42 Mass. App. Ct. 680 | Mass. App. Ct. | 1997
The mother
First, we conclude that the mother’s rights were not violated under G. L. c. 210, § 5B, as amended by St. 1970, c. 404, § 3, which in relevant part provides:
“If, at the time of surrender of the child for adoptive custody, the parent or parents of said child requested a religious designation for the child, the court may grant a petition for adoption of the child only to a person or persons of the religious designation so requested, unless a placement for adoptive custody based on such request would not have been in the best interests of the child” (emphasis supplied).
In' this case, we decline to adopt the mother’s proposed meaning of “surrender” under § 5B, which would include the involuntary foreclosure of her consent to Brooke’s adoption due to the decree dispensing with her consent to adoption under G. L. c. 210, § 3. We construe “surrender” under G. L. c. 210, § 5B, instead, to have the same meaning as defined in the form required by G. L. c. 210, § 2: by written consent, “voluntarily and unconditionally surrender[ing] [the child] to the care and custody of [the agency or person receiving custody] for the purpose of adoption . . . waivpng] notice of any legal proceeding affecting the custody, guardianship,
In any event, the judge did consider the mother’s religious preference for Brooke’s placement and made findings as to the potential Christian homes that the department had considered for Brooke. The judge found that prior to placing Brooke in her current Jewish pre-adoptive home, the department attempted to accommodate the mother’s religious preference regarding Brooke by considering five Catholic or Christian households, some of whom it deemed inappropriate for Brooke and some of whom withdrew from consideration.
Second, the mother’s claim under art. 2 of the Massachusetts Declaration of Rights is unavailing. Under an earlier version of G. L. c. 210, § 5B, as inserted by St. 1950, c. 737, § 3, which required that a child be placed with a family of the same religious faith as that of the child “when
Similarly, we see no State constitutional barrier when the mother’s preferences with respect to religion are not adhered to where her consent to the adoption was not required. The current version of § 5B grants parents rights, in certain circumstances, that they did not have under the prior version of the statute. Now, § 5B focuses on the rights of parents in consensual adoptions. Again, all religions are treated alike and no exercise of religion is hampered. The mother’s rights end, in cases such as this, at the moment her consent to adoption is no longer required.
Third, we are not convinced that the mother’s rights under the RFRA were violated. The RFRA, which applies to both Federal and State law, whether adopted before or after its enactment in 1993, provides that the government may only substantially burden a person’s exercise of religion under a rule of general applicability if it “demonstrates that application of the burden to the person — (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-l (1994). Courts which have found that the RFRA protects a parent’s own exercise of religion and its effect on his or her child, have done so in circumstances where the parent’s rights with respect to the child have not been terminated.
In our view, the mother’s own exercise of religion was not burdened where her rights with respect to the designation of the religion of her child’s adoptive parents were terminated when she did not surrender the child for adoption, a decree dispensing with the need for her consent to adoption was entered, and the child was placed with pre-adoptive parents of a religion different from her own. However, we need not reach this issue because the State has a compelling governmental interest in protecting and pursuing the best interests of the child. Further, since the Commonwealth did attempt to find a family of the same religious faith as that of the chüd, there is no evidence of any less restrictive means of pursuing Brooke’s interests in being placed with a responsible and nurturing family. See and compare Petition of Dept. of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 587-588 (1981) (“The State as parens patriae may act to protect minor children from serious physical or emotional harm. ... In such matters ‘the first and paramount duty of courts is to consult the welfare of the child’ ”) (citations omitted); Adoption of Hugh, 35 Mass. App. Ct. 346, 353 (1993) (“Recognition of important parental rights does not change the crucial fact that the focus of the proceeding [to dispense with consent to adoption] should be on the best interests of the child”) (citation omitted). See also Prince v. Massachusetts, 321 U.S. 159, 166 (1944) (“the family itself is not beyond regulation . . . [a]nd neither rights of religion nor rights of parenthood are beyond limitation”).
We conclude, therefore, that there is no merit to the mother’s claim of ineffective assistance of counsel due to counsel’s failure to raise at trial the mother’s religious issues under G. L. c. 210, § 5B, art. 2 of the Massachusetts Declaration of Rights, and the RFRA, because the failure to raise
Decree affirmed.
The mother named a father, but no one claiming to be the father appeared in opposition to the petition.
We note that the preferred method for bringing claims of ineffective assistance of counsel is to file a motion for a new trial, and that in the usual circumstance we do not reach such claims on direct appeal. See Care and Protection of Stephen, 401 Mass. 144, 150 (1987).
At the time, St. 1905, c. 464, § 1, protected the rights of children to practice the religion of their parents. See Purinton v. Jamrock, supra at 199. The Commonwealth attempted to place children, when “reasonably practicable,” with families that practiced the religion of the children’s parents. Ibid. “The first and paramount duty [however, was] to consult the welfare of the child.”
The child did not raise the issue in her own right.