Adoption of Vito

Cowin, J.

(concurring, with whom Lynch, J., joins). The court decides today that the general equity power of the Probate and Family Court permits a Probate Court judge, in a proceeding pursuant to G. L. c. 210, § 3 (to dispense with parental consent to adoption), to order postadoption contact, including visitation, between a child and a biological parent. I believe that the statute does not expressly or by reasonable implication grant the Probate Court judge this power. Absent such authority, I do not believe this power can be created by resort to general equity powers. Thus, I concur.

We have stated that, although Probate Court judges have equitable powers, these powers are not limitless. A court has equity jurisdiction in cases in which the subject of the controversy was recognized by courts at common law, but in which the legal remedy is inadequate. Youmans v. Ramos, 429 Mass. 774, 788 (1999) (Lynch, J., dissenting). Enos v. Correia, 38 Mass. App. Ct. 318, 323 n.11 (1995). Adoption was not authorized under either the common law of England or the common law of this Commonwealth. See C.P. Kindregan, Jr. & M.L. Inker, Family Law and Practice § 63.1 (2d ed. 1996). It was first recognized in this Commonwealth by statute in 1851, see St. 1851, c. 324, and is now the subject of a comprehensive statutory scheme, see G. L. c. 210. We have acknowledged that “[t]he law of adoption is purely statutory . . . and the governing statute . . . is to be strictly followed in all its essential particulars.” Adoption of Tammy, 416 Mass. 205, 210 (1993). See Beloin v. Bullett, 310 Mass. 206 (1941); Zalis v. Ksypka, 315 Mass. 479 (1944).

The court eschews this basic principle on the ground that the Probate Court judge has equitable power to fashion an order concerning postadoption visitation. Ante at 556-561. In support of this statement, the court relies on Petition of the Dep’t of Social Servs. to Dispense with Consent to Adoption, 392 Mass. 696, 702 (1984) (Petition of the Dep’t of Social Servs.), in which we noted that “[gjiven ‘the broad, equitable powers’ of courts in this area (Petition of the New Bedford Child & Family Serv. to Dispense with Consent to Adoption, 385 Mass. 482, 487 [1982]), we see no reason why a judge dealing with a petition to dispense with parental consent may not evaluate the ‘plan proposed by the department’ in relation to all the elements the judge finds are in the child’s best interests, including parental visitation.” Id. The court today concludes that our decisional *571law permits the Probate Court judge to order postadoption visitation. Ante at 556-560. I am convinced that the equitable power of the Probate Court judge in adoption matters is not as broad as we may have suggested previously, and that our decisional law does not support such an extension of that power.

The support for the equitable power discussed in Petition of the Dep ’t of Social Servs., supra, derives from Superintendent of Belchertown State Sch. v. Saikewicz, 373 Mass. 728, 755-756 (1977) (Superintendent of Belchertown).1 There, in the course of discussing a Probate Court judge’s power to authorize a guardian ad litem to assert an incompetent individual’s right to refuse medical treatment, we noted that the judge’s power “is not limited by any narrow bounds . . . In re Quinlan, 70 N.J. 10, 45 (1976) . . . [and] must be broad and flexible enough ‘to afford whatever relief may be necessary.’ ” Id., citing Strunk v. Strunk, 445 S.W.2d 145, 147 (Ky. Ct. App. 1969).2 This broad language was not intended to imply that the Probate Court has the power to take any action it deems proper. General Laws c. 201, § 6, provides the Probate Court the power to appoint a guardian for a mentally ill individual. Implicit in the power to appoint a guardian is the power to oversee the actions of the guardian whom the court appoints. In Superintendent of Belchertown, the Probate Court was exercising its normal and traditional function of supervising guardians. Even so, the court did not approve a wide-ranging exercise of authority, but carefully delineated criteria the Probate Court should apply in overseeing guardians and their decisions on behalf of mentally retarded wards that medical treatment should be withheld. Thus, the premise and holding in Superintendent of Belchertown seem inconsistent with the later resort by the court to that decision as the touchstone in Petition of the Dep’t of Social Servs., supra., for the equitable authority for the Probate Court judge to order *572postadoption visitation.3 Using Superintendent of Belchertown, supra, as the basis for this power requires an unwarranted leap. And today Petition of the Dep’t of Social Servs., supra, is cited as a justification for the court’s position.

