NOTICE: The slip opinions and orders posted on this Web site are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. This preliminary material will be removed from the Web site once the advance sheets of the Official Reports are published. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us
L.M. [FN1] vs. R.L.R., executor. [FN2]
SJC-10060
May 5, 2008. – June 19, 2008.
Parent and Child, Child support, Support of child born out of wedlock. Devise and Legacy, Child born out of wedlock. Public Policy. Statute, Construction.
COMPLAINT to establish paternity filed in the Plymouth Division of the Probate and Family Court Department on October 12, 2006.
A motion to dismiss was heard by Catherine P. Sabaitis, J., and the case was reported to the Appeals Court by her. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
Diane M. Mulligan for the plaintiff.
John J. Spillane (Matthew T. Spillane with him) for the defendant.
Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Cordy, & Botsford, JJ.
GREANEY, J.
Pursuant to G.L. c. 215, § 13, and Mass. R. Civ. P. 64, as amended, 423 Mass. 1410 (1996), a judge in the Probate and Family Court reserved and reported the question whether a judge of that court has authority under G.L. c. 209C, § 9, [FN3] to enter an initial award of child support, for the benefit of a nonmarital [FN4] child, after the death of the obligor, the child’s father. We transferred the report here on our own motion, and answer the question in the affirmative with the qualifications noted herein.
The background of the case is as follows. J.M.M. and L.M. had a nonmarital relationship prior to 1992, ending in July, 1998. During this relationship, on October, 17, 1992, a child whom we shall call Jaclyn was born. J.M.M. is named as Jaclyn’s father on her birth certificate. In 1993, J.M.M. and L.M. executed a voluntary acknowledgment of parentage that they filed with the registry of vital statistics pursuant to G.L. c. 46. See G.L. c. 209C, § 2. [FN5]
Although J.M.M. eventually married someone other than L.M. and had two daughters from that marriage, he maintained a good relationship with Jaclyn. Jaclyn had a positive relationship with her two half-sisters and J.M.M.’s wife. After his marriage, J.M.M. continued to support Jaclyn financially. He voluntarily paid fifty dollars a week to L.M. in child support and yearly tuition for her private school, as well as all associated expenses such as uniforms, supplies, and fees. J.M.M. paid the costs of Jaclyn’s extracurricular activities, which included guitar, ice skating, and horseback riding lessons. J.M.M. maintained Jaclyn on his health insurance policy, paid the copayments for medical appointments, and paid for her optical and dental care. In 2005, J.M.M.’s support-related payments for Jaclyn totaled approximately $19,795.
In 2003, J.M.M. executed a will in which he named Jaclyn as one of his children. In his will, J.M.M. bequeathed all of his assets to his wife. J.M.M., however, named Jaclyn as a residual legatee along with his other children, with distributions to be made to them in equal shares. J.M.M. named the defendant, his father-in-law, as his executor.
On April 1, 2006, J.M.M. died in an automobile accident. L.M. has not received any support payments for Jaclyn since J.M.M.’s death. [FN6] No complaint for child support under G.L. c. 209C was ever filed prior to J.M.M.’s death due to his voluntary support of Jaclyn. [FN7]
After being appointed Jaclyn’s guardian, L.M. timely filed a complaint in the Probate and Family Court against the defendant under G.L. c. 209C, seeking orders establishing paternity and providing for the payment of child support. See G.L. c. 190, § 7 [FN8]; G.L. c. 197, § 9. [FN9] The defendant moved to dismiss the complaint, arguing that, where there had never been an order of child support entered against J.M.M. during his lifetime under G.L. c. 209C, § 9, the judge lacked authority to enter an initial award of child support after J.M.M.’s death (which would then, be enforceable against J.M.M.’s estate). The judge disagreed and denied the motion. The judge then entered an order deferring action on pending motions made by L.M., and entered her reservation and report.
