Opinion
No. 15–P–1646.
05-26-2016
ADOPTION OF OLAV (and three companion cases).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal from a Juvenile Court judge's decrees finding the mother unfit to assume parental responsibility for the children, committing them to the permanent custody of the Department of Children and Families (DCF), and terminating her parental rights. The mother contends that the decision should be reversed for four reasons. First, the mother argues that the judge erred because he failed to provide notice and conduct a proper hearing regarding custody of the oldest child, Olav, before termination. Second, the mother maintains that the judge erred because he terminated her parental rights and approved the goal of adoption in the absence of any adoption plans. Third, the mother argues that the judge abused his discretion when he allowed bifurcation of the mother's trial from the fathers' trial. Fourth, the mother contends that the judge abused his discretion when he failed to order posttermination and postadoption parent and sibling visitation.
The mother does not challenge the judge's finding that she is unfit to parent the children. Therefore, we specifically affirm the finding of the mother's unfitness.
The children have three different fathers. See note 11, infra.
The children join the mother in arguing that the matter should be remanded because DCF did not file sufficient adoption plans and that the judge erred in failing to order posttermination and postadoption parent and sibling visitation.
On February 18, 2014, DCF filed a petition, pursuant to G.L. c. 119, § 24, alleging that the children were in need of care and protection. , On February 21, 2014, the mother waived her right to a seventy-two hour hearing. On June 27, 2014, Olav's great grandmother was granted temporary custody of him until November 6, 2014.
The mother has three other children who are not part of this case.
This is the fourth care and protection proceeding filed on behalf of the children.
A trial adjudicating the mother's rights was held on November 6, 2014. The judge drew a negative inference from the mother's absence at trial. The attorney for the three older children stated that they wanted to go home to the mother, while the attorney for the youngest child, Cole, used substituted judgment to support Cole being freed for adoption and terminating the mother's rights.
The mother did not attend the pretrial hearing or the trial. Her last appearance in court was on February 28, 2014.
On November 7, 2014, the judge issued a decree for each of the children finding them in need of care and protection pursuant to G.L. c. 119, § 26, finding the mother unfit, and terminating her parental rights. On January 20, 2015, a permanency plan for the children, which recommended adoption, was filed. The plan was approved on February 18, 2015. The judge issued his findings of fact, conclusions of law, rulings, and order on June 12, 2015.
Discussion. The mother does not challenge the judge's subsidiary findings or that she is presently unfit to parent her children. See note 2, supra.
1. Custody hearing. The mother argues that the judge erred because he failed to conduct a proper hearing pursuant to Care & Protection of Manuel, 428 Mass. 527 (1998), before he terminated her parental rights as to Olav. That case, however, focused on the due process rights of a child in a temporary custody hearing and held that whenever a child's legal custodian is to be changed pursuant to G.L. c. 119, § 24 or § 25, pending the final adjudicatory hearing that takes place under G.L. c. 119, § 26, “the parties, including the child, have the right to be heard and to have the judge consider their nominations of possible legal custodians for the child.” Id. at 527–528, 536. In the instant action, there was no temporary custody hearing that took place, after the mother waived her right to one, before the final adjudicatory hearing that occurred on November 6, 2014. Accordingly, a Manuel hearing was not necessary in these circumstances. See ibid.
The mother also argues that the judge erred when he terminated her parental rights as to Olav because Olav was in the temporary custody of his great grandmother and not DCF. As part of the care and protection petition initiated pursuant to G.L. c. 119, § 24, Olav was placed in the custody of DCF and the parents waived their right to a temporary custody hearing. “[T]he court may allow the child to be placed in the care of some suitable person” “[p]ending the hearing on the merits,” but the child remains in the legal custody of DCF. G.L. c. 119, § 25, as amended by St.2008, c. 176, § 84. The grant of temporary custody to the great grandmother ended on November 6, 2014, the same day that the trial started, and did not affect DCF's petition regarding Olav.
2. Adoption plan. The mother asserts that the judge erred by dispensing with the mother's consent to adoption and seeks remand because of the absence of a written adoption plan setting out DCF's placement proposals for the children. , The children also seek remand. At the time of trial, DCF was not in a position to offer a detailed plan for adoption because of unsettled issues with the fathers, and the mother's trial was bifurcated and proceeded before the trial on the fathers' rights. Further, a fully developed adoption plan is not required before dispensing with parental consent to adoption. See Adoption of Paula, 420 Mass. 716, 722 n. 7 (1995) ( “A fully developed adoption plan, while preferable, is not an essential element of proof in a petition brought by the department”); Adoption of Scott, 59 Mass.App.Ct. 274, 278 (2003) (“Our cases recognize that in many ... cases no preadoptive parents have been identified when parental rights of the biological parents are terminated, and that, while a fully developed adoption plan is preferable, it is not an essential element of proof in a petition brought under G.L. c. 210, § 3 ” [quotations omitted] ).
