Adoption of Daphne

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SJC-12846
ADOPTION OF DAPHNE.
Norfolk. January 6, 2020. - April 2, 2020.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
Adoption. Minor, Adoption. Parent and Child, Adoption.
Jurisdiction, Probate Court, Personal, Equitable. Probate
Court, Jurisdiction, General equity power. Practice,
Civil, Adoption, Dismissal.
Petition for adoption filed in the Norfolk Division of the
Probate and Family Court Department on November 7, 2018.
Judgment of dismissal was ordered by Patricia A. Gorman, J.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Kathleen A. DeLisle for the father.
Patience Crozier & Mary L. Bonauto, for GLBTQ Legal
Advocates & Defenders, amicus curiae, submitted a brief.
Dean J. Hutchison, Natalie A. Kanellis, & Katelin P.
Gaskill, for Circle Surrogacy, LLC, amicus curiae, submitted a
brief.
CYPHER, J. In this case we determine whether, under G. L.
c. 210, § 1, the Norfolk Division of the Probate and Family
2
Court Department has jurisdiction over a petition for adoption
(petition) where the petitioner, who is the child's biological
father (father) and is named as the child's parent on her birth
certificate, lives outside the United States with the child and
his same-sex partner, and where the child was born outside of
marriage to a gestational carrier (mother) who lives in
Massachusetts. The father's first petition was rejected by a
clerk for lack of jurisdiction, and his second was returned
because it was completed on an outdated form. After the father
filed his third petition, a judge dismissed the petition with
prejudice due to lack of jurisdiction. We conclude that the
Probate and Family Court has both subject matter jurisdiction
under G. L. c. 210, § 1, and personal jurisdiction over the
parties in this case. On January 8, 2020, we issued an order
vacating the judgment of dismissal and instructing the Probate
and Family Court to accept the petition for immediate filing.
This opinion states the reasons for that order.1
Background. The petition is uncontested, and the facts of
this case are undisputed. We now summarize those facts and
provide an overview of the case's procedural background.
1 We acknowledge the amicus briefs submitted in support of
the father by GLBTQ Legal Advocates & Defenders (GLAD) and
Circle Surrogacy, LLC.
3
The father,2 the intended and genetic father of the child,
together with his same-sex partner (partner), entered into a
gestational carrier agreement with the mother, the child's birth
mother. The child was conceived as the result of an in vitro
fertilization procedure. During the procedure, eggs were
retrieved from an egg donor selected by the father and partner
and then fertilized with the father's sperm. One of the
resulting embryos was transferred to the uterus of the mother on
June 28, 2017. The embryo transfer procedure resulted in a
successful clinical pregnancy, and the child was born on
February 17, 2018, in Weymouth.
Shortly after the child's birth, the father and mother
executed a voluntary acknowledgement of paternity (VAP)
recognizing that the father is the genetic father of the child.
The child's birth certificate lists both the father and mother
as the child's parents. For the child to become a citizen of
the father's home country, he would have to submit a birth
certificate as part of the child's application for registration.
Therefore, the mother agreed to forgo a prebirth determination
of parentage pursuant to Culliton v. Beth Israel Deaconess Med.
Ctr., 435 Mass. 285 (2001), and instead agreed to allow the
father to pursue a postbirth adoption of the child in
2 The father is not a resident or citizen of the United
States.
4
Massachusetts to terminate the mother's parental rights and
responsibilities, to remove her name from the child's birth
certificate, and to establish the father as the child's sole
legal parent.3
On April 14, 2018, the mother signed a surrender form,
pursuant to G. L. c. 210, § 2, indicating her desire to
"voluntarily and unconditionally" surrender the child to the
care and custody of the father. On April 30, 2018, the father
filed the first of three petitions in the Probate and Family
Court to establish his status as the child's sole legal parent.
Following the birth, the father, partner, and child remained in
Massachusetts pending the finalization hearing on the underlying
petition. On May 22, 2018, the petition was rejected on the
ground that "[i]n accordance with [G. L. c. 210, § 1], we do not
have jurisdiction to accept the adoption of [the child]." In
June 2018, the father, partner, and child returned to their home
country.4
On July 18, 2018, the father filed a second petition in the
Probate and Family Court, adding a memorandum of law addressing
3 The father's home country does not allow unmarried couples
to adopt. However, it is a signatory to the Hague Convention
and therefore will recognize a decree of adoption from the
United States.