1. We have previously held that an order of child support, for the benefit of a nonmarital child, made during the obligor’s life may survive the obligor’s death and be enforced against his estate. L.W.K. v. E.R.C., 432 Mass. 438, 443-448 (2000). [FN10] We have not decided, however, whether an initial order of child support for a nonmarital child may enter after the death of the obligor and be enforceable against his estate. We conclude that, where paternity is not disputed (as is the case here), the policy mandates of the Legislature concerning support and protection of nonmarital children permit the entry and enforcement of such order. [FN11]
The considerations comprehensively discussed in L.W.K. v. E.R.C., supra at 442-448, including exceptions to testamentary freedom, legislative changes increasing protection for children, explicit legislative mandates concerning child support, public policy concerns, and prevailing contemporary legal authority, apply equally here. Of paramount importance to our conclusion is the existence of the continuing obligation of parents to support their children. The law has long imposed “a duty on parents ‘to support, provide for and protect the children they bring forth’ (at least those children brought forth in a traditional family context).” T.F. v. B.L., 442 Mass. 522, 538 n. 2 (2004) (Greaney, J., concurring in part and dissenting in part), quoting Commonwealth v. Brasher, 359 Mass. 550, 556 (1971). See Taverna v. Pizzi, 430 Mass. 882, 884 (2000). The Legislature has set forth this duty in “unmistakable terms,” stating: “It is the public policy of the commonwealth that dependent children shall be maintained, as completely as possible, from the resources of their parents thereby relieving or avoiding, at least in part, the burden borne by the citizens of the commonwealth.” L.W.K. v. E.R.C., supra at 444, quoting G.L. c. 119A, § 1. To “effectuate” that public policy, the Legislature has declared that the statutes concerning child support enforcement “shall be liberally construed.” L.W.K. v. E.R.C., supra, quoting G.L. c. 119A, § 1.
The Legislature has extended the provision of child support to children who have not been born (or who do not remain) in a traditional family context. Indeed, the protection of nonmarital children, as well as children of divorced parents, “has been a hallmark of legislative action and of the jurisprudence of this court.” L.W.K. v. E.R.C., supra at 448. With respect to the provision of child support for nonmarital children, the Legislature expressly has mandated, by enacting G.L. c. 209C, [FN12] that such children be supported by their biological parents:
“Children born to parents who are not married to each other shall be entitled to the same rights and protections of the law as all other children. It is the purpose of this chapter to establish a means for such children either to be acknowledged by their parents voluntarily or, on complaint by one or the other of their parents … to have an acknowledgment or adjudication of their paternity, to have an order for their support and to have a declaration relative to their custody or visitation rights ordered by a court of competent jurisdiction…. Every person is responsible for the support of his child born out of wedlock from its birth up to the age of eighteen, or, where such child is domiciled in the home of a parent and principally dependent upon said parent for maintenance, to age twenty-one. Each person charged with support under this section shall be required to furnish support according to his
financial ability and earning capacity pursuant to the provisions of this chapter.” (Emphasis added.)
G.L. c. 209C, § 1.
That one parent of a nonmarital child may forgo petitioning the court for an order of support under G.L. c. 209C, § 9, from the other parent, who undisputedly is a “person charged with support” under § 1, does not negate the status of the other parent as continually being a “person charged with support.” A parent may choose to avoid seeking a court order for support pursuant to § 9 for a variety of reasons, such as financial limitations or finding resort to court intervention unnecessary because the other parent voluntarily has been supporting the nonmarital child. What remains constant, in the circumstances of either the presence or absence of an actual order of support, is the obligation of a parent to provide support and a child’s continued need for that support. A child’s needs do not end with the death of a parent who has been providing support. Thus, our conclusion comports with an additional important public policy furthered by the child support scheme, namely, the provision for the best interests of children. Department of Revenue v. Mason M., 439 Mass. 665, 674-675 (2003). It also is consistent with the Legislature’s imperative to abolish discriminatory treatment (at least by statute) toward nonmarital children. See G.L. c. 209C, § 1 (stating nonmarital children “shall be entitled to the same rights and protections of the law as all other children”); Goodridge v. Department of Pub. Health, 440 Mass. 309, 325 (2003) (noting “Commonwealth’s strong public policy to abolish legal distinctions between marital and nonmarital children in providing for the support and care of minors”); Doe v. Roe, 23 Mass.App.Ct. 590, 592 (1987) (pointing out that discriminatory treatment of nonmarital children in matters of support, intestate succession, and remedies in domestic relations controversies, usually will result in an unconstitutional denial of equal protection). See also Clark v. Barba, 37 Mass.App.Ct. 322, 323 (1994) (concluding that Probate and Family Court judge could modify child support provisions of judgment of divorce after death of obligor). As noted in L.W.K. v. E.R.C., supra at 443 n. 15, unlike marital children, nonmarital children cannot benefit from spousal elective share legislation when an obligor dies.
