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ADOPTION OF ZIKORAH v. << (2021)

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Appeals Court of Massachusetts.

ADOPTION OF ZIKORAH.1

21-P-271

Decided: November 15, 2021

By the Court (Milkey, Kinder & Sacks, JJ.2)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The Department of Children and Families (department) filed this care and protection petition in July of 2017 and was granted temporary custody of the father's daughter, Zikorah, in June of 2018. After a trial in January of 2020, when Zikorah was eight years old, a Juvenile Court judge found the father unfit and terminated his parental rights.3 On appeal, the father argues that the judge abused her discretion in (1) terminating his rights, instead of placing Zikorah in a guardianship, and (2) declining to order posttermination and postadoption visitation. We affirm.

Background. Although the father does not challenge the judge's ultimate finding of unfitness, we briefly review the grounds for that finding.4 The judge found that the father had failed to maintain a safe, appropriate, and stable home for Zikorah, and he lacked employment or any other source of financial stability that would allow him to do so in the future. He had failed to plan sufficiently for the care of Zikorah should she be returned to him. He had no contact with Zikorah for a fifteen-month period between September of 2018 -- when he chose to cut off his global positioning system (GPS) monitoring bracelet and then fled to Nebraska -- and December 2019, following his extradition back to the Commonwealth and confinement in a house of correction.5 The father's visits with Zikorah at other times were inconsistent.

In addition, the father failed to take responsibility for Zikorah's welfare or acknowledge how his repeated criminal activity and other contacts with the criminal justice system made him unavailable and unable to parent Zikorah. He pleaded guilty to distribution of heroin and fentanyl in 2017 and received an eighteen-month sentence, one year of which was committed time. While on probation, the father was charged with domestic assault and battery; although the charge was eventually dismissed, it led to his serving ninety days for violating probation. At the time of the trial in this case, he was in jail awaiting trial on a charge of rape. The father nevertheless testified that this care and protection proceeding had nothing to do with him and that he was merely playing “the hand [he] was dealt.” He did not comply with numerous tasks on the department's action plan and did not benefit from the services offered to him. The judge concluded that, of the factors set forth in G. L. c. 210, § 3 (c), factors ii, iii, iv, vi, vii, viii, x, xii, and xiii indicated the father's unfitness, and that this unfitness was likely to continue into the indefinite future.

Zikorah had been temporarily placed in her maternal grandmother's home in 2015 to 2016, and she was placed there on an ongoing basis since March of 2019; she has adjusted well and wants to remain there “forever.” The department's permanency plan is for the grandmother and her husband to adopt Zikorah, which they are willing to do.

Discussion. It was the department's burden to prove by clear and convincing evidence that the father was currently unfit to parent Zikorah and that dispensing with parental consent to adoption was in her best interests. See Adoption of Gregory, 434 Mass. 117, 126 (2001). “Subsidiary findings must be proved by a fair preponderance of the evidence.” Adoption of Helen, 429 Mass. 856, 859 (1999).6 “We give substantial deference to a judge's decision that termination of a parent's rights is in the best interest of the child, and reverse only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion.” Adoption of Ilona, 459 Mass. 53, 59 (2011).

1. Termination decision. Once a parent has been found unfit, the judge's placement decision depends heavily on the best interests of the child, “a question that presents the trial judge ‘with a classic example of a discretionary decision.’ ” Adoption of Hugo, 428 Mass. 219, 225 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999), quoting Adoption of a Minor (No. 2), 367 Mass. 684, 688 (1975). “We recognize that in this field it is neither possible nor desirable to make decisions with precision, and that ‘much must be left to the trial judge's experience and judgment.’ ” Adoption of Hugo, supra, quoting Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 646 (1975).

The father argues that termination of his parental rights was unwarranted, because the judge failed to articulate how termination, and adoption by the maternal grandmother and her husband, was necessary to achieve stability for Zikorah. He asserts that “[t]he judge should have addressed the placement option of guardianship with [the] maternal grandparents to further [Zikorah's] best interest.”

