Revision as of 18:01, 15 April 2014

Adoption Laws

Consent to Adoption

Who Must Consent to an Adoption Citation: Ann. Laws Ch. 210, § 2

Written consent to the adoption is required from:

• The lawful parents, who may be previous adoptive parents
• A surviving parent
• The mother only, if the child has been born out of wedlock
• The child’s spouse, if any

If an agency or person receiving a child born out of wedlock for purposes of a subsequent adoption receives from the child’s mother an executed consent, and no person has acknowledged paternity of the child or has been adjudicated the father of the child by any court of competent jurisdiction, then the person or agency shall request that the mother voluntarily provide a sworn written statement, executed before a notary and in the presence of two competent witnesses, one of whom shall be selected by the mother, that identifies the child’s father and his current or last known address. Any such statement shall be used solely for the purpose of notifying the person named as the father of the status of the child.

Consent of Child Being Adopted Citation: Ann. Laws Ch. 210, § 2

A child who is age 12 or older must consent to the adoption.

When Parental Consent Is Not Needed Citation: Ann. Laws Ch. 210, § 3

The consent of the persons named above shall not be required if:

• The person to be adopted is age 18 or older.
• The court finds that the adoption is in the best interests of the child due to parental unfitness.

A finding of unfitness may be based on the following:

• The child has been abandoned.
• The child or another child has been abused or neglected.
• The child has been in out-of-home placement for at least 6 months and the parents have not maintained significant and meaningful contact with the child.
• The child is age 4 or older and has been in the custody of the department for at least 12 of the past 15 months and cannot be returned home.
• The child is younger than age 4 and has been in the custody of the department for at least 6 of the past 12 months and cannot be returned home.
• The parent, without excuse, fails to provide proper care or custody for the child.
• Because of the lengthy absence of the parent or the parent’s inability to meet the needs of the child, the child has formed a strong, positive bond with a substitute caregiver.
• The parent has made no effort to remedy conditions that create a risk of harm to the child.
• The child or another child has been subjected to severe or repetitive conduct of a physically, emotionally, or sexually abusive or neglectful nature.
• The parent has willfully failed to visit and support a child who is not in the custody of the parent.
• The parent suffers from a condition, such as alcohol or drug addiction, mental deficiency, or mental illness, that makes the parent unlikely to provide minimally acceptable care of the child.
• The parent’s conviction of a felony will deprive the child of a stable home for a period of years.
• There exists a prior pattern of parental neglect or misconduct or a felony assault that resulted in serious bodily injury to the child and a likelihood of future harm to the child based on such prior pattern or assault.

When Consent Can Be Executed Citation: Ann. Laws Ch. 210, § 2

Written consent shall be executed no sooner than the fourth day after the birth of the child.

How Consent Must Be Executed Citation: Ann. Laws Ch. 210, § 2

The written consent shall be attested and subscribed before a notary public in the presence of two competent witnesses, one of whom shall be selected by the consenting person. The agency or person receiving custody shall act as guardian of the child until such time as a court of competent jurisdiction appoints a guardian or grants a petition for adoption. A copy of the consent shall be filed with the Department of Children and Families.

The form of the consent is provided in statute.

If an agency or person receiving a child born out of wedlock for purposes of a subsequent adoption receives from the child’s mother an executed consent form, and no person has acknowledged paternity of the child or has been adjudicated the father of the child by any court of competent jurisdiction, then the person or agency shall request that the mother voluntarily provide a sworn written statement, executed before a notary and in the presence of two competent witnesses, one of whom shall be selected by the mother, that identifies the child’s father and his current or last known address. Any such statement shall be used solely for the purpose of notifying the person named as the father of the status of the child.

Revocation of Consent Citation: Ann. Laws Ch. 210, § 2

A consent executed in accordance with the provisions of this section shall be final and irrevocable from the date of execution.

Criminal Background Checks for Prospective Foster and Adoptive Parents

Requirements for Foster Parents Gen. Laws Ch. 15D, § 6(d); 110 Code of Mass. Reg. §§ 18.08; 18.10

No child shall be placed in a foster home before the approval of the home by the department. This approval shall include criminal record information checks on all persons age 18 or older residing at the home. If the result of any of these checks shows that any occupant of the home has a criminal record involving violence, abuse, or exploitation against any person, which bears adversely upon the person’s ability to assume and carry out the responsibilities of a foster parent or poses a serious threat of harm to a child, the home shall not be approved by the department.