While many courts have decided the issue presented in L.W.K. v. E.R.C., supra, see 2 H.H. Clark, Jr., Domestic Relations in the United States § 18.2, at 377-378 (2d ed.1987), it does not appear that many courts have passed on the narrow issue presented in this case. At least one other State appellate court, however, has held that its State’s statutory scheme and legal precedents did not, on an obligor’s death, bar the entry of a postmortem order of child support against the obligor’s estate. See Matter of the Estate of Delara, 131 N.M. 430, 433 (Ct.App.2001). Although the nature and form of the “obligation” to support a child, and the timing of the imposition of such “obligation,” has not been specifically addressed, contemporary legal authority supports, in general terms, the enforcement of an “obligation” to pay child support after the obligor’s death. See American Law Institute’s (ALI) Principles of the Law of Family Dissolution: Analysis and Recommendations § 3.25 (2002). [FN13] See also 2 H.H. Clark, Jr., Domestic Relations in the United States, supra at § 18.2, at 379 (suggesting that determinative factors include “what equity and fairness demand at the time of the obligor’s death, in the light of the circumstances then prevailing”). The Legislature has adopted the same view. See L.W.K. v. E.R.C., supra at 445. Under the Child Support Enforcement Act, an “[o]bligor” is defined as “an individual, or the estate of a decedent, who owes or may owe a duty of support, or who is liable under a child support obligation, or who is alleged, by sworn statement, to be the parent of a child to whom a duty of support is owed” (emphasis added). G.L. c. 119A, § 1A. The italicized language “plainly suggest[s] that the Legislature intended liability for child support obligations to survive the death of a parent.” L.W.K. v. E.R.C., supra. So also is the implication contained in G.L. c. 190, § 7, see note 8, supra. To limit enforcement of a child support obligation to only those taking the form of a preexisting legal order would have the potential of adversely affecting the financial stability of children and would discourage parents from attempting to resolve support issues amicably and without resort to court intervention, the latter of which can fast consume one’s resources.
2. We conclude that the judge’s question, as reported, must be answered as follows: Where paternity is not disputed, the unequivocal policy mandates of the Legislature concerning the support and protection of nonmarital children, permit a Probate and Family Court judge to enter (and subsequently enforce) an initial award of child support for a nonmarital child after the death of the obligor. In fashioning such an order, the judge must take into account, by means of a credit to J.M.M.’s estate, the Social Security survivor benefits, life insurance proceeds, and any other payments or benefits Jaclyn has, or will, receive. [FN14] See L.W.K. v. E.R.C., supra at 452.
So ordered.
FN1. Guardian of Jaclyn, a pseudonym.
FN2. Of the estate of J.M.M.
FN3. General Laws c. 209C, § 9 (a ), addresses orders for child support in paternity actions. The statute provides, in pertinent part:
“If the court finds that a parent is chargeable with the support of a [nonmarital] child, the court shall make an order … requiring a parent to pay weekly or at other fixed periods a sum for and toward the current support and maintenance of such child. The court may make appropriate orders of maintenance, support and education for any child who has attained age eighteen but who has not attained age twenty-one, who is domiciled in the home of a
parent and is principally dependent upon said parent for maintenance. The court may make appropriate orders of maintenance, support and education for any child who has attained age twenty-one but who has not attained age twenty-three if such child is domiciled in the home of a parent, and is principally dependent upon said parent for maintenance due to the enrollment of such child in an educational program, excluding educational costs beyond an undergraduate degree. Upon the petition of a party, the court shall also order past support for the period from the birth of the child to the entry of the order….”
FN4. A “nonmarital child” describes a child born to parents who are not legally married to each other. See Woodward v. Commissioner of Social Sec., 435 Mass. 536, 543 n. 12 (2002).
FN5. General Laws c. 209C, § 2, provides, in pertinent part:
“Paternity may be established by filing with the court, the clerk of the city or town where the child was born or the registrar of vital records and statistics an acknowledgment of parentage executed by both parents…. Upon receipt of an acknowledgment of paternity, the clerk of such city or town shall forward the original acknowledgment to said registrar as provided in chapter 46. Upon receipt of an acknowledgment of parentage … the court shall transmit to the registrar of vital records and statistics a certified copy of
the acknowledgment … together with such statistical information as said registrar may require…. Actions to establish support obligations or for custody or visitation rights may also be filed pursuant to this chapter.”
FN6. Jaclyn currently receives $992 a month in Social Security survivor benefits. Her counsel represented at oral argument that she also received $200,000 in life insurance proceeds.
