Opinion
19-P-1730
04-29-2021
ADOPTION OF YANNIS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The father appeals from a decree of the Juvenile Court terminating his parental rights to his son, Yannis, approving the adoption plan proposed by the Department of Children and Families (department), and declining to order posttermination or postadoption contact or visitation. The father principally challenges the Juvenile Court's jurisdiction over the child. He also argues that the Juvenile Court judge erred by failing to consider the father's alternative placement plan for the child and by failing to order posttermination or postadoption visitation. We affirm.
We reiterate the importance of raising jurisdictional issues at the earliest stage possible in child custody proceedings, especially considering the enormous practical effects the failure to do so has on the families involved. See Adoption of Yvette (No. 1), 71 Mass. App. Ct. 327, 344 (2008) ("Particularly in a time sensitive case like this one, involving the custody of children in foster care, such delay was inexcusable").
A Massachusetts court may exercise jurisdiction over a child custody proceeding if any of the four bases provided by G. L. c. 209B, § 2 (a ), are satisfied. See MacDougall v. Acres, 427 Mass. 363, 366 (1998). The first, which is most relevant in the case at bar, is home State jurisdiction, which exists where Massachusetts "is the home state of the child on the commencement of the custody proceeding." G. L. c. 209B, § 2 (a ) (1) (i). "Home state" is defined as "the state in which the child immediately preceding the date of commencement of the custody proceeding resided with his parents, a parent, or a person acting as parent, for at least 6 consecutive months." G. L. c. 209B, § 1.
Massachusetts was plainly the child's home State when these proceedings commenced. The child moved to Massachusetts with the mother on or around October 22, 2013 and resided here with her until the department filed the underlying care and protection petition on July 21, 2014, nearly nine months after the child began residing in the State. The father's assertion that the exercise of jurisdiction was improper because a custody order had entered in North Carolina, where the child was born, is unavailing. The record properly before us indicates that only the child's siblings were subject to the North Carolina order. In fact, the Juvenile Court judge contacted the presiding judge in North Carolina, determined that the child was not the subject of the North Carolina order, and concluded that jurisdiction was properly in Massachusetts. See G. L. c. 209B, § 7 (c ). Furthermore, because North Carolina never exercised jurisdiction over the child, the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A, does not apply. See Guardianship of a Minor, 98 Mass. App. Ct. 133, 139-140 (2020). The Juvenile Court judge properly exercised jurisdiction.
Moreover, the Juvenile Court judge properly decided not to decline jurisdiction over the custody proceedings pursuant to the grounds specified in G. L. c. 209B, § 7. See Guardianship of a Minor, 98 Mass. App. Ct. 133, 138 (2020) ("a court must first determine whether it has the power to exercise jurisdiction over the custody proceeding; if it has that power, the court may still decline jurisdiction based on one of the grounds specified in G. L. c. 209B, § 7 [a ]").
Though the father has not explicitly challenged the sufficiency of any of the judge's findings or her conclusions of law, we note that there was ample evidence to support the finding that the father was unfit and the termination of his parental rights. See Adoption of Ilona, 459 Mass. 53, 59 (2011) ("We give substantial deference to a judge's decision that termination of a parent's rights is in the best interest of the child, and reverse only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion"). The evidence demonstrated that the father had a history of domestic violence and substance use, including perpetrating domestic violence while the child was present, see Custody of Vaughn, 422 Mass. 590, 595 (1996), demonstrated minimal cooperation with the department, maintained inconsistent visitation with the child, and lacked commitment to achieving the tasks on his service plan, see Adoption of Rhona, 63 Mass. App. Ct. 117, 126 (2005). The record indicates the judge's "careful factual inspection and specific and detailed findings," Adoption of Harriet, 29 Mass. App. Ct. 111, 112 (1990), and "demonstrate[s] that close attention has been given to the evidence." Custody of Eleanor, 414 Mass. 795, 799 (1993).
Similarly, there is no merit to the father's contention that the judge erred by failing to consider the child's aunt as a potential placement. As an initial matter, we note that the father failed to present a competing adoption plan, and thus any argument that the judge erred in failing to consider it is baseless. In any event, the record demonstrates that the judge fully considered the aunt as a potential placement for the child but found that the aunt did not have a full understanding of the child's needs. The judge therefore did not abuse her discretion in concluding that placing the child with the aunt would not be in his best interests. See Adoption of Dora, 52 Mass. App. Ct. 472, 475 (2001).
The father in his brief refers to this individual as the child's paternal aunt. The judge's findings refer to her as the maternal aunt. There is no dispute that both the judge and the father refer to the same individual.
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Finally, there is no merit to the father's assertion that the judge erred by declining to order posttermination and postadoption visitation. Once a parent's unfitness is established, any visitation plan is left to the discretion of the trial judge, see Adoption of Ilona, 459 Mass. at 65-66, based on the child's best interests. See Adoption of Vito, 431 Mass. 550, 562 (2000). Additionally, the trial judge may decide that visitation should be at the discretion of the adoptive parent. See Adoption of Ilona, supra at 66. The judge found that the father's visits with the child were inconsistent and negatively impacted the child, and that, in contrast, the child had formed a strong bond with his foster (now preadoptive) mother. See Adoption of Vito, supra at 563 ("Where, as here, the child has formed strong, nurturing bonds with his preadoptive family, and there is little or no evidence of a significant, existing bond with the biological parent, judicial exercise of equitable power to require postadoption contact would usually be unwarranted"). The record demonstrates that the judge carefully considered the best interests of the child in declining to order posttermination or postadoption visitation, and we cannot say that she abused her discretion in so deciding.
Decree affirmed.