ADOPTION OF XUAN v. << (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a trial in the Juvenile Court, the judge found the father unfit to parent his son, Xuan, and terminated the father's parental rights and declined to order posttermination or postguardianship visitation or contact. The father appealed, claiming that the judge had abused his discretion in terminating his parental rights and in not ordering posttermination and postguardianship contact. The child appealed from the order regarding posttermination and postguardianship contact and visitation. On January 7, 2019, this court affirmed the decree terminating the father's parental rights, and vacated the order declining to provide posttermination and postguardianship visitation or contact, remanding that matter for further proceedings and findings on whether such contact was in the child's best interest.² On January 25, 2019, the trial judge issued additional findings of fact and declined to order visitation or contact of any kind between the father and the child.³ The father and the child appeal, claiming that the trial judge did not comply with the orders on remand. We affirm.

1. Posttermination or postguardianship contact. The decision whether to grant posttermination or postguardianship visitation or contact “must be left to the sound discretion of the trial judge.” Adoption of John, 53 Mass. App. Ct. 431, 439 (2001). This decision 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.” Adoption of Vito, 431 Mass. 550, 562 (2000).

Here, taken together, the judge's original and additional findings on remand support declining to order contact of any kind between the father and the child. The judge noted that the visitation and contact that had occurred between the father and the child in 2015 was considered, but not given great weight, because that contact was not current. The father was incarcerated throughout the pendency of this action except for three and one-half months, in which he visited the child only four times. During one of those visits the child told the father he should “just kill himself,” and the father told his son about firing employees for drinking on the job. The judge found that there was no evidence offered of any type of bond between the child and the father. See Adoption of Vito, 431 Mass. at 563 (in deciding contact judge should consider whether there is “a significant, existing bond with the biological parent”).

Additionally, the judge found that the father was abusive to the child's mother in front of the child and assaulted the mother while the child tried to protect the mother from the father. This is an appropriate consideration when deciding what is in the best interests of the child. See Adoption of Zak, 87 Mass. App. Ct. 540, 543 (2015), quoting Custody of Vaughn, 422 Mass. 590, 595, 599 (1996) (“[W]itnessing domestic violence ․ has a profound impact on children․ [A] child who has been either the victim or the spectator of such abuse suffers a distinctly grievous kind of harm”). Though the father did participate in services, he did not participate in any services that were not court-ordered. In all, the judge acted well within his discretion by declining to order posttermination or postguardianship visitation or contact of any kind.

Order dated January 25, 2019, affirmed.

FOOTNOTES

2.   See Adoption of Xuan, 94 Mass. App. Ct. 1116 (2019).

3.   We take special note of the judge's diligence in issuing his further findings and filing them prior to our issuance of the rescript. See Mass. R. A. P. 23, as appearing in 481 Mass. 1653 (2019).