ADOPTION OF XENA v. << (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The sole issue raised by the mother in this appeal from a decree of the Juvenile Court terminating her parental rights is the failure of the judge to order posttermination visitation between the child and her two half-siblings (who were not subjects of the petition or otherwise parties to the case).³ The mother assigns no error to the failure of the judge to order posttermination visitation between the mother and the child, and directed no argument in the Juvenile Court to the topic of sibling visitation. Passing on any question of the mother's standing to challenge an order of posttermination visitation that does not involve her,⁴ of the judge's authority to order posttermination visitation with siblings who were not parties to the case, or of waiver of the claim of error,⁵ we discern no abuse of discretion by the judge, and affirm the decree.

We review an order regarding sibling visitation under G. L. c. 119, § 26B, for abuse of discretion. Care & Protection of Jamison, 467 Mass. 269, 280 (2014). As in most aspects of child welfare, the governing principle is the best interests of the child. “[T]he ‘best interests of the child’ standard does not establish a presumption in favor of sibling visitation.” Id. at 284. “[T]his individualized inquiry is fact-dependent and circumstance-specific.” Id. at 285.

Here, the judge found, with record support, that “[Xena] has never resided with her half-siblings. [She] does not know or have a relationship with either. Post-adoptive sibling visitation is not in [Xena's] best interest.” General Laws c. 119, § 26B (b), does not require a posttermination sibling visitation order in these circumstances. The oldest half-sister was born in 1996, and has been in the custody of her father since she was about two years old. The middle half-sister was born in 2003; she was placed in the department's custody when she was about one month old, and then placed in her maternal grandmother's custody through a permanent guardianship. Xena was born in June 2014 and placed in the department's custody thirteen days later.⁶

In any event, the mother did not demonstrate, by a preponderance of the evidence, that posttermination sibling visitation was in Xena's best interests. See Care & Protection of Jamison, 467 Mass. at 284-285 & n.24. Xena opposes posttermination sibling visitation. The evidence shows that Xena does not have a relationship with either half-sister; in fact, she only met them a few times and her last visit with them occurred when she was three years old. The only family Xena has known and has bonded with is her foster family, with whom she has lived since July 2014. See Adoption of Vito, 431 Mass. 550, 567 (2000) (“the evidence clearly revealed a strong bond to the preadoptive family, the only family [the child] has ever known, and little to no attachment ․ to ․ biological siblings”). On the record as it appears before us on appeal, there is no basis to support the mother's contention that the failure of the judge to order posttermination visitation between Xena and her half-siblings was an abuse of discretion.⁷

Decree affirmed.

FOOTNOTES

3.   The father did not appeal from the decree terminating his parental rights.

4.   We note that in Adoption of Douglas, 473 Mass. 1024, 1026 (2016), on which the mother relies, the decrees at issue involved questions of both parental and sibling posttermination visitation. Id. at 1028 n.10.

5.   “Generally, issues not raised by a losing party in the trial court are not addressed on appeal, absent exceptional circumstances.” Adoption of Mary, 414 Mass. 705, 712 (1993). See Adoption of Gillian, 63 Mass. App. Ct. 398, 408 (2005).

6.   Moreover, by the time of trial, the oldest half-sister was twenty years old. Accordingly, there was no basis to support an order for visitation by the Juvenile Court. See Care & Protection of Jamison, 467 Mass. at 285. The mother acknowledges as much in her reply brief. It is also not apparent that the Juvenile Court could exercise jurisdiction over the oldest half-sister if she still resides in Florida, as is suggested in the record.

7.   We note that the child was found in need of care and protection, the mother's rights were terminated, and the child was permanently committed to the department's custody on July 28, 2017. The mother filed her notice of appeal on August 28, 2017, but the judge did not issue written findings of fact and conclusions of law until July 27, 2018. Delays in the preparation of materials essential to the prosecution of an appeal are never good, but are particularly troubling in child welfare cases in which the child's opportunity to achieve finality and permanency in her life is at issue, and a year's delay comprises a substantial proportion of the child's life. Findings of fact should in most cases be prepared contemporaneously with the decree of termination, and if extraordinary circumstances require that they issue after the order for termination any delay should be extremely brief. See, e.g., Juvenile Court Standing Order 2-18 III C (adopted October 2018 and effective November 2018) (not yet effective at the time of trial in the present case but stating that decision and written findings in termination of parental rights cases are due within ninety days after the close of evidence).