In regulation:Whenever an individual contacts the department for the purpose of applying to be a foster parent, the department shall conduct a criminal offender record investigation as part of the initial screening process on the individual(s) applying and household members age 14 and older.

A candidate for foster parent certification shall be ineligible if he or she has been convicted of or has any pending charges involving crimes listed in 110 CMR 18.16: Table A. Crimes on this list include, but are not limited to:

• Assault and battery with a dangerous weapon of a victim over age 60
• Assault and battery of a child or a retarded person
• Armed assault with intent to murder or rob
• Armed robbery or carjacking
• Assault with intent to murder, maim, or rape
• Distribution of a controlled substance to a minor
• Sexual exploitation of a child
• Incest
• Indecent assault and battery of a child
• Inducing a minor to prostitution
• Kidnapping
• Negligent manslaughter of a minor
• Murder or manslaughter
• Perjury
• Aggravated or statutory rape
• Trafficking in cocaine, heroin, or marijuana
• Unnatural acts with a child under age 16
• Conspiracy to commit any of the above offenses
• Accessory before any crime in this category
• Attempts to commit any crime in this category

Requirements for Adoptive Parents Gen. Laws Ch. 210, § 3B; 110 Code of Mass. Reg. §§ 18.08; 18.10

A review of any misdemeanor offense discovered through a criminal offender record information search is required for a prospective adoptive parent.

In regulation:Whenever an individual contacts the department for the purpose of applying to be a preadoptive parent, the department shall conduct a criminal offender record investigation as part of the initial screening process on the individual(s) applying and household members age 14 and older.

A candidate for preadoptive parent certification shall be ineligible if he or she has been convicted of or has any pending charges involving crimes listed in 110 CMR 18.16: Table A. Crimes on this list include, but are not limited to:

• Assault and battery with a dangerous weapon of a victim over age 60
• Assault and battery of a child or a retarded person
• Armed assault with intent to murder or rob
• Armed robbery or carjacking
• Assault with intent to murder, maim, or rape
• Murder or manslaughter
• Distribution of a controlled substance to a minor
• Sexual exploitation of a child
• Incest
• Indecent assault and battery of a child
• Inducing a minor to prostitution
• Kidnapping
• Negligent manslaughter of a minor
• Perjury
• Aggravated or statutory rape
• Trafficking in cocaine, heroin, or marijuana
• Unnatural acts with a child under age 16
• Conspiracy to commit any of the above offenses
• Accessory before any crime in this category
• Attempts to commit any crime in this category

Grounds for Involuntary Termination of Parental Rights

Circumstances That Are Grounds for Termination of Parental Rights Ann. Laws Ch. 119, §§ 26, 29C; Ch. 210, § 3

The Department of Children and Families shall file a petition to terminate parental rights under the following circumstances:

• The child has been abandoned.
• The parent has been convicted of the murder or voluntary manslaughter of another child of the parent, of aiding, abetting, attempting, conspiring or soliciting to commit such murder or voluntary manslaughter, or of a felony assault that resulted in serious bodily injury to the child or to another child of the parent.
• The child has been in foster care for 15 of the immediately preceding 22 months.

In determining whether such action is in the best interests of the child, the court shall consider the ability, capacity, fitness, and readiness of the child’s parent. In considering the fitness of the child’s parent, the court shall consider, without limitation, the following factors:

