Opinion
21-P-610
03-17-2022
ADOPTION OF JIM (and a companion case ).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother appeals from so much of the decrees terminating her parental rights to two of her children, Jim and Mary (children), as rejected her proposed permanency plan for the children in favor of that of the Department of Children and Families (department) and failed to order maternal or sibling visitation with the children. We conclude that having found that the children's foster mother (who would be the adoptive parent under the department's permanency plan, and to whom we refer in those terms) would act in the children's best interests in continuing contact between the children and their biological mother, and between the children and their siblings, the judge acted permissibly in declining to order visitation. Likewise discerning no error in the judge's careful consideration of the evidence, we affirm.
Although the parental rights of the children's putative fathers were also terminated, neither of the children's fathers is a party to this appeal.
Background. The department filed this care and protection petition in December 2017. In August 2019, the trial judge approved the parties’ stipulation to the termination of the mother's parental rights, which reserved the mother's right to litigate which of the two competing permanency plans -- hers, or the department's -- was in the children's best interests. After a trial in October 2020, the judge terminated the mother's parental rights, and found the department's permanency plan to be in the children's best interests. The judge found that contact between the biological mother and the children was in the children's best interests, but declined to order visitation, leaving decisions about posttermination visits to the discretion of the department and decisions about "the extent and frequency of postadoption contact" to the discretion of the adoptive parent. The judge made no finding as to contact between the children and their four other siblings, and likewise left the question of sibling visitation to the adoptive parent.
Discussion. We review both the judge's determination that no visitation orders were required here and his choice between the competing permanency plans for an abuse of discretion. See Adoption of Ilona, 459 Mass. 53, 65-66 (2011) (visitation); Adoption of Hugo, 428 Mass. 219, 225 (1998) (adoption plans).
1. Parental visitation. Having found that the department's adoption plan was in the children's best interests, the judge considered the issue of prospective contact between the mother and the children. Based on the trial evidence, the judge concluded that "a significant bond exist[ed] between [the m]other and the children" and that "it [was] in the children's best interests to order post termination and post adoption contact." Finding that as the children's foster mother, the adoptive parent "[had] never restricted the children's access to their biological family" and crediting her testimony that she "would permit post adoption contact with [the m]other and the siblings consistent with the best interests of the children," the judge declined to enter an order concerning such contact. Instead, he explicitly left all aspects of that contact to the discretion of the adoptive parent. We discern no abuse of discretion or other error in the judge's ruling.
The mother argues that having decided that "it [was] in [the children's] best interests to order post termination and post adoption contact," the judge was required to issue such an order. We disagree. The mother's argument is foreclosed by the Supreme Judicial Court's ruling in Adoption of Ilona, 459 Mass. at 65. In Adoption of Ilona, the Supreme Judicial Court clarified that even where a judge finds that posttermination contact between a child and their biological parent is in the child's best interests, the judge should not intrude unnecessarily on the adoptive parent's interest in their relationship with the adopted child. See id. at 64. Accordingly, "[a] judge should issue an order of visitation only if such an order, on balance, is necessary to protect the child's best interest." Id. at 65. Here, as in Adoption of Ilona, the judge found that an order was not required because "the preadoptive mother was supportive of continued contact between [the children] and [the biological] mother, and would continue to allow such contact" as long as it was in the children's best interests. Id. at 66. Where the judge found the adoptive parent would act in the children's best interests regarding visitation with the mother, he acted within his discretion in declining to issue an order defining the specifics of that contact.
We acknowledge the apparent tension between (1) the judge's explicit determination as we have quoted it and (2) the judge's equally explicit decision not to enter an order as to the frequency and extent of such contact, and instead to leave posttermination and postadoption visitation to the discretion of the department and the adoptive parent, respectively. Although the mother argues that a remand is necessary to clarify the matter, we are persuaded that the quoted statement was a slip of the pen and that the judge's explicit decision not to enter orders on the subject represents his actual intent, making a remand unnecessary.
The children themselves argue that the judge's decision not to issue orders for visitation with their mother or their siblings should be affirmed.
