ADOPTION OF A MINOR.

DREBEN, J. These are appeals from the dismissal of a petition for adoption and a petition for guardianship, both brought by foster parents of a child committed to the custody of the Department of Social Services (department), and whose only known parent, her mother, voluntarily surrendered custody to the department for the purpose of adoption. We hold that the petitioners (foster parents) have standing to bring the petition for adoption and reverse the judgment dismissing that petition.

Page 469

In the circumstances, we do not reach the question of the propriety of the dismissal of the guardianship petition.

The facts are not in dispute. The child was born on May 6, 1985, and has resided with the foster parents since the age of two weeks, when she was placed with them by an agency under contract with the department. Pursuant to a care and protection proceeding, G. L. c. 119, Sections 24-26, the department received custody of the child. Shortly thereafter, her mother voluntarily executed a surrender of the child to the department for adoption. (G. L. c. 210, Section 2.) Her father is unknown.

Although the foster parents wrote the department in November, 1985, and again in January, 1986, that they wished to adopt the child, the department, after investigation, approved the placement of the child with her maternal great uncle and his wife. On February 14, 1986, the department wrote the foster parents that the child would be removed from their home in order for her to be placed in the adoptive home of her maternal relative and that a preplacement visit for the great uncle and his wife was scheduled. The letter also stated that the department "is mandated by the legislature to keep families together whenever possible [citations omitted]. This also includes extended families." The foster parents were informed that they did not have a right to appeal from the decision of removal because such right of appeal, under the department's regulations, does not apply if the child is to be removed to the home of a relative and the foster parents are not relatives.

The present petitions followed. The department's motions to dismiss both petitions on procedural grounds were allowed without an evidentiary hearing. [Note 1] The foster parents petitioned a single justice of this court for relief. After hearing, the single justice expedited the appeals and ordered that the child remain

Page 470

with the foster parents pending appeal. Visitation with the maternal relative was to be continued on an agreed upon schedule.

The only significant issue before us is whether the foster parents have standing to bring the adoption petition. See note 1, supra. Both parties rely on the recent case of Adoption of a Minor, 386 Mass. 741 (1982) (hereinafter referred to as the 1982 case). There, foster parents were held not to have standing to bring a petition for adoption in a Probate Court while the child's mother was challenging a separate petition for care and protection in a District Court. In its decision, the Supreme Judicial Court first analyzed the adoption statutes and made the following points which are here applicable.

One of the "conditions" of G. L. c. 210, Section 2A, set forth in the margin, [Note 2] must be met before a Probate Court judge may enter a decree of adoption. Id. at 744. The foster parents in this case, as in the 1982 case, fail to satisfy any of the first four conditions of G. L. c. 210, Section 2A. Id. at 745 n.4. The foster parents do, however, meet condition Section 2A(E), which permits a petitioner aggrieved by the refusal of the department to approve a petition for adoption, after being requested to do so, to appeal to the Probate Court. This is so because the foster parents, having failed to obtain the department's approval of their petition, [Note 3] may "appeal" from the department's denial. The

Page 471

statute does not require that the appeal be taken by any particular formal document. Adoption of a Minor, 338 Mass. 635, 639 (1959). "Such an appeal is incorporated in the adoption petition [of the foster parents] and permits the judge to override the Department's decision as part of his determination of the merits of the petition." Adoption of a Minor, 386 Mass. at 745.

The bar to the standing of the foster parents in the 1982 case was that the mother was opposing the care and protection proceeding at the time the adoption petition was brought. She had not consented to adoption, see G. L. c. 210, Section 2, and, in such circumstances, the court held that G. L. c. 210, Section 3, imposed two additional requirements, one of which is relevant here: "The petitioner, or the Department, as the case may be, must have the `care or custody' of the child . . . ." Id. at 744. Although the foster parents in the 1982 case in a literal sense were caring for the child, they were held not to have care of the child for purposes of G. L. c. 210, Section 3(a). [Note 4] Care for the purposes of the statute "means care acquired either with the consent or acquiescence of the parents, or through a statutory procedure for involuntary transfer of care or custody . . . . The foster parents, for their part, derive their rights and status with respect to the child entirely through the Department. If the Department does not have care of the child, for purposes of Section 3, neither can the foster parents have care of the child." Id. at 747.

In the case at bar the care and protection proceeding had been resolved in favor of the department at the time of the filing of the petition for adoption. In such circumstances, the

Page 472

foster parents who have been caring for the child since May, 1985, by a placement derived through the department are not in the shoes of the foster parents of the 1982 case. The stumbling block of that case does not apply to them. They have "care" within the meaning of Section 3(a).

In addition, here, unlike the 1982 case, the mother has consented to adoption. [Note 5] Thus, the provision of G. L. c. 210, Section 3(a), which states the conditions under which consent (see G. L. c. 210, Section 2) is not required, is not in terms here applicable. We need not decide whether the requirement of "care" (contained in Section 3[a], see note 4, supra) termed "additional" by the Supreme Judicial Court in the 1982 case at 744, is a prerequisite to bringing an adoption petition where there is consent. [Note 6] In any event, the foster parents have such "care." They have satisfied the condition of G. L. c. 210, Section 2A(E), see note 2, supra, and they are entitled to bring their "appeal" to the Probate Court by means of a petition for adoption. At the hearing on the petition, the department will undoubtedly submit its plan for adoption of the child. Because the issues in the guardianship petition are subsumed in the adoption petition, we do not reach the question whether the former was properly dismissed.

The judgment dismissing the adoption petition is reversed, and the petition is to be heard on the merits in as expedited a manner as is feasible. Until otherwise ordered by a Probate Court judge, the orders of the single justice of this court, including the visiting schedule, shall remain in force. [Note 7]

So ordered.