Opinion
15-P-1232
03-29-2016
ADOPTION OF LUCIA.
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
In a previous appeal, a panel of this court affirmed so much of the decrees as terminated the parental rights of the child's biological parents, but vacated the order regarding the child's adoptive placement and remanded the matter for further findings on that issue. See Adoption of Lucia, 85 Mass. App. Ct. 1127 (2014). On remand, the trial judge held an evidentiary hearing and entered additional findings, concluding that adoption by the child's foster parents would serve her best interests. Both parents again appealed. We affirm.
We note with some concern that the judge initially approved a proposed settlement between the Department of Children and Families (department) and the child, without entering additional findings as directed in the remand order of this court, and that the judge conducted an evidentiary hearing and entered her supplemental findings only after the parents filed a notice of appeal from her order adopting the agreement between the department and the child.
1. Standing. Before addressing the merits of the parents' challenges to the placement order, we must first address the child's contention that the parents no longer have standing to challenge the adoption plan. The question is controlled in material respects by Adoption of Rico, 453 Mass. 749, 757 n.16 (2009), and Adoption of Douglas, 473 Mass. 1024, 1026 n.7 (2016). Read together, those cases illustrate that parents whose rights are terminated may challenge on appeal visitation and placement orders entered incident to the termination decree through continuation of the same litigation, even if the termination decree is no longer at issue. See Adoption of Rico, supra.
2. Best interests. We review the factual findings of the judge for clear error, see Adoption of Hugo, 428 Mass. 219, 224 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999), and review for abuse of discretion her ultimate conclusion concerning whether the placement and visitation plans would serve the best interests of the child. Id. at 225.
The parents assign error to the judge's findings that the preadoptive parents have the financial means to provide for the child. Though the evidence makes clear that the preadoptive parents are without substantial means, the judge's findings that they are prudent and careful with their finances, and that they have the capacity to meet their financial needs, find support in the evidence and are not clearly erroneous.
On the larger question whether the preadoptive parents offer a placement option that is independently viable, and a better alternative than the proposed kinship adoption, we discern no abuse of discretion. On remand, the judge was obliged to consider the concerns expressed by the panel in its decision in the previous appeal, including the financial capacity of the preadoptive parents to provide for the child, the ability of the preadoptive parents to care for the child as they continued to age, and the availability of a "succession plan" should the preadoptive parents become unable to care for the child before she reaches majority. Contrary to the parents' contention, the judge acknowledged the preadoptive parents' age, and its likely effect on their capacity to care for the child in future years. The judge's assessment that the preadoptive parents would be able to care for the child into the future finds support in the testimony of the social worker who conducted home visits during the time the preadoptive parents were serving as the child's foster family. Moreover, the judge specifically considered the availability of a "succession plan" in the event that the preadoptive parents became unable to care for the child at some point. Though the succession plan is not written, the record includes an unequivocal commitment by the successor caregiver of her willingness to take the child in if anything happened to the preadoptive parents. To be sure, the succession plan is without detail in some respects, but the absence of detail is to a large extent inherent in a plan that will take effect only at some uncertain point in the future; the circumstances in place at the time of any succession are inherently dynamic and unpredictable, and the most important consideration is the availability of a suitable and willing caregiver to step in.
At the time of the evidentiary hearing following remand, the preadoptive father was seventy years old, and the preadoptive mother was sixty-two years old.
The judge's supplemental findings reflect careful consideration of the evidence, and of the child's best interests. It is evident in both the original decrees and the order after remand that the judge considered the question to be a difficult one, but ultimately determined that the child's best interests would be served by keeping her in the only home she has ever known. Though the judge's supplemental findings and orders after remand do not expressly compare the proposed adoptive placement with the kinship alternative, the judge's previous decision and order conducted a detailed comparison, and we consider it implicit in the judge's decision after remand that she conducted her assessment of the specific areas identified in this court's previous decision against the backdrop of the kinship alternative described in her previous decision and order.
By the time of the evidentiary hearing on remand, the child was four years old. The child celebrated her fifth birthday in March, 2016.
In sum, though the question is close and difficult, the judge's decision after remand reflects careful consideration of the evidence and a thoughtful evaluation of the child's best interests. We discern no clear error in the judge's supplemental findings of fact, and no abuse of discretion in her conclusion that the child's best interests would be served by adoption by the foster parents.
Finally, passing the question whether the parents have standing to challenge the frequency of postadoption visitation ordered for the paternal grandparents, we discern no abuse of the judge's considerable discretion. See Adoption of Ilona, 459 Mass. 53, 63-65 (2011).
Orders of adoptive placement and postadoption visitation affirmed.
By the Court (Green, Vuono & Henry, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 29, 2016.