CUSTODY OF A MINOR.

ARMSTRONG, J. This petition was brought and tried in the Springfield Juvenile Court under G. L. c. 119, Section 24, and was thereafter retried in the Superior Court pursuant to G. L. c. 119, Section 27. The petition sought transfer of custody of a small child from her parents to the Department of Public Welfare (department). The child's mother appeals from a judgment of the Superior Court granting the petition. We affirm.

The Superior Court judge entered lengthy and detailed findings about the tragic sequence of events which culminated in the judgment appealed from. The mother does not challenge those findings, but contends only that they required a contrary result as matter of law. Because of the rather limited scope of her arguments in support of that contention, we believe that no purpose would be served by our summarizing the facts found in other than a highly abbreviated fashion.

At the time of the child's birth in December, 1972, her mother was a divorcee and was living with the child's father, by whom the mother had previously borne a boy who had been taken from her and placed in a foster home. In February, 1973, the present petition was brought, and temporary custody of the younger child was granted to the department, which placed the child in a foster home. An investigator appointed by the Springfield Juvenile Court filed a detailed report in November, 1973, in which he described the conditions under which the child's parents were then living and concluded that the mother would be incapable of making a good home and caring for the child. A court psychiatrist examined the mother the following month and arrived at the same conclusion, characterizing the mother as "a troubled woman" who suffered from schizophrenia. In January, 1974, the Juvenile Court adjudged the child to be a "neglected" one and ordered her

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committed to the department. The mother appealed to the Superior Court.

After a series of hearings before a judge of the Superior Court in December, 1974, an interlocutory order was entered whereby the parties were directed to devise a plan for the eventual return of the child to her parents. Such a plan was prepared, calling for a series of visits of increasing duration, to the end that the parents and child would become sufficiently adjusted to the change that the child could be returned to them permanently within about one year. The plan was implemented and appeared to be proceeding with qualified success (the child at all times vigorously resisted overnight separations from her foster parents) until the child was delivered to the parents on a permanent basis on June 10, 1975. Two days later the mother made a telephone call to the department in which she reported (apparently without basis) that the father had locked her out of their apartment, keeping the child with him, and she requested that the department come and get the child. The department did so and returned the child to the foster home at which she had been living almost continuously since 1973.

The child's mother and father had married in May, 1974, but had separated from time to time thereafter. They separated permanently in July, 1975. The mother failed to cooperate with a psychiatrist appointed by the court at about that time. As of October 3, 1975, when the trial judge entered his findings, the child was happy and content in her foster home, and her foster parents had expressed an interest in adopting her. She was then almost three years old.

On the basis of his findings, the judge drew conclusions, set out more fully in the margin, [Note 1] that there had been no

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legal basis for transferring custody of the child to the department at the time the petition was filed in the Juvenile Court but that, nevertheless, at the time of his decision, the parents were unfit to provide the child with proper care, the child was in need of care and protection, and the best interests of the child would not be served by returning her to the care of her parents. Accordingly, the judge ordered that the child be committed to the custody of the department until she should reach the age of eighteen

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or until the object of her commitment should be accomplished. The mother attacks the judgment entered pursuant to that order on two grounds.

1. The first of those grounds rests on the following statement in Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 642 (1975): "A parent cannot be deprived [of custody of a child] unless some affirmative reason is shown for doing so such as a finding of a serious problem with that parent, or of a separation so long as to permit very strong bonds to develop between the child and the prospective adoptive parents." While the Little Wanderers case arose in a different statutory context from the present one, we agree with the mother that the foregoing rule is equally applicable to proceedings brought under G. L. c. 119, Section 24, as was this one. Indeed, Section 24 expressly requires that such an "affirmative reason" exist. [Note 2] She then argues that the only (or at least principal) "affirmative reason" relied upon by the judge in the present case was the child's long absence from her mother, and that that absence, having been caused by the actions of the department rather than by those of the parents, was not a legally sufficient reason for depriving the mother of custody.

We cannot agree. To begin with, we do not read the judge's decision as resting exclusively or even primarily upon the child's long separation from her parents. On the contrary, it is clear, we believe, that the judge based his decision almost entirely on the mother's mental and emotional

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condition -- "some thought disorder which renders her unable to cope with the stresses inherent in the role of wife and mother" (see n.1).

