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23-P-294 Appeals Court
ADOPTION OF FLAVIA (and a companion case1).
No. 23-P-294.
Essex. October 13, 2023. – April 4, 2024.
Present: Wolohojian, Desmond, & Sacks, JJ.
Adoption, Care and protection, Dispensing with parent's consent to adoption, Visitation rights. Minor, Adoption, Care and protection, Visitation rights. Parent and Child, Care and protection of minor, Adoption, Dispensing with parent's consent to adoption. Practice, Civil, Care and protection proceeding, Findings by judge. Statute, Construction.
Petitions filed in the Essex County Division of the Juvenile Court Department on September 16, 2019.
The cases were heard by Karen E. Hennessy, J., and motions for visitation and for reconsideration were considered by her.
Laura E. Openshaw for the mother. Laura M. Chrismer for Flavia & another. Debra P. Dow for the father. Laura L. Bouliane, Committee for Public Counsel Services, for Mark. Carol Frisoli for Department of Children and Families.
1 Adoption of Helen. The children's names are pseudonyms. 2
DESMOND, J. In this consolidated appeal, we affirm
Juvenile Court decrees terminating the mother's and the father's
parental rights to their twin daughters, Flavia and Helen, but
we vacate an order denying postdecree motions filed by the twins
and their older half-brother, Mark (a pseudonym). The motions
cited G. L. c. 119, § 26B (b), and requested an order for
sibling visitation.2 Because we conclude that an order should
have entered, we remand the matter for further proceedings.
Background. 1. Facts. The Department of Children and
Families (department) became involved with the family in 2014,
after the mother committed an assault and battery on Mark, then
five years old. Diagnosed with trauma and a variety of
behavioral and emotional disorders, Mark "require[d] a high
level of care and supervision" to manage behaviors such as fire
setting, self-harm, and aggressiveness toward animals; behaviors
that the judge found resulted from the way the parents cared for
Mark and increased after the twins' birth in 2015.3 In 2016,
Mark was placed in a residential treatment center (residential
center) due to his inability to be safe in a less restrictive
2 Our use herein of the word "visitation" is not meant to exclude virtual contact, which the children also sought.
3 We refer to the father of Flavia and Helen as "the father" throughout our decision. Although the father is not Mark's biological father, he is the only father figure that Mark has known. Mark's biological father stipulated to the termination of his parental rights. 3
setting, and the department filed a care and protection petition
on his behalf pursuant to G. L. c. 119, § 24. At the
residential center, Mark continued to struggle with emotional
regulation, impulsivity, lack of personal boundaries, and
enuresis. In 2017, Mark was committed to the department's
custody. In February 2019, the department transitioned him home
to live with the parents and the twins.
Seven reports in as many months were then filed with the
department pursuant to G. L. c. 119, § 51A (51A report),
alleging neglect of all three children due to the parents'
substance use and failure to engage with services for Mark. On
investigation pursuant to G. L. c. 119, § 51B, the department
learned that the parents had not followed recommendations for
managing Mark's behaviors at home, such as establishing rules
and consequences and implementing behavior charts. Instead,
without consulting a doctor, the mother gave Mark a "vape pen"
containing cannabidiol oil and had Mark smoke it "to help with
his behaviors." Then twenty-nine years old, the mother reported
poor liver function and regularly drank beer during meetings
with in-home support workers, but she denied alcohol use, while
the father, then thirty-one years old and addicted to Adderall
after being prescribed it in 2016 for a childhood diagnosis of
attention deficit hyperactivity disorder (ADHD), said in June
2019 that he bought Adderall "off the street and used it . . . , 4
as it helped with his ADHD," but in July, he "denied any
medications or diagnosis."
In September 2019, the mother reported that the father
relapsed, and the department also learned that the parents had
failed to seek immediate medical attention for Mark's broken arm
after Mark hit a moving car while riding his scooter near a busy
road. All three children were removed from the home, and the
department filed a second petition pursuant to G. L. c. 119,
§ 24, this one naming Flavia and Helen. The petitions were
consolidated, and by the time of trial, eleven year old Mark was
living at the residential center where he had lived for periods
totaling over five years. Flavia and Helen were six years old
and living in the same foster home where they had been for two
years, with a family that was prepared to adopt them. Both
twins suffered from enuresis not caused by physical concerns,
were diagnosed with unspecified trauma and stressor-related
disorders, and received weekly therapy. Helen was additionally
diagnosed with posttraumatic stress disorder with dissociative
features and had developmental delays and emotional disabilities
that "require[d] significant interventions."
2. Trial. Trial took place on thirteen nonconsecutive
days between May of 2021 and 2022. On the eighth day, before
the department introduced documentary evidence, the father moved
for a directed verdict as to the twins. In response, the 5
department reported that it had no more witnesses because the
foster mother was not available that day to testify about each
twin's functioning and needs. A discussion ensued wherein the
judge questioned the sufficiency of the evidence as to Flavia
and Helen. The judge made the following comments: "I need more
than what I have to make a determination," and "I need to know
more about the girls' functioning. That's what I'm telling
you." She asked whether the department would introduce reports
for each twin that she knew had been, or were being, prepared,
and she said, "[T]here's a bunch of information in [the reports]
that I feel that I need in order to make a determination for
these girls." The judge concluded that portion of the
discussion by stating, "I leave it to you to conference how the
evidence is going to get in. . . . [P]erhaps, the [d]epartment
is going to call, like, the foster parent."
