dissenting.
I respectfully dissent. I do not agree with the court that the requirement of agency consent in 19 M.R.S.A. § 532(1)(C) (1981) was intended by the Legislature to give an unnatural parent an arbitrary, unreasonable or capricious power to defeat the exclusive jurisdiction of the probate courts to determine whether it is in the *948best interest of a child that she be adopted by the petitioners and to issue a judgment granting or denying the adoption.
Maine adoption law vests jurisdiction over adoption proceedings exclusively within the probate courts. 4 M.R.S.A. § 251 (1979); 19 M.R.S.A. § 531 (Supp.1985). Direct appeal of a Probate Court decision to the Law Court is provided by 19 M.R.S.A. § 536 (Supp.1985). To grant exclusive jurisdiction of adoption proceedings to the probate courts and provide for an expeditious review by the Law Court is consistent with the legislatively articulated purpose of the Child and Family Services and Child Protection Act, 22 M.R.S.A. §§ 4001-4010 (Supp. 1985), of “promotpng] the early establishment of permanent plans for the care and custody of children who cannot be returned to their family.” Id. § 4003. See also § 4050(3) (intent of Legislature that provision for termination of parental rights “[p]romotes the adoption of children into stable families rather than allowing children to remain in impermanency of foster care”).
Nowhere does the statutory scheme explicitly mention judicial review of a custodial agency's refusal to consent to an adoption. Although probate courts are statutory courts of special and limited jurisdiction, they may exercise powers incidentally necessary to the execution of their statutory functions. Harmon v. Fagan, 130 Me. 171, 178, 154 A. 267 (1931); see 4 M.R.S.A. § 201 (1979); accord State ex rel. Baker v. Bird, 253 Mo. 569, 162 S.W. 119, 122 (1913) (probate courts may invoke equitable principles in adjudicating issues which, by constitution or statute, are expressly confided to their care). See also In re Adoption of Savory, 102 Ill.App.3d 276, 58 Ill.Dec. 359, 430 N.E.2d 301 (1981); State ex rel. Portage County Welfare Dept. v. Summers, 38 Ohio St.2d 144, 311 N.E.2d 6 (1974) (even in absence of specific statutory authority court with jurisdiction over adoption may review agency’s refusal to consent).
Today, the court, by its rigid construction of 19 M.R.S.A. § 532(1)(C) has left the fate of an adoptive child to the whim or caprice of an agency or some other unnatural parent without charting any procedure for judicial review.1
In my opinion, section 532 may not operate to divest the probate courts of necessary judicial power to fully hear and determine adoption proceedings. Accordingly, I would have the Law Court determine on appeal whether the Probate Court erred in finding that the agency’s withholding of consent was arbitrary, capricious or unreasonable.
. Any review process that might be available to petitioning adoptive parents, such as 5 M.R.S.A. §§ 11001-110088 (Supp.1985), or an attempt to have legal custody transferred to the adopting parents, would not only thrust the adoptive process into a procedural maelstrom but be both time consuming and expensive as well as a poor use of judicial resources.