360 Mass. 600 | Mass. | 1971
By this petition for a writ of habeas corpus the petitioner seeks the return to her of her minor daughter who she alleges is being withheld from her unlawfully by the respondents. The case is before us on the petitioner’s appeal and the exceptions to the denial of her petition.
The parties stipulated to the following facts. In April, 1970, the petitioner transferred custody of her minor daughter to the respondents under a voluntary agreement
In his decision denying the petition the trial judge found subsidiary facts from which he concluded that "the interest of the child is controlling in this case, that the child is presently well cared for, that the credible evidence does not support a finding that the physical and emotional needs of the child would be met if she were to return to her parents at this time and to order that return would be a gross injustice to the child.”
The petitioner argues that G. L. c. 119, § 23, “Head as a whole, . . . should be construed to require the respondents to seek custody of a child in the Probate Court whenever a parent terminates an agreement under . . . [par. A of § 23] and the respondents decide that the custody of the child
The issues involved in this case are peculiarly appropriate for hearing and determination by the Probate Court, and they are within the jurisdiction of that court. The rights and interests of the parties and also of the child who is the subject of the petition but not named as a party can be best determined and protected by the Probate Court. The petitioner was at all times free to seek relief in the Probate Court, but has not availed herself of that right. At the same time she has effectively prevented the respondents from seeldng such relief. She is in no position now to take advantage of the respondents’ failure to proceed in the Probate Court.
The exceptions are sustained, the order denying the petition for a writ of habeas corpus is reversed, and the case is remanded to the Superior Court for the following further proceedings. If the order of the Superior Court enjoining the respondents from taking legal action for the custody of the child is still in effect, it shall be vacated. If, within sixty days from the date that the rescript from this court is entered in the Superior Court, neither party shall file a petition in the Probate Court relative to the “responsibility
So ordered.
The pertinent portion of this statute, as amended through St. 1962, c. 535, is as follows:
“The department [of public welfare] shall have the responsibility, including financial responsibility, for providing foster care for children through its own resources or by use of appropriate voluntary agencies according to the rules and regulations of the department in the following instances:
“A. Upon the application of a parent or guardian or any person acting in behalf of the child, or of the child himself, the department may accept for foster care any child under twenty-one years who in its judgment is in need of foster care. Such acceptance shall entail no abrogation of parental rights or responsibilities, but the department may accept from parents a temporary delegation of certain rights and responsibilities necessary to provide the foster care for a period of time under conditions agreed upon by both and terminable by either.”
Paragraph O, as amended through St. 1960, c. 325, in effect when this case was filed in and decided by the Superior Court provided as follows:
“C. The department may seek and may accept on order of a probate court the custody of any child under twenty-one years who is without proper guardianship due to the death, unavailability or incapacity of the parent or guardian, or on the consent of the parent or parents. Such custody shall include the right to determine the child’s place of abode, medical care, education; to control visits to the child; to give consents to enlistments, marriages and other contracts requiring parental consent, such custody to include the right to consent to adoption only when it is expressly included in the order of the court.”
General Laws c. 119, § 23, par. C, as amended by St. 1970, c. 888, § 5, provides in pertinent part as follows:
“C. The department may seek and shall accept on order of a probate court the responsibility for any child under twenty-one years of age who is without proper guardianship due to the death, unavailability, incapacity or unfitness of the parent or guardian, or on the consent of the parent or parents. Such responsibility shall include the right to determine the child’s place of abode, medical care, and education; to control visits to the child; to give consents to enlistments, marriages and other contracts requiring parental consent, such responsibility to include the right to consent to adoption only when it is expressly included in the order of the court.”