Later, the judge suggested that counsel for the parents and
children "have a conversation" about their permanency plans --
all three children returning home -- in light of testimony that,
the judge said, "raised real concerns for me about the legal
viability" of that plan. A social worker had testified that
Mark struggled at the residential center "with sexualized
behaviors, impulsivity, limit setting, following directions, and
respecting personal boundaries." The judge commented, "[I]f I
credit that testimony . . . it creates a difficult situation 6
wherein, if [Mark] goes home, the girls can't go home; or if the
girls go home, [Mark] can't go home."
The evidence closed in March 2022, after the foster mother
testified and after Mark's twelfth birthday. Two months later,
in court, the judge announced her decisions regarding the
parents' fitness and each child's best interests without
mentioning posttermination or postadoption visitation, for the
parents or for Mark, with the twins. All three children were
adjudged in need of care and protection and committed to the
department's custody. The parents were found unfit, but
termination of the mother's rights was not found to be in Mark's
best interests, "given his strong position against adoption" and
high level of need. See G. L. c. 210, § 2 (child's written
consent to adoption required if child is "above the age of
twelve").
As to Flavia and Helen, the judge expressed her view that
"[f]or [Mark] to have any future, it's going to mean that the
parents have to pour all of their attention towards
reunification with him" and give him "all of the family's
efforts," leaving an inadequate amount of time and attention for
what she described as each twin's "significant needs as a result
of the ongoing issues in regards to the parents' fitness."
Although she "recognize[d] that there ha[d] been some progress"
by the parents in addressing their "ongoing issues," the judge 7
considered that "when [she] reviewed the record, it was replete
with instances of obfuscation and deception"; the father
relapsed during trial; and there was a risk that the parents had
not really changed After "po[ring] over" the exhibits,
listening to the testimony, and reviewing her notes, the judge
made "a very, very difficult decision" that freeing Flavia and
Helen for adoption by their foster parents was in each twin's
best interests. Decrees entered accordingly. See G. L. c. 119,
§ 26 (b) (4); G. L. c. 210, § 3. As to Mark, a judgment entered
committing him to the department's permanent custody, and his
placement in the residential center continued, see G. L. c. 119,
§ 26 (b) (2) (iii) -- a judgment from which neither he nor the
mother appealed.
3. Appeals and postdecree motions. One week after the
decrees entered, the parents and the twins filed a joint notice
of appeal from the decrees. On the same day, the parents and
the twins also filed a "joint motion for orders regarding post-
termination and post-adoption contact," seeking specific orders
for posttermination and postadoption visitation, for the parents
and for Mark, with the twins. The judge did not expressly
discuss the joint motion for visitation in her September 2022
findings of fact, conclusions of law, and rationale, wherein she
expanded on her reasoning after trial in 450 findings of fact
and forty conclusions of law. The judge provided for parent- 8
child visitation with the twins to be "held at the discretion of
the [d]epartment and then the adoptive parents, who will
determine the frequency, length, location, and manner of such
visitation," and sibling visitation between the twins and Mark
"as often as the adoptive resource is able to accommodate" until
after adoption, at which time "sibling visitation will be left
to the sound discretion of the adoptive parents."
The following month, the judge allowed the mother's request
for a ruling on the joint motion for specific orders and entered
an order, nunc pro tunc to May 19, 2022, the date the motion was
filed, that posttermination and postadoption visitation with the
twins "will be addressed with the [t]rial evidence." In other
words, the judge denied the joint motion for orders more
specific than the provisions contained in the findings of fact,
conclusions of law, and rationale. No one appealed from this
decision.
In November 2022 and January 2023, Mark, Flavia, and Helen
jointly filed a motion and a supplemental motion "to reconsider"
that identified the judge's decision, as specified in her
findings of fact and conclusions of law, to leave sibling
visitation to the discretion of the department and adoptive
parents (children's motions). Supported by exhibits, the
children's motions (1) cited G. L. c. 119, § 26B (b); (2)
asserted that the department had reduced sibling visits to an 9
insufficient level and requested an order mandating a specific
number of in-person visits plus weekly virtual contact; and (3)
requested an evidentiary hearing. The department opposed the
motions and argued that reconsideration was neither timely nor
warranted. At a hearing on February 1, 2023, the judge received
offers of proof that the department had reduced sibling
visitation by one-half, no sibling visits had been or were then
scheduled to occur, and the children wanted to see each other
every week if not more. Reasoning that there was no new
evidence and that she had not made an error in her
"interpretation of the law . . . that [she could] leave it in
the sound discretion of the foster parent if [she] believe[s]
that, yes, it's in the best interest of the children," the judge
denied the children's motions from the bench. All three
children appealed.