4 The mother consented to the child traveling to this
country with the father and partner.
5
the jurisdiction issue previously raised by a clerk of that
court. On August 9, 2018, the petition again was returned, this
time because the father had not used the most updated petition
form.5 On November 7, 2018, the father filed his third petition,
this time using the new petition for adoption and affidavit of
petitioner(s) form. On March 8, 2019,6 a judge dismissed the
adoption with prejudice for the reason that the court lacked
jurisdiction.7 The father filed a notice of appeal on March 26,
2019. The case is now before this court on sua sponte transfer
from the Appeals Court.
Discussion. Ultimately, the father's claim on appeal is an
issue of statutory interpretation. Review of a question of
5 According to the return form, the petition for adoption
(petition) was last updated on March 31, 2014. Court staff
could have and should have assisted the father in avoiding this
mistake by informing him in the previous rejection that he also
had filed the incorrect form.
6 This was a delay of more than four months between the
filing of the petition and its rejection. The Probate and
Family Court Department's time standards require action on
uncontested adoptions within thirty days of filing. Standing
Order 1-06: Case Management and Time Standards for Cases Filed
in the Probate and Family Court Department (2006) ("If a
Petition is filed as uncontested, due to the filing of necessary
surrenders or termination decrees, and notice is not required, a
hearing shall be scheduled within thirty [30] days of the filing
of the Petition").
7 The judgment of dismissal does not contain an explanation
for the judge's determination. Rather, it states, "after review
of submissions it is determined that Massachusetts does not have
jurisdiction over the matter."
6
statutory interpretation is de novo. Chin v. Merriot, 470 Mass.
527, 531 (2015). Additionally, the petition was dismissed
without any evidentiary hearing or oral argument. "[W]here
review is wholly based on documentary evidence, an appellate
court stands in the same position as the . . . judge" in
determining whether jurisdictional requirements are met
(quotation and citation omitted). Commonwealth v. Moffat, 478
Mass. 292, 298 (2017) (in appeal from denial of G. L. c. 278A,
§ 3, motion, de novo review appropriate because review limited
to consideration of motion and supporting documents).
"Under well-established principles of statutory
construction, 'a statute must be interpreted according to the
intent of the Legislature ascertained from all its words
construed by the ordinary and approved usage of the language,
considered in connection with the cause of its enactment, the
mischief or imperfection to be remedied and the main object to
be accomplished, to the end that the purpose of its framers may
be effectuated.'" Chin, 470 Mass. at 532, quoting Commonwealth
v. Figueroa, 464 Mass. 365, 368 (2013). "Although we look first
to the plain language of the provision at issue to ascertain the
intent of the Legislature, we consider also other sections of
the statute, and examine the pertinent language in the context
of the entire statute." Chin, supra. "Courts must ascertain
the intent of a statute from all its parts and from the subject
7
matter to which it relates, and must interpret the statute so as
to render the legislation effective, consonant with sound reason
and common sense." Harvard Crimson, Inc. v. President & Fellows
of Harvard College, 445 Mass. 745, 749 (2006).