• The child has been abused or neglected as a result of the acts or omissions of one or both parents; the parents were offered services and have been unable to make a substantial change in the circumstances that led to the abuse or neglect.
• The child has been in the custody of the department for at least 6 months, and the parents have not maintained significant and meaningful contact with the child.
• The child is age 4 or older and has been in an out-of-home placement for at least 12 of the immediately preceding 15 months, and the child cannot be returned home.
• The child is younger than age 4 and has been in an out-of-home placement for at least 6 of the immediately preceding 12 months and cannot be returned home.
• The parent, without excuse, fails to provide proper care for the child, and there is a reasonable expectation that the parent will not be able to provide proper care within a reasonable time.
• Because of the lengthy absence of the parent or the parent’s inability to meet the needs of the child, the child has formed a strong, positive bond with a substitute caregiver, the removal of the child from the caregiver would likely cause serious psychological harm to the child, and the parent lacks the capacity to meet the special needs of the child upon removal.
• There has been a lack of effort by the parent to remedy conditions that create a risk of harm due to abuse or neglect of the child.
• There has been severe or repetitive conduct of a physically, emotionally, or sexually abusive or neglectful nature toward the child or toward another child in the home.
• The parent has willfully failed to visit the child when the child has not been in his or her custody.
• The parent has willfully failed to support the child when the child has not been in his or her custody. Failure to support shall mean that the parent or other person has failed to make a material contribution to the child’s care when the contribution has been requested by the department or ordered by the court.
• The parent suffers from a condition that is reasonably likely to continue for a prolonged, indeterminate period, such as alcohol or drug addiction, mental deficiency or mental illness, and the condition makes the parent unlikely to provide minimally acceptable care for the child.
• The parent has been convicted of a felony that the court finds is of such a nature that the child will be deprived of a stable home for a period of years. Incarceration in and of itself shall not be grounds for termination of parental rights.
• There has been a prior pattern of parental neglect or misconduct or a felony assault that resulted in serious bodily injury to the child, and a likelihood of future harm to the child exists based on such prior pattern or assault.

Circumstances That Are Exceptions to Termination of Parental Rights Ann. Laws Ch. 119, § 26

The department need not file a petition to terminate parental rights if:

• The child is being cared for by a relative.
• The department has documented in the case plan a compelling reason for determining that terminating the parents’ rights would not be in the best interests of the child.
• The family of the child has not been provided, consistent with the time period in the case plan, such services as the department deems necessary for the safe return of the child to the child’s home if reasonable efforts as set forth in § 29C are required to be made with respect to the child.

Circumstances Allowing Reinstatement of Parental Rights

This issue is not addressed in the statutes reviewed.

Home Study Requirements for Prospective Parents in Domestic Adoption

Who Must Be Studied Citation: Code of Regs. Tit. 102, § 5.10

The study will include the applicants and all household members age 14 and older.

Agency or Person Conducting the Study Citation: Code of Regs. Tit. 102, § 5.10

The assessment shall be completed by a social worker who meets the requirements of 102 CMR 5.05(2).

Qualifications for Adoptive Parents Citation: Ann. Laws. Ch. 210, § 1; Code of Regs. Tit. 102, § 5.10

Any adult or, jointly, husband and wife may petition to adopt a child.

In regulation: The physical requirements for adoptive homes include, but are not limited to, the following:

• The home must be clean, safe, free of obvious fire and other hazards, and of sufficient size to accommodate comfortably and appropriately all members of the household and the approved number of adopted children.
• The home shall have adequate lighting and ventilation, hot and cold water supply, plumbing, electricity, and heat.
• The home shall have sufficient furniture to allow each child to sleep in a separate bed and to have adequate storage space for his or her personal belongings.
• The home shall be equipped with smoke detectors in working order.
• If the home uses well water, it shall be tested and determined safe.

Elements of a Home Study Citation: Code of Regs. Tit. 102, § 5.10; Tit. 110, §§ 18.05; 18.08

The assessment shall include at least one meeting in the applicant’s home. The agency shall interview applicants individually at least once and as often as is necessary to determine the applicants’ qualifications to adopt a child. The agency shall interview all other members of the applicants’ household, as appropriate to the age of the member of the household.

The assessment shall be summarized in a written report and shall document he applicants’:

• Motivation for adoption
• Emotional stability and compatibility
• Social, education, and health histories
• Family composition, including pets
• A description of the home, including sleeping areas
• The family’s attitude toward accepting an adopted child
• Parenting ability, including child rearing and discipline
• Attitude toward the birth parents of the child
• Characteristics of children desired, including age, sex, abilities or disabilities, behavior, and characteristics of children parents are not willing to adopt
• At least three written references
• A written statement from a licensed physician regarding the health of each member of the household
• Evidence of birth certificates, marriage certificates, and/or divorce decrees
• Financial ability to care for an adopted child
• Ability to meet the physical, developmental, emotional, and educational needs of a child

Prospective preadoptive parents will be required to disclose whether or not he or she has a criminal record, including the crimes charged and the disposition of the charge. The department shall conduct a Criminal Offenders Record Information (CORI) investigation of any household member age 14 or older during the initial home study of the preadoptive home.

