Legal Question in Family Law in Massachusetts

Re: Child Abandonment

Here is a copy of the statute known as chapter 119, sec. 39:

CHAPTER 119. PROTECTION AND CARE OF CHILDREN, AND PROCEEDINGS AGAINST THEM.

Chapter 119: Section 39. Abandonment of infant under age of ten.

Section 39. Whoever abandons an infant under the age of ten within or without any building, or, being its parent, or being

under a legal duty to care for it, and having made a contract for its board or maintenance, absconds or fails to perform such

contract, and for four weeks after such absconding or breach of his contract, if of sufficient physical and mental ability,

neglects to visit or remove such infant or notify the department of his inability to support such infant, shall be punished by

imprisonment in a jail or house of correction for not more than two years; or, if the infant dies by reason of such

abandonment, by imprisonment in a jail or house of correction for not more than two and one half years or in the state prison

for not more than five years.

Re: Child Abandonment

Here is the BEGINNING of another statute, you should read. It is too long to put in one answer on lawguru:

GENERAL LAWS OF MASSACHUSETTS

CHAPTER 210. ADOPTION OF CHILDREN AND CHANGE OF NAMES.

Chapter 210: Section 3. Dispensing with required consent in certain cases.

Section 3. (a) Whenever a petition for adoption is filed by a person having the care or custody of a child, the consent of the

persons named in section 2, other than that of the child, shall not be required if:- (i) the person to be adopted is 18 years of

age or older; or (ii) the court hearing the petition finds that the allowance of the petition is in the best interests of the child

pursuant to paragraph (c).

Re: Child Abandonment

SOME OF THE REST OF IT:

(b) The department of social services or a licensed child care agency may commence a proceeding, independent of a petition

for adoption, in the probate court in Suffolk county or in any other county in which the department or agency maintains an

office, to dispense with the need for consent of any person named in section 2 to adoption of the child in the care or custody

of the department or agency. Notice of such proceeding shall be given to such person in a manner prescribed by the court. The

court shall appoint counsel to represent the child in the proceeding unless the petition is not contested by any party. The court

shall issue a decree dispensing with the need for consent or notice of any petition for adoption, custody, guardianship or other

disposition of the child named therein, if it finds that the best interests of the child as provided in paragraph (c) will be

served by the decree. Pending a hearing on the merits of a petition filed under this paragraph, temporary custody may be

awarded to the petitioner. The entry of such decree shall have the effect of terminating the rights of a person named therein to

receive notice of or to consent to any legal proceeding affecting the custody, guardianship, adoption or other disposition of

the child named therein. The department shall provide notice of the hearing on the merits to any foster parent, pre-adoptive

parent or relative providing care for the child informing the foster parent, pre-adoptive parent or relative of his right to attend

the hearing and be heard. The provisions of this paragraph shall not be construed to require that a foster parent, pre-adoptive

parent or relative be made a party to the proceeding.

Re: Child Abandonment (part 3)

A petition brought pursuant to this paragraph may be filed and a decree entered notwithstanding the pendency of a petition

brought under chapter 119 or chapter 201 regarding the same child. The chief justice for administration and management of

the trial court may, pursuant to the provisions of section 9 of chapter 211B, assign a justice from any department of the trial

court to sit as a justice in any other department or departments of the trial court and hear simultaneously a petition filed under

this paragraph and any other pending case or cases involving custody or adoption of the same child. A temporary or

permanent custody decree shall not be a requirement to the filing of such petition.

A juvenile court or a district court shall enter a decree dispensing with the need for consent of any person named in section 2

to the adoption of a child named in a petition filed pursuant to section 24 of chapter 119 in such court upon a finding that such

child is in need of care and protection pursuant to section 26 of said chapter 119 and that the best interests of the child as

defined in paragraph (c) will be served by such decree. The entry of such decree shall have the effect of terminating the rights

of a person named therein to receive notice of or to consent to any legal proceeding affecting the custody, guardianship,

adoption or other disposition of the child named therein. Facts may be set forth either in the care and protection petition filed

pursuant to said section 24 of said chapter 119 or upon a motion made in the course of a care and protection proceeding,

alleging that the allowance of the petition or motion is in the best interests of the child.

