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25-P-202 Appeals Court
ADOPTION OF VARNELL.1
No. 25-P-202.
Hampden. November 7, 2025. – May 6, 2026.
Present: Henry, Sacks, & Tan, JJ.
Adoption, Care and protection, Parent's consent. Parent and Child, Care and protection of minor, Adoption, Dispensing with parent's consent to adoption. Minor, Care and protection, Adoption. Practice, Civil, Care and protection proceeding, Adoption, Appeal.
Petition filed in the Hampden County Division of the Juvenile Court Department on August 20, 2020.
The case was heard by Lois M. Eaton, J.
Tsvetelina Gerova-Wilson for the child. Julie A. Gallup for Department of Children and Families.
TAN, J. After a trial, a Juvenile Court judge adjudicated
the father of Varnell (child or Varnell) unfit and terminated
his parental rights pursuant to G. L. c. 119, § 26, and G. L.
1 A pseudonym. 2
c. 210, § 3.2 Varnell appeals the judge's decision to terminate
the father's parental rights. In this case, we address for the
first time the question whether a child is entitled to appeal an
adjudication or decree in a care and protection case where the
parent does not file a notice of appeal. We conclude that
because a child possesses an independent interest in maintaining
a connection with a legal parent, a child may seek appellate
relief even if the parent does not. We also conclude that the
evidence at trial was insufficient to demonstrate that
termination of the father's parental rights served the child's
best interests. Accordingly, we reverse so much of the April 9,
2024 decree that terminated the father's parental rights.
Background. We summarize the judge's findings of fact,
supplemented by uncontroverted evidence from the record, and
reserve certain facts for later discussion.3
Varnell's parents separated when he was a baby, and Varnell
lived with his mother. Between 2014 to 2020, the Department of
Children and Families (department) conducted investigations into
2 The Department of Children and Families (department) did not seek to terminate the mother's parental rights, and she entered into a stipulation to unfitness in March 2024. Neither the mother nor the father appealed.
3 The parties are not challenging the judge's findings of fact as clearly erroneous, with one immaterial exception discussed in note 11, infra. 3
several reports of neglect of Varnell by the mother, pursuant to
G. L. c. 119, § 51A (51A report).4 None of the incidents
involved the father.
In September 2019, the department spoke to the father
during the investigation of a 51A report, and he stated that his
involvement with Varnell was "minimal." The father said he
would take Varnell to his aunt's house for four or five hours
many weekends and that he called and spoke to Varnell several
times a week. He told the department that he sometimes took
Varnell out to eat or for a haircut and had attended parent
meetings at Varnell's school. The father reported that he was
living with friends and waiting for a low income apartment to
become available.
In August 2020, the department took emergency custody of
Varnell after his mother's arrest for allegedly stabbing her
boyfriend. Varnell, who was ten years old at the time, was
present during the incident. On August 20, 2020, the department
filed the present care and protection petition pursuant to G. L.
c. 119, § 24, and was awarded emergency temporary custody of
Varnell.
4 The department's investigations focused on the mother's history of domestic violence incidents, both as a perpetrator and a victim. Following the investigations, the allegations of neglect were supported due to the mother's exposing Varnell to those incidents and the risk of physical abuse to Varnell. 4
At the time of Varnell's removal from his mother, Varnell
told the department that he would sometimes see his father but
could not say how often. Varnell told the department that his
father would pick him up and they would visit at his aunt's
house. In September 2019, Varnell also had told the department
that he and the father would get pizza and a milkshake and that
his father bought him a bicycle. However, sometimes the father
broke his promises and did not show up for visits.
The day after removing Varnell from his mother's care, the
department contacted the father, who stated that he had no place
for Varnell to stay and had no family members who could care for
him. At that time, the father told the department that he saw
Varnell every few months for a few hours and did not know what
went on at the mother's home.
The department made numerous attempts to contact the father
during the pendency of the case, but he did not communicate or
cooperate with the department, nor did the evidence show that
he had any visits with Varnell. The father never appeared in
court, and the department was unable to serve him in-hand with
notice of the proceedings.5 The father's action plan tasks
included contacting the department about his intentions around
parenting Varnell. In 2022, the father called the department
Service to the father was accomplished through 5
publication. 5
and told the social worker that he did not want anything to do
with the case and to stop sending him letters.
The department initially placed Varnell in a foster home
but moved him to a "Short-term Assessment and Rapid
Reunification program." During his first year in placement,
Varnell exhibited "significant trauma reactive behaviors," such
as running away, jumping out windows, sexualized behavior,
destruction of property, and homicidal and suicidal ideation.
He was hospitalized in a psychiatric hospital several times and
placed on antipsychotic medication to manage his behavior. In
December 2021, Varnell was placed in a Department of Mental
Health (DMH) clinically intensive residential treatment program,
which was the most intensive residential treatment setting of
its kind in the State. Varnell is diagnosed with developmental
trauma and attention deficit hyperactivity disorder (ADHD) and
is prescribed antipsychotic medication and a mood stabilizer.
He also has a DMH worker and has engaged with therapists,
although he did not have a therapist at the time of trial.
In March 2022, as part of the plan to reunify Varnell with
his mother, Varnell had an in-home supervised visit with his
mother in her home. The visit went well, but afterward Varnell
became dysregulated. A few months later, the department halted
the reunification plan after it became aware that the mother
continued to associate with "violent individuals." 6
Varnell reunified with his mother again in August 2023 but
returned to residential care a month later after reports that a
physical altercation took place between Varnell and his mother
while she was intoxicated. During the department's
investigation of the physical altercation allegations, Varnell
stated that he did not want to return to his mother's house and
preferred to be placed with the individual who was serving as
his educational surrogate (foster parent). Varnell told the
department that his father was not involved with him. However,
Varnell and his father spoke by phone at least twice during the
month he was reunified with his mother and once while he was
placed at the DMH program. Varnell believed that his father
wanted to be involved with him but was not allowed to do so
because his father had not "sign[ed] some paperwork with the
department." Varnell requested to have contact with his
paternal half-siblings, but the department's kinship letters
elicited no response.
