Home ADOPTION OF A MINOR.

362 Mass. 882

November 6, 1972

This is an appeal by the mother from a decree allowing a petition filed January 13, 1971, for the adoption of the child by its father and his present wife. The mother has refused her consent to the adoption, and the question is whether it can be dispensed with under the terms of G. L. c. 210, Section 3, as amended through St. 1963, c. 71, Section 1. The probate judge's report of material facts shows a lack of any manifested substantial interest in the child on the part of the mother after March, 1968, when she quit the child, two years old at the time, and went temporarily to California. Since then the child has been cared for by the father, and later the father and his present wife. The mother has had only a few arranged visits with the child during the entire period. She did not seek custody or visitation rights in the divorce proceeding against her which was uncontested and ended in a decree in January, 1969, awarding permanent custody to the father. Nor has the mother applied for visitation rights under that decree. The report of material facts supports the conclusion that there has been wilful desertion by the mother within Section 3 and accordingly that her consent to the adoption is not required. The successive amendments of Section 3 disclose "a clear intent by the Legislature to relax the requirement of parental consent to adoption when the withholding of consent by a neglectful parent would not be in the best interests of the child." Adoption of a Minor, 357 Mass. 490 , 492. See the amendments of the relevant portion of Section 3 by St. 1945, c. 239; St. 1951, c. 674; St. 1952, c. 352; St. 1953, c. 61; Wasserman, Assent to Adoption, 37 Mass. L. Q. (No. 3) 56; 28th Report of the Judicial Council, Pub. Doc. No. 144, pp. 37-38. See also Adoption of a Minor, 338 Mass. 635 , 640-641; Adoption of a Minor, 343 Mass. 292 , 298.

Decree affirmed.

Home JOSEPH C. RIORDAN'S (dependent's) CASE.

362 Mass. 882

November 6, 1972

The employee's widow (the claimant) made a claim for compensation which was denied by the single member and the reviewing board of the Industrial Accident Board and by the Superior Court. The employee died while at work and the claimant asserts that under G. L. c. 152, Section 7A, there is a presumption that the claim comes within the provisions of the chapter. Section 7A was amended by St. 1971, c. 702, to provide that where the employee has been "found dead at his place of employment" it shall be "prima facie evidence" that the claim comes within the chapter, but the amendment does not apply to this case, which came on for hearing by the single member before the effective date of the amendment. See Smith v. Freedman, 268 Mass. 38 , 41. Under

Page 883

either form of the statute, there is no error. The burden of proof remains on the employee. Goddu's Case, 323 Mass. 397 , 400. The artificial force of a presumption or of prima facie evidence, compelling a finding, disappears when the evidence warrants a finding to the contrary. Cook v. Farm Serv. Stores, Inc. 301 Mass. 564 , 566. Lysaght's Case, 328 Mass. 281 , 284-285. Very much as in Lynch's Case, 352 Mass. 782 , 783, there was in this case substantial evidence that the death was caused by a sudden coronary thrombosis and that there was no causal connection between the employment and the death.

Decree affirmed.