2. Sibling visitation. Next, the mother challenges the judge's decision not to issue orders concerning posttermination and postadoption visitation between the children and their siblings. See G. L. c. 119, § 26B (b ) ("The court or the department shall, whenever reasonable and practical and based upon a determination of the best interests of the child, ensure that children placed in foster care shall have access to and visitation with siblings ..."). Assuming without deciding that the mother has standing to raise this issue on appeal, see Adoption of Zander, 83 Mass. App. Ct. 363, 367 n.6 (2013), we are unpersuaded that the judge abused his discretion in failing to order sibling visitation in this case.
First, the mother did not raise the issue in the trial court, so it has been waived. See Adoption of Gillian, 63 Mass. App. Ct. 398, 408 (2005). Second, even were that not the case, where the judge did not make a finding that sibling visitation was in the children's best interests, he was not obligated to order such contact. See generally Care & Protection of Jamison, 467 Mass. 269, 284 (2014) ("the ‘best interests of the child’ standard does not establish a presumption in favor of sibling visitation"). In these circumstances, we discern no error in the judge's deferral to the adoptive parent -- whom he found would act in the best interests of the children with respect to all visitation between the children and their biological family -- to set the parameters for such contact. The children may later petition for such visitation, see Adoption of Garret, 92 Mass. App. Ct. 664, 680 n.25 (2018), and we presume that the adoptive parent will seek to establish such visitation if it is in the children's best interests. See Adoption of Ilona, 459 Mass. at 64.
Unlike Adoption of Zander, 83 Mass. App. Ct. at 367, where "[t]he judge acknowledged the necessity of sibling visitation, but left the timing and frequency of such visits to the discretion of the adoptive parents," and this court "remand[ed] for the judge to provide a schedule for posttermination and postadoption sibling visitation," the judge here does not appear to have been asked to (and did not) make findings as to whether such visitation was in the children's best interests.
3. Mother's evidence. The mother contends that in choosing the department's permanency plan over hers, the judge failed to consider (1) evidence of the children's cultural background and (2) elements of a home study conducted by the State of New Jersey in connection with the mother's proposed plan establishing the children's half-sister as their guardian. We are not persuaded.
First, the judge's detailed findings refute the mother's argument and show that the judge did, in fact, consider evidence on each of these issues. See Adoption of Gillian, 63 Mass. App. Ct. at 403, quoting Adoption of Nancy, 443 Mass. 512, 514-515 (2005) (detailed findings required in termination of parental rights "demonstrat[e] that [the judge] has given the evidence close attention"). The judge noted the biological family's ties to the Dominican Republic, and detailed the mother's evidence that if the children's half-sister were to become their guardian, as the mother's adoption plan proposed, the extended family would instill in them values and lessons important to Dominican culture. The judge also noted that the mother's proposed guardianship resource (the children's half-sister) was involved with Dominican food, music, and dance; spoke Spanish; and "would encourage the children to be bilingual."
Indeed, one section of the judge's findings is dedicated to "Dominican [c]ulture."
On the other hand, although the judge found that the adoptive parent did not share the children's cultural background, he also determined that she demonstrated her willingness and ability to acquire literacy in that area; fostered the children's cultural identity; and, in Jim's case, encouraged him to speak Spanish. Additionally, as we have discussed, the judge considered the adoptive parent's willingness to maintain contact with the children's biological family. We discern neither a lack of consideration nor a failure to conduct an even-handed assessment in the judge's findings and conclusions on this point. See Petition of the Dep't of Pub. Welfare to Dispense with Consent to Adoption, 376 Mass. 252, 261 (1978) (requiring even-handed assessment of competing plans); Adoption of Lars, 46 Mass. App. Ct. 30, 31-32 (1998) (judge required to make meaningful evaluation of department's plans).
The mother's argument that the judge erred by disregarding the New Jersey home study is no more persuasive. The judge found that the mother's proposed guardian underwent a home study pursuant to a court order, and that the approved study was provided to the department. To the extent that the judge gave the New Jersey home study little weight in his assessment of the competing plans, he explained his reasons for doing so, and acted within his broad discretion. See Adoption of Hugo, 428 Mass. at 225 (appellate court accords substantial deference to judge's best interests determination when considering competing plans). Ultimately, we are satisfied that the judge gave fair consideration to all the evidence presented at the trial and made a proper determination that the department's adoption plan was in the best interests of the children. See id. at 225-226 & n.8, 229 n.17; Adoption of Peggy, 436 Mass. 690, 704–705 (2002).
Decrees affirmed.