ADOPTION OF IDO v. << (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a trial in the Juvenile Court, a judge found the mother unfit to parent the youngest six of her twelve children, terminated her parental rights, and denied her motion for posttermination and postadoption visitation.³ The judge also found unfit Stephen (father), the biological father of four of the six children; his parental rights were terminated as to those children, and no posttermination or postadoption visits were ordered.⁴

On appeal the mother contends that the judge erred in finding that it was in the children's best interests to terminate her parental rights and to deny her motion for posttermination and postadoption visitation, as she and the children shared a strong emotional bond. She does not challenge the judge's finding that she is unfit. The father argues on appeal that the judge erred in failing to acknowledge the violation of his due process rights by the Department of Children and Families (department) in delaying notification of the removal of his children and in not providing him with a viable service plan.

One of the children, Jane,⁵ also appeals. She claims that neither the termination of the mother's parental rights, nor the denial of posttermination and postadoption visitation, was in her best interests, as the judge's decision was based on an adoption plan no longer viable. The judge, she argues, also ignored positive facts indicating the mother's fitness to parent her. For these reasons, she contends, the judge must reexamine the decree terminating the mother's parental rights to her. She also argues that a specific posttermination and postadoption sibling visitation order is in her best interests.

We vacate the portion of the order denying posttermination and postadoption visitation between the mother and Jane. We also vacate the judge's order declining to provide a specific posttermination and postadoption sibling visitation order. The decrees are otherwise affirmed.

Discussion. “To terminate parental rights to a child and to dispense with parental consent to adoption, a judge must find by clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of evidence, that the parent is unfit to care for the child and that termination is in the child's best interests.” Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012). “In determining whether the best interests of the children will be served by a decree dispensing with the need for consent, a ‘court shall consider the ability, capacity, fitness and readiness of the child[ren]'s parents ․ and shall also consider the plan proposed by the department or other agency initiating the petition.’ ” Adoption of Nancy, 443 Mass. 512, 515 (2005), quoting G. L. c. 210, § 3 (c). “Unless shown to be clearly erroneous, we do not disturb the judge's findings, which are entitled to substantial deference.” Adoption of Jacques, supra at 606-607.

1. The mother.⁶ The mother argues that it was error for the judge to terminate her parental rights, because she had maintained a strong bond with the children, a bond they did not share with their temporary caretakers. She also claims that, based on this shared bond, the judge abused his discretion in not issuing a posttermination and postadoption visitation order. Evidence in the record amply supported the judge's 326 unchallenged findings of fact in determining the mother's parental unfitness. See Adoption of Terrence, 57 Mass. App. Ct. 832, 835-836 (2003). Considering the long-standing pattern of neglect by the mother affecting each of these children whether through housing instability, living in deplorable home conditions, lack of medical and dental care, leaving them with inappropriate caretakers (usually their teenaged siblings), failing to enroll them in school and utilizing daycare placement for the nonschool-age children, excessive truancy of the older children, and the mother's ongoing marijuana use, “the judge did not clearly err in finding that the mother was unfit and that her unfitness was not temporary.” Adoption of Ilona, 459 Mass. 53, 62 (2011). The mother was in no better position to care for the children at the conclusion of trial in February 2017 than she was at the time of their removal in January 2015 due to her inconsistent utilization, or outright refusal, of department-provided services.

Similarly, the extensive findings issued by the judge demonstrated the close attention given to the evidence, and to the fourteen factors outlined in G. L. c. 210, § 3 (c), in determining that the termination of the mother's parental rights was in the best interests of the children. Adoption of Nancy, 443 Mass. at 514-516. Although it is true that the judge should consider the relationship between parent and child when making a determination regarding parental rights, the judge also must decide whether the parent's “grievous shortcomings” justify a termination of those rights in the best interests of the child. Adoption of Cadence, 81 Mass. App. Ct. 162, 168 (2012), quoting Adoption of Katharine, 42 Mass. App. Ct. 25, 28 (1997). In this case, in addition to the documented failings and consistent service plan noncompliance by the mother while the children were in her care, deficiencies continued after the children were removed.

In fact, the mother's inability to assume the duties and responsibilities of parenting were exemplified during the supervised visits she attended. In the two years leading up to trial, the mother's supervised visits were chaotic, as she was unable to maintain control of the children. The mother spoke of inappropriate topics with the children during the visits, and on two separate occasions gave the children a cellular telephone, which was prohibited by the department.⁷ These continued patterns of behavior clearly signified the children would be “at serious risk of peril” from neglect by the mother if they were returned to her custody. See Adoption of Cadence, 81 Mass. App. Ct. at 168, quoting Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998). In the circumstances here, we see no abuse of the judge's wide discretion in finding the mother unfit and determining that it was in the children's best interests to terminate her parental rights. Adoption of Ilona, 459 Mass. at 59-60.