1. Subject matter jurisdiction under G. L. c. 210, § 1.
We begin with the plain language of G. L. c. 210, § 1,8 which
provides in relevant part:
"A person of full age may petition the probate court in the
county where he resides for leave to adopt as his child
another person younger than himself, unless such other
person is his or her wife or husband, or brother, sister,
uncle or aunt, of the whole or half blood. . . . If the
petitioner has a husband or wife living, competent to join
in the petition, such husband or wife shall join therein
8 Because of the unavailability of a prebirth determination
in the circumstances presented here, we are forced to decide
this case under the adoption statute. As previously stated in
Culliton v. Beth Israel Deaconess Med. Ctr., 435 Mass. 285, 291
(2001), "[a]s is evident from its provisions, the adoption
statute was not intended to resolve parentage issues arising
from gestational surrogacy agreements." Culliton, supra at 290-
291, specifically highlights the delay in time that often
accompanies adoption proceedings; this can impose legal and
custodial responsibilities on a gestational carrier who has no
genetic or intended relationship with a child. In this case,
for example, the child is now over two years old, and the
initial petition was filed six weeks after her birth. We
strongly urge the Legislature to consider a more expedient
process for obtaining postbirth judgments of parentage in the
context of gestational surrogacy. Under the Uniform Parentage
Act, which has not been adopted in Massachusetts, parental
rights are automatically assigned to the intended parents,
provided that the gestational surrogacy agreement is
enforceable. See Uniform Parentage Act § 809, 9B U.L.A. 260
(Master ed. 2001). Other New England States have adopted
similar legislation allowing for replacement certificates of
birth and postbirth orders. See, e.g., Conn. Gen. Stat. § 7-
48a; Me. Rev. Stat. Ann. tit. 19-A, § 1934; N.H. Rev. Stat. Ann.
§ 168-B:12; Vt. Stat. Ann. tit. 15C, § 804.
8
. . . . If a person not an inhabitant of this commonwealth
desires to adopt a child residing here, the petition may be
made to the probate court in the county where the child
resides."
This section establishes five jurisdictional requirements before
the final provision allowing for adoption by an out-of-State
resident. Id. A petitioner must be (1) of "full age" adopting
(2) a child younger than the petitioner, and (3) the child
cannot be in one of the familial relationships to the petitioner
as enumerated by the statute. Id. If the petitioner has a
husband or wife, and he or she is competent to join the
petition, (4) the spouse must join unless the court determines
that the three conditions described by the statute are met.9 Id.
The petitioner also must file (5) in "the probate court in the
county where he resides," unless the petitioner is "not an
inhabitant of this commonwealth," in which case the petition
must be filed in the probate court in the county where the child
"resides." Id.
9 "[T]he prayer of the petition may be granted although the
spouse of the petitioner is not a party to the petition if the
court finds: (i) the failure of the spouse to join in the
petition or to consent to the adoption is excused by reason of
prolonged unexplained absence, legal separation, prolonged
separation, incapacity or circumstances constituting an
unreasonable withholding of consent; (ii) the husband and wife
are not in the process of an ongoing divorce; and (iii) the
granting of the petition is in the best interests of the child."
G. L. c. 210, § 1.
9
Here, the father was thirty-nine years old (i.e., of "full
age") at the time he filed his third petition,10 and the child
was eight months old. The child is his biological child, and
this is the only familial relationship; none of the
relationships prohibited by the statute applies. The father is
unmarried, so there is no requirement that his partner be
joined.11 Because the father is not a Massachusetts resident,
his petition must be filed according to the final provision of
§ 1. Therefore, the only ambiguities are in the definitions of
the words "residing" and "resides," which are each used once in
§ 1's final sentence: "If a person not an inhabitant of this
commonwealth desires to adopt a child residing here, the
petition may be made to the probate court in the county where
the child resides" (emphases added).
In Krakow v. Department of Pub. Welfare, 326 Mass. 452, 454
(1950), this court defined residency under G. L. c. 210, § 1, as
the child's domicil. The court in Krakow determined that the
Although many of the father's arguments are based on the
10
filing date of the first adoption petition, we conduct our
analysis based on the third petition. We note that the first
petition should not have been rejected for the same reasons
articulated here, but because the father did not appeal from
that denial, we do not address it.
The father lives in a country that criminalizes
11
consensual same-sex intercourse and does not allow or recognize
marriage equality. Therefore, he and his partner are not
married.
10
child's domicil was the domicil of his mother based on the
ground that the child had been "abandoned by his father" or
because the child was born outside of marriage. Id. See
Restatement (Second) of Conflict of Laws § 14 (1971). The
domicil of the child is "the same as the domicil of their parent
who has lawful custody of them." Gil v. Servizio, 375 Mass.