FN7. There were no written agreements between L.M. and J.M.M. at any time concerning custody, visitation, or child support.
FN8. General Laws c. 190, § 7, provides, in pertinent part: “If a decedent has acknowledged paternity of a person born out of wedlock or if during his lifetime or after
his death a decedent has been adjudged to be the father of a person born out of wedlock that person is heir of his father…. A person may establish paternity if, within the period provided under [G.L. c. 197, § 9,] for bringing actions against executors and administrators, such person either (a ) delivers to the executor or administrator an authenticated copy of a judgment rendered by a court of competent jurisdiction during a decedent’s lifetime adjudging the decedent to be the father of a person born out of wedlock, or (b ) commences, in a court of competent jurisdiction, an action in
which the executor or administrator is a named party and in which such paternity is ultimately proved.”
FN9. General Laws c. 197, § 9 (a ), provides that an executor “shall not be held to answer to an action by a creditor of the deceased unless such action is commenced within one year after the date of death of the deceased.”
FN10. We explained that testamentary freedom is not absolute, and that certain preexisting obligations, including a legally enforceable obligation to pay child support, take priority over testamentary dispositions. L.W.K. v. E.R.C., 432 Mass. 438, 442 (2000). We went on to state that the obligation to support a child cannot be nullified by a testamentary provision expressly disinheriting the child. Id. at 442-443.
FN11. Insofar as child support is concerned, we no longer follow the antiquated sentiments expressed in Gediman v. Cameron, 306 Mass. 138, 141 (1940).
FN12. General Laws c. 209C does not speak to the circumstance of the death of an obligor of child support. Nothing in the statute expressly prohibits the result we reach.
FN13. Section 3.25 of the American Law Institute’s (ALI) Principles of the Law of Family Dissolution: Analysis and Recommendations (2002) provides:
“The child-support rules should provide that the obligation to pay child support does not automatically terminate upon the death of an obligor. If a child-support obligor dies, the court may, as justice requires, modify or terminate the support obligation, or commute the support obligation to a lump-sum payment.”
FN14. See Taverna v. Pizzi, 430 Mass. 882, 884-885 (2000) (within judge’s discretion under G.L. c. 208, §§ 28, 36, to require obligor to secure child’s future support needs in event of his death by executing life insurance policy for child). See also ALI Principles of the Law of Family Dissolution: Analysis and Recommendations, supra at § 3.25, Reporter’s Notes to comment b at 569 (noting that continuance of child support obligation may be effected by “the common practice of requiring the support obligor to maintain life insurance naming the child as beneficiary”).
Certainly the life insurance should have taken care of the regular child support. What a state!!!
[Note: I told the gentleman I represented in this case that “I think that law is being made on your back. You only earn $320 a week and your current wife is on dialysis, at that. IF “they” actually do go after you for child support, I will represent you pro bono.” The State never did go after him for child support. This beleagured single father had sought mental health assistance for AN OUT-OF-CONTROL TEEN, and instead lost his child in this heinous way. I should note that once the teen was in state custody, she ran, and at the time this decision was issued, “they” had no idea where my client’s child was. Just FYI. Deb
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p>See “Adoption of Marlene” which follows:
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p>NOTICE: The slip opinions and orders posted on this Website are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. This preliminary material will be removed from the Website once the advance sheets of the Official Reports are published. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, Room 1407, Boston, MA 02108; (617) 557-1030; clifford.allen@sjc.state.ma.us
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p>ADOPTION OF MARLENE.
SJC-09275
December 6, 2004. – February 17, 2005.
Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.
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p>Statute, Construction. Parent and Child, Child support, Care and protection of minor. Adoption, Care and protection. Public Policy.
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p>Petition filed in the Essex County Division of the Juvenile Court Department on February 6, 2003.
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p>A motion for child support was heard by Leslie A. Donahue, J.
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p>The Supreme Judicial Court granted an application for direct appellate review.
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p>Deborah Sirotkin Butler for the father.
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p>Virginia A. Peel for Department of Social Services.
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p>Brigid Kennedy-Pfister for the child.
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p>COWIN, J.
<
p>In this case, we consider the effect of a parent’s consent to adoption on that parent’s duty to support his or her child. The child involved here, whom we shall call Marlene, was the subject of a care and protection petition and, after her attorney petitioned for child support on her behalf, her father voluntarily consented to her adoption under G.L. c. 210, § 2. A judge in the Juvenile Court granted the child’s motion for support, and the father appealed from that order, arguing that a § 2 consent to adoption terminates the entire parent-child relationship, including the parent’s obligation to support the child. We granted the father’s application for direct appellate review. We conclude that a parent’s consent to adoption of his or her child under G.L. c. 210, § 2, does not terminate the parental duty to support the child.