The mother did not bring this issue to the judge's attention at trial, or in her motion for a new trial, and therefore this argument could be deemed waived. Adoption of Willow, 433 Mass. 636, 651 (2001).
General Laws c. 210, § 3(c), as amended by St.1999, c. 3, § 17, states, in pertinent part: “In determining whether the best interests of the child will be served by issuing a decree ... the court shall ... consider the plan proposed by [DCF].”
At the time of trial, the paternity of Cole's father had not yet been established, and Olav's father was incarcerated. The other two children, Frank and John, have the same father.
We note that DCF submitted a permanency plan to the court on January 20, 2015, and that on February 18, 2015, the plan was approved. In the plan, DCF indicated that the goal for all the children was adoption. In the judge's findings of fact and conclusions of law, he stated that “the adoption plan prepared and propounded by [DCF] serves the best interests of the subject children.”
3. Bifurcation. The mother contends that the judge abused his discretion by bifurcating her trial from the fathers' trial and proceeding with her trial before the fathers' trial. Rule 42(b) of the Massachusetts Rules of Civil Procedure, as amended, 423 Mass. 1402 (1996), allows separate trials “in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy.” By the time of trial, the mother had failed to appear several times, her whereabouts were unknown, and there was an outstanding warrant for her arrest. Further, the paternity of Cole's father was in the process of being established and Olav's father was incarcerated with eligibility to appear before the parole board in March, 2015. Under these circumstances, the best interests of the children were served by solely terminating the mother's parental rights. See Adoption of Ilona, 459 Mass. 53, 61 (2011) (“[T]he parents' rights are secondary to the child's best interests”). For these reasons, the judge did not abuse his discretion in bifurcating the trials.
4. Posttermination and postadoption parent and sibling visitation. The mother and the children contend that the judge abused his discretion when he failed to order posttermination and postadoption parent and sibling visitation.
a. Posttermination and postadoption parent visitation. General Laws c. 210, § 3, permits the judge to grant posttermination and postadoption visitation rights to a biological parent. “Once it is established that a parent is unfit, the decision whether to grant postadoption [or posttermination] visits must be left to the sound discretion of the trial judge.” Adoption of Terrence, 57 Mass.App.Ct. 832, 839 (2003) (quotation omitted). To determine whether posttermination and postadoption visitation is appropriate, the judge applies the best interests of the child standard. Adoption of Rico, 453 Mass. 749, 758 (2009). The determination of the best interests of the child should be “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 Vito, 431 Mass. 550, 562 (2000).
The judge did not abuse his discretion when he left postadoption visits with the mother to the discretion of the adoptive parents. “The purpose of such contact is not to strengthen the bonds between the child and his biological mother or father, but to assist the child as he negotiates, often at a very young age, the tortuous path from one family to another.” Id. at 564–565. The evidence presented to the judge focused on the mother's history of neglect of the children and her failure to engage in meaningful contact with them during the nine months preceding trial.
However, the judge failed to make any determination or order regarding whether posttermination parent visitation, while the children are in DCF custody, is in the best interests of the children. We therefore remand this matter to the Juvenile Court for such a determination.
b. Posttermination and postadoption sibling visitation. The judge left posttermination and postadoption sibling visitation to the discretion of the adoptive parents. General Laws c. 119, § 26B(b), inserted by St.2008, c. 176, § 84, provides that “[t]he 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 in other foster or pre-adoptive homes or in the homes of parents or extended family members throughout the period of placement in the care and custody of the department, or after such placements, if the children or their siblings are separated through adoption or long-term or short-term placements in foster care.”
The judge failed to make any determination or order regarding whether posttermination and postadoption sibling visitation is in the best interests of the children. “The judge must decide whether and, if so, how sibling visitation is to occur, ... but also the schedule and conditions of visitation.” Adoption of Zander, 83 Mass.App.Ct. 363, 367 (2013) (quotation omitted). The ages of the children here (fourteen, twelve, nine, and three at the time of trial), and their adoption prospects, make such a determination, and any necessary order, particularly appropriate in this case. We therefore remand to the Juvenile Court on the issue of posttermination and postadoption sibling visitation.
The case is remanded for further proceedings on the issues of posttermination visitation between the mother and the children and posttermination and postadoption sibling visitation. In all other respects, the decrees are affirmed.