186, 189 (1978). Under the Massachusetts statute governing the
custody of children born outside of marriage, "[p]rior to or in
the absence of an adjudication or voluntary acknowledgement of
paternity, the mother shall have custody of a child born out of
wedlock." G. L. c. 209C, § 10 (b). See Smith v. McDonald, 458
Mass. 540, 545 (2010) ("Prior to a legal determination of
paternity, the child's mother is vested with sole physical and
legal custody, and that custody arrangement continues even after
paternity is established until modified by a court").12
Here, the child was born to an unmarried gestational
carrier, the mother, domiciled in Weymouth. Because the child's
birth mother is domiciled in Weymouth, the child's domicil at
birth was also Weymouth.
12The father's postbirth signing of the voluntary
acknowledgement of paternity (VAP) did not change the child's
custody status or domicil at birth. We discuss what impact, if
any, a VAP may have on a child's domicil infra.
11
There are three questions remaining: whether the mother's
postbirth surrender affected the child's domicil; whether the
father's postbirth VAP changed the child's domicil; and whether
the father's removal of the child to his home country changed
the child's domicil. Because a domicil of origin is not lost
until a new domicil is acquired,13 the question actually is
whether any of these actions caused the child to acquire a new
domicil.
The mother's postbirth surrender would not cause the child
to acquire a new domicil, as this would frustrate the primary
purpose of the adoption statute. See Adoption of Tammy, 416
Mass. 205, 210 (1993) ("The primary purpose of the adoption
statute, particularly with regard to children under the age of
fourteen, is undoubtedly the advancement of the best interests
of the subject child"). "The change in phrasing 'Any inhabitant
of this Commonwealth' . . . to 'Any person' . . . manifestly was
intended to permit the adoption of resident children by
petitioners who were domiciled in another State . . . ."
Farnsworth v. Goebel, 240 Mass. 18, 21 (1921). Because of this
express desire that resident children may be adopted by
petitioners domiciled in another State, as reflected in the
13See Tuells v. Flint, 283 Mass. 106, 109 (1933) ("A
domicil once established continues until a new one is acquired
regardless of changes in temporary sojourn").
12
language of G. L. c. 210, § 1, it would be illogical to
interpret that the mother's surrender, pursuant to G. L. c. 210,
§ 2, would have any impact on the child's domicil without
further court proceedings.
Additionally, although the father's signing of the VAP,
which occurred before the mother's surrender, grants him "a
constitutionally protected right to parent and maintain a
relationship with his child," thereby making him a "legal
parent," this does not change the child's domicil. Smith, 458
Mass. at 544. Even if we determined that signing the VAP alone,
and without further adjudication, granted the father shared
legal custody of the child, this could not mean that the child
acquired a new domicil as a result. To declare so would mean
that each time a court granted any custodial rights to a
noncustodial parent, it would change a child's domicil.14
The final question is whether the father's removal of the
child from Massachusetts in June 201815 changes the domicil of
the child. Similar circumstances were presented in Krakow, 326
Mass. at 453, where the adopting parents took the child to live
14We also note that our inquiry into subject matter
jurisdiction could have stopped here had the Probate and Family
Court appropriately determined it had jurisdiction over the
first petition filed two weeks after the child's birth.
15The father's exact date of departure with the child is
not in the record before us.
13
with them in New York "a few weeks" after the child's birth, and
filed the petition in Massachusetts a month after that. As we
noted in Krakow, "the temporary abode of the minor with the
[out-of-State] petitioners" did not change the child's domicil
because "no decree granting the [adoption] petition could have
been entered unless the minor had lived with the petitioners for
at least six months" according to G. L. c. 210, § 5A (requiring
that child reside in home of adoption petitioner for six months
prior to petition decree). Krakow, supra at 454. Therefore,
"[c]ompliance with this residential requirement, if held to
effect a change in the child's domicil, would bar all petitions
by nonresident petitioners. That result could not have been
intended by the Legislature." Id. at 454-455. Consequently,
despite the child's removal to the father's home country during
the adoption proceedings, the child's domicil remained in
Weymouth.16 Because the child was "residing" in Weymouth, as
defined under G. L. c. 210, § 1, we hold that the Probate and
Family Court had subject matter jurisdiction to conduct a
hearing on the father's petition.17
16To be clear, the child will acquire a new domicil with
her legal and custodial parent pursuant to Gil v. Servizio, 375
Mass. 186, 189 (1978), when the adoption is finalized.