Moreover, even if the judge had found that the mother's "thought disorder," as well as her long separation from the child, had been caused by the precipitous actions of the department (we emphasize that he did not so find), we cannot accept the proposition that such an attribution of blame in the matter would have required the judge to ignore the mother's condition as found by him and return the child to her. Such an analysis might have been appropriate in a custody proceeding under G. L. c. 119, Section 42, as appearing in the Tercentenary Edition, [Note 3] or its statutory predecessors, which were of a quasi criminal nature and required "some kind of culpability in the conduct of, or at least an intentional non-performance of duty by, the parent from whose custody the child is to be taken." Commonwealth v. Dee, 222 Mass. 184, 186 (1915). General Laws c. 119, Section 42, however, was repealed by St. 1954, c. 646, Section 1, and replaced by G. L. c. 119, Section 24, in substantially the same language previously quoted. See n.2. The purpose of the revision was summarized in one of the commission reports underlying the 1954 statute: "There are many children who must be protected from the tragedies resulting from the behavior of unfit parents . . . whether this unfitness is due to their willful and culpable acts, or their inability to act properly because of their character disturbances, mental illness or defect. . . . The purposes of the neglect law need to be met by revised phrasing which will focus on the needs of the child who is suffering from the unfit behavior of parents . . . whether or not such behavior can be found willful and culpable. Limitation or abrogation of custody rights of parents should then be decided not in terms of punishment of parent, but what

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is needed for protection of the child." 1952 House Doc. No. 2440 at 43. And see 1954 House Doc. No. 2636 at 13.

Thus, the rigid prosecutorial standards of the pre-1954 neglected child statute have been supplanted by tests closely akin to those which have long been applicable to other types of custody proceedings of a purely civil character. "This is not a proceeding to discipline the respondent for her shortcomings. It is not a proceeding to reward the petitioner . . . . It is a proceeding solely with reference to the custody of a little girl. The governing principle by which the court must be guided in deciding the issues raised is the welfare of the child." Hersey v. Hersey, 271 Mass. 545, 555 (1930). Stevens v. Stevens, 337 Mass. 625, 627 (1958). That principle applies even though its observance works an injustice on one or both of the child's parents. See Surrender of Minor Children, 344 Mass. 230, 237 (1962). We are therefore not persuaded by the analogy the mother draws in her brief between the department's actions in taking the child from its mother and the unlawful entrapment of a criminal defendant by State authorities. Nor, if it be relevant, do we believe that the judge's findings warrant the inference "that the department deliberately played a waiting game in order to weaken the mother's claim." Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption, 371 Mass. 651, 657 (1976).

2. The mother also challenges the judgment on the ground that the judge's findings of parental incompetence to care for the child relate to events which occurred after the petition had been brought, and that such of his findings as dealt with the situation on and before the date of the petition were to the contrary. She argues that there was no power in the Springfield Juvenile Court under G. L. c. 119, Section 26, [Note 4] or in the Superior Court under G. L.

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c. 119, Section 27, [Note 5] to grant such a petition solely on the basis of supervening events. While the pertinent statutes (see nn.2, 4 and 5) are susceptible of such an interpretation, we do not think that the Legislature so intended.

The question whether the findings contemplated by the first clause of Section 26 (and hence, through incorporation by reference, by Section 27) must relate back to the date of the petition is answered, in our opinion, by two other provisions of the earlier section. Under the second clause of Section 26, those findings are a predicate for an adjudication that a child "is in need of care and protection" (emphasis supplied). The use of the present tense in that clause be-speaks a legislative intent that such an adjudication be based on the facts found to exist at the time the case is decided. See Maddocks v. Contributory Retirement Appeal Bd., 369 Mass. 488, 493 (1976). More important, the order to be entered upon an adjudication that a child is in need of care and protection is the one which "may conduce to his best interests." It is clear from the history of the 1954 revision of these statutes, discussed earlier in this opinion, that the "best interests" test was of crucial importance to the Legislature. While the "best interests" test had appeared in the corresponding section of c. 119 prior to the 1954 revision (see G. L. c. 119, Section 44, as appearing in the Tercentenary Edition), the deemphasis on parental fault effected by that revision brought the neglected child law into conformity with the general rule that in custody matters the well-being of the child is paramount. See Surrender of Minor Children, 344 Mass. at 237; Clifford v. Clifford, 354 Mass. 545, 548 (1968), and cases cited;

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Vilakazi v. Maxie, 371 Mass. 406, 409 (1976), and cases cited; Baird v. Attorney General, 371 Mass. 741, 752-753 (1977). The "best interests" test by its very nature requires an evaluation of the welfare of the child in reference to the present and the future. Jenkins v. Jenkins, 304 Mass. 248, 250 (1939). Little Wanderers case, 367 Mass. at 646. Vilakazi v. Maxie, 371 Mass. at 409. Compare Custody of a Minor, 2 Mass. App. Ct. 68, 75 (1974). We therefore conclude that the judge was right in deciding the case on the basis of the conditions prevailing at the time he decided it, regardless of the absence of those conditions when the petition was brought.

Our conclusion is bolstered by considering the consequences of our ordering the return of the child to her mother because of the absence of grounds for the transfer of custody as of the date of the petition. Given the judge's finding as to the mother's current incompetence to afford the child proper care, we would expect the department forthwith to bring a new petition under G. L. c. 119, Section 24, thereby causing the whole matter to be relitigated -- in all probability with the same result as in the present case. We fail to see how such an exercise could serve any purpose other than to prolong unnecessarily the disruption of the child's life and the resolution of her future.

3. The judgment is affirmed. Neither party is to have the costs of the appeal.

So ordered.