Opinion
22-P-27
10-03-2022
ADOPTION OF GENEVIEVE (and a companion case[1]).
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The father appeals from decrees issued by a Juvenile Court judge terminating his parental rights to his children Genevieve and Henry (twins), arguing only that the judge erred in declining to order posttermination and postadoption visitation. Concluding that the judge acted within her discretion in not ordering mandatory posttermination and postadoption visitation, we affirm.
The father does not contest the termination of his parental rights.
1. Background.
A G. L. c. 119, § 51A, report (51A report) was filed regarding the twins after they were born premature with Percocet in their urine. At the time of their birth in October 2014, the father was already facing criminal charges for repeatedly raping his sixteen year old niece. On November 7, 2014, the father was arrested on an outstanding warrant. On November 26, 2014, a jury convicted the father of incest, indecent assault and battery, and two counts of rape. He was sentenced to twelve to fifteen years in State prison, with ten years of probation to follow his release. At some point that November, the Department of Children and Families (department) filed its first care and protection petition and obtained temporary custody of the twins for approximately ten months. In early August 2015, the twins were returned to the mother.
In August 2018, four 51A reports were filed regarding the twins and their older brother after the mother was admitted to the hospital with drugs in her system and emergency responders observed that the children's home had no food or electricity. The department obtained emergency temporary custody of the children. In January 2020, the department returned the children to their mother. Less than one month later, the mother fatally overdosed. The twins were then placed with the former wife of a maternal uncle. In February 2020, the twins had their last inperson visit with the father. In June 2020, the twins were placed with a maternal uncle.
From February through May of 2021, the twins met virtually with their father every month. In June 2021, the twins were again placed with the former wife of the maternal uncle as an approved, kinship preadoptive resource.
The twins' older brother also attended these visits virtually, except for the visit in April.
At the termination trial, the father did not contest the termination of his parental rights, but merely sought an order of visitation. The judge terminated the father's parental rights and ordered that "[a]ny post-termination visitation shall be left to the discretion of the Department of Children and Families . . . [and] [a]ny post-adoption visitation shall be left to the discretion of the adoptive parent(s)." This appeal followed.
At trial, the twins through counsel argued against ordering visitation and asked that they be allowed to make their own decisions regarding contact with the father after he is released from prison. On appeal, the twins argued the same.
2. Denial of posttermination and postadoption visitation.
We review a trial judge's decision declining to order posttermination or postadoption visitation for an abuse of discretion. See Adoption of Xarissa, 99 Mass.App.Ct. 610, 623-624 (2021), citing Adoption of Ilona, 459 Mass. 53, 66 (2011). "In determining whether to exercise the authority to order visitation, a judge must ask two questions: First, is visitation in the child's best interest? Second, in cases where a family is ready to adopt the child, is an order of visitation necessary to protect the child's best interest, or may decisions regarding visitation be left to the judgment of the adoptive family?" Adoption of Ilona, supra at 63. In approaching the first question, "a judge should consider, among other factors, whether there is a 'significant, existing bond with the biological parent' whose rights have been terminated[,] . . . whether a preadoptive family has been identified[,] and, if so, whether the child 'has formed strong, nurturing bonds' with that family." Id. at 63-64, quoting Adoption of Vito, 431 Mass. 550, 563 (2000).
Here, the judge acted within her discretion in declining to order mandatory posttermination and postadoption visitation between the twins and the father. See Adoption of Vito, 431 Mass. 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"). Cf. Adoption of Rico, 453 Mass. 749, 753 (2009) (where there was undisputed evidence of strong bond between Rico and father, "where the judge found that Rico should have postadoption contact with the father, and where the trial evidence reflected that there were no identified adoptive parents or a situation where adoption of Rico was within reasonable sight, the judge abused her discretion in failing to order postadoption [or posttermination] visitation").
The judge found that, during the virtual visits in 2021, the "Father tried to engage the children with questions and participate in the conversation but the twins just wanted to talk to [their older brother]." At the March virtual visit one of the twins "asked when the visit would be over." During the April virtual visit, one twin "asked when the visit would be over, about every ten minutes" while the other twin "tend[ed] to answer all of Father's questions for herself and [her twin]." Although the father's expert testified that the female twin shared a bond with the father, "he did not have enough information to comment on a bond between Father [and the other twin]." "Due to the limited nature of his virtual observations" the judge gave "little weight" to the expert's opinion. Similarly, the judge did not credit the father's testimony regarding regular in-person visits with the twins prior to the mother's death, because the "Father did not introduce any evidence, other than his own self-serving testimony, that in person visits occurred while the children were not in [department] custody."
Moreover, the judge found that the twins had formed a "trusting and strong relationship" with their preadoptive mother. At trial, the preadoptive mother testified that she was "not comfortable with allowing contact between the twins and Father due to the crimes he is currently incarcerated for." The judge credited her testimony that "the children do not ask to see their Father."
The preadoptive mother further "testified that, in the future, if she felt it was in [the twins'] best interest to communicate with their Father, she would allow it."
Based on the evidence presented at trial, the judge reasonably concluded that an order for posttermination and postadoption visitation would not be in the twins' best interest. See Adoption of Douglas, 473 Mass. 1024, 1029 n.12 (2016), quoting Adoption of Vito, 431 Mass. at 563 ("Regardless of how the judge's order was phrased, however, the underlying subsidiary factual findings amply support the judge's determination that . . . there was no 'significant, existing bond' with the biological parent"). Once the judge determined that mandatory visitation was not in the twins' best interest, the judge had no need to "balance the benefit to the child[ren] of an order of visitation . . . with the intrusion that an order imposes on the rights of the adoptive parents, who are entitled to the presumption that they will act in their child[ren]'s best interest." Adoption of Ilona, 459 Mass. at 65-66. Accordingly, we discern no abuse of discretion in the judge's decision not to order posttermination and postadoption visitation with the father.
Decrees affirmed.
By the Court
Neyman, Ditkoff & Hershfang, JJ.
The panelists are listed in order of seniority.