17This result is further supported by examining the
adoption statute in conjunction with the Massachusetts Child
Custody Jurisdiction Act, G. L. c. 209B, § 2 (a). According to
the statute,
14
"Any court which is competent to decide child custody
matters has jurisdiction to make a custody determination by
initial or modification judgment if: (1) the commonwealth
(i) is the home state of the child on the commencement of
the custody proceeding, or (ii) had been the child's home
state within six months before the date of the commencement
of the proceeding and the child is absent from the
commonwealth because of his or her removal or retention by
a person claiming his or her custody or for other reasons,
and a parent or person acting as parent continues to reside
in the commonwealth; or . . . (4) (i) it appears that no
other state would have jurisdiction under prerequisites
substantially in accordance with paragraph (1), (2) or (3),
or another state has declined to exercise jurisdiction on
the ground that the commonwealth is the more appropriate
forum to determine the custody of the child, and (ii) it is
in the best interest of the child that a court of the
commonwealth assume jurisdiction. . . ."
If this matter were a custody proceeding, the Probate and Family
Court would have jurisdiction under G. L. c. 209B, § 2 (a) (1)
(ii), if the father and the child left the United States as
early as May 8, 2018, because Massachusetts would have been the
child's home State "within six months" before the petition was
filed and the mother still resides in the Commonwealth. As
mentioned previously, we do not know the father's exact date of
departure; however, the court also would have jurisdiction under
G. L. c. 209B, § 2 (a) (4), because there is no other State that
would have jurisdiction to determine the custody of the child
and it is in the best interest of the child that a Massachusetts
court assume jurisdiction. See, e.g., Adoption of Anisha, 89
Mass. App. Ct. 822, 832 (2016). The term "best interest of the
child" as found in § 2 (a) (4) is defined according to the
requirements set forth in § 2 (a) (2) of the statute: (i) that
the child and at least one parent have a significant connection
to the Commonwealth and (ii) that "there is available in the
commonwealth substantial evidence concerning the child's present
or future care, protection, training, and personal
relationships." See Redding v. Redding, 398 Mass. 102, 105-106
(1986). Here, the mother still resides in the Commonwealth,
where she gave birth to the child, and the child has legal
domicil here, so the statutory requirements are met.
15
2. Personal jurisdiction over the parties. Because we do
not know precisely on what ground the petition was dismissed, we
also address the Probate and Family Court's jurisdiction over
the parties.
Given that we already have established that both the mother
and child were domiciled in Weymouth, they are both subject to
the Probate and Family Court's jurisdiction. Although the
father is not domiciled in Massachusetts, nor did he reside
here, he consented to the court's personal jurisdiction by
filing his petition in that court. See Stearns v. Allen, 183
Mass. 404, 407 (1903) ("persons domiciled in another State
voluntarily bring themselves within the jurisdiction of the
court by filing their petition, and therefore there can be no
question as to jurisdiction of the adopting parent[]").
3. Equity jurisdiction. In a situation such as the one
presented here, the Probate and Family Court also could have
exercised equity jurisdiction pursuant to G. L. c. 215, § 6.
See Hodas v. Morin, 442 Mass. 544, 547 (2004) ("as a general
matter, the Probate and Family Court has subject matter
jurisdiction in questions of law and equity concerning
parentage"). In Hodas, we were asked to decide whether a
Probate and Family Court judge had authority pursuant to G. L.
c. 215, § 6, to issue a prebirth judgment of parentage where
neither the genetic parents nor the gestational carrier with
16
whom they contracted resided in Massachusetts. Hodas, supra at
544-545. The only connection to Massachusetts was that the
gestational carrier agreement specified that the birth occur at
a Massachusetts hospital. Id. at 546. We noted that the
"equity statute poses no residency requirement" nor is there a
"statutory directive [that] limits the court's jurisdiction in
actions relating to gestational agreements to Massachusetts
residents." Id. at 547 & n.6. We see no reason to hold
otherwise here.
Conclusion. For the foregoing reasons, we issued an order
on January 8, 2020, vacating the judgment of dismissal. The
Probate and Family Court has both subject matter jurisdiction
under G. L. c. 210, § 1, and personal jurisdiction over the
parties in this case.