Discussion. 1. Parental rights. "Parental unfitness must
be determined by taking into consideration a parent's character,
temperament, conduct, and capacity to provide for the child in
the same context with the child's particular needs, affections,
and age." Adoption of Mary, 414 Mass. 705, 711 (1993). The
concepts of parental fitness and a child's best interests "are
not separate and distinct but, instead, are 'cognate and
connected steps' that 'reflect different degrees of emphasis on 10
the same factors'" (citation omitted). Adoption of Ulrich, 94
Mass. App. Ct. 668, 675 (2019).
"Where there is clear and convincing evidence that the parent is unfit and likely to remain so, we give substantial deference to the trial judge's decision regarding the child's best interests and reverse only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion. A finding is clearly erroneous when there is no evidence to support it, or when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. An abuse of discretion exists where the decision amounts to a clear error of judgment [in weighing the relevant factors, such] that [the decision] falls outside the range of reasonable alternatives." (Quotations and citations omitted.)
Adoption of Xarissa, 99 Mass. App. Ct. 610, 615-616 (2021).
The mother, the father, and the twins challenge the
sufficiency of the evidence to support the decrees and join in
each other's arguments that the judge made several errors. The
parties allege that the judge relied on stale evidence and
clearly erroneous findings about Mark's history, needs, and
"sexualized behaviors," the mother's alcohol use disorder, and
the twins' needs and each parent's ability to meet them;4 weighed
evidence relating to Mark too heavily and pitted his return home
4 In particular, the parties maintain that the judge overstated the needs of each twin and unreasonably inferred that those needs were, at least in part, a result of the parents' caregiving; erroneously found that removal from the foster home would cause each twin "severe psychological and emotional harm"; and weighed the bond between each twin and the foster family too heavily and manipulated the testimony of the bonding expert to reach the conclusions she wanted. 11
against that of the twins; did not make sufficiently
individualized findings about Flavia and Helen or support the
decision permanently to separate Mark from the twins with
findings that such action was in each child's best interests;
and deprived the parents of due process of law by her comments
on the eighth day of trial.
Indeed, many of the parties' challenges "amount to no more
than a disagreement with the judge's weighing of the evidence
and credibility determinations regarding the witnesses,"
Adoption of Don, 435 Mass. 158, 166 (2001), but "our task is not
to decide whether we, presented with the same facts, would have
made the same decision," Adoption of Hugo, 428 Mass. 219, 225
(1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S.
1034 (1999). "We do not sit as a trial court to review de novo
the evidence presented by the parties." Adoption of Paula, 420
Mass. 716, 730 (1995). Our review is limited to determining (1)
whether the judge erred in concluding, based on subsidiary
findings proved by a preponderance of evidence, that there was
clear and convincing evidence that the parents were currently
unfit to parent each twin and likely to remain so, and (2)
whether the judge's conclusion that it was in each twin's best
interests to terminate the legal relation between the parents
and child was infected by clearly erroneous findings of fact or 12
any clear error of law or abuse of discretion. See Adoption of
Talik, 92 Mass. App. Ct. 367, 370 (2017), and cases cited.
"A judge whose order will have the effect of irreversibly
terminating the legal parent-child relationship must focus on
the present circumstances of the parent and the child, taking
into account recent positive gains (if any), and, in appropriate
cases, the likelihood of future improvement, in a parent's
ability to care for the child who is the subject of the
petition." Adoption of Paula, 420 Mass. at 731. Here, the
parents experienced housing instability that was relevant to
their fitness to care for the twins.5 See Adoption of Yvonne, 99
Mass. App. Ct. 574, 580-581 (2021), and cases cited. Also
relevant was the parents' failure at every home where they lived
with the twins to supervise them properly, maintain a safe and
stable environment, or obtain consistent therapeutic services
required for the children to thrive. See Adoption of Ulrich, 94
Mass. App. Ct. at 676 (judge may rely on patterns of past
conduct to assess parent's future performance and ability).
Although the parents engaged in services, their work did not
ameliorate the concerns that brought the twins into the
department's care, see id. at 677, as they were unable to keep a
5 The parents moved seven times in the four years between the twins' birth and their removal and again the week before trial began. 13
home clean for any significant period, see Care & Protection of
Vick, 89 Mass. App. Ct. 704, 706 (2016), and unable to supervise
the twins or Mark closely enough to prevent injuries, including
substantial ones,6 see Bezio v. Patenaude, 381 Mass. 563, 579
(1980) (finding of unfitness "must be predicated upon parental
behavior which adversely affects the child").
The parents also struggled with substance use that "was a
factor contributing to established neglect" of all three
children and therefore relevant. Adoption of Anton, 72 Mass.
