A new bench, a new rule: How one western Mass judge upended the state’s adoption procedure

Mario Gagliardi and his wife Emilee. CONTRIBUTED PHOTO
Published: 01-01-2025 3:00 PM |
For decades, Massachusetts’ adoption procedures have been a catalyst for happy endings for families across the state, including out-of-state birth parents who just want their child to be smoothly transferred to a new, welcoming home.
However, within the past year, an abrupt shift in the interpretation of this law has shackled families with unexpected stress.
In New Ashford, Mario Gagliardi, and his wife Emilee are one of the many couples who thought adoption would help them expand their growing, loving family. In 2021, they adopted their first newborn son from Texas after almost two years of waiting during the COVID-19 pandemic and navigating cross-state paperwork procedures, which seemed logical and straightforward to them. After raising their first son for two years, they decided to adopt their second son from an Iowa family in 2023.
But things didn’t go as smoothly as they expected.
Earlier in 2023, the Gagliardis flew to Iowa and planned to spend time with the birth parents, who already had a 2-year-old, a 1-year-old and were expecting a newborn for the Gagliardis. They met for dinner, went to the arcade with their kids, and maintained regular contact with the birth parents for care and concern.
On the day Acer, their second son, was born, the Gagliardis were in the hospital with the birth family for this important moment. After regular tests for the newborn and waiting for the mother to recover from a C-section, the families gathered at an Airbnb to share this moment of joy. The birth mother got to hold Acer one more time, Emilee said. Since then, the Gagliardis have remained in contact with the birth family because they want Acer to know he is adopted.
“That part went so smoothly, and then it’s just the legal hiccups,” Emilee said.
The couple thought their adoption process would proceed like last time and had Acer with them for months after his birth. They were ready for the finalization hearing, which was scheduled in Pittsfield on Dec. 12, 2023. They even planned a party to celebrate, but then received a call from the court notifying them that the hearing was canceled with no prior notice due to a scheduling conflict.
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Mario explained that they followed all necessary steps under the Interstate Compact on the Placement of Children (ICPC) — an agreement requiring the “sending” state to secure prior approval from the “receiving” state before placing a child there, while clarifying financial responsibility and jurisdiction — just as they had done for their first adoption.
“When they came back and said what we signed was not valid, it was a shock,” Mario said.
“It was February of 2023 when things started cracking,” said Renee Wetstein, the attorney for the Gagliardis.
For more than four decades, Massachusetts law said that the surrender of a child outside of the state was valid “if it was taken in accordance with the laws of the state or country where it was executed.” Out-of-state biological parents were allowed to choose the Massachusetts surrendering procedure, which involves signing the surrender form in front of two witnesses and a notary at least four days after giving birth.
Wetstein said this process provided clarity for adoptive and birth parents, particularly for vulnerable birth parents who might not want to navigate their own state’s surrendering process. In some states, this might require the biological parents to attend a court hearing weeks or months later. During this time, the newborn would be in legal limbo. Massachusetts’ surrendering procedure avoided such delays.
After Linda Fidnick, former first justice of the Hampshire Probate and Family Court, retired in 2023 after 15 years on the bench, Diana Velez Harris took office in Northampton and began reinterpreting the statute in February 2023.
According to Wetstein, the new interpretation now requires that the surrender is valid only if the birth mother physically travels to Massachusetts to sign the surrender.
“So this particular judge said it would be valid if the woman who just gave birth four days later gets on a plane, train or bus, and is standing on Massachusetts soil and signs the surrender,” Wetstein said. “It’s cruel.”
She said this new “illogical interpretation” has placed undue stress on birth parents who have just given birth.
During the six-month waiting period required before court finalization, only the adoption agency holds legal guardianship of the baby. For the Gagliardis, it was impossible to ask the Iowa birth mother to travel to Massachusetts. She was eight months pregnant with her fourth baby and had two young children at home.
Throughout their long journey of seeking help, the Gagliardis approached state Rep. John Barrett, a Berkshire County Democrat, only to be told by his office that they do not have the jurisdiction to advise or intervene in the legal proceedings.
To comply with the new requirements, the Gagliardis spent an additional $5,000 to hire an attorney for the birth mother to complete the Iowa surrendering process, which included attending a court hearing in Iowa, though the mother was represented by the attorney due to her pregnancy circumstances.
“We were very nervous because there was potentially a door open where they could say, ‘Oh, well, we don’t want to sign it anymore,’ Emilee said.
After another four months of waiting, the finalization hearing was eventually scheduled for April 17, 2024.
That moment brought a sense of relief to the Gagliardis. Mario said they kept worrying during the four months of waiting after already spending six months bonding with Acer.
“I remember holding him in the nursery and just praying and crying. It was a really tough emotional time,” Emilee said, her voice trembling during a phone interview.
“We didn’t know if he was going to be taken away,” she said. “Until the adoption was finalized, we couldn’t secure a Social Security number for him. It was challenging to continue him on our insurance.”
Wetstein said this new interpretation has caused immense stress to her clients. Many are afraid to share their stories, fearing something could happen to their child. She said she had handled hundreds of cases before without this issue.
John Casey, chief justice of the Probate and Family Court, sent out a memo on April 17, 2024, to all judges, stating, “It is my recommendation that any adoption surrender given outside of Massachusetts should be accepted by the court only when the petitioner has provided satisfactory documentation to demonstrate the surrender was given in accordance with the laws of the state or the country where it was executed,” which Wetstein described as a “double down effect” on the new interpretation.
“Why are we doing this? Why are we making this harder than it was?” Wetstein said.
Molly Reynolds, executive director at Full Circle Adoptions, an agency based in Northampton, noted another procedural change: finalization hearings are now required to be held in the county where the adoptive family resides.
“It’s a nice ending to the relationship, a culmination, to sit with them in the courthouse and to support them and feel their joy at the finalization of this whole process,” Reynolds said. “Suddenly that was not OK either.”
State Rep. Lindsay Sabadosa, D-Northampton, is one of the legislators who proposed a bill to clarify the current law by stating that an out-of-state surrender is valid if done in accordance with the laws of that state or Massachusetts.
She said multiple cases have been affected by this new interpretation. The birth parents, she added, should have the right to choose the surrendering process in their home state or the state where the surrender occurs.
Sabadosa said the new interpretation has primarily impacted western Massachusetts so far but could potentially affect the entire state.
“Courts could decide to reinterpret the law,” she said.
Sabadosa plans to refile the bill in January and hopes it will pass quickly.
“We are hoping for maximum pressure to get the Legislature to pass this by the end of the year,” Wetstein said. She aims to make the law “crystal clear” to avoid unnecessary reinterpretation and spare families from emotional challenges.
“Babies need clarity and certainty,” Wetstein said. “It’s all the legal things that need to happen.”
Zichang Liu writes for the Greenfield Recorder as part of the Boston University Statehouse Program.