Opinion
15-P-938
02-18-2016
ADOPTION OF CHANDLER (and three companion cases).
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
Claiming that a judge of the Juvenile Court abused his discretion, Chandler and Adam, the two oldest of the four children who were the subjects of a care and protection proceeding, appeal from the judge's decision ordering four sibling visits per year.
The two younger children do not appeal from the order, nor do they oppose the entry of an order requiring additional preadoption visitation between Chandler and Adam.
Background. On June 8, 2012, the Department of Children and Families (DCF) removed the four children from the custody of their mother based on an emergency care and protection petition. The children were placed in the custody of DCF. On February 5, 2015, the mother consented to the termination of her parental rights upon signing an open adoption agreement for each of the children. The open adoption agreement contained provisions for each child's visits with the mother, but did not contain any provisions for a visitation schedule between the siblings.
The parental rights of the children's fathers were also terminated; none of the parents are involved in this appeal.
Chandler and Adam filed a motion for sibling visits, seeking a court order for monthly visits between all four siblings. After a hearing, the judge issued an order mandating four visits per year to occur with all children present. Chandler and Adam appeal from that order, arguing that their special bond entitles them to an order for more frequent visitation with each other.
Discussion. Once a decree has entered terminating parental rights, the judge "has broad discretion to determine what is in a child's best interests with respect to custody and visitation with biological family members thereafter." Adoption of Rico, 453 Mass. 749, 756 (2009). "[I]n reaching a decision as to a child's best interests, a judge 'must have sufficient evidence to make an appropriate determination.'" Care & Protection of Jamison, 467 Mass. 269, 281 (2014), quoting from Adoption of Cadence, 81 Mass. App. Ct. 162, 173 (2012). We review for abuse of discretion. Ibid.
Here, the judge concluded that an order requiring more frequent visitation "would place too high a burden on prospective adoptive parents and create a substantial risk that such a burden would deter them from adopting." In so concluding, the judge relied on the testimony of Bonnie Bettencourt, a social worker for DCF, who stated that visitation orders "can be a bit of a barrier for" potential adoptive parents. This statement, however, was made in response to a broadly phrased question: "Now if this Court were to order a set amount of sibling visits per year, would that impact [DCF's] recruitment efforts?" There is no indication that the social worker intended to state that a preadoptive visitation order would impose such a barrier. Furthermore, DCF has failed to articulate any reason why an order for more frequent preadoptive visitation between Chandler and Adam would be a barrier to adoption or otherwise would not be in the best interests of the children.
Bettencourt explained: "In terms of families coming forward to be adoptive resources, they often look at what their responsibilities will be in terms of abiding by open adoption agreements, in addition to sibling visitation and sometimes depending on geographically where families are located, in addition to what, you know, what their lifestyle is, sometimes it can be a bit of a barrier for folks to keep up with rigorous terms around that."
The judge acknowledged that the four siblings "all clearly have a bond with each other." He also found that, while no permanent placement has yet been found, DCF intends to attempt to place Chandler and Adam in an adoptive home together. The record establishes that Chandler and Adam lived together for most of their lives, including in two successive foster homes after being removed from the mother's care, and that they share a special bond. As they argued before the judge, if DCF is unable to find long-term placements for them, their familial relationship is "all they have."
In the unique circumstances presented, we conclude that the judge abused his discretion and, therefore, we remand to the Juvenile Court for the purpose of fashioning an order that practically and reasonably, in the judge's discretion, provides additional preadoption visitation between Chandler and Adam. In all other respects, the order dated April 10, 2015, is affirmed.
So ordered.
By the Court (Vuono, Grainger & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 18, 2016.