Grounds for Withholding Approval Citation: Code of Regs. Tit. 102, § 5.10; Tit. 110, § 18.10

The agency shall determine that each applicant and each adult household member has a background free of conduct that bears adversely upon his or her ability to provide for the safety and well-being of children. In making this determination, the agency shall consider whether the applicant:

• Engages in or has engaged in conduct that results in his or her child being adjudicated in need of care and protection
• Uses alcohol or drugs to an extent that impairs his or her ability to care for children properly
• Has engaged in conduct that resulted in a CORI report or has engaged in any other conduct, criminal or otherwise, that impairs the individual’s ability to care for children

A CORI report shall consist of arrests, pending criminal charges, or criminal charges that have been finally disposed of for any offense involving sexual or physical abuse, any offense involving children, and violent or drug-related crimes, including driving under the influence of alcohol or drugs. A CORI report shall also consist of the report of a restraining order, violations of such restraining orders and other arrests, pending charges, or findings relative to abuse of adult or child family members.

An applicant shall not be approved for an adoptive placement when, after a review of the CORI record, the agency concludes that the applicant’s home poses an unacceptable risk to the safety and well-being of the child.

When Studies Must Be Completed Citation: Code of Regs. Tit. 102, § 5.10

The licensed agency, consistent with its current needs, shall evaluate adoptive parent applicants promptly.

If a placement does not occur within 12 months of approval of the adoptive parent, the agency may perform a limited foster or adoptive parent assessment. A limited adoptive parent assessment shall be a review of the previous assessment and verification that such information remains current.

The agency shall notify each adoptive parent applicant in writing of the results of the assessment within 1 month of the last visit to the applicant.

Postplacement Study Requirements Citation: Code of Regs. Tit. 102, § 5.10

The agency shall assign a social worker who will be responsible for providing direct services to the adoptive family until the adoption is finalized. The social worker shall assist the adoptive parents and the child with any adoption-related matters and shall make monthly supervisory contacts with the adoptive parents, beginning no later than 2 weeks after placement, and continuing until the adoption decree is entered. Beginning no later than 6 weeks after placement, such contacts shall be face-to-face at least every other month. At least two contacts shall be in the adoptive parent home with the child and parents. In addition, the social worker shall:

• Inform the adoptive parents in writing of any postponement of the legalization of the adoption, the reasons for such postponement, the actions that the agency determines are needed to remedy such postponement, and the timeframes within which such actions must be taken
• Provide updated medical and/or psychological information regarding the birth family, including relevant information about siblings
• Assist the adoptive parents and the child in obtaining any needed services
• Inform the adoptive parents of their right to update the information in their case record at the agency at any time
• Document in case notes in adoptive family records all contacts with children and adoptive families
• Assist the adoptive parents in maintaining, when appropriate, contact with siblings and providing support services for older sibling groups

Exceptions for Stepparent or Relative Adoptions Citation: Code of Regs. Tit. 110, § 18.10

In the case of an individual seeking to serve as a preadoptive kinship placement for a child in the care or custody of Department of Social Services, the department shall not be precluded from placing the child in a kinship home if the Commissioner, Deputy Commissioner for Field Operations, and General Counsel have conducted a review of the CORI record pursuant to 110 CMR 18.11(9) and determined the placement is in the best interests of the child.

Requirements for Interjurisdictional Placements Citation: Code of Regs. Tit. 102, § 5.08

No agency shall place a child outside the Commonwealth unless the adoptive home is approved and supervised by a licensed or otherwise legally authorized agency.

Foster to Adopt Placements Citation: Code of Regs. Tit. 102, § 5.08

Whenever a foster child is freed for adoption, the agency shall notify the foster parents in writing. The agency shall consider the child’s foster parents as potential adoptive parents if the child has been in their care for 6 months, provided that the foster parents notify the agency of their desire to adopt within 2 weeks after they are notified of the child’s release.

Infant Safe Haven Laws

Infant’s Age Citation: Ann. Laws Ch. 119, § 391/2

Any newborn infant 7 days old or younger may be relinquished.

Who May Relinquish the Infant Citation: Ann. Laws Ch. 119, § 391/2

The infant may be relinquished by his or her parent.