App. Ct. 667, 676 (2008). The judge found that evidence of the
mother's alcohol use disorder was not stale based largely on the
parents' minimizations of the issue and lack of acknowledgment
at trial,7 but she also discussed what she called "substituted
6 In 2017, the parents failed to notice Helen playing near an industrial dryer at the mother's place of work. Helen's shirt became lodged in the dryer's moving gears, pulling in her arm and resulting in injuries requiring multiple surgeries to reattach her thumb and repair damage to her skin. Throughout 2018, when Mark returned to the residential center after off- site visits with the parents, he frequently had minor injuries. In 2019, Mark collided with a car and broke his arm at a time when the father claimed to have been watching him, and then the parents failed to take him to the hospital until the next day. See Adoption of Anton, 72 Mass. App. Ct. 667, 676 (2008) ("Where a parent is ineffective in obtaining medical care for a child, causing neglect of the child, it is relevant to finding of unfitness").
7 For example, the judge found that the mother did not testify credibly when she claimed to store her prescribed Adderall elsewhere to prevent tempting the father, who by then had relapsed, and that she failed to testify credibly or 14
behaviors" by the mother, in findings the mother challenges as
clearly erroneous. To the extent that we agree, erroneous
findings about drinking soda and gambling do not detract from
the judge's ultimate conclusions, because it is clear to us from
the larger picture painted by the findings that the judge's
concern was not that the mother struggled with addiction. See
Adoption of Katharine, 42 Mass. App. Ct. 25, 32 (1997)
(addiction by itself does not necessarily translate into
unfitness). It was that the mother's inability to recognize the
severity of the issue, combined with each twin's significant
needs requiring recognition and appreciation for the appropriate
response, created a risk to Flavia and Helen that the mother
would not promptly recognize if, when, or how the twins might
need support.8 This was not based on stale evidence or clearly
erroneous findings.
consistently about how much alcohol she consumed at various times throughout the case. The judge likewise "did not credit Father's testimony regarding his and Mother's use of alcohol."
8 Flavia "requires supervision to ensure she is not aggressive or overpowering in peer interactions," while Helen "needs consistent redirection and supervision, as she has hygiene, dissociation, and learning difficulties that require skilled caregivers to monitor." Helen also becomes emotionally dysregulated when correction is used, "even just verbal correction or instruction. . . . Even when a correction was given by the foster parents in a whisper, [Helen] would sometimes appear to dissociate. . . . Any kind of physical touch, even a gentle rub on the back, would trigger an aggressive response, usually punching or kicking." 15
Even after three years of engagement in substance use
services that included monthly injections to curb cravings -- a
period equaling one-half of the twins' lives -- the mother's
sobriety was still "in its infancy." Until July 2021, when the
mother "stated that after testifying [on two previous dates] she
realized that she is an alcoholic and had begun attending
Alcoholics Anonymous," the mother would only say that she had "a
problem with drinking." While we commend the mother for her
acknowledgment, neither she nor the father demonstrated such
understanding or appreciation for "the complex emotional and
physical needs of" Flavia and Helen. Adoption of Paula, 420
Mass. at 730. The parents were not aware of either twin's
diagnoses or work in therapy; neither expressed what services or
supports they would want Flavia or Helen to engage in were they
returned home; and they "could articulate no realistic plan for
meeting" the needs of either twin or both twins together. Id.
Thus, the supported findings "place this case within the line of
authority holding that, although a parent's shortcomings, viewed
in isolation, would not preclude his or her meeting the law's
somewhat undemanding standard of parental unfitness, they
nevertheless do so when viewed against the more complex and
attention-consuming needs of a child who has been impaired in
his development by early neglect." Adoption of Oliver, 28 Mass.
App. Ct. 620, 625 (1990). 16
Similarly, the parents' significant history of domestic
violence was not stale even though the relationship had improved
by the time of trial, because in their testimony both parents
denied and minimized the abuse and its effects on all three
children.9 The judge found that the twins were clearly affected
by the violence because, on removal, Flavia was physically
assaultive and verbally dominating to Helen and showed her no
empathy, while Helen "was dysregulated, could dissociate, and
[also] exhibited some aggressive behaviors." Solidly based in
the evidence, the judge's findings did not overstate Flavia's or
Helen's issues or needs, which the judge did not have to be an
expert to infer were, at least in part, a result of the parents'
caregiving. "It is well established that exposure to domestic
violence works a 'distinctly grievous kind of harm' on children"
that can include imperiling their physical safety and
psychological development. Adoption of Talik, 92 Mass. App. Ct.
at 374, quoting Custody of Vaughn, 422 Mass. 590, 595 (1996).
See Adoption of Yvonne, 99 Mass. App. Ct. at 578, and cases
cited. This remains true even if the issues were also
attributable, in part, to the twins' removal from the home, as
the parents maintain.