<
p>Facts. The facts underlying this appeal are not in dispute. On February 6, 2003, the Department of Social Services (department) filed a care and protection petition, see G.L. c. 119, § 24, seeking temporary custody of Marlene. [FN1] The basis for the petition was alleged physical abuse of Marlene by her father. One week later, the father waived his right to a hearing to contest the award of temporary custody. Shortly thereafter, a Juvenile Court judge awarded temporary custody of Marlene to her stepsister. Marlene was later placed in a “Planned Permanency Living Arrangement.” [FN2] Adoption was never sought for Marlene, and the department’s original plan was reunification between the father and the child.
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p>The issue of support for the child developed as follows. On March 14, 2003, after Marlene was placed in the temporary custody of her stepsister, the child, by her attorney, moved for an order, pursuant to G.L. c. 119, § 28, [FN3] for child support from her father. [FN4] On March 18, 2003, the father signed an adoption surrender that complied with the requirements of G.L. c. 210, § 2, which provides that a parent can consent to the adoption of his or her child, and waive all right to further notice of proceedings involving the child’s custody, guardianship, adoption, or other disposition. [FN5] The statute also contains the wording for the form by which a parent consents to adoption, [FN6] and the form the father signed was in the statutory language. In accordance with the statutory mandate “[a] copy of said consent [was] filed with the department.” See G.L. c. 210, § 2. Although nothing in the statute requires a court filing, on April 8, 2003, the father filed a copy of the adoption surrender with the court. Concerned about a lack of authority to order child support after a voluntary surrender, the judge declined to order support from the father.
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p>On June 19, 2003, the judge reversed herself and allowed the child’s motion for support, requiring the father “to file a financial statement with probation and to pay [c]hild [s]upport consistent with the Child Support Guidelines.” The judge later issued findings of fact and conclusions of law in support of her order, holding that a § 2 consent could not relieve the father of his child support obligations. The father appealed from the order, and child support proceedings were stayed pending resolution of this issue.
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p>Discussion. We have not had occasion to determine whether the filing of a voluntary consent to adoption under G.L. c. 210, § 2, terminates a parent’s obligation of child support. In interpreting § 2, we look first to the language of the statute. “[S]tatutory language is the principal source of insight into legislative purpose.” Local 589, Amalgamated Transit Union v. Massachusetts Bay Transp. Auth., 392 Mass. 407, 415 (1984), quoting Bronstein v. Prudential Ins. Co., 390 Mass. 701, 704 (1984). When the words of a statute are clear, they are to be given their ordinary and natural meanings. Bronstein v. Prudential Ins. Co., supra, citing Hashimi v. Kalil, 388 Mass. 607, 610 (1983). If the meanings are unclear, the 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.” Telesetsky v. Wight, 395 Mass. 868, 872 (1985), quoting Commonwealth v. Galvin, 388 Mass. 326, 328 (1983). In addition, “a statute should be read as a whole to produce an internal consistency.” Telesetsky v. Wight, supra at 873.
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p>Section 2 does not mention the word “support,” and makes no reference to any other section that addresses the topic. Hence, any relationship between § 2 and a parent’s duty to support exists only by inference. The father asks us to infer that the Legislature intended that the language of § 2 terminate this statutory obligation. We decline to do so.
<
p>In interpreting § 2, we start from the proposition that parents have a preexisting obligation to support their children. This duty to support “has existed by statute in some form since as early as 1692.” T.F. v. B.L., 442 Mass. 522, 532 (2004), citing Commonwealth v. Chase, 385 Mass. 461, 469 (1982); and Province Laws 1692-1693, c. 18, § 5. Over time, the Legislature has created a comprehensive statutory system governing child support, imposing that obligation on any parent who acknowledges paternity or is adjudicated to be the father. See T.F. v. B.L., supra at 532 (duty to support minor child is statutory and longstanding). This responsibility is imposed by several statutes. See, e.g., G.L. c. 119A, § 1; G.L. c. 208, § 28; G.L. c. 209, § 37; G.L. c. 209C, § 9. Our cases have acknowledged as much. See T.F. v. B.L., supra; L.W.K. v. E.R.C., 432 Mass. 438, 443 (2000). Thus, when a parent consents to adoption of a child under § 2, such consent must be viewed in terms of the preexisting duty of support toward that child.