In Superintendent of Belchertown,■ supra at 755-756, there was implied statutory authority for the court to issue orders regarding the actions of the guardian. I disagree with the court’s reliance on Petition of the Dep’t of Social Servs., supra, because the court in that case misconstrued language in Superintendent of Belchertown to conclude that a Probate Court judge has the power to order postadoption visitation without any basis in statutory authority. The Legislature empowered the Probate Court to act in the guardianship area; it has not done so in regard to postadoption visitation. I find nothing in Petition of the Dep’t of Social Servs., supra, to indicate that the court found that the power to evaluate the propriety of postadoption visitation could properly be implied from the adoption statute, G. L. c. 210.4 Thus, it being my view that the Probate Court’s equitable powers do not by themselves authorize the action in question, I turn to the provisions of G. L. c. 210 to determine *573whether the Legislature has authorized a Probate Court judge to order postadoption visitation between a child and a biological parent.

General Laws c. 210 provides for a two-stage process: first, for dispensing with the biological parents’ right to consent to an adoption; and second, for approving the adoption of a child by new parents. See G. L. c. 210, §§ 3 and 6. Section 3 governs the procedure for dispensing with the biological parents’ right to consent to an adoption. Under § 3, the judge must consider the best interests of the child in deciding whether to order dispensation with parental consent. G. L. c. 210, § 3 (a) (ii). Adoption of Inez, 428 Mass. 717, 720 (1999). An order to dispense is only proper after a determination that “a parent is currently unfit to further the child’s best interest.” Adoption of Paula, 420 Mass. 716, 731 (1995).

Section 6 permits the Probate Court judge to enter a decree authorizing the adoption. Before issuing the decree, the Probate Court judge must be satisfied “that the petitioner is of sufficient ability to bring up the child and provide suitable support and education for it, and that the child should be adopted.” G. L. c. 210, § 6. Once the decree is entered, the adoptive parents assume all the rights and obligations of the biological parents and the rights and obligations of the biological parents terminate. Id.

Neither § 3 nor § 6 provides the Probate Court judge with the implied authority to order postadoption visitation. In fact, allowing the judge to order postadoption visitation is in some respects inconsistent with the primary purpose of these statutory sections: i.e., to provide for die complete transition of a child from unfit parents into a more stable home environment. The first stage in this transition requires the judge to determine whether the best interests of the child mandate that the rights of the biological parents to consent to an adoption be terminated. The judge is instructed to evaluate a nonexclusive list of factors to determine whether the child’s biological parents, by their lack of fitness, have forfeited the right to consent to an adoption. G. L. c. 210, § 3 (c). The thrust of the § 3 inquiry is to evaluate the past conduct of the biological parents in order to determine whether dispensing with parental consent to adoption would be in the child’s best interests. Although the judge is also to consider the plan proposed by the Department of Social Services (department) for the future of the child, nothing in § 3 indicates a legislative intent to permit the judge to continue *574contact between the biological parent and the child after an adoption. That section is a mechanism for severing the rights of the biological parents to consent to an adoption.

Section 6 completes the child’s transition from the biological to the adoptive parents. The purpose of § 6 is to terminate all rights and obligations of the biological parents and to transfer all those rights and obligations to the adoptive parents. G. L. c. 210, § 6. See Adoption of Tammy, 416 Mass. 205, 216 (1993); Goldman, petitioners, 331 Mass. 647, 652 (1954); Bottoms v. Carlz, 310 Mass. 29, 33 (1941). The termination provision “protect[s] the security of the child’s newly-created family unit by eliminating involvement with the child’s natural parents.” Adoption of Tammy, supra.

Allowing the § 3 judge to order postadoption visitation conflicts with this statutory framework. By removing the child from his biological parents and placing full parental authority with the adoptive parents, the Legislature has intended to provide a complete severance from the biological parents and a new beginning for the child. There is no suggestion or even intimation that the Legislature had any desire to authorize continuing contact between the child and the biological parents.