The father, however, failed to make this argument to the judge in any meaningful way, and therefore it is waived. See Boss v. Leverett, 484 Mass. 553, 562 (2020) (party that “did not sufficiently raise the issue below ․ is therefore barred from raising it on appeal”). So far as we can determine from the record, the father never filed any opposition or other response to the department's permanency plan proposing adoption, nor did he propose his own plan. Nor did he present any evidence at trial in support of a possible guardianship. The lone mention of the issue at trial was a single statement, at the end of counsel's closing argument, that the father was “looking for permanent custody, guardianship with the grandmother and an opportunity that at some time in the future [he] be reunited with his daughter.” This was not enough to meaningfully present the issue to the judge for consideration and thus to preserve the issue for appeal.

Even if we were to reach the issue, we would see no abuse of discretion or other error. “Stability in the life of a child is important,” and terminating parental rights may be “a critical step in promoting [such] stability.” Adoption of Willow, 433 Mass. 636, 647 (2001). Absent termination, an unfit parent may continue to challenge the child's placement, and seek to regain custody of the child, through semiannual petitions for redetermination. See Adoption of Helen, 429 Mass. 856, 862 (1999). See also Adoption of Willow, supra at 647-648 & n.11.

Here, although at trial the father supported the current placement with the maternal grandmother, he also stated repeatedly that he hoped to be able to resume caring for Zikorah as soon as he was released from incarceration. He agreed that he would be “looking for at least an opportunity to be reunified” with her. The father's counsel stated in closing argument that the father was happy with Zikorah's current placement and was “not looking to disrupt that now. He's not looking to disrupt that right away” (emphasis added). But he hoped “when he's able to get back onto his feet that he [would] possibly be reunited with her.” In these circumstances, and given the paucity of evidence that the father was likely to become a fit parent in the future, see Adoption of Bianca, 91 Mass. App. Ct. 428, 431 (2017), the judge did not abuse her discretion in concluding that termination of the father's rights, in order to provide Zikorah stability in the home where she wanted to stay “forever,” was in her best interests.7

2. Posttermination and postadoption visitation. The father argues that the judge abused her discretion in failing to order posttermination and postadoption visitation. “In determining whether to exercise the authority to order visitation, a judge must ask two questions: First, is visitation in the child's best interest? Second, in cases where a family is ready to adopt the child, is an order of visitation necessary to protect the child's best interest, or may decisions regarding visitation be left to the judgment of the adoptive family?” Adoption of Ilona, 459 Mass. at 63. We review the judge's decisions on these issues for abuse of discretion. See Adoption of Zander, 83 Mass. App. Ct. 363, 365 (2013). Here, we see none.

In deciding whether visitation is in the child's best interests, “a judge should consider, among other factors, whether there is ‘a significant, existing bond with the biological parent’ whose rights have been terminated” and “may also take into account whether a preadoptive family has been identified and, if so, whether the child ‘has formed strong, nurturing bonds’ with that family.” Adoption of Ilona, 459 Mass. at 63-64, quoting Adoption of Vito, 431 Mass. 550, 563 (2000). Here, the judge found that there was no “significant bond” between the father and Zikorah; in contrast, Zikorah had formed a bond with the maternal grandmother and wanted to remain with her “forever.” The judge concluded that G. L. c. 210, § 3 (c), factor vii, which turns on whether “the child has formed a strong, positive bond with [her] substitute caretaker,” was applicable here. The judge concluded that no order for visitation was required to serve Zikorah's best interests.

Although the father challenges the judge's underlying findings regarding bonding, he has not shown those findings to be clearly erroneous. That both the father and Zikorah wanted their visits to continue did not require the judge to find the existence of a significant bond. The judge found that the father missed numerous visits with Zikorah between September of 2017 and September of 2018. Moreover, he had no visits or contact whatsoever with Zikorah between late September of 2018, when he cut off his GPS bracelet, and December 2019. On this basis, the judge found that the father's contact with Zikorah had been “minimal,”8 and that there was no significant bond between them. These findings were not clearly erroneous; that is, we are not “left with the definite and firm conviction that a mistake has been committed” (citation omitted). Custody of Eleanor, 414 Mass. 795, 799 (1993).

The same is true of the father's challenge to the finding that Zikorah had a strong, positive bond to her maternal grandmother. That Zikorah had been living with her grandmother for only one year prior to trial did not preclude the judge from finding such a bond. The judge found that Zikorah had also lived with the grandmother at various times earlier in her life, she was now thriving in that placement, she wished to stay with the grandmother “forever,” and the grandmother was willing to adopt and was committed to providing Zikorah “permanency.” The judge's finding of a bond was well-supported and thus not clearly erroneous.

