Massachusetts State House.
Boston Bar Journal

Adoption of Arlene: Addressing a Putative Father’s Right to Notice

February 09, 2023
| Winter 2023 Vol. 67 #1

By Lisa J. Marino

The Appeals Court highlighted some of the deficiencies in the Massachusetts statutory scheme for adoptions when it decided Adoption of Arlene, 101 Mass. App. Ct. 326 (2022). The central question presented in this case was whether a putative father (that is, an alleged biological father) is entitled to notice of adoption proceedings. The Court wrestled with whether G. L. c. 210, § 4 specifically requires notice to be provided to a putative father, and ultimately determined that the statute does not explicitly require that every putative father be given notice of a pending adoption. However, the Court went on to recognize that the statute includes a further provision, permitting judges to “require additional notice and consent” to persons not specifically enumerated, and construed that provision to require notice to “any person having a due process right to notice under the United States Constitution.” After reviewing the Supreme Court’s decision in Lehr v. Robertson, 463 U.S. 248, 262 (1983), the Court concluded that a putative father must be given notice and a meaningful opportunity to be heard before a child is adopted if he “has previously established a ‘significant custodial, personal, or financial relationship with [the child],’” and remanded the case for further proceedings. Adoption of Arlene, 101 Mass. App. Ct. at 333-34, 336.

Factual Background in Adoption of Arlene

In 2012, the mother informed the putative father “we are pregnant,” and the couple told their families and agreed the child would bear the putative father’s last name. When the child was born in 2013, the putative father was present though he was not listed on the birth certificate (at the mother’s request, in keeping with her other children’s birth certificates), and his name was used as one of the child’s middle names. After the child’s birth, the parties lived together and the putative father was fully integrated into the child’s life for more than four years – providing financial support, taking her to medical appointments, and participating in parent-child activities. The child called the putative father “father” and the putative father’s parents “grandmother” and “grandfather.” In 2017, the parties and the child moved to Alaska and the parties’ relationship ended. The putative father last saw the child in March of 2018, after which the mother prevented the putative father from seeing the child. In April of 2018, the mother and the child moved to Massachusetts, and the mother subsequently married another man. Adoption of Arlene, 101 Mass. App. Ct. at 326-28.

Procedural History

On May 11, 2018, the putative father filed a complaint to establish paternity in Alaska, where he continued to reside. In June or July of 2018, pursuant to G. L. c. 210, § 4A, the putative father filed a parental responsibility claim with the Department of Children and Families (“DCF”) in Massachusetts, receipt of which was confirmed in a letter from DCF dated July 30, 2018. According to G.L.c.210, §4A, “[s]uch filing shall constitute an acknowledgment and admission of paternity.” Id. at 328.

On July 11, 2018, the mother and the mother’s husband filed a petition for adoption in Massachusetts. When filing a petition for adoption, a petitioner must also file an Affidavit Disclosing Care or Custody Proceedings, which in this case was signed by the mother’s husband. The required affidavit in this case, however, was insufficient, as it was neither signed nor updated by the mother to include the pending paternity action filed by the putative father in Alaska. The petitioners also motioned the Probate and Family Court to waive statutory notice to DCF, which was allowed. Had this motion been denied and notice sent to DCF, the agency would have seen that the putative father had filed a parental responsibility claim and sent notice to him of the action, thereby affording him time to intervene in the petition for adoption. The mother’s procedural violation allowed the adoption to proceed and on December 27, 2018, the adoption decree entered. Id. at 328-29.

Notice Requirements in a Massachusetts Adoption

G. L. c. 210, § 2 identifies the individuals who must be notified when a petition for adoption is filed. Those individuals include the child, if s/he is older than 12 years of age, the child’s spouse, and the lawful parents, or only the mother if the child was “born out of wedlock and not previously adopted.” This putative father did not meet the criteria for any of these categories and was therefore not entitled to notice pursuant to § 2 of the statute. Id. at 331.

G. L. c. 210, § 4 states, “the court may require additional notice and consent.” In Adoption of Arlene, the Court focused upon this language and went beyond the dicta of Adoption of a Minor, 471 Mass. 373, 375 (2015), wherein the Supreme Judicial Court (“SJC”) stated that “a person who does not fit into one of the statutory categories is not entitled to notice.” Id. at 332, quoting Adoption of Minor, 471 Mass. at 375. The Arlene Court explained that it did not interpret the language of Adoption of a Minor to eliminate additional notice to individuals who would be entitled to notice under the United States Constitution. Id. The Court held, “we construe G. L. c. 210, § 4, as requiring notice not only to the persons specifically identified in § 2, but also to any person having a due process right to notice under the United States Constitution.” Id. at 333.

To determine whether the putative father in this case would have such a due process right to notice, the Court turned to Lehr v. Robertson, 463 U.S. 248, 262 (1983), in which the answer hinged on “whether the putative father has previously established a ‘significant custodial, personal, or financial relationship with [the child].’” Id. In distinguishing the putative father in Adoption of Arlene from the putative father in Lehr, the Court highlighted that Arlene’s putative father fully demonstrated his significant relationship with the child, as evidenced by living with the mother and the child for four years, being present at the birth of the baby, having his surname as the child’s middle name, providing financial support, taking the child to medical appointments, and being involved in activities with the child, all before the petition for adoption was filed. Id. at 335. As a result, the Court concluded that this “putative father should have received notice, and a meaningful opportunity to be heard.” Id. The Court further ordered the lower court to confirm the child’s paternity through genetic testing and held that if the putative father’s paternity is established then the adoption proceedings must be reopened so that the putative father can participate in them. Id. at 336. In the end, the Court interpreted the adoption statutes strictly as they are written, while recognizing that a putative father who had established a parental relationship with his child needed some route to challenge an adoption.

As a result of our parentage code not being revised since the mid-1980s, the Court was once again called on to resolve issues of competing claims to parentage in Adoption of Arlene. Although Arlene presented in the adoption context, the SJC heard arguments on December 7, 2022, in another case involving competing parentage claims, this time between a putative father and an acknowledged father. In lieu of a comprehensive parentage code, Massachusetts courts have addressed gaps in the Commonwealth’s adoption statutes by focusing on a child’s established relationships to chart a path forward, rather than relying on biological connection alone. However, the Legislature is overdue to update parentage laws to clarify the paths to parentage for all children and to set guidelines for resolving competing claims of parentage. The Massachusetts Parentage Act, based on the Uniform Parentage Act of 2017, provides a model scheme like ones that exist in other states, and is expected to be filed again in the upcoming legislative session.

Lisa J. Marino is a principal at Wilson, Marino & Bonnevie, P.C. in Newton specializing in domestic relations. She is the editor of Adoption and Reproductive Technology Law in Massachusetts (MCLE, 2018).