ADOPTION OF BROOKS (And a Companion Case).

• Court: Massachusetts Appeals Court
• Decided: December 27, 2024
• Docket: 24-P-0098
• Status: Unpublished

Opinion

NOTICE: 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).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-98

ADOPTION OF BROOKS (and a companion case1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a three-day trial, a Juvenile Court judge found the

father unfit to parent Brooks and Mason and terminated his

parental rights with respect to both children.2 On appeal, the

father argues that the judge improperly shifted the burden of

proof from the Department of Children and Families (department)

to him on critical issues. He also claims that the judge abused

her discretion in not ordering posttermination and postadoption

visitation. We affirm.

The father submits that the judge's "language used ten

times across five separate conclusions of law" demonstrates that

1 Adoption of Mason. The children's names are pseudonyms.

2On the first day of trial, the mother stipulated to the termination of her parental rights, and the judge approved her open adoption agreement with the preadoptive parents. The mother also waived appeal. the burden of proof was improperly shifted to him on the issue

of parental fitness and on a number of subsidiary factual

issues. While it is well settled that "before the State may

deprive a parent of the custody of a child, the requirements of

due process must be met" (quotation and citation omitted), Care

& Protection of Robert, 408 Mass. 52, 58 (1990), no deprivation

of rights occurred here.

Picking phrases from the judge's findings such as "Father

was unable to demonstrate" or "Father has failed to show," the

father argues that this language proves that the judge applied

the wrong standard when considering the evidence. We are not

persuaded. The department offered substantial evidence of the

father's unfitness, including a history of domestic violence

between the mother and the father, the father's limited

compliance with department action plans, and the father's lack

of bond and inconsistent visitation with the children. To rebut

the department's case, the father offered evidence that the

mother had fabricated the domestic violence allegations and that

his criminal charges were a result of her "mental problem." The

judge credited evidence of the father's participation in

services, including completion of a batterer's program and a

parenting course. The judge found, however, that the father had

not benefited from his participation in services as he remained

2 unable to recognize his role in his domestic violence

relationship with the children's mother.

In this context, the judge's findings on the father's

failure to engage in or benefit from services were relevant to

the ultimate issues of parental unfitness and the children's

best interests. See, e.g., Adoption of Holly, 432 Mass. 680,

690-691 (2000) (father's unfitness established in part by "his

failure meaningfully to engage in services offered by the

department to help him become a fit parent"); Adoption of Bea,

97 Mass. App. Ct. 416, 427 (2020) (evidence of mother's

"continued failure to accept or benefit from services" supported

determination of mother's unfitness by clear and convincing

evidence). "The judge's statements were summations of the

evidence presented; read in context, they plainly do not refer

to the ultimate burden of proof resting on the [father]."

Adoption of Terrence, 57 Mass. App. Ct. 832, 836 (2003).

Although some of the judge's findings are phrased in terms that

could be viewed, in isolation, as burden shifting, it is clear

from context that she was evaluating the department's evidence

of the father's fitness as a parent, which necessarily included

an assessment of whether he was able to benefit from the

services the department offered to address his parental

shortcomings. In addition, although we are concerned with the

3 substance of the judge's findings and not the number of times

she used particular turns of phrase, we note that the judge did

state five times that it was the department's burden to prove

parental unfitness by clear and convincing evidence, and

referenced the "clear and convincing" standard a total of nine

times. See id. ("judge demonstrated her familiarity with proper

standard" by references to "clear and convincing" language).

The judge's findings also support her determination that

posttermination and postadoption visitation was not in the

children's best interests. In making that determination, a

judge must consider whether the child has a "significant,

existing bond with the biological parent" and whether the child

"has formed strong, nurturing bonds" with the preadoptive

family. Adoption of Ilona, 459 Mass. 53, 63-64 (2011), quoting

Adoption of Vito, 431 Mass. 550, 563 (2000). The children have

not consistently resided with the father. The father's visits

with the children were sparse and inconsistent since December

2021. Between April 2022 and April 2023, the father visited

with the children only twice. At one point, the father

expressly indicated to the department that he did not wish to

have visits with the children. Thereafter, the father missed

visits because he did not feel comfortable visiting with the

children at the department office or with police present. While

4 the department social worker described the father's visits as

having gone "pretty well," both children have expressed a desire

not to visit with the father. By contrast, the judge credited

the testimony of a bonding expert who testified that, at the

time of the trial, the children and foster parents were "very

deep" into the bonding process and that the children had

expressed their desire to stay in the preadoptive home.

The father argues that the judge failed to look beyond his

lack of significant bonding with the children and to consider

other factors, such as his ability to "provide unique insight

into the [c]hildren's family history and their Haitian culture."

While judges may 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, the record

fails to demonstrate that the children would feel alienated from

their heritage or that the preadoptive family would deprive them

of meaningful connections to their heritage. Rather, the

judge's findings reflect that the preadoptive parents are open

to and have sought out Haitian cultural resources for the

5 children. Moreover, the judge's decision to deny visitation was

based on numerous other considerations besides the lack of

bonding, including the children's wishes to stay in the

preadoptive home and not to have visits with the father.

Only if posttermination and postadoption visitation with

the biological parent is in the child's best interests does the

judge proceed to evaluate whether entering an order instead of

leaving visitation to the discretion of the adoptive family is

necessary to protect the child's best interests. See Adoption

of Ilona, 459 Mass. at 64-66; Adoption of Vito, 431 Mass. at

563-564. Because the judge determined that visitation with the

father was not in the children's best interests, and the record

amply supports this finding, the judge had no reason to make

findings about whether the preadoptive parents would permit

visitation and did not err in failing to do so.

Decrees affirmed.

By the Court (Massing, Walsh & Brennan, JJ.3),

Clerk

Entered: December 27, 2024.

3 The panelists are listed in order of seniority.