<
p>Section 2 says nothing and implies nothing concerning the termination of a parent’s support obligations. The statutory consent form is very limited and precise. It states that the parent “voluntarily and unconditionally surrender [s] (child) to the ca
re and custody of (agency or person receiving custody) for the purpose of adoption or such other disposition as may be made by a court of competent jurisdiction.” It also provides for a “waive[r][of] notice of any legal proceeding affecting the custody, guardianship, adoption or other disposition of (child).” G.L. c. 210, § 2. The form has two effects. First, the parent grants to the specified agency or person custody of the child and consent to “adoption or such other disposition” of the child. Second, the parent thereby waives the right to notice of any legal proceeding that affects the “custody, guardianship, adoption or other disposition” of the child. This consent to custody and adoption and accompanying waiver of notice surrender important parental rights, but only those specific rights.
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p>To the extent there is any ambiguity in the effect of § 2, resolution of that ambiguity is informed by the fact that the Legislature is unlikely to have relieved a biological parent of the existing duty of support by inference. Had the Legislature intended that § 2 have any impact beyond its stated terms, it could have done so by specifying what consequence signing the form would have on a parent’s obligations. Cf. G.L. c. 210, § 6 (decree of adoption ends all “rights, duties and other legal consequences” of natural parents). In the absence of any indication of such legislative intent, we do not read such an effect into this section. “We will not add words to a statute that the Legislature did not put there, either by inadvertent omission or by design.” Commonwealth v. Callahan, 440 Mass. 436, 443 (2003), quoting Commonwealth v. McLeod, 437 Mass. 286, 294 (2002), and cases cited. See Civitarese v. Middleborough, 412 Mass. 695, 700 (1992) (“We will not read into the plain words of a statute a legislative intent that is not expressed by those words”). The various support statutes and § 2 are unrelated, and reading the section more broadly than its explicit terms allow is inappropriate. “The law of adoption is purely statutory … and the governing statute, G.L. c. 210 … is to be strictly followed in all its essential particulars.” Adoption of Tammy, 416 Mass. 205, 210 (1993).
<
p>The father contends that a legislative intent that the § 2 surrender should end all parental obligations to the child is evidenced by the following language in the § 2 form, “I UNDERSTAND THAT THIS SURRENDER IS FINAL AND CANNOT BE REVOKED.” G.L. c. 210, § 2. These words (as well as another statutory reference to the final and irrevocable nature of the consent) mean only that the surrender is final as to the enumerated rights being surrendered. The finality of that surrender does not expand the scope of what is thereby surrendered, nor does it transform the surrender into a document terminating the responsibilities of the parent.
<
p>Our interpretation of the statute renders it a consistent part of the statutes concerning adoption. “We ordinarily construe statutes to be consistent with one another.” Green v. Wyman-Gordon Co., 422 Mass. 551, 554 (1996). “Statutes addressing the same subject matter clearly are to be construed harmoniously so as to give full effect to all of their provisions and give rise to a consistent body of law.” Ciardi v.F.Hoffmann-La Roche, Ltd., 436 Mass. 53, 62 (2002), citing Green v. Wyman-Gordon Co., supra. See St. Germaine v. Pendergast, 411 Mass. 615, 626 (1992). “A basic tenet of statutory construction requires that a statute ‘be construed so that effect is given to all its provisions, “so that no part will be inoperative or superfluous.” ‘ ” Wolfe v. Gormally, 440 Mass. 699, 704 (2004), quoting Bankers Life & Cas. Co. v. Commissioner of Ins., 427 Mass. 136, 140 (1998).
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p>General Laws c. 210, § 6, which provides for decrees of adoption, states: “If the court is satisfied … that the child should be adopted, it shall make a decree, by which, except as regards succession to property, all rights, duties and other legal consequences of the natural relation of child and parent shall thereafter exist between the child and the petitioner and his kindred, and such rights, duties and legal consequences shall, except as regards marriage, incest or cohabitation, terminate between the child so adopted and his natural parents …” (emphasis added). The termination of “duties and legal consequences” in § 6 clearly ends a parent’s duty of support on adoption. To read § 2 as also terminating the parent-child relationship and concomitant duty of support would be to render the highlighted language of § 6 superfluous in any case where adoption resulted after a parent gave consent pursuant to § 2. Such a reading would not produce a harmonious result, and would fail to give effect to an important provision of the adoption statute. We do not read one section of a statute as negating another.
