure to appeal in timely fashion renders judgment final and not appealable).
2. The appellant, in his brief before this court, argues that G. L. c. 210, § 2, and G. L. c. 210, § 4A, are unconstitutional. The appellant, however, did not pursue his original request of a report to the Appeals Court on the issue of the constitutionality of G. L. c. 210, § 2. Nor do we feel his appeal from denial of his postadoption visitation rights, the appointment of a guardian ad litem, and the denial of the motion to amend his paternity complaint raise properly his claims of denial of due process or equal protection of the laws. Thus, we do not address the constitutionality of the statute.
3. Finally, appellant argues that the Probate and Family Court erred in dismissing his complaint for paternity and his petition to revoke the judgment of adoption. As to the latter, the probate judge did not err since, once the single justice
So ordered.
The Probate and Family Court judge did not make factual findings. We state the facts as alleged by the appellant.
The Probate and Family Court judge ordered the appellee to notify the appellant of the adoption proceedings. The order stated that, if the appellant could not be found, a notice of the adoption should be published in the local newspaper once a week for three consecutive weeks. The appellee did not serve notice on the appellant, and he claims he did not see the notice published in the newspaper. The appellant alleges that the appellee knew several members of his family and that she easily could have served notice on him. The appellant also argues that the appellee committed fraud when, during the adoption proceedings, she successfully waived an investigation by the Department of Social Services, by asserting that she did not know the whereabouts of the appellant. The appellant seems to suggest in his brief that the appellee’s alleged fraud tainted the adoption proceedings. However, no explicit allegations of fraud were included in the pleadings before the single justice or the probate judge. The single justice found no fraud; the probate judge made no findings. If appellant wished properly to raise the claim of fraud, we note that his relief is governed by Mass. R. Dom. Rel. P. 60 (b)(3) (1990). The rule states that, “[o]n motion and upon such terms as are just, the court may relieve a party . . . from a final
“A decree of adoption shall not be made'. . . without the written consent ... of the lawful parents . . . or of the mother only if the child was born out of wedlock and not previously adopted.” G. L. c. 210, § 2. The father of a child born out of wedlock must be notified of the adoption proceedings if he files a "parental responsibility claim, or [if he] has been adjudicated the father of the child” (emphasis supplied). G. L. c. 210, § 4A (1988 ed.). The appellant did not meet the conditions of G. L. c. 210, § 4A. This statutory scheme, the appellant argues, violates his due process and equal protection rights under the Federal Constitution and the Massachusetts Declaration of Rights; the single justice reached the opposite conclusion.
The Probate and Family Court apparently held a hearing on the issue of the report. However, there is nothing in the record to indicate that the request for the report was granted.
The single justice, apparently relying on counsel’s assertions, stated in his memorandum of decision that, “[o]n March 22, 1989, a judge granted the petitioner’s request for a report to the Appeals Court for determination of the constitutionality of G. L. c. 210, § 2.” See note 5, supra.
The appellant argues that he sought interlocutory relief from the single justice under G. L. c. 211, § 3 (1988 ed.), and that, since the single justice denied his petition, the proceedings were still at an interlocutory stage. The appellant concludes that he did not have the right to immediate appellate review. See, e.g., Cappadona v. Riverside 400 Function Room, Inc., 372 Mass. 167 (1977). The record clearly indicates, however, that the appellant filed a petition for leave to appeal from the judgment of adoption solely pursuant to G. L. c. 210, § 11, and that the single justice denied the petition pursuant to that statute only.
The appellant also argues that the probate judge erred in: (1) denying his motion to amend the paternity complaint seeking to add the right of visitation; (2) denying his motion to appoint a guardian ad litem, and (3) granting appellee’s motion for a protective order concerning appellant’s notice of her deposition. The issues raised by these rulings also became moot once the single justice denied the appellant’s motion for leave to appeal the judgment of adoption.