Who May Receive the Infant Citation: Ann. Laws Ch. 119, § 391/2

The infant may be delivered to any ‘designated facility,’ including a hospital, police department, or manned fire station.

Responsibilities of the Safe Haven Provider Citation: Ann. Laws Ch. 119, § 391/2

The designated facility receiving a newborn infant shall immediately notify the Department of Social Services. Upon receipt of such notice, the department shall take immediate custody of the newborn infant and shall initiate all actions authorized by law to achieve the safety and permanent placement of the newborn infant in a manner that is consistent with the best interests of the child.

The person accepting a newborn infant shall make every effort to solicit the following information from the parent placing the newborn infant:

• The name of the infant
• The name and address of the parent placing the newborn infant
• The location of the infant’s birthplace
• Information relative to the infant’s medical history and his or her biological family’s medical history, if available
• Any other information that might reasonably assist the department or the court in current or future determinations of the best interests of the child, including whether the parent or guardian plans on returning to seek future custody of the child

The person receiving the newborn infant shall encourage the parent to provide the information, but the parent shall not be required to provide such information.

Immunity for the Provider

This issue is not addressed in the statutes reviewed.

Protection for Relinquishing Parent Citation: Ann. Laws Ch. 119, § 391/2

Voluntary abandonment of an infant to an appropriate person shall not by itself constitute either a finding of abuse or neglect or a violation of any criminal statute for child abuse or neglect or for abandonment. If child abuse or neglect that is not based solely on the newborn infant having been left with an appropriate person is suspected, hospital, police, or fire department personnel who are mandated reporters shall report the abuse or neglect.

The parent is not required to supply any of the information requested above.

Effect on Parental Rights Citation: Ann. Laws Ch. 119, § 391/2

The Department of Social Services shall place the infant into foster care. Such a voluntary placement shall not constitute, in and of itself, an automatic termination of parental rights or an abrogation of the parental rights or responsibilities but shall, for purposes of authorizing the department to initiate a petition to terminate parental rights under chapter 210, be presumed to be an abandonment of the newborn infant that has been so placed.

Regulation of Private Domestic Adoption Expenses

Birth Parent Expenses Allowed

This issue is not addressed in the statutes reviewed.

Birth Parent Expenses Not Allowed

This issue is not addressed in the statutes reviewed.

Allowable Payments for Arranging Adoption Citation: Ann. Laws Ch. 210, § 11A

Only authorized agents or employees of the Department of Social Services may advertise or accept payment for arranging adoptions.

Allowable Payments for Relinquishing Child Citation: Ann. Laws Ch. 210, § 11A

It is unlawful for an unauthorized person to accept payment for placing a child for adoption.

Allowable Fees Charged by Department/Agency

This issue is not addressed in the statutes and regulations reviewed.

Accounting of Expenses Required by Court

This issue is not addressed in the statutes reviewed.

The Rights of Unmarried Fathers

Legal Definition of Father Ann. Laws Ch. 209C, § 6

A man is presumed to be the father of a child if:

• He is or has been married to the mother and the child was born during the marriage, or within 300 days after the marriage was terminated by death, annulment, or divorce.
• Before the child’s birth, he married or attempted to marry the mother, although the attempted marriage is or could be declared invalid, and the child was born during the attempted marriage or within 300 days after its termination.
• After the child’s birth, he married or attempted to marry the mother, although the attempted marriage is or could be declared invalid, and:
  • He agreed to support the child under a written voluntary promise.
  • He engaged in any other conduct that can be construed as an acknowledgment of paternity.
• While the child is under the age of majority, he, jointly with the mother, received the child into their home and openly held out the child as their child.
• He has acknowledged paternity in a parental responsibility claim, and the mother, having received actual notice thereof, has failed within a reasonable time to object thereto.
• With respect to a child born before April 13, 1994, with his consent and the consent of the child’s mother, he is named as the child’s father on the birth certificate as provided in chapter 46, § 1.

Paternity Registry

No

Alternate Means to Establish Paternity Ann. Laws Ch. 209C, §§ 2 and 11; Ch. 210, § 4A

Paternity may be established by filing with the court or the Registrar of Vital Records and Statistics an acknowledgment of parentage executed by both parents or pursuant to a court action to establish paternity. Upon receipt of an acknowledgment of parentage or upon an adjudication of paternity, the court shall transmit to the Registrar of Vital Records and Statistics a certified copy of the acknowledgment or order establishing paternity.

