Opinion
16-P-1541
07-27-2017
ADOPTION OF NERISSA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a trial in the Juvenile Court, the judge issued a decree finding the mother unfit to assume parental responsibility, terminating her parental rights, dispensing with the need for her consent to the adoption of the child, and leaving visitation to the discretion of the Department of Children and Families (department) and the preadoptive parents. See G. L. c. 119, § 26 ; G. L. c. 210, § 3. The mother does not appeal the termination of her parental rights, but rather contends that the judge abused his discretion by failing to order posttermination and postadoption visitation. We affirm.
The father stipulated to the termination of his parental rights and thus is not involved in this appeal.
The trial judge's decision on visitation must focus on whether posttermination visitation is in the best interests of the child, keeping in mind "the particular needs and circumstances of the individual child in question." Adoption of Vito, 431 Mass. 550, 564, 566 (2000). In making this determination, a judge may consider, among other things, the child's existing bonds with the biological parent and the preadoptive family. Adoption of Ilona, 459 Mass. 53, 63-64 (2011). If the judge finds that visitation is in the child's best interests, and where a family is ready to adopt the child, the judge must consider whether "an order of visitation [is] necessary to protect the child's best interest," or whether decisions regarding visitation are best "left to the judgment of the adoptive family." Id. at 63. We review visitation decisions for an abuse of discretion and ask whether there was "[a] clear error of judgment in weighing the factors relevant to the decision such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (quotation omitted).
In this case, the judge made twenty-seven findings of fact and twenty-nine conclusions of law based on the testimony of two witnesses and twenty five-exhibits. With regard to visitation, the judge found that ordering visitation would not be in the best interests of the child and, accordingly, left visitation to the discretion of the department prior to adoption, and to the adoptive family postadoption.
The primary focus of the judge's detailed findings and conclusions pertained to the determination, and ultimate finding, of parental unfitness. See Adoption of John, 53 Mass. App. Ct. 431, 439 (2001) ("When a trial judge decides not to order visitation ... he is not required to make extensive findings if he has already made specific and detailed findings regarding the child's best interests and the determination of parental unfitness").
The department and the child contend that the mother waived, and is estopped from asserting, her visitation claim on appeal because she filed a motion seeking visitation at the discretion of the preadoptive parents. Box Pond Assn. v. Energy Facilities Siting Bd., 435 Mass. 408, 422 n.14 (2001) ("One who by his conduct induces the commission of some [alleged] error by the trial court, or, in other words, who has invited error, is estopped from insisting that the action of the court is erroneous" [quotation omitted] ). We need not decide this issue, as the trial judge was within his discretion in declining to order visitation based on the best interests of the child.
Contrary to the mother's contention, the evidence does not suggest that there is a "significant, existing bond" between the child and the mother. Adoption of Ilona, supra at 63-64. Although it is true the department noted that there was a bond when the child was first born, this is not determinative where the mother failed to have continued involvement in the child's life. See Adoption of Edgar, 67 Mass. App. Ct. 368, 373 (2006) ("In deciding on postadoption visitation, the judge is to evaluate the present state of emotional bonding"). Since the child's placement into the custody of the department in October, 2014, the mother and child have had successful visits, but the mother has been inconsistent with those visits and stopped visiting the child entirely as of March of 2015. In these circumstances, the judge did not err in failing to find a current bond between the child and the mother. See Adoption of Ilona, 459 Mass. at 63-64.
Moreover, here, a preadoptive family has been identified, and the child has formed "strong nurturing bonds" with that family. See Adoption of Vito, 431 Mass at 563 (where "the child has formed strong nurturing bonds with [her] 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 child has visited with the preadoptive parents, who are the child's cousins through marriage, every weekend since November of 2015, including overnight visits, and, as the judge found, the child "has had the opportunity to bond and become comfortable with" her preadoptive family. See Adoption of Ilona, supra.
Moreover, there was testimony at trial that the child "absolutely loves [the preadoptive parents]," gets excited about seeing the preadoptive parents, and "has a very, very loving, caring relationship with [the preadoptive parents]."
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The mother has not identified any other "considerations beyond bonding" that are relevant to the determination not to order posttermination visitation in this case. Adoption ofRico, 453 Mass. 749, 759 (2009). See Adoption of Vito, supra at 566 (declining to order visitation despite racial and cultural considerations); Adoption of Rico, supra at 755 (ordering visitation where preadoptive family had not been identified, child was nine years old and had lived in four different foster homes over span of six years, and child and father had formed strong bond). Here, the child has not lived with either parent since she was two years old; a preadoptive family has been identified; the child has spent time with that family; and the judge did not find a remaining significant bond with the mother. For these reasons, we discern no abuse of discretion in the judge's failure to order visitation.
Decree affirmed.