Re: Child Abandonment (part 4)

The department of social services shall file a petition or, in the alternative, a motion to amend a petition pending pursuant to

section 26 of chapter 119 to dispense with parental consent to adoption, custody, guardianship or other disposition of the

child under the following circumstances: (i) the child has been abandoned; (ii) the parent has been convicted by a court of

competent jurisdiction of the murder or voluntary manslaughter of another child of such parent, of aiding, abetting, attempting,

conspiring or soliciting to commit such murder or voluntary manslaughter or of any assault constituting a felony which results

in serious bodily injury to the child or to another child of the parent; or (iii) the child has been in foster care in the custody of

the commonwealth for 15 of the immediately preceding 22 months. For the purposes of this paragraph, a child shall be

considered to have entered foster care on the earlier of: (a) the date of the first judicial finding, pursuant to section 24 or

section 26 of chapter 119, that the child has been subjected to abuse or neglect; or (b) the date that is 60 days after the date on

which the child is removed from the home. For the purposes of this paragraph, ""serious bodily injury'' shall mean bodily

injury which involves a substantial risk of death, extreme physical pain, protracted and obvious disfigurement or protracted

loss or impairment of the function of a bodily member, organ or mental faculty.

The department shall concurrently identify, recruit, process and approve a qualified family for adoption.

Re: Child Abandonment (part 5)

The department of social services shall file a petition or, in the alternative, a motion to amend a petition pending pursuant to

section 26 of chapter 119 to dispense with parental consent to adoption, custody, guardianship or other disposition of the

child under the following circumstances: (i) the child has been abandoned; (ii) the parent has been convicted by a court of

competent jurisdiction of the murder or voluntary manslaughter of another child of such parent, of aiding, abetting, attempting,

conspiring or soliciting to commit such murder or voluntary manslaughter or of any assault constituting a felony which results

in serious bodily injury to the child or to another child of the parent; or (iii) the child has been in foster care in the custody of

the commonwealth for 15 of the immediately preceding 22 months. For the purposes of this paragraph, a child shall be

considered to have entered foster care on the earlier of: (a) the date of the first judicial finding, pursuant to section 24 or

section 26 of chapter 119, that the child has been subjected to abuse or neglect; or (b) the date that is 60 days after the date on

which the child is removed from the home. For the purposes of this paragraph, ""serious bodily injury'' shall mean bodily

injury which involves a substantial risk of death, extreme physical pain, protracted and obvious disfigurement or protracted

loss or impairment of the function of a bodily member, organ or mental faculty.

The department shall concurrently identify, recruit, process and approve a qualified family for adoption.

Re: Child Abandonment (part 6)

The department need not file a motion or petition to dispense with parental consent to the adoption, custody, guardianship or

other disposition of the child, or, where the child is the subject of a pending petition pursuant to section 26 of chapter 119, a

motion to amend the petition to dispense with parental consent to the adoption, custody, guardianship or other disposition of

the child, if the child is being cared for by a relative or the department has documented in the case plan a compelling reason

for determining that such a petition would not be in the best interests of the child or that the family of the child has not been

provided, consistent with the time period in the case plan, such services as the department deems necessary for the safe return

of the child to the child's home if reasonable efforts as set forth in section 29C of said chapter 119 are required to be made

with respect to the child.

(c) In determining whether the best interests of the child will be served by granting a petition for adoption without requiring

certain consent as permitted under paragraph (a), the court shall consider the ability, capacity, fitness and readiness of the

child's parents or other person named in section 2 to assume parental responsibility and shall also consider the ability,

capacity, fitness and readiness of the petitioners under said paragraph (a) to assume such responsibilities. In making the

determination, the health and safety of the child shall be of paramount, but not exclusive, concern.

Re: Child Abandonment (part 7)

In determining whether the best interests of the child will be served by issuing a decree dispensing with the need for consent

as permitted under paragraph (b), the court shall consider the ability, capacity, fitness and readiness of the child's parents or

other person named in section 2 to assume parental responsibility, and shall also consider the plan proposed by the

department or other agency initiating the petition. In making the determination, the health and safety of the child shall be of

paramount, but not exclusive, concern.

In considering the fitness of the child's parent or other person named in section 2, the court shall consider, without limitation,

the following factors:

(i) the child has been abandoned;

(ii) the child or another member of the immediate family of the child has been abused or neglected as a result of the acts or

omissions of one or both parents, the parents were offered or received services intended to correct the circumstances which

led to the abuse or neglect and refused, or were unable to utilize such services on a regular and consistent basis so that a

substantial danger of abuse or neglect continues to exist, or have utilized such services on a regular and consistent basis

without effectuating a substantial and material or permanent change in the circumstances which led to the abuse or neglect;

Re: Child Abandonment (part 8)

(iii) a court of competent jurisdiction has transferred custody of the child from the child's parents to the department, the

placement has lasted for at least six months and the parents have not maintained significant and meaningful contact with the

child during the previous six months nor have they, on a regular and consistent basis, accepted or productively utilized

services intended to correct the circumstances;