Authorizing the Probate Court judge to order postadoption visitation conflicts with the Legislature’s expressed purpose of vesting all parental prerogatives in the adoptive parents because in many circumstances the adoptive parents will object to continuing contact between the child and the biological parents.5

In 1999, the Legislature added new provisions to the adoption statutes. See St. 1999, c. 3, §§ 17 and 21. These new provi*575sions further support my view that the Legislature did not intend that Probate Court judges order postadoption visitation.6 The 1999 amendments rewrote § 3 and added §§ 6C, 6D and 6E to G. L. c. 210. Id. By enacting these amendments, the Legislature recognized that adoptive and biological parents may make agreements for postadoption contact. G. L. c. 210, § 6C. An agreement may be approved by the judge during the § 3 proceeding, but must also be approved by the judge during the § 6 proceeding. The judge must approve the agreement as long as it is in the best interests of the child, is fair and reasonable, and has been entered into knowingly and voluntarily by the parties. Id. A judge may order specific enforcement of the agreement; however, during an enforcement proceeding the judge may only limit, restrict, condition, or decrease contact with the biological parents, but may not increase the amount of contact or place new obligations on the adoptive parents. G. L. c. 210, § 6D. The Legislature instructed that these new sections should not be interpreted to “abrogate the right of an adoptive parent to make decisions on behalf of his child.” G. L. c. 210, § 6E. To make the existing § 3 consonant with these new sections, the Legislature also revised § 3 expressly to allow biological parents whose right to consent to an adoption has been terminated to enter into a postadoption visitation contract once the adoptive parents have been identified subject to the conditions in §§ 6C-6E. St. 1999, c. 3, § 17. The Legislature further revised § 3 to provide that the biological parents and the petitioner seeking to terminate the biological parents’ right to consent to an adoption may make agreements for posttermination contact between the biological parents and the child and the § 3 judge may resolve matters concerning these agreements.7

These amendments have a specific scope. Their purpose is to permit agreements between biological and adoptive parents that provide for postadoptive contact. The judge’s power is limited *576to approving the agreement and reducing or conditioning the contact between the child and the biological parents. The judge is not empowered to expand the agreement. It is incongruous to believe that the Legislature would expressly deprive the court of the right to expand postadoption visitation when an agreement exists, but yet, in the absence of an agreement, grant the court broad power to order visitation.

The Legislature’s decision to limit postadoption visitation to agreements between the adoptive and biological parents is consistent with the established purpose of § 6. As discussed supra, § 6 is designed to assure that the adoptive parents assume full authority to make decisions on behalf of the child. See Adoption of Tammy, supra. By limiting postadoptive visitation to agreements entered into by adoptive parents, the Legislature, consistent with § 6, assures that the locus of visitation decision-making resides with the adoptive parents.

The Legislature, in § 6E, expressly recognized the limited scope of the 1999 amendments. By providing that §§ 6C and 6D do not “abrogate the right of an adoptive parent to make decisions on behalf of his child,” the Legislature cautioned that these new sections should be narrowly construed with an eye toward protecting the decision-making authority of the adoptive parents. In my view, the Legislature’s addition of § 6E indicates a clear intent that §§ 6C and 6D not upset the long-established purpose of § 6 to place the decision-making authority for the child with the adoptive parents.

I note further that the department argues for the position that I have expressed. Traditionally, “we ‘accord due weight and deference to an agency’s reasonable interpretation of a statute within its charge.’ ” Hayes v. Retirement Bd., 425 Mass. 468, 470 (1997), quoting Boston Neighborhood Taxi Ass’n v. Department of Pub. Utils., 410 Mass. 686, 692 (1991).

A coherent statutory framework exists in G. L. c. 210, §§ 3 and 6. The 1999 statute is consistent with and illuminates the preexisting law. But the court, by virtue of the “equitable power” of the Probate Court and what I consider a misreading of Superintendent of Belchertown, adopts a policy that I believe is inconsistent with legislative intent, at least as that intent has been expressed to date. I, therefore, respectfully concur.