9 The father frequently perpetrated abuse on the mother while some or all the children were present and was arrested multiple times for assaulting the mother, who at one point obtained an abuse prevention order against him. 17
The parents' pattern of minimizing responsibility for
incidents resulting in harm to all three children, their
inability to recognize the effects of the violence on the twins,
and their limited understanding of their roles in causing (1)
trauma in the family, or (2) all three children to be removed in
September 2019,10 were "compelling evidence for a finding of
parental unfitness." Adoption of Talik, 92 Mass. App. Ct. at
374. Against this evidence the judge weighed the recent
improvements. She found that the parents' dishonesty "at
various junctures regarding issues of critical importance," such
as substance use, violence in the home, and significant mental
health concerns into which the parents also demonstrated minimal
insight and a lack of transparency,11 combined with their present
inability to articulate how they would deal with
intrarelationship strife differently or better if any or all the
The mother testified that there was no reason for the 10
removal.
The mother denied and minimized diagnoses for which she 11
was prescribed and took medication and made claims about storing her Adderall that the judge did not credit; the father also lied about medications, testifying that he was taking them as prescribed when he had stopped taking them without consulting his psychiatrist. In addition, while trial was ongoing, the father slept through a scheduled parent-child visit before presenting to a social worker as agitated, anxious, and incoherent -- "conclusive evidence" for the judge that the father had "not developed an appreciation for the severity of his mental health conditions or an adequate understanding of how to manage them or his sobriety effectively." 18
children were returned to their care, "creates a likelihood that
old patterns of abusive and unhealthy behavior may recur" and
harm the twins. See Adoption of Luc, 484 Mass. 139, 146 & n.17
(2020) (parent's mental illness relevant if there is nexus to
child's neglect). This was not a risk to which the judge was
required to expose the twins. See Adoption of Katharine, 42
Mass. App. Ct. at 32. The "constellation of factors" at play
here amply supports the judge's assessment that the mother and
the father had not fully addressed their deficiencies to the
degree that they would not recur were the twins placed back with
them, such that neither parent was or soon would be able to
provide Flavia and Helen with a safe, stable home with
responsible caretakers dedicated to their safety and well-being.
Adoption of Yvonne, 99 Mass. App. Ct. at 582, quoting Adoption
of Greta, 431 Mass. 577, 588 (2000).
The foster parents provided their full attention to Flavia
and Helen, advocated for them, recognized when extra supports
were required, and provided an environment in which each twin's
specialized needs were met on a consistent basis. Consequently,
after two years in the "stability and security" of that home,
Flavia and Helen "made great strides in overcoming their past
trauma, understanding their behaviors, and forming 19
connections."12 Both twins had also formed a strong secondary
attachment to the foster family that, the bonding expert
testified, "allowed [Flavia and Helen] to stay resilient . . .
in the face of some really difficult situations." It was the
judge's sole province to weigh the secondary bond and the twins'
"extraordinary progress" in foster care, and we see no error of
law or abuse of discretion in her choice to weigh that evidence
heavily. Adoption of Ilona, 459 Mass. 53, 62 (2011). See
Adoption of Daniel, 58 Mass. App. Ct. 195, 202-203 (2003).
"Here we have a case where the [twins] are finally in [a] stable
situation[]." Adoption of Nancy, 443 Mass. 512, 517 (2005).
The judge's finding that removing Flavia and Helen from the
foster home would cause severe psychological and emotional harm
did not require any manipulation of the expert's testimony; the
expert opined that each twin would experience such a removal as
a loss, and "it would be important for them to have the supports
to negotiate that loss." Neither the mother nor the father,
however, demonstrated an understanding of the harm that either
twin would experience if the placement were disrupted, had the
initiative and insight to seek out services for Flavia or Helen,
12Flavia's "aggression [wa]s minimal, and she no longer ha[d] frequent enuretic episodes," while Helen was "able to self-regulate and reengage more quickly after a dissociative episode." 20
or exhibited the ability to explain to providers why the twins
might need services.
As there was clear and convincing evidence to support a
conclusion that termination of parental rights was in the best
interests of the twins together or as individuals, the judge's
findings on these issues were sufficient. See Adoption of
Nancy, 443 Mass. at 516; Adoption of Garret, 92 Mass. App. Ct.
664, 675 n.20 (2018). We do not agree that the findings reflect
a disproportionate focus on Mark or that the judge treated the
twins as a unit. After making seventy-five findings
specifically about Mark, thirty-four findings about Flavia, and
fifty-two findings about Helen, the judge approved of the
department's permanency plans for the twins in part because the
"[f]oster parents have already demonstrated their commitment to
addressing each child's unique needs." The judge also "ha[d] no
doubt" that the foster parents would "treat [Flavia] and [Helen]
as individuals despite the fact that they are twins."