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p>The father’s reading of § 2 conflicts with deeply entrenched public policy on the subject of child support. The child support scheme in Massachusetts furthers two important goals: “(1) providing for the best interests of children, and (2) ensuring that the taxpayers are secondary to the parents in meeting the financial needs of dependent children.” Department of Revenue v. Mason M., 439 Mass. 665, 669 (2003). See Boulter-Hedley v. Boulter, 429 Mass. 808, 812-813 (1999), citing G.L. c. 119A, §§ 1, 13 (c ); G.L. c. 208, § 28; Child Support Guidelines. See also G.L. c. 209C, § 9 (c ). The father’s interpretation of the statute runs directly counter to the public policy that parents, not the State, should support their children. It is highly unlikely that the Legislature would, by inference, permit such an easy evasion of this responsibility. See White v. Laingor, 434 Mass. 64, 65 (2001) (where no judicial determination that its terms advance best interests of child, agreement to exchange parental rights for reduction in child support payments unenforceable). [FN7]
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p>Conclusion. The order of the Juvenile Court granting the child’s motion for support is affirmed.
<
p>So ordered.
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p>1. General Laws c. 119, § 24, states in part:
“The divisions of the juvenile court department, upon the petition under oath of a person alleging on behalf of a child under the age of 18 within the jurisdiction of the court that the child: (a ) is without necessary and proper physical or educational care and discipline; (b ) is growing up under conditions or circumstances damaging to the child’s sound character development; (c ) lacks proper attention of the parent, guardian with care and custody or custodian; or (d ) has a parent, guardian or custodian who is unwilling, incompetent or unavailable to provide any such care, discipline or attention, may issue a precept to bring the child before the court, shall issue a notice to the department and summonses to both parents of the child to show cause why the child should not be committed to the custody of the department or that any other appropriate order should not be made…. If, after a recitation under oath by the petitioner of the facts of the condition of the child who is the subject of the petition, the court is satisfied that there is reasonable cause to believe that the child is suffering from serious abuse or neglect or is
in immediate danger of serious abuse or neglect and that immediate removal of the child is necessary to protect the child from serious abuse or neglect, the court may issue an emergency order transferring custody of the child to the department or to a licensed child care agency or individual…. A transfer of custody shall be for a period not exceeding 72 hours except that upon the entry of the order, notice shall be given to either or both parents, guardian with care and custody or other custodian to appear before the court. The court shall, at that time, determine whether temporary custody shall continue until a hearing on the merits of the petition for care and protection is concluded before the court.”
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p>2. The term “Planned Permanency Living Arrangement” appears in the docket, but is not defined by the parties or by the care and protection statute, G.L. c. 119. We assume that this phrase
refers to the living situation of the child pursuant to a permanency plan filed by the department with the Juvenile Court. See G.L. c. 119, § 29B.
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p>3. The relevant portion of G.L. c. 119, § 28 (a ), provides: “During the pendency of an action brought pursuant to section twenty-four, temporary orders providing for the support of a child may be entered. The court may thereafter enter a judgment against the party chargeable with support….”
General Laws c. 119, § 28 (b ), states in part that “[a]ctions under this section to establish support of a child may be commenced by a parent, whether a minor or not; by the child; by the child’s guardian, next of kin or other person standing in a parental relationship to the child; [or] by the authorized agent of the department….”
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p>4. The child also moved for support from her mother but, due to the mother’s indigency, later withdrew the motion.
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p>5. The statute provides in part:
“A decree of adoption shall not be made, except as provided in this chapter, without the written consent of the child to be adopted, if above the age of twelve; of the child’s spouse, if any; of the lawful parents, who may be previous adoptive parents, or surviving parent; or of the mother only if the child was born out of wedlock and not previously adopted. A person whose consent is hereby required shall not be prevented from being the adoptive parent…. A copy of said consent shall be filed with the department of social services. A consent executed in accordance with the provisions of this section shall be final and irrevocable from date of execution.”
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p>6. The form of the consent, set forth in the statute, reads in relevant part:
“I, as the (relationship) of (name of child), age , of the sex, born in (place of birth), on (date of birth), do hereby voluntarily and unconditionally surrender (child) to the care and custody of (agency or person receiving custody) for the purpose of adoption or such other disposition as may be made by a court of competent jurisdiction. I waive notice of any legal proceeding affecting the custody, guardianship, adoption or other
disposition of (child).