A written voluntary acknowledgment of parentage executed jointly by the putative father, whether a minor or not, and the mother of the child, whether a minor or not, and filed with the Registrar of Vital Records and Statistics or with the court shall be recognized as a sufficient basis for seeking an order of support, visitation, or custody with respect to the child without further proceedings to establish paternity, and no judicial proceeding shall be required or permitted to ratify an acknowledgment that has not been challenged.

A putative father may also establish the right to receive notice of the child’s surrender for adoption by filing a declaration seeking to assert the responsibilities of fatherhood, hereinafter called a parental responsibility claim. Such filing shall constitute an acknowledgment and admission of paternity.

Required Information Ann. Laws Ch. 209C, §§ 2 and 11

An adjudication of paternity or acknowledgment of paternity shall include:

• The name, residence, date of birth, place of birth, and Social Security number of each of the parties and the child
• The sex of the child
• Such additional information as the Commissioner of Public Health deems useful for statistical and research purposes

Voluntary acknowledgments of parentage shall be acknowledged in the presence of a notary public and shall include:

• The residence addresses and Social Security numbers of each of the parents
• The residence address of the child
• If available, the Social Security number of the child

Revocation of Claim to Paternity Ann. Laws Ch. 209C, § 11

Unless either signatory rescinds the voluntary acknowledgment of parentage within 60 days of the date of signing, the acknowledgment shall establish paternity as of the date it has been signed by such putative father and mother and shall have the same force and effect as a judgment of paternity, subject to challenge within 1 year only on the basis of fraud, duress, or material mistake of fact. The person seeking to rescind the acknowledgment shall bear the burden of proof in such proceeding. The responsibilities of a signatory arising from the acknowledgment shall not be suspended during the pendency of such challenge unless the court so orders for good cause shown.

Access to Information Ann. Laws Ch. 209C, § 13; Ch. 210, § 4A

In an action to establish paternity, all complaints, pleadings, papers, documents, or reports shall be segregated and unavailable for inspection only if the judge of the court where such records are kept, for good cause shown, so orders or the person alleged to be the father is adjudicated not to be the father of the child.

Access may be granted to the following:

• The child, the child’s mother, or the person adjudicated to be the father
• The Department of Transitional Assistance
• The Department of Social Services, the Division of Medical Assistance, or any other public assistance program
• The IV-D agency when the child who is or was the subject of the complaint is a recipient of public assistance
• The attorney for any of them and the Department of Social Services when the child is within the care and protection of the department, is the subject of a petition for care or protection, or is the subject of a petition to dispense with consent for adoption

The department shall send notice of the filing of a parental responsibility claim to the mother.

Use of Advertising and Facilitators in Adoptive Placements

Use of Advertisement Citation: Ann. Laws Ch. 119, § 391/2; Ch. 28A, § 14

The Department of Children and Families shall develop and implement a public information program to inform the general public of voluntary placements of newborn infants, teen pregnancy prevention programs, and adoption information. The program may include, but not be limited to, educational and informational materials in print, audio, video, electronic, and other media; public service announcements and advertisements; and the establishment of a toll-free hotline.

No person shall cause to be published in a newspaper or to be broadcast on a radio or television station in the Commonwealth an advertisement or notice for the placement or reception of a child under age 16 for adoption unless such advertisement is placed by a licensed or approved placement agency or with the written approval of the office. Such advertisement or notice shall include the license or registration number issued to the provider or agency pursuant to § 10.

Use of Intermediaries/Facilitators Citation: Ann. Laws Ch. 15D, § 6

No person shall place or knowingly facilitate the placement of any child in the care or control of any other person not related to such child by blood or marriage, or in the care or control of any organization other than a licensed or approved placement agency, for purposes of adoption.

No person unrelated to such child by blood or marriage, and no organization other than a licensed or approved placement agency, shall receive such a child for purposes of adoption, except from a licensed or approved placement agency.

Who May Adopt, Be Adopted, or Place a Child for Adoption?

Who May Adopt Citation: Ann. Laws Ch. 210 § 1

The following persons may adopt:

• Any adult
• A husband and wife jointly; however, the court may grant the petition if only one spouse is a party when certain provisions of the statute are met
• A minor with his or her spouse to adopt the natural child of either spouse

Who May Be Adopted Citation: Ann. Laws Ch. 210 § 1

Any person younger than the petitioner may be adopted, except for a spouse, sibling, aunt, or uncle of the petitioner.