An Petition of the Dep’t of Social Servs. to Dispense with Consent to Adoption, 392 Mass. 696, 702 (1984), the court cites Petition of the New Bedford Child & Family Serv. to Dispense with Consent to Adoption, 385 Mass. 482, 486-487 (1982), which in turn quotes Superintendent of Belchertown State Sch. v. Saikewicz, 373 Mass. 728, 755, 756 (1977).

In support of this proposition, the court relied on In re Quinlan, 70 N.J. 10, 45 (1976), and Strunk v. Strunk, 445 S.W.2d 145, 147 (Ky. Ct. App. 1969). Neither of these cases involves a Probate Court judge’s powers in an adoption proceeding.

The language from Superintendent of Belchertown State Sch. v. Saikewicz, 373 Mass. 728, 755-756 (1977), that is quoted in Petition of the Dep’t of Social Servs. to Dispense with Consent to Adoption, 392 Mass. 696, 702-703 (1984), as the source of the Probate Court’s equitable authority to order postadoption visitation seems particularly problematic because the Superintendent of Belchertown decision actually limits, rather than expands, the powers of the Probate Court judge: the decision identifies criteria the judge must apply and does not permit the judge unrestricted authority.

The court also finds support for its position in several Appeals Court decisions. Ante 557 (listing cases). Although I recognize that these Appeals Court decisions have interpreted the Probate Court’s equity power as encompassing the authority to order postadoption visitation, most of the cases have been premised on Petition of the Dep’t of Social Servs. to Dispense with Consent to Adoption, supra, which is an inadequate source of authority for reading this power into the statute, particularly given the recent amendments to G. L. c. 210, see infra at 573-576. See Adoption of Vito, 47 Mass. App. Ct. 349, 354-355 (1999); Adoption of Lars, 46 Mass. App. Ct. 30, 34-36 (1998); Adoption of Warren, 44 Mass. App. Ct. 620, 626 n.5 (1998); Adoption of Nicole, 40 Mass App. Ct. 259, 264 (1996); Adoption of Gwendolyn, 29 Mass. App. Ct. 130, 137 n.5, 138-139 (1990); Adoption of Abigail, 23 Mass. App. Ct. 191, 199 (1986). The remaining cases from the Appeals Court cite no authority for granting the judge the power to order postadoption visitation. See Adoption of Hugo, 44 Mass. App. Ct. 863, 865, 868, S.C., 428 Mass. 219 (1998), cert, denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999); Adoption of Arthur, 34 Mass. App. Ct. 1105 (1993); Adoption of Kristen, 43 Mass. App. Ct. 915, 915-916 (1997).

In a similar situation, the Supreme Judicial Court of Maine concluded that a trial court exceeded its statutory authority in terminating a biological mother’s parental rights on the condition of posttermination contact between the biological mother and the adoptive parents. See In re Melanie S., 712 A.2d 1036, 1036 (Me. 1998). There, in the face of the compelling circumstance of a biological mother who had contemplated suicide if she lost all contact with her children, the Supreme Judicial Court determined nevertheless that the plain language of the statute governing the termination procedures mandated that “a termination order sever the relationship between parent and child.” Id. at 1037.

The opinion of the court today states that the basis of the Maine court’s decision was that the trial court erred by considering the mother’s interests. But the parent-child dichotomy was not meaningful to the Maine court’s decision. The Maine court states that the trial court does not have the authority to order posttermination contact, even if such contact were ordered in the interests of the child.

Whether St. 1999, c. 3, is retroactive need not be resolved on the present record. The issue is not whether that statute applies to a proceeding conducted before its enactment; the issue is whether St. 1999, c. 3, illuminates the meaning of the statutory framework which already existed at the time of the hearing to dispense with consent to adoption. For reasons set forth in the body of this concurring opinion, I believe that it does so.

The logical corollary to this provision in § 6D is that a judge who may approve a postadoption agreement during the § 3 proceeding is not permitted to increase the contact between the child and the biological parents either.