We do agree that the judge's focus on Mark's so-called
"sexualized behaviors" at the residential center was misplaced
due to a lack of a nexus to the twins,13 but once again we
13None of the behaviors cited by the judge was directed at the twins or any other young girl or demonstrated after August or September of 2021. Although the judge found that Mark "needs to be touching someone when speaking to them or will try to put his hands on someone when he is talking to them" and that he 21
conclude that reversal is not required, because the rest of the
"findings are amply specific and detailed to support the judge's
determination." Adoption of Cadence, 81 Mass. App. Ct. 162,
168-169 (2012). As demonstrated by their omission from our
discussion, the findings to which the parties cite are not
necessary to the judge's decision. See Care & Protection of
Olga, 57 Mass. App. Ct. 821, 825 (2003). Taken as a whole, the
judge's analysis reflects appropriate consideration of Mark's
history and needs as factors among many bearing on the parents'
current and future fitness and the best interests of Flavia and
Helen. See Adoption of Luc, 484 Mass. at 145. For the judge,
it was the parents' patterns of behavior, not Mark's, that put
the twins "at serious risk of peril" if all three children were
returned, because she thought it unlikely that the parents would
be vigilant about accessing services on behalf of the twins
while also doing so for Mark. Care & Protection of Bruce, 44
Mass. App. Ct. 758, 761 (1998). Having carefully reviewed the
record, "[w]e see no basis for disturbing the judge's view of
the evidence." Adoption of Quentin, 424 Mass. 882, 886 n.3
(1997).
"exhibited this behavior with the twins during visits as well," she did not find, and there was no suggestion, that the behavior was sexual or negatively affected either twin. To the contrary, the judge found that Mark tried to help Helen when she exhibited dysregulated behavior during visits, and there was testimony that "physical reassurance" helped Helen manage transitions. 22
Our decision is not changed by information that, in April
2023, while this appeal was pending, a motion by the department
to return custody of Mark to the mother was allowed after
hearing, and the care and protection petition naming Mark was
dismissed. The judge praised the parents for their
"demonstrable progress toward being able to address [Mark's]
behavioral issues," and so do we. Although we cannot ascertain
the reasons from the docket sheet, it is reasonable to think
that the department sought to return custody, because after
trial the parents had gained the enhanced understanding of
trauma and its impact on development that the judge thought
necessary to properly care for Mark. When she was making the
decisions at issue in this appeal, however, the judge was
required "to focus on the present." Adoption of Ramona, 61
Mass. App. Ct. 260, 264 (2004). At that time, each parent
"demonstrated a current deficiency in this area." Both
"acknowledged that they do not know what [Mark]'s diagnoses are"
and were not "prepared with the skills needed to be able to
supervise [Mark] were he to return home," despite eight years of
engaging with the department and Mark's providers. They were
not entitled to an indefinite opportunity to reform. See
Adoption of Cadence, 81 Mass. App. Ct. at 166. See also
Adoption of Ilona, 459 Mass. at 60 ("childhood is fleeting").
Considering the record "replete with instances in which the 23
parents demonstrate progress and then regress at the expense of
the children," the judge decided on balance that the parents
were not then, and would not soon be, in a position if all three
children were returned home to ensure each attended appointments
and services on time, or to provide the heightened level of
supervision that is required to protect the children. As to the
twins, Mark's reunification with the mother does not undermine
this analysis.
We are not persuaded by the parties' claim that G. L.
c. 119, § 26B (b), creates a presumption that siblings should be
placed together, such that specific findings that it was in each
child's best interests were required before the twins could
permanently be separated from Mark.14 In pertinent part,
§ 26B (b) provides:
"The court or the department shall, whenever reasonable and practical and based upon a determination of the best interests of the child, ensure that children placed in foster care shall have access to and visitation with siblings . . . if the children or their siblings are separated through adoption or . . . placements in foster care.
"The court or the department shall determine, at the time of the initial placements wherein children and their siblings are separated through placements in foster, pre-
14The parties also cite to 110 Code Mass. Regs. § 7.101 (2009), in support of this argument, but we do not address the regulatory claim, because it was not raised below. The joint motion for orders stated that "110 [Code Mass. Regs.] § 7.210 provides that [the department] will provide necessary services to families post-adoption," but this contention is not pressed on appeal. 24
adoptive or adoptive care, that sibling visitation rights be implemented through a schedule of visitations or supervised visitations . . . ."
Rather than presume they are to be placed together, the
statute protects the rights of siblings who "are separated."
The rights protected by G. L. c. 119, § 29B (b), relate to
"visitation with siblings," not permanent placements, which are
governed by a statute that does not mention siblings. As
required by G. L. c. 119, § 26 (b), the judge considered the
factors enumerated in G. L. c. 210, § 3 (c), and found factors
(ii), (iv), (vi), (vii), (viii), and (xii) applicable to Flavia
and Helen. See Adoption of Cadence, 81 Mass. App. Ct. at 167.
Then she considered the applicable factors along with the
department's permanency plans for Flavia and Helen and found
that the plans represented the best ones for each twin's "future
stability and success." This was not outside the range of
reasonable alternatives where, at the time of trial, Mark lived
in the residential home and was not "discharge ready."
Obviously, the twins could not permanently be placed with him
there. There was no evidence that placing Mark with the twins
in their preadoptive home was an option, and the judge found it
was not in the twins' best interests to be placed with the
parents, for all the reasons we have discussed.