(iv) the child is four years of age or older, a court of competent jurisdiction has transferred custody of the child from the

child's parents to the department and custody has remained with the department for at least 12 of the immediately preceding

15 months and the child cannot be returned to the custody of the parents at the end of such 15-month period; provided,

however, that the parents were offered or received services intended to correct the circumstances and refused or were unable

to utilize such services on a regular and consistent basis;

(v) the child is younger than four years of age, a court of competent jurisdiction has transferred custody of the child from the

child's parents to the department and custody has remained with the department for at least 6 of the immediately preceding 12

months and the child cannot be returned to the custody of the parents at the end of such 12-month period; provided, however,

that the parents were offered or received services intended to correct the circumstances and refused or were unable to utilize

such services on a regular and consistent basis;

Re: Child Abandonment (part 9)

(vi) the parent, without excuse, fails to provide proper care or custody for the child and there is a reasonable expectation that

the parent will not be able to provide proper care or custody within a reasonable time considering the age of the child

provided that the parents were offered or received services intended to correct the circumstances and refused or were unable

to utilize such services on a regular and consistent basis;

(vii) because of the lengthy absence of the parent or the parent's inability to meet the needs of the child, the child has formed a

strong, positive bond with his substitute caretaker, the bond has existed for a substantial portion of the child's life, the forced

removal of the child from the caretaker would likely cause serious psychological harm to the child and the parent lacks the

capacity to meet the special needs of the child upon removal;

(viii) a lack of effort by a parent or other person named in section 2 to remedy conditions which create a risk of harm due to

abuse or neglect of the child;

(ix) severe or repetitive conduct of a physically, emotionally or sexually abusive or neglectful nature toward the child or

toward another child in the home;

(x) the willful failure to visit the child where the child is not in the custody of the parent or other person named in section 2;

(xi) the willful failure to support the child where the child is not in the custody of the parent or other person named in section

2. Failure to support shall mean that the parent or other person has failed to make a material contribution to the child's care

when the contribution has been requested by the department or ordered by the court;

Re: Child Abandonment (part 10)

(xii) a condition which is reasonably likely to continue for a prolonged, indeterminate period, such as alcohol or drug

addiction, mental deficiency or mental illness, and the condition makes the parent or other person named in section 2 unlikely

to provide minimally acceptable care of the child;

(xiii) the conviction of a parent or other person named in section 2 of a felony that the court finds is of such a nature that the

child will be deprived of a stable home for a period of years. Incarceration in and of itself shall not be grounds for

termination of parental rights; or

(xiv) whether or not there has been a prior pattern of parental neglect or misconduct or an assault constituting a felony which

resulted in serious bodily injury to the child and a likelihood of future harm to the child based on such prior pattern or assault.

For the purposes of this section ""abandoned'' shall mean being left without any provision for support and without any person

responsible to maintain care, custody and control because the whereabouts of the person responsible therefor is unknown and

reasonable efforts to locate the person have been unsuccessful. A brief and temporary absence from the home without intent to

abandon the child shall not constitute abandonment.

Re: Child Abandonment (part 11) THE END

Hearings on petitions to dispense with consent to adoption that allege that a child has been abandoned shall be scheduled and

heard on an expedited basis. Notwithstanding the foregoing, the following circumstances shall constitute grounds for

dispensing with the need for consent to adoption, custody, guardianship or other disposition of the child: (i) the child has

been abandoned; (ii) the parent has been convicted by a court of competent jurisdiction of the murder or voluntary

manslaughter of another child of such parent, of aiding, abetting, attempting, conspiring or soliciting to commit such murder or

voluntary manslaughter or of an assault constituting a felony which resulted in serious bodily injury to the child or to another

child of the parent. For the purposes of this section, ""serious bodily injury'' shall mean bodily injury which involves a

substantial risk of death, extreme physical pain, protracted and obvious disfigurement or protracted loss or impairment of the

function of a bodily member, organ or mental faculty.

(d) Nothing in this section shall be construed to prohibit the petitioner and a birth parent from entering into an agreement for

post-termination contact or communication. The court issuing the termination decree under this section shall have jurisdiction

to resolve matters concerning the agreement. Such agreement shall become null and void upon the entry of an adoption or

guardianship decree.

Notwithstanding the existence of any agreement for post-termination or post-adoption contact or communication, the decree

entered under this section shall be final.

Nothing in this section shall be construed to prohibit a birth parent who has entered into a post-termination agreement from

entering into an agreement for post-adoption contact or communication pursuant to section 6C once an adoptive family has

been identified.

Re: Child Abandoment

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