ADOPTION OF DAVINA (And a Companion Case).

• Court: Massachusetts Appeals Court
• Decided: September 16, 2024
• Docket: 23-P-1368
• Status: Unpublished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

23-P-1368

ADOPTION OF DAVINA (and a companion case1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following trial in the Juvenile Court, the judge terminated

the father's parental rights to his children, Davina and

Michael.2 The judge declined the father's request to enter an

order for visitation, and the father appeals. We affirm.

We review a judge's decision not to order posttermination

or postadoption visitation with a biological parent for abuse of

discretion. See Adoption of Xarissa, 99 Mass. App. Ct. 610,

623-624 (2021). In determining whether such visitation is in a

child's best interests, the judge must consider whether the

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

2After the decrees entered, the mother agreed to a stipulation for judgment terminating her parental rights. The stipulation for judgment contemplated an open adoption agreement and also referenced a posttermination contact agreement providing the mother with visitation. She is not a party to this appeal. 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 judge should also weigh "considerations beyond

bonding," Adoption of Rico, 453 Mass. 749, 759 (2009), including

"other circumstances of the actual personal relationship of the

child and the biological parent," id., quoting Adoption of Vito,

supra at 562. Only if 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, supra at 65-66; Adoption of Vito, supra at 563.

The record and the judge's findings amply support her

determination that posttermination and postadoption visitation

with the father would not be in either child's best interests.3

The father lived with the older child, Davina, for the first

3 We are not persuaded by the father's contentions that the judge ignored evidence or that her reasons for denying the father's visitation request were not sufficiently detailed. See Adoption of West, 97 Mass. App. Ct. 238, 247 (2020) ("When a trial judge decides not to order visitation, . . . [s]he is not required to make extensive findings if [s]he has already made specific and detailed findings regarding the child's best interests and the determination of parental unfitness" [citation omitted]).

2 year of her life, but thereafter, the maternal great-grandmother

became her legal guardian and primary caregiver. The Department

of Children and Families (department) took custody of Michael

when he was less than two months old.

Since the department removed the children in 2021, the

father has not consistently attended or confirmed virtual or in-

person visits with them. The father saw the children in person

only twice in three years, with large gaps between both virtual

and in-person visits. Both children were negatively affected by

the father's behavior during visits. Davina expressed distress

and Michael ran away and refused to stay present during visits.

The father asks us to look beyond his lack of significant

bonds with the children and argues that children may still

benefit from contact with their birth parents even if they have

not already formed a strong bond. While we appreciate the

father's concern for the children and his desire for them to

know him, an order requiring posttermination or postadoption

contact is unwarranted here. The children have been living with

their preadoptive family since January 2021, when Davina was

four years old and Michael was two months old. Both children

have "formed strong, nurturing bonds" with the preadoptive

parents, and there is "little or no evidence of a significant,

existing bond with the biological parent." Adoption of Vito,

3 431 Mass. at 563. Visitation with the father is unnecessary to

assist the children in negotiating their transition to adoption.

See id. at 564-565.

The father argues that visitation is warranted because of

several other circumstances, including that (1) while the

children's mother has similar deficiencies in her history, the

judge granted her posttermination visitation; (2) the mother was

provided the opportunity for an open adoption after the decrees

entered, see note 2, supra; (3) the father and mother remain

married; (4) the father's sporadic visitation was the result of

limitations imposed on him by various treatment facilities; and

(5) the preadoptive family is not supportive of contact with the

father.

The first three circumstances concern the fairness of the

order to the father and are unrelated to the question of the

children's best interests. See Adoption of Vito, 431 Mass. at

562 ("an order for postadoption contact 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, not in the rights of the

biological parent nor the legal consequences of their natural

relation"). The fourth circumstance, suggesting that the father

would have maintained greater contact with the children if not

4 for the "limitations imposed by the various facilities at which

he sought treatment," is belied by the record. When the

father's ability to see the children was not limited by

incarceration or treatment facilities, he had minimal contact

with the department and no contact with the children. With

respect to the fifth circumstance, the judge found that the

preadoptive parents would in fact be open to ongoing involvement

between the biological parents and the children.

The record substantially supports the judge's conclusion

that posttermination and postadoption contact between the father

and children would not be in the children's best interests. The

judge did not abuse her discretion in denying the father's

request for a visitation order.

Decrees affirmed.

By the Court (Massing, Hand & Smyth, JJ.4),

Clerk

Entered: September 16, 2024.

4 The panelists are listed in order of seniority.