Who May Place a Child for Adoption Citation: Ann. Laws Ch. 210, § 2A; Ch. 15D, § 1A

A child may be placed by any of the following:

• The child’s parent(s) when the placement has been approved by the Department of Social Services or an authorized agency
• A child-placing agency, which includes the department

Post-Adoption Laws

Access to Adoption Records

Who May Access Information Citation: Ann. Laws Ch. 210, § 5D

Nonidentifying information may be provided to:

• The adopted prson who is age 18 or older
• The adoptive parents
• The birth parents

Identifying information may be released to:

• The adopted person who is age 21 or older
• The adoptive parents
• The birth parents

Access to Nonidentifying Information Citation: Ann. Laws Ch. 210, § 5D

A placement agency that holds records relating to an adopted person, the birth parents, or the adoptive parents shall:

• Release to the adopted person who is age 18 or older, upon his or her written request, information about his or her birth parents that does not identify the birth parents or their present or former locations
• Release to a birth parent of an adopted person, upon the birth parent’s written request, information about the adopted person that does not reveal his or her identity after adoption or his or her present or former locations
• Release to an adoptive parent, if the adopted person is under age 18, upon the adoptive parent’s written request, information about the adopted person and his or her birth parents that does not identify the birth parents or their present or former locations

The information shall include such nonidentifying information that the agency holds concerning the medical, ethnic, socioeconomic, and educational circumstances of the person. The agency, in its discretion, shall further release such nonidentifying information concerning the circumstances under which the adopted person became available for adoption as it deems to be in the best interest of the person so requesting.

Mutual Access to Identifying Information Citation: Ann. Laws Ch. 210, § 5D

If a placement agency has received written permission from a birth parent to release the identity of the birth parent to the adopted person and the agency has received written permission from the adopted person, or written permission from the adoptive parents if the adopted person is under age 21, to release the identity after adoption of the adopted person to the birth parent, then the agency shall release the identity of the adopted person to the birth parent and the identity of the birth parent to the adopted person.

The placement agency shall:

• Release to the birth parent, upon the birth parent’s written request, any personal data that it holds relating to the birth parent
• Release to an adoptive parent, upon his or her written request, any personal data that it holds relating to the adoptive parent

In making any disclosure of information, the agency shall remove personal identifiers relating to a third person. All other adoption records held by the placement agency shall be confidential and shall not be released.

Access to Original Birth Certificate Citation: Ann. Laws Ch. 210, § 5C

All records concerning the adoption proceedings are available only upon court order.

Where the Information Can Be Located

Adoption Search Coordinator, Massachusetts Department of Social Services

Intestate Inheritance Rights for Adopted Persons

Birth Parents in Relation to Adopted Person Citation: Ann. Laws Ch. 210, § 7

Upon adoption, a person shall lose his or her right to inherit from his or her birth parents or family, except when one of the birth parents of a minor child has died and the surviving parent has remarried. The adoption of such child by the birth parent’s spouse shall not affect the rights of the child to inherit from or through the deceased parent or kindred.

Adoptive Parents in Relation to Adopted Person Citation: Ann. Laws Ch. 210, §§ 7; 9

An adopted person shall be entitled to the same share of the adopting parent’s estate as he or she would have inherited if born to such parent in lawful wedlock.

If the adopted person dies intestate, his or her property shall be distributed among the persons who would have been his or her kindred as if he or she had been born to the adopting parent(s) in lawful wedlock.

A person adopted in another State or country shall, upon proof of such fact, be entitled to the same rights of succession to property by intestacy as he or she would have had if he had been adopted in the Commonwealth.

Adopted Persons Who Are Not Included in a Will

This issue is not addressed in the statutes reviewed.

Postadoption Contact Agreements Between Birth and Adoptive Families

What may be included in postadoption contact agreements? Gen. Laws Ann. Ch. 210, § 6C

Prior to the entry of an adoption decree, prospective adoptive parents and a birth parent may enter into an agreement for postadoption contact or communication between or among a minor to be adopted, the prospective adoptive parents, and the birth parents.

