Opinion
11-P-621
12-02-2011
ADOPTION OF ELIAN.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The parents raise only one issue in this appeal from the termination of their parental rights: namely, whether the posttermination visitation order issued by the trial judge with respect to the child, Elian, was legally deficient because it did not specify the precise dates upon which visits are to occur.
For a variety of reasons, not least substance abuse and domestic violence, and (on the part of the father) criminal behavior, the parents were adjudged unfit to parent their two children. Elian suffers from serious psychological and behavioral issues such that he has required specialized residential placement, including constant one-on-one attention, ever since his removal from the parents. Elian has outbursts of aggressive behavior, violence, urination, spitting, destruction of property, and derogatory statements, especially about women. He is prescribed antipsychotic medication. In short, he is a troubled child who will require specialized, deft care in order to overcome the effects of the parental neglect. Among other things, he will require specialized foster care that will be closely coordinated with, and supported by, the staff and programs at his current placement. Unfortunately, adoption (or even preadoptive placement) does not appear to be an option for Elian at this time in light of his special needs.
The older child is not a party to this appeal.
The parents have been irregular in visiting Elian since he was removed from their care. They have each missed long stretches of visits, without adequate (or, for stretches, any) excuse. The trial judge found that, although there was a significant bond between Elian and each of his parents, visitation with them was not entirely a positive experience for him. Visits with the father in particular 'precipitate an escalation of negative behaviors and reaction in [Elian.]' Because Elian will be difficult to place outside of an institutional setting, but such placement is in his best interest, the judge also found that '[Elian] must be given every opportunity to succeed outside of an institutionalized setting, and the exposure to that which interferes with his improved state and behavior must be minimized.'
As of December 3, 2010, the trial judge found that the mother had not visited since June, 2010.
Balancing these various considerations, the trial judge entered a detailed posttermination visitation order:
The judge also ordered postadoption visitation, but only twice per year.
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'Notwithstanding the issuance of the decree terminating parental rights as to [Elian], the court finds, by clear and convincing evidence, that it is in the best interest of [Elian] to continue to have post termination visitation contact with his parents, albeit on a limited basis. Therefore, DCF shall prepare and implement a post termination visitation schedule between each parent and [Elian], which visitation shall be four times per year, for a period of not less than sixty minutes per visit. The parents will not be allowed to visit with the child at the same time, but said visits may occur, if deemed appropriate, on the same day. These visits shall be supervised by DCF or an individual/agency approved by DCF. There shall be no attempt by either parent at secret or inaudible conversations with [Elian], and no discussion of any issues involving this case, the custodial status of either child, or any other legal concern relating in any way to the children. In addition, there shall be no discussion allowed by which [Elian's] pre-adoptive or foster parents' last names, address, or phone number, or his placement, school, activities, or other information that could be reasonably construed as informational as to [Elian's] whereabouts may be determined.
Relying on Adoption of Rico, 453 Mass. 749 (2009) (Rico), the parents argue that the visitation order allowed DCF an impermissible degree of latitude because it did not include the precise calendar dates on which visits are to occur. We do not share this view of the holding or import of Rico. Rico 'merely held that the judge's failure to issue an order of visitation constituted an abuse of discretion in the circumstances of that case.' Adoption of Ilona, 459 Mass. 53, 65 (2011) (emphasis added). A critical distinction between Rico and the case at hand is that no visitation order was entered in Rico. Here, the judge entered a detailed order that set out the frequency, duration, location, and conditions of visitation. We see nothing in Rico that would require anything more.
For the reasons set out above, the decree is affirmed.
So ordered.
By the Court (Green, Sikora & Wolohojian, JJ.),