The parties' final claim is that the parents were deprived
of impartial justice by the judge's comments on the eighth day 25
of trial, because the comments tipped the scale in the
department's favor and reflected bias and prejudgment. Again,
we are not persuaded. The department had not yet rested when
the judge asked about further evidence, and her comments did not
reflect bias when taken in context. In addition to the examples
we gave supra, the judge also remarked, "[I]t's not about the
[d]epartment not meeting its burden; it's about the cognate and
connected issue of what a child's needs are and the parental
capacities to meet those needs"; "[M]ind you, I haven't looked
at the documentary evidence"; and "I'm not pre-judging the
case." The challenged remarks were "issue-spotting alerts," not
the sort of premature "weighted assessments of the evidence"
that are not permitted, and a close reading of the transcript
does not support that the parents were denied due process of
law. Adoption of Tia, 73 Mass. App. Ct. 115, 121 (2008). See
Adoption of Norbert, 83 Mass. App. Ct. 542, 547 (2013).
2. Posttermination and postadoption visitation with the
twins. The parents and the twins challenge the judge's initial
decisions to leave postdecree visitation to the discretion of
the department and the adoptive parents. All five parties fault
the judge for not entering an order on the postdecree sibling
visitation motions on February 1, 2023. We review the judge's
initial decisions for an abuse of discretion. See Adoption of
Xarissa, 99 Mass. App. Ct. at 623-624 (parent-child contact); 26
Adoption of Garret, 92 Mass. App. Ct. at 680-681 (sibling
contact). The February 1, 2023 order was based on the judge's
interpretation of G. L. c. 119, § 26B (b), which we review de
novo. See Adoption of Daphne, 484 Mass. 421, 424 (2020).
a. For the parents. Before mandating posttermination and
postadoption visitation between a child and parent whose rights
have been terminated, a judge must find both that visitation
would be in the child's best interests and that those interests
will not be adequately served by the preadoptive or adoptive
parent's discretion. See Adoption of Cadence, 81 Mass. App. Ct.
at 168. Absent (1) a reason to question the presumption that
preadoptive and adoptive parents will act in a child's interest
in evaluating whether such visitation is in the child's best
interests now and in the future, or (2) a compelling reason
requiring that an order be entered to protect the best interests
of a child, judges have discretion to leave decisions about
parent-child visitation to the sound judgment of the department
and preadoptive or adoptive parents. See Adoption of Ilona, 459
Mass. at 66.
Here, the judge considered whether posttermination and
postadoption visitation with the parents was in each twin's best
interests and concluded that it was, because Flavia and Helen
both had a primary attachment to the parents. The judge then
considered the foster mother's testimony that her family "would 27
have an open-door relationship with [the] [p]arents, allowing
them to see the twins and facilitating contact, including
visits, phone calls, and FaceTime, as long as this was in the
best interests of all parties involved." "[C]onfident that the
foster parents will heed the advice of clinicians and other
professionals and be conscientious of the twins' trauma
histories and other behavioral and medical issues as they
continue to care for the girls," the judge concluded that a
specific order for parent-child visitation was not necessary to
protect either twin's best interests. Her conclusion was not
outside the range of reasonable alternatives.
b. For Mark. In support of her initial orders for sibling
visitation, the judge found that the foster parents "have
demonstrated an understanding of the importance of the twins'
connection to [Mark] and have consistently supported the
visitation," which prior to the COVID-19 pandemic consisted of
biweekly supervised visits by the twins with Mark and both
parents. During and after the pandemic, Mark, Flavia, and Helen
had weekly virtual contact with just each other. Mark looked
forward to visits with the twins, asked about them frequently,
and spoke about them affectionately. He was described as "very,
very nurturing to his sisters." Flavia and Helen would like to
visit with Mark more often, and their permanency plans
recommended "frequent and meaningful contact" with him. The 28
judge found that "it is in [Flavia] and [Helen]'s best interests
to continue to have sibling visitation with [Mark]."
Explaining her decision to leave the form and frequency of
such visits in the discretion of the department and then the
twins' adoptive parents, the judge said, "I have . . . a
preadoptive [parent] that I have heard from who I feel confident
in her judgment in regarding being able to assess what is in the
best interest of the [twins], and that she respects the sibling
attachments and bond that they have . . . . I've left it in her
sound discretion because I believe that, going forward, she will
be in the best position to evaluate what is . . . in the girls'
best interest." On this record, we cannot say the judge made a
clear error in weighing the factors relevant to the decision
such that her initial sibling visitation order falls outside the
range of reasonable alternatives. See Adoption of Garret, 92
Mass. App. Ct. at 680-681.
The children's motions, filed in November 2022 and January
2023, stand on different footing. While we appreciate that the
judge approached the children's motions as ones to reconsider
her initial decisions, because that is what the parties asked
her to do, substantively, they were "petition[s] for sibling
visitation" under G. L. c. 119, § 26B (b), fourth par., and
should have been treated as such. See Care & Protection of
Rashida, 488 Mass. 217, 233 (2021), S.C., 489 Mass. 128 (2022), 29
and cases cited (label attached to motion not dispositive). The
judge should have considered not whether there were grounds to
revisit her initial decisions, but whether sibling visitation
was currently reasonable and practical and in the best interests
of the petitioning child and "of the minor siblings with whom
visitation is sought." Care & Protection of Jamison, 467 Mass.
