Opinion
21-P-734
05-19-2022
ADOPTION OF UNDINE. [1]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
Following trial, a Juvenile Court judge found that Undine's mother was unfit to parent her and that termination of the mother's parental rights was in Undine's best interests, and the judge accordingly issued a decree terminating the mother's parental rights. See G. L. c. 119, § 26; G. L. c. 210, § 3. The judge approved the Department of Children and Families' (DCF) plan for the child's adoption though no adoptive resource had yet been located. On appeal, the mother does not challenge the finding of unfitness. Instead, the mother contends that (1) the judge abused her discretion by failing to address lesser restrictive alternatives to terminating the mother's rights, and (2) the judge erred in failing to order posttermination and postadoption visitation. We affirm.
The child's father passed away in 2019 and is not a part of this appeal.
The mother had a long history of neglecting the child, including severe medical neglect, inconsistent school attendance, and extremely poor personal hygiene and living conditions. The mother has been unable to benefit from the services provided to her to better care for the child over a period of many years. While we commend the mother for her efforts to address her substance use disorder and encourage her to continue those efforts, she has struggled with the issue for years, including through the time of the trial.
Discussion.
1. Assessment of competing placement options.
The mother argues that the judge abused her discretion in failing to address a lesser restrictive alternative of guardianship with or adoption by a paternal great aunt (aunt). We disagree.
"Unless shown to be clearly erroneous, we do not disturb the judge's findings, which are entitled to substantial deference." Adoption of Jacques, 82 Mass.App.Ct. 601, 606-607 (2012). Where the parties propose competing plans, the judge must carefully evaluate each plan, including an "even handed assessment of all the facts surrounding both the department's plan and any competing custody or adoption plan" (quotation and citation omitted). Adoption of Hugo, 428 Mass. 219, 226 n.8 (1998), cert, denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999). "In choosing among placement plans, it falls to the sound discretion of the trial judge to determine what is in the best interests of the child, and our review on appeal is one of substantial deference" (quotation and citation omitted). Adoption of Bianca, 91 Mass.App.Ct. 428, 434 (2017).
After thoughtful consideration of the competing placement option offered by the mother, the judge concluded that adoption or guardianship of the child by the aunt was not in the best interests of the child. The judge also concluded that DCF's adoption plan was in the child's best interests despite the lack of an adoptive resource. See Adoption of Flora, 60 Mass.App.Ct. 334, 340-342 (2004) (concern exists when terminating parental rights where bond exists between parent and child and adoption is unlikely). "Although a factor, the absence of imminent adoption prospects does not, by itself, invalidate a decision to terminate parental rights." Adoption of Jacques, 82 Mass.App.Ct. at 610, citing Adoption of Nancy, 443 Mass. 512, 516-518 (2005).
The mother presented the aunt as a potential permanency resource on the day before trial even though an adoption worker had reached out to the aunt via letter six months earlier and the aunt failed to respond. The aunt, who lived out of State, had never met the child or the mother. The aunt learned of the child's needs from the mother, though the aunt was unaware that the mother had not visited the child in nearly one year and had not parented the child in two years. The aunt did not know the child's grade in school. Significantly, the judge found that if the child is placed with the aunt, the mother plans to move to live on the aunt's land. The judge specifically found that it was the aunt's plan for the mother to play a significant role in the child's life going forward but that the aunt failed to appreciate the harm the mother's "chaos and instability has caused [the child]." The aunt also had responsibility for two other children and was not fully aware of their needs. She was raising a teenage adopted son who had been diagnosed with reactive attachment disorder, though she did not know how or why he was diagnosed. She acknowledged that her son may struggle to adjust to the child's presence. The aunt also was parenting her four year old grandson, though she was unclear whether she had adopted him or was his permanent guardian. The judge also properly considered the child's wish to be an only child, which was not given dispositive weight, and what would provide her with long-term stability and permanency. We discern no abuse of discretion in the determination that termination of the mother's parental rights and adoption were in the child's best interests.
Nothing in the judge's order precludes the aunt from pursuing a review pursuant to the Interstate Compact on the Placement of Children while DCF simultaneously recruits an adoptive resource.
2. Posttermination and postadoption visitation.
The mother argues that the judge erred in failing to order posttermination and postadoption visitation. We disagree.
"[A] judge who finds parental unfitness to be established 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). The judge found that the mother, though offered monthly visits with the child, failed to visit the child for eleven months leading up to trial. Given the additional findings of the lack of the mother's cooperation with DCF and the instability the mother brought to the child's life, we discern no abuse of discretion. Nothing in the decree prevents DCF or an adoptive parent from allowing visitation in the future if the child, who is now twelve years old, desires visitation.
Decree affirmed.
The panelists are listed in order of seniority.