Despite these findings, the judge did not clearly answer the first of the two questions posed by Adoption of Ilona, 459 Mass. at 63: whether visitation is in Zikorah's best interest. “[A] judge cannot order visitation unless it is in the child's best interest.” Adoption of Ilona, supra at 64, citing Adoption of Vito, 431 Mass. at 564. The judge did, however, expressly answer the second question posed in Adoption of Ilona by finding that it had not “been established that an order of visitation with [the f]ather is required to serve the best interests of the child, and thus, no visitation with [the f]ather is ordered herein.” The judge was careful to add that nothing precluded the department in the posttermination period, or later the adoptive parent (presumably the maternal grandmother), from allowing future contact between the father and Zikorah if they deemed it appropriate. We see no abuse of discretion or other error in this determination.

“[O]nce a preadoptive family has been identified, a judge must balance the benefit to the child of an order of visitation that will provide assurance that the child will be able to maintain contact with a biological parent, with the intrusion that an order imposes on the rights of the adoptive parents, who are entitled to the presumption that they will act in their child's best interest.” Adoption of Ilona, 459 Mass. at 64-65. Here, although the father sought visitation, he offered no evidence to rebut that presumption and demonstrate that a judicial order was necessary to assure continued visitation. “The purpose of such contact is not to strengthen the bonds between the child and [her] biological mother or father, but to assist the child as [she] negotiates ․ the tortuous path from one family to another.” Adoption of Vito, 431 Mass. at 564-565. The father points to no evidence that Zikorah needs such assistance from him; to the contrary, the judge found that Zikorah “has adjusted well to living with her grandmother and her grandmother's husband.”9 The judge's decision not to order posttermination or postadoption visitation was therefore within her discretion.

Decree affirmed.

FOOTNOTES

3.   The mother stipulated to the termination of her parental rights and is not involved in this appeal.

4.   The father does assert that the judge failed to pay close attention to all of the evidence, particularly regarding his criminal history, his visitation with Zikorah, and his recognition that she needed a stable home. The father thus argues that the judge's conclusions are entitled to less than the usual amount of deference. See Adoption of Stuart, 39 Mass. App. Ct. 380, 381-382 (1995). After carefully considering these arguments, we conclude that they lack merit, particularly where the father does not challenge the judge's ultimate finding of unfitness. A number of the father's arguments merely reflect his “dissatisfaction with the judge's weighing of the evidence and [her] credibility determinations”; this furnishes “no basis for disturbing the judge's view of the evidence.” Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997).

5.   Although the father testified that he had talked to Zikorah by telephone after he was captured and while awaiting extradition in Nebraska, the judge's finding indicates that she did not credit this testimony, a determination that was hers to make. See Care & Protection of Three Minors, 392 Mass. 704, 711 (1984) (credibility assessments are for trial judge); Prenaveau v. Prenaveau, 81 Mass. App. Ct. 479, 496 (2012) (such assessments “close to immune from reversal on appeal”).

6.   The father's brief includes a footnote questioning the relevance of several subsidiary findings regarding his housing and financial instability. He fails to acknowledge decisions such as Custody of a Minor, 21 Mass. App. Ct. 1, 8 (1985) (father's inability to offer child “a stable home environment or financial support” was one of several factors indicating unfitness). Insofar as the footnote challenges the correctness of certain other subsidiary findings, it merely reflects dissatisfaction with the judge's weighing of the evidence and her credibility determinations. See note 3, supra.

7.   The father suggests that, because G. L. c. 119, § 26 (4), does not require the department to pursue termination in certain circumstances where a child is being cared for by a relative, termination was unnecessary here. That the statute does not require the department to pursue termination neither forecloses the department from doing so nor forecloses a judge from ordering termination where that is found to serve the child's best interests.

8.   In context, this finding plainly referred to the several-year period prior to the trial of this case in January of 2020. Contrary to the father's argument, the fact that he had more contact with Zikorah during the first few years of her life does not make the finding clearly erroneous.

9.   Similarly, in light of Zikorah's smooth transition, it is of little import here that, as the father argues, posttermination visitation for children of Zikorah's age “can provide support and continuity, and help the child deal with feelings of guilt and anger about a foster care or adoptive placement and thereby achieve a better adjustment to a new family.” Adoption of Rico, 453 Mass. 749, 757 n.15 (2009).

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