In addition, the judge did not err in declining to order posttermination or postadoption visitation between the mother and the children. “[T]he decision whether to grant postadoption visits must be left to the sound discretion of the trial judge.” Adoption of John, 53 Mass. App. Ct. 431, 439 (2001). The decision is grounded in an analysis of what is in the best interests of the children. Adoption of Ilona, 459 Mass. at 63. Although the mother asserts correctly that a bond with the children is relevant to a best interests determination in ordering posttermination and postadoption visitation, the record is devoid of any evidence that such a bond existed at the time of trial. See Adoption of Edgar, 67 Mass. App. Ct. 368, 373 (2006) (“In deciding on postadoption visitation, the judge is to evaluate the present state of emotional bonding”). In fact, as the judge found, the evidence was “indicative of an indifference or vacillation [by the mother] of feeling toward the children.” Although the department's documented history with the mother initially spoke of a bond with the children, that bond became attenuated after their removal as a result of the mother's limited participation during the scheduled visits, the visits she missed, and her eventual failure to attend any visits after November 2016, three months prior to the conclusion of trial. See Adoption of Saul, 60 Mass. App. Ct. 546, 556 (2004) (postadoption visitation order not warranted where parent missed visits and opted for fewer visits than those offered).

The determination that the children's educational, medical, and emotional needs were being met by their caregivers was grounded in the evidence. As the judge concluded, the children had made great strides in overcoming developmental and educational delays exacerbated by the mother's neglect. See Adoption of Terrence, 57 Mass. App. Ct. at 835. “We therefore see no grounds on which to upend the judge's conclusion” that posttermination and postadoption visitation orders are not in the best interests of these five children. Adoption of Cadence, 81 Mass. App. Ct. at 169. There was no abuse of discretion. L.L. v. Commonwealth, 470 Mass 169, 185 n.27 (2014).

2. Jane. Jane argues that, in light of the disruption to her preadoptive placement, it was not in her best interests to terminate the mother's right to parent her,⁸ or for the judge to decline to order posttermination and postadoption parental visitation with the mother. Jane also claims that the judge erred in failing to order sibling visitation.

First, there is nothing in the record to suggest that the judge was aware of the disruption of the preadoptive placement at the time the decrees entered on June 7, 2017.⁹ In addition, neither Jane nor the mother moved to reopen the evidence, or sought to have the decrees reconsidered in light of the disruption. See Adoption of Cesar, 67 Mass. App. Ct. 708, 709-710 (2006) (placement disrupted prior to termination of parental rights but after close of evidence; child and mother filed motions to reopen evidence). Compare Adoption of Terrence, 57 Mass. App. Ct. at 839-840 (judge held hearing on motion for reconsideration; department “failed to inform the judge or anyone else at the hearing” that preadoptive family had returned child). Unlike in Adoption of Cesar, supra at 715, where the termination of the mother's parental rights was based primarily on a preferred available adoption placement and the child's wishes, here, the termination of the mother's parental rights rested squarely on her continuing parenting deficiencies.

“[I]n the absence of extraordinary circumstances, not here present, the mother may not rely on posttrial changes in a proposed plan for the child to reopen the proceedings even if they precede the entry of the decree.” Adoption of Scott, 59 Mass. App. Ct. 274, 277 (2003). Here the changes regarding Jane's placement did not precede the decree. As a result, there was no error in the termination of the mother's parental rights as to Jane.

However, in light of the disruption of the previously proposed preadoptive placement, we vacate the order declining the request for posttermination and postadoption visitation between the mother and Jane. The disruption of Jane's preadoptive placement, the lack of an identified potential preadoptive family, and the termination of the mother's parental rights “are precisely the circumstances in which an order for posttermination as well as postadoption contact may be appropriate and warranted.” Adoption of Rico, 453 Mass. 749, 755 (2009). “A judicial order for posttermination or postadoption visitation with a biological parent is for the benefit of the child ․” Id. at 756. For these reasons, the judge should reconsider whether a posttermination and postadoption parental visitation order is in Jane's best interests due to the uncertainty of her current custodial situation; the judge may take additional evidence if necessary.

The judge should also reconsider the issue of sibling visitation.¹⁰ “If siblings are separated through adoption, a judge ‘shall, whenever reasonable and practical and based upon the best interests of the child[ren], ensure that children ․ shall have access to and visitation with siblings. G. L. c. 119, § 26B(b).” ¹¹ Adoption of Zander, 83 Mass. App. Ct. 363, 367 (2013).

Here, the judge concluded “[t]hat it would not be reasonable or practical ․ to issue a specific and detailed order concerning sibling visitation” based on “twelve children, three of whom are over the age of eighteen,” and “liv[ing] in various homes, placements, and ․ [S]tates.” Instead, he indicated that he “expected” the department as well as future adoptive parents and custodians of the children to collaborate with each other in order to maintain sibling contact and visitation consistent with each child's best interests.