Varnell was fourteen years old when trial commenced.
Varnell remained connected with his mother but also had formed a
connection with the foster parent "that is substantial and
important to him." The department's permanency goal for Varnell
at trial was reunification with his mother. The foster parent
"wishe[d] to make a long-term commitment to [Varnell], while
helping him maintain his relationship with his mother." 7
Only one witness, Varnell's social worker, testified at
trial. When asked why the department sought to terminate the
father's rights, the social worker noted the father's
unavailability, lack of engagement with the department, and the
department's concern that the father would not be able to meet
Varnell's needs "if he ever even wanted to step up for
[Varnell]."
Discussion. 1. The child's right to appeal. The first
issue we address is whether a child may appeal from a decree
terminating parental rights where the parent does not file a
notice of appeal. Relying on Guardianship of Wilson, 496 Mass.
60 (2025), and Guardianship of Tara, 97 Mass. App. Ct. 11
(2020), the department contends that we cannot grant the child
relief because the father is an indispensable party to the
appeal, but he did not file a notice of appeal. See
Guardianship of Wilson, supra at 64 ("Generally, a court will
not proceed to a final determination without an indispensable
party"). We are not persuaded and conclude that the
department's reliance on these cases is misplaced.
In Guardianship of Wilson, 496 Mass. at 64, the Supreme
Judicial Court held that the relatives who had filed the
guardianship petitions that were dismissed by a Juvenile Court
judge, but who had failed to join in the appeal from the order
allowing the department's motion to dismiss, were indispensable 8
parties to the appeal. Their interests (in their appointment as
guardians of the children) and the children's requested relief
(vacating the dismissal of the guardianship petitions) "[were]
so intertwined" that the court could not grant the relief sought
by the children "in the absence of the relatives," whose failure
to file a timely notice of appeal in the trial court and to
diligently pursue their single justice appeal evinced a lack of
"continuing commitment" to serving as guardians. Id. at 64-65.
In Guardianship of Tara, 97 Mass. App. Ct. at 11-12, we
concluded that we could not grant the children's request to
reverse the denial of the grandmother's guardianship petition
and grant guardianship of them to their grandmother. We so held
because the grandmother did not appeal, no longer appeared to be
seeking appointment as a guardian, and we could not provide any
effective appellate relief. Id. "We cannot force a person,
even a relative, to assume guardianship over children . . . ."
Id. at 12.
This case is distinguishable from Guardianship of Wilson
and Guardianship of Tara. The father, because of his existing
legal relationship to the child, was a party to the care and
protection proceedings. In contrast, the relatives in
Guardianship of Wilson and Guardianship of Tara had no
underlying legal relationship to the children and were seeking
to establish a legal relationship through the filing of 9
guardianship petitions. Those relatives therefore could not be
forced to assume a legal relationship they no longer sought by
failing to appeal.
We agree with Varnell's contention that a child has an
independent interest in maintaining a connection with a legal
parent and that the father's lack of participation or even
willingness to remain the parent is immaterial. "Massachusetts
law recognizes children's interests in parental consortium as
filial needs for closeness, guidance, and nurture" (quotation
and citation omitted). Adoption of Mariano, 77 Mass. App. Ct.
656, 662 (2010). Our laws confer upon a child the right to
appeal "from the adjudication of the court and from any order of
commitment made as a result of the adjudication . . . to the
appeals court." G. L. c. 119, § 27. Nothing in G. L. c. 119,
§ 27, limits the child's right to appeal or conditions it upon a
parent's filing a notice of appeal.
This conclusion is consistent with our recognition, in
other contexts, of the importance of establishing and
maintaining a legal relationship between a child and a parent,
even when a parent does not demonstrate an interest or desire in
doing so. For example, in parentage petitions, a child has the
right to file a complaint to establish parentage and support
against a father regardless of whether the father wishes to
recognize the child. G. L. c. 209C, § 5 (a). See Adoption of 10
Mariano, 77 Mass. App. Ct. at 662 ("[A child's] entitlement to
the potential consortium of a father remains intact even against
the present will of the father").
In Adoption of Mariano, 77 Mass. App. Ct. at 656-657, the
divorcing parents of an infant submitted to the Probate and
Family Court an adoption petition filed by the mother and an
adoption surrender form executed by the father such that "the
mother would assume the role of sole parent." The judge denied
the adoption petition, finding that "it is not the wishes of the
parents, but rather the best interests of the child that
determine adoption" and that "in this instance the preservation
of a connection between [the child] and his father served the
best interests of the child and maintained a link to his
biological identity." Id. at 659. In upholding the dismissal
of the adoption petition, we recognized not only the public
policy interest in ensuring "that parents, not the State, should
support their children," id. at 662, quoting Adoption of
Marlene, 443 Mass. 494, 501 (2005), but also the child's
interest in parental consortium, "in the identification of a
biological father[,] and in the potentiality of the guidance,
companionship, and affection of that biological father either
now or later." Adoption of Mariano, supra at 663. See id.
(child had "important interest in the reservation of the
father's option for a change of mind or heart over time"). 11
Accordingly, we conclude that the child has a right to
appeal even though the father did not file a notice of appeal.
2. Termination of the father's parental rights. "In
deciding whether to terminate a parent's rights, a judge must
determine whether there is clear and convincing evidence that
the parent is unfit and, if the parent is unfit, whether the
child's best interests will be served by terminating