“I UNDERSTAND THAT THIS SURRENDER IS FINAL AND CANNOT BE REVOKED.
s (person giving consent).”
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p>7. The father cites cases from several other jurisdictions in which a termination of parental rights has been held to terminate parental obligations. However, the holdings in those cases are often based on details of the State’s statute that differ from ours. Moreover, in every case cited by the father, there has been judicial involvement in the termination, a process that G.L. c. 210, § 2, does not afford. See County of Ventura v. Gonzales, 88 Cal.App.4th 1120, 1122 (2001); In re J.L.W., 496 N.W.2d 280, 282 (Iowa Ct.App.1992); Roelfs v. Sam P. Wallingford, Inc., 207 Kan. 804, 811 (1971); McCabe v. McCabe, 78 P.3d 956, 960 (Okla.2003); Kauffman v. Truett, 771 A.2d 36, 38 (Pa.Super.Ct.2001); Coffey v. Vasquez, 290 S.C. 348, 350 (1986); State ex rel. B.M.S. v. H.J., 65 P.3d 639, 642 (Utah Ct.App.2003); Commonwealth ex rel. Spotsylvania County Dep’t of Social Servs. v. Fletcher, 38 Va.App. 107, 112 (2002), aff’d, 266 Va. 1 (2003). Indeed, in at least one State, the presence of a court order terminating parental rights extinguishes the duty of support, but a voluntary surrender of those rights, standing alone, does not. See Department of Human Resources v. Cowan, 220 Ga.App. 230, 231 (1996); Department of Human Resources v. Ammons, 206 Ga.App. 805, 806 (1992).
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p>(C) 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.
OK — estate planning attorney hat on here.
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p>Assuming that the non-custodial parent can afford something more than bare-minimum child support payments, the ideal solution would be to set up a trust which would own a term life policy, with the term expiring when the child is 23 (and presumably graduated from college, at which point the support obligation usually ends). The non-custodial parent would pay a fairly modest monthly or annual premium. The support order would direct the non-custodial parent to make the payments. The nice thing about the trust is that it could be amended as needed should the child turn out to have special needs or there was otherwise good reason not to allow a payout except under certain circumstances.
The only way to stop this madness is to have ore fathers become custodial parents. At the point the courts would force Fathers to go out and get jobs, maybe second jobs. And any attempts at further support (after age 23) would be met with loud rancorous laughter from the courts.
John — I’m not looking to get into the gender issue/father’s rights stuff. I’m an estate planner/elder law/guardianship attorney. I’m simply stating that if I had a client in this situation and given the SJC’s directive, there’s a way of minimizing the cost to the estate for potential future support — insurance.
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p>G.L. c. 208, s. 28 expressly extends the right to child support up to age 23 if the child is in a post-secondary program. If the child goes straight from high school to college and completes college without taking time off, the child support will extend through to graduation. (Note that case law holds that if the child stops going to school at any point after age 18, the right of support ends.) BTW, there is also case law — which I’ve successfully used for the benefit of a developmentally disabled adult — extending the right of support into adulthood if the adult child of any age is disabled to the point where he cannot ever work.
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p>Settlement agreements in which one or both parents agree to carry term life insurance for the benefit of the children aren’t all that unusual. Planning of this nature is really part of looking out for the child’s future needs, just as if the parents had stayed together and purchased insurance.
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p>The facts of the case decided last week suggests that the non-custodial parent was relatively well-off. Given how inexpensive term life insurance can be, in this case, a policy would probably not have been terribly burdensome.
You are a lawyer and I may be mistaken, but I believe the case in this post the child recieves $992 monthly Social Security benefits and, after a suit, has collected a $200,000 life insurance policy. So in this case, he already had a life insurance policy, will get SS benefits and they still want more.
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p>I am sorry about the gender remarks (although true) and this was not the right post for this comment. And I agree with you tha I know many, if not most divorced couples(both) have Life Insurance where Child Support is being paid.
Please, counselor, post links to the opinions, not the whole case! Thanks.
…not all of them are online; most require subscriptions because after the “slip opinion” time frame, then it requires something like fastcase, westlaw, loislaw, etc. I pay either membership dues or for CDs, and not cheap, either. While it is fairly easy to get free USSCT cases, this is not the case with state appellate cases. And I don’t have a website where I can post these.