269, 277 n.20 (2014). See G. L. c. 119, § 26B (b), first par.
If the judge concluded that it was, then she should have entered
an order.
It is a general rule of statutory construction "that the
use of the term 'shall' imports a mandatory or imperative
obligation." Newton-Wellesley Hosp. v. Magrini, 451 Mass. 777,
785 (2008). The rule "is at its strongest when the protection
of rights is involved." Commonwealth v. Cook, 426 Mass. 174,
181 (1997). Previously, sibling visitation was governed by a
provision of the general care and protection statute that read,
in part, "The court shall, whenever reasonable and practical,
and based upon a determination of the best interests of the
child, ensure that [State-separated siblings] have access to,
and visitation rights with, such siblings." G. L. c. 119,
§ 26 (5), inserted by St. 1997, c. 43, § 99. We said this
language meant that a judge must decide whether and if so how
sibling visitation is to occur, and then provide a schedule and
conditions of visitation, and on further appellate review, the 30
Supreme Judicial Court "agree[d] that the judge should have
specified in an order or orders whether sibling visitation would
be in [the subject child]'s best interests; if so, visitation
with which siblings; and, if so, the form of visitation (in
person contact or otherwise), and the schedule of such
visitation." Adoption of Rico, 453 Mass. 749, 753 n.12 (2009),
citing Adoption of Rico, 72 Mass. App. Ct. 214, 220-221 (2008).
General Laws c. 119, § 26 (5), was replaced while further
appellate review in Adoption of Rico was pending, with a
separate section, c. 119, § 26B (b), first par., that twice
contains the word "shall" and includes mechanisms for
enforcement. See St. 2008, c. 176, § 84. Now, a child in
foster care (or the sibling of a child voluntarily placed in
foster care) who is "denied visitation rights by the department
. . . may appeal through the department's fair hearing process"
and then file a petition for review of any decision in the
Probate and Family Court, whereupon "[t]hat child or sibling
shall have the right to court review by trial de novo." G. L.
c. 119, § 26B (b), third par. "For children in the custody of
the department," the child or a sibling "may file a petition for
sibling visitation in the court committing the child to the
custody of the department." G. L. c. 119, § 26B (b), fourth
par. If sibling visitation is "reasonable and practical" and in
"the best interests of the child," then the court "shall . . . 31
ensure that [the child] shall have access to and visitation with
siblings." G. L. c. 119, § 26B (b), first par.
These provisions reflect even more strongly a legislative
determination that, where siblings who have been permanently
separated through no fault of their own "are dissatisfied with
the state of visitation" and seek relief under G. L. c. 119,
§ 26B (b), Adoption of Garret, 92 Mass. App. Ct. at 680 n.25,
the judge must "specif[y] in an order or orders whether sibling
visitation would be in" the best interests of the petitioning
child and each sibling with whom visitation is sought "and, if
so, the form of visitation (in person contact or otherwise), and
the schedule of such visitation." Adoption of Rico, 453 Mass.
at 753 n.12. See id. at 757 n.16; Adoption of Zander, 83 Mass.
App. Ct. 363, 367 (2013). As the court stated in Adoption of
Rico, supra at 756-757, "The additional, but highly significant,
value of a court order" in this context is that it "provides
clarity and, perhaps more importantly, gives the child a present
sense of security about [their] ability to maintain contact and
a relationship with a person who has been shown to be critical
to [them]"; it provides "protection to the child that is absent
if the judge leaves all visitation matters up to the department
and future adoptive parents." Although in that case the court
was discussing parent-child visitation, which differs from
sibling visitation in material respects, its reasoning also 32
applies here. Whereas the department has an independent
obligation under the statute to ensure sibling visitation,
adoptive parents are not so obligated. See Adoption of Garret,
supra at 679-681; Adoption of Zander, supra.
While the statute does not expressly state whether a de
novo trial may be had on a petition filed pursuant to G. L.
c. 119, § 26B (b), fourth par., it is clear to us as a result of
the change in circumstances, specifically Mark's reunification
with the parents, that further evidence will be required before
the judge can enter an appropriate order under G. L. c. 119,
§ 26B (b). See Adoption of Rico, 453 Mass. at 758 ("current
context is critical" to assessing child's best interests). For
these reasons, the children's motions, filed in November 2022
and January 2023, are remanded for evidentiary hearing and entry
of an order. In the interim, the judge should consider whether
a temporary order for sibling visitation is reasonable,
practical, and in the current best interests of Mark, Flavia,
and Helen. See G. L. c. 119, § 26B (b), first par.
Conclusion. The decrees terminating the mother's and
father's parental rights are affirmed. The order entered
February 1, 2023, denying the children's motions, is vacated,
and the matter is remanded for consideration of those motions
consistent with this opinion.
So ordered.