To be approved by the court, an agreement for postadoption contact or communication must contain the following statements:

• This agreement is entered into pursuant to the provisions of Chapter 210, § 6C.
• Any breach, modification, or invalidation of the agreement or any part of it shall not affect the validity of the adoption. The adoption shall be final.
• The parties acknowledge that either the birth or adoptive parents who have entered into the agreement have the right to seek enforcement.
• The parties have not relied on any representations other than those contained in the agreement.

The agreement shall be signed by the parties and acknowledged before a notary public as the free act and deed of the parties. If the child is older than age 12, the agreement shall contain the written consent of the child. If the child is in the custody of the Department of Children and Families, the agreement shall contain the written approval of the department and the attorney for the child. If the child is in the custody of a licensed child care agency, the agreement shall contain the written approval of the agency.

Who may be a party to a postadoption contact agreement? Gen. Laws Ann. Ch. 210, § 6C

The agreement may be between the prospective adoptive parents and the birth parents.

What is the role of the court in postadoption contact agreements? Gen. Laws Ann. Ch. 210, § 6C

The court shall approve an agreement for postadoption contact or communication if the court finds that such agreement is in the best interests of the child, contains terms that are fair and reasonable, and has been entered knowingly and voluntarily by all parties to the agreement.

The requirement that a postadoption contact agreement must be entered knowingly and voluntarily may be satisfied by an affidavit executed by all parties, either jointly or separately, that is filed with the court. The affidavit shall state that the agreement is entered into knowingly and voluntarily and is not the product of coercion or duress.

Are agreements legally enforceable? Gen. Laws Ann. Ch. 210, §§ 6C; 6D

To be enforceable, an agreement for postadoption contact or communication shall be in writing, approved by the court prior to the date for entry of the adoption decree, incorporated but not merged into the adoption decree, and shall survive as an independent contract.

An agreement under this section need not disclose the identity of the parties to be enforceable, but if an identity is not disclosed, the unidentified person shall designate an agent for the purpose of receiving court notices.

An agreement for postadoption contact or communication shall cease to be enforceable on the date the adoptee turns age 18.

A party to a court-approved agreement for postadoption contact or communication may seek to enforce the agreement by commencing a civil action for specific performance. A court order for specific performance of the terms of a postadoption contact agreement shall be the sole remedy for breach of an agreement.

In such proceedings, parties shall not be entitled to the appointment of counsel. However, the court may appoint a guardian ad litemto represent the interests of the child.

If the court finds that an action brought under this section was wholly insubstantial, frivolous, and not advanced in good faith, the court may award attorney’s fees to all prevailing parties.

Nothing in the agreement shall preclude a party seeking to enforce an agreement for postadoption contact or communication from utilizing child welfare mediation or permanency mediation before, or in addition to, the commencement of a civil action for specific enforcement.

How may an agreement be terminated or modified? Gen. Laws Ann. Ch. 210, § 6D

In an enforcement proceeding, the court may modify the terms of the agreement if the court finds that there has been a material and substantial change in circumstances and the modification is necessary in the best interests of the child. A court-imposed modification of a previously approved agreement may limit, restrict, condition, or decrease contact between the birth parents and the child, but in no event shall a court-imposed modification serve to expand, enlarge, or increase the amount of contact between the birth parents and the child or place new obligations on adoptive parents.

Laws Related to Intercountry Adoption

Effect and Recognition of a Foreign Adoption Decree

Ann. Laws Ch. 210, § 9

An adoption decree issued abroad in accord with the laws of that country will have the same effect on the adopted child’s rights of succession to property by grant, trust settlement, entail, devise, bequest, or by intestacy as would an adoption granted by this State.

Readoption After an Intercountry Adoption

This issue is not addressed in the statutes reviewed.

Application for a U.S. Birth Certificate

Ann. Laws Ch. 46, § 1B

Any resident of the State who is the parent of a child born outside the State may personally present to the town clerk of the town where such parent was domiciled at the time of the birth, or in the case of an adopted child, at the time of the adoption, an original certificate or other written evidence of the birth, and a certified copy of the adoption decree if adopted, or a duly authenticated photocopy thereof. The town clerk may file such documents as evidence establishing the birth or adoption, or may make a copy thereof, which he shall attest as a true copy, and which he may then file as such evidence.

Source

Child Welfare Information Gateway. U.S. Department of Health and Human Services Administration for Children and Families. [1]

References