Opinion
No. 11–P–2149. No. 11–P–2149.
2012-07-13
ADOPTION OF AZZIZA.
By the Court (KATZMANN, BROWN & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal from a decision of a judge of the Juvenile Court ordering the termination of the father's parental rights and declining to order posttermination visitation. On appeal, the father does not challenge the termination of his parental rights, but argues that the judge abused his discretion by failing to order postadoption visitation. We affirm.
The judge also terminated the biological mother's parental rights. The mother is not a party to this appeal, nor did she contest the termination.
The father's parental rights had been terminated in a previous proceeding, from which he successfully prosecuted an appeal of the denial of his motion for a new trial based on ineffective assistance of counsel. See Adoption of Azziza, 77 Mass.App. Ct 363 (2010). This is an appeal from the retrial of that matter.
Discussion. After the termination of parental rights, “a judge should issue an order of visitation only if such an order, on balance, is necessary” to protect the child's best interests. Adoption of Cadence, 81 Mass.App.Ct. 162, 167 (2012). “The judge may properly decline to order visitation when the adoptive parent's discretion to make decisions regarding contact will adequately serve the child's best interests.” Ibid. “[A]n order for postadoption contact is grounded in the over-all best interests of the child, based on emotional bonding and other circumstances of the actual personal relationship of the child and the biological parent, not in the rights of the biological parent nor the legal consequences of their natural relation.” Adoption of Saul, 60 Mass.App.Ct. 546, 556 (2004), quoting from Adoption of Vito, 431 Mass. 550, 562 (2000). We review for an abuse of discretion. Adoption of Saul, supra at 555; Adoption of Cadence, supra. The judge did not abuse his discretion when he declined to order visitation. The judge found, and the record supports the finding, that Azziza has a strong bond with the adoptive mother. He further found that the adoptive mother was committed to providing Azziza with appropriate visitation with the father and the father's family, and would make visitation decisions with Azziza's best interests in mind. The adoptive mother is Azziza's aunt and the divorced spouse of the father's brother. She regularly attends family gatherings with Azziza. Her biological children are Azziza's cousins.
Conversely, the judge found, and the record supports the finding, that the actual personal relationship and emotional bond between the father and Azziza were tenuous at best. The father had a history of chaotic and unstable relationships with women. He had with some frequency left Azziza in the care of the biological mother, and his girlfriend, both of whom had a history of drug abuse. Azziza does not ask for her father. He did not telephone her between supervised visits or inquire as to her well-being. During the supervised visits he took frequent breaks, and Azziza stalled and requested assurance that she would return to her adoptive home when told that a visit was imminent.
The father argues that a court-ordered visitation plan is necessary so that Azziza can maintain her connections to her Native American cultural heritage. See generally Adoption of Arnold, 50 Mass.App.Ct. 743, 747–748 (2001). In effect, the father argues that court-ordered visitation should be granted as a means of contact with Ponkapoag culture.
Federally recognized Native American tribes have a “particular interest in ensuring that Indian children grow up in those tribes.” Id. at 747. Because the Ponkapoag tribe is not a Federally recognized tribe, neither Adoption of Arnold, supra, nor the Indian Child Welfare Act, 25 U.S.C. § 1901 (1994) (ICWA) directly apply to this case. Accordingly, we analyze the arguments presented in accordance with settled precedent.
The father acknowledges that the ICWA is inapplicable.
A child's “future racial and cultural development and adjustment” is a matter “properly left to the wise guidance of [the child's] new family.” Adoption of Vito, supra at 565. Here, the adoptive mother is a member of the extended family. There is no showing that Azziza would be deprived of contact with her culture unless such contacts were mandated. Id. at 566–568. Nor is there any suggestion of “blind[ness] to the cultural differences inherent in Indian family and tribal life.” Adoption of Arnold, supra at 747. To the contrary, the adoptive mother's own children are members of the tribe, by virtue of their father's membership in the tribe. The adoptive mother attends family events, and consistently attended tribal events in the past before these proceedings produced some tension within the family. The adoptive mother stated her intent to attend any events to which she is invited. The primary impediment to attendance at tribal events has been the failure of the family members to invite her.
The judge found that the majority of the members of the Ponkapoag tribe is the immediate family, and the same group of people that attend family holiday gatherings.
The father's aunt, a member of the tribe, has seen Azziza and the adoptive mother at recent family events, as well as at a 2009 public event concerning Ponkapoag culture. She testified that she wished to continue contact with Azziza after adoption, but did not consider the adoptive mother to be a member of the family or the tribe. Neither the father's aunt nor uncle, the tribe's record keeper, have asked the adoptive mother to attend any tribal events with Azziza.
The father suggests that an order of visitation is therefore warranted in order to preserve her relationship with the tribe. This is the type of “wide-ranging monitoring” of which Adoption of Vito, supra at 563, has disapproved. In the absence of a claim under the ICWA, this court has no authority to consider the interests of the tribe or to order visitation with the tribe. The father is not a proxy for the tribe; there is no evidence in the record that contact with the father would result in a greater sense of cultural or racial identity. Where the adoptive mother stands willing to attend family and tribal events and to facilitate visitation with the father, there was no abuse of discretion in finding that the best interests of the child was best served by leaving the matter of visitation to the adoptive mother.
Decree affirmed.