Opinion
21-P-328
05-26-2022
ADOPTION OF WINIFRED (and a companion case[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
After a trial, a Juvenile Court judge found the father unfit to parent Adam and Winifred and terminated his parental rights with respect to both children. On appeal, the father argues that the judge erred by not ordering posttermination and postadoption visitation. We affirm.
The judge also found the mother unfit and terminated her parental rights. Her appeal was severed from the father's and later dismissed with prejudice by stipulation of the parties. See Mass. R. A. P. 29 (b) (1), as appearing in 481 Mass. 1660 (2019) .
The father contends that the judge erred by not making a finding that a strong bond existed between him and the children and that a visitation order was necessary to protect their best interests. See Adoption of Ilona, 459 Mass. 53, 63 (2011). However, the father did not request a visitation order at trial. The issue is therefore waived. See Adoption of Gillian, 63 Mass.App.Ct. 398, 408 (2005).
Even if the father had requested visitation at trial, the record does not support a determination that visitation was in the children's best interests. In making that determination, judges consider whether the child had a "significant, existing bond with the biological parent" and whether the child had formed "strong, nurturing bonds" with a preadoptive family. Adoption of Ilona, 459 Mass. at 63-64, quoting Adoption of Vito, 431 Mass. 550, 563 (2000). Winifred, who was three years old at the time of trial, had lived with the father only during the first year of her life, during which the father was charged with recklessly endangering her. Adam, who was almost two years old at the time of trial, never lived with the father. The only evidence of a bond between the father and the children was his own testimony that he had positive interactions with them at a few supervised visits prior to trial. Such evidence is insufficient to demonstrate a significant bond. See Adoption of Douglas, 473 Mass. 1024, 1028 (2016). Moreover, the father's failure to attend visits for at least six months weakened any bond that may have existed. By contrast, the judge found, and the father does not contest, that the children "have formed a strong, positive bond with their foster parents and those bonds have existed for the vast majority of their lives."
The father admitted to sufficient facts; the case was continued without a finding and ultimately dismissed.
The judge found that the father had not visited the children for eight months between October 2017 and June 2018. The father contends that this finding was clearly erroneous, and that he missed visits for only six months, from December 2017 to June 2018. Resolution of the claim of error is not material to our disposition of the appeal.
In addition, many of the judge's other findings implicitly supported a determination that a visitation order would not have been in the children's best interests. For example, the judge found that the father "poses an imminent threat to any child in his care" and that the children "would remain at tremendously high risk of abuse or neglect in [his] care." The father's "cycle of continual incarceration, probation, violation and reincarceration," as found by the judge, also made it unlikely that he would be available for regular visitation.
Although judges may also consider a child's "racial and cultural development and adjustment" in determining whether a visitation order is in the child's best interests, Adoption of Vito, 431 Mass. at 567, such consideration must be based on "the particular needs and circumstances of the individual child in question," not on "[g]eneralities about what may be in the best interests of some children," Id. at 566. Here, no evidence in the record demonstrated that Adam and Winifred would feel alienated from their African-American heritage or that the preadoptive family would deprive them of meaningful connections to that heritage. The father merely speculates that the children may face these difficulties based on general ideas of what could occur when some children are adopted by some families of a different race. It would have been inappropriate for the judge to order visitation on nothing more than this speculation. See Id. at 567.
To the contrary, as the father acknowledges, the preadoptive family was agreeable to biannual visits with the father and quarterly updates.
Given the children's strong attachments to the preadoptive family, their minimal attachments to the father, and the harm that the father posed to children in his care, the judge did not err in declining to order visitation sua sponte.
Decrees affirmed.
Massing, Singh & Englander, JJ.
The panelists are listed in order of seniority.