Adoption of Eduardo.

• Court: Massachusetts Appeals Court
• Decided: March 6, 2024
• Docket: 23-P-0858
• Status: Unpublished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-858

ADOPTION OF EDUARDO. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The father entered into a stipulation for judgment

declaring him unfit to parent Eduardo and terminating his

parental rights. 2 The stipulation preserved the father's right

to seek a hearing on posttermination and postadoption

visitation. The judge declined 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 the 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

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

child has a "significant, existing bond with the biological

1 A pseudonym. 2 The mother also stipulated to the termination of her parental rights. She entered into an open adoption agreement that allows three visits with Eduardo each year. She is not a party to this appeal. 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 amply supports the judge's determination that

postadoption visitation with the father would not be in

Eduardo's best interests. Eduardo has never lived with the

father and had no significant bond with him at the time of the

hearing. Eduardo never explicitly or implicitly identified the

father as his biological parent to the social worker. Because

of the father's threats to Department of Children and Families

(department) social workers, supervised visits occurred either

virtually or at the department's office in the presence of a

police detail. Eduardo consistently appeared uncomfortable and

withdrawn during visits with the father.

2 Before and after the pandemic, the father was inconsistent

about confirming or attending visitation appointments, whether

online or in person. The father failed to confirm or attend

visits scheduled in February, March, and April 2022. He had not

seen Eduardo since November 2021, more than one year before the

hearing on postadoption visitation. He informed the department

that he had skipped the visits because he "was detoxing himself"

and did not want his son to see him in that condition. The

judge concluded that the father "has not demonstrated an ability

to maintain consistency in visitation, stability in his

relationship with Eduardo, and dependability in meeting

Eduardo's needs." By contrast, the judge credited the testimony

of a department social worker who had observed Eduardo with his

preadoptive parents that he "is a completely different person

with them. He's playful. He's talkative."

The father asks us to look beyond his lack of a significant

bond with Eduardo and consider several other circumstances,

including that (1) Eduardo's mother, despite having similar

deficiencies as the father in her parental bond and past

visitation pattern, enjoys visitation with him through an open

adoption agreement with the adoptive parents, see note 2, supra;

(2) the father did not have an opportunity to enter into an open

adoption agreement; (3) the father currently lives with the

mother (now his wife) and shares legal and physical custody of

3 their daughter in New Hampshire; (4) because the mother is

unable to drive, the father must drive her to visits with

Eduardo; (5) the father demonstrated sensitivity to Eduardo's

best interests by consenting to his adoption and ending visits

early when Eduardo was uncomfortable; and (6) the father

believes it is in Eduardo's best interests to know that both of

his biological parents love him.

The first four circumstances, which concern the fairness of

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

Eduardo'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").

As to the father's contention that he was concerned with

Eduardo's best interests, when asked why postadoption visitation

with Eduardo would be important, the father told the judge,

"because in the state of New Hampshire, at thirteen years old, a

child can decide where they want to live. Not at eighteen,

thirteen." He predicted Eduardo's decision at the age of

thirteen if permitted to visit with the father: "Give me until

then, and I'll guarantee my son will want to stay with us." The

4 judge rejected the father's reasoning, stating correctly that

"post-termination visitation is not determined by the potential

for future reunification with a parent whose rights to the child

have already been terminated." See Adoption of Vito, 431 Mass.

at 564-565 (purpose of posttermination contact "not to

strengthen the bonds between the child and his biological mother

or father, but to assist the child as he negotiates, often at a

very young age, the tortuous path from one family to another").

The record supports the judge's conclusion that

postadoption contact between Eduardo and the father was not in

Eduardo's best interests. Accordingly, there was no reason for

the judge to make findings about whether the preadoptive parents

would permit visitation and no error in failing to do so. The

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

request for a visitation order.

Decree affirmed.

By the Court (Milkey, Massing & Neyman, JJ. 3),

Assistant Clerk

Entered: March 6, 2024.

3 The panelists are listed in order of seniority.