While a “specific and detailed” order might well have been difficult to fashion, a minimum order guaranteeing posttermination and postadoption contact and visitation may well have been reasonable and practical, provided that the judge found it also to be in the best interests of each of the six children who were the subjects of this proceeding.¹² There is nothing in this record to suggest that an order for posttermination and postadoption sibling visitation would not be in the best interests of these children. Compare Care & Protection of Jamison, 467 Mass. 269, 281 (2014), quoting Adoption of Cadence, 81 Mass. App. Ct. at 173 (“in reaching a decision as to a child's best interests, a judge ‘must have sufficient evidence to make an appropriate determination’ ”). To the contrary, there is strong record support for the closeness of the entire sibling group. Notably, all six children are in favor of a sibling visitation order.¹³

Although it is true that Jane may petition the court in the future should the department or any adoptive parents fail or refuse to allow her contact with her siblings, “this is a burdensome and uncertain avenue of relief” and not one that should be shouldered by Jane or her siblings. Adoption of Rico, 453 Mass. at 756. We therefore vacate the order declining to provide for posttermination and postadoption sibling visitation.

3. The father. The father argues that the department failed to timely notify him of the children's removal, thereby violating his due process rights. He also claims that the department failed to make reasonable efforts in creating a service plan tailored to his needs and abilities, and to assist him in working toward reunification.

First, because the father failed to raise the issue of reasonable efforts with the department before the termination proceedings, this argument is waived. See Adoption of Gregory, 434 Mass. 117, 124 (2001) (“we note that a parent must raise a claim of inadequate services in a timely manner so that reasonable accommodations may be made”).

As to timely notice, the father was incarcerated at the time the children were removed from the mother's care in January 2015, and the paternity as to his four children had not yet been established; Andrew was the known legal father. However, within days of the children's removal, the father had been informed by the mother that the department had taken custody of the children. See Adoption of Pearl, 34 Mass. App. Ct. 308, 312 n.5 (1993) (actual notice of proceeding satisfies due process requirements). In addition, the father was appointed counsel at an October 2015 hearing (the first he attended after his release), and he actively participated at the trial, where he testified and presented documentary evidence. The judge was warranted in concluding that the father had both actual notice of the intervention of the department and removal of the children, and inquiry notice. Id. There was no due process violation.

Conclusion. The portion of the order denying the mother's motion for posttermination and postadoption visitation with the children is vacated as it relates to visitation between the mother and Jane, and the matter is remanded for further proceedings on this issue consistent with this memorandum and order. The order declining to provide a specific order for sibling visitation or contact is also vacated. On remand the judge should reconsider the issue of sibling visitation, making a specific finding regarding whether sibling visitation is in the best interests of each of the six children, and if so, fashion at least a minimum order for sibling contact and visitation. The decrees are otherwise affirmed.

So ordered.

Vacated in part and remanded; affirmed in part.

FOOTNOTES

3.   Andrew is the legal father of all six children by virtue of his being married to the mother at the time of the birth of each child; he was listed on the birth certificates of Connor, Ido, and Jane. He has denied paternity to all six children, and the mother acknowledged his lack of paternity. He did not participate in the matter below and is not part of this appeal.

4.   The father signed a voluntary acknowledgment of paternity as to Denise, Connor, Brian, and Brady.

5.   The mother reported that Donald is Jane's biological father; he did not participate in the matter below, and he is not part of this appeal.

6.   The analysis contained in this section applies only to five of the subject children -- Denise, Connor, Brian, Brady, and Ido. Our decision relating to Jane appears in section two below.

7.   The two children given the cellular telephone were able to view pornographic pictures and videos of the mother with various partners that “popped up on the screen” when the phone connected to Wi-Fi upon returning to the children's foster home.

8.   The father's parental rights are not addressed as he is not Jane's biological parent; nor do we consider the rights of Andrew, her legal father, as he is not part of this appeal.

9.   According to an October 2017 permanency plan, the department knew in April 2017 of the disruption in Jane's preadoptive placement, but apparently did not convey that information to the judge. It appears from this record that the judge did not learn of the unraveling of Jane's placement until July 31, 2017, when the other children's attorney mentioned it during a hearing on the father's motion to file a late notice of appeal.

10.   Only Jane has appealed from the judge's order declining to provide a specific order for sibling visitation. In their joint brief, however, the other children state that they “do not object to a sibling visitation order.”

11.   Section 26B (b) of G. L. c. 119 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.”

12.   We sympathize with the judge's position, being presented with the formidable task of ensuring sibling visitation in this complex circumstance. But it is precisely in these complicated scenarios where children are most at jeopardy of losing sibling contact; and, although the department may have its independent obligation to ensure sibling visitation under the statute, see Adoption of Garret, 92 Mass. App. Ct. 664, 679-681 (2018), any future adoptive parent is not so obligated. See Adoption of Zander, 83 Mass. App. Ct. at 367. An “expectation” that a future custodian of the children will cooperate with sibling visitation falls short of an order requiring such visitation.

13.   Ido and Jane are nearing the age of twelve, an age at which they may request visitation with their placed or adopted siblings. However, it will be a number of years before the younger four children attain that milestone. See G. L. c. 119, § 26B (b). See also Adoption of Pierce, 58 Mass. App. Ct. at 345-346 (applying prior version of statute). Providing an order for a minimum number of visits or some form of contact would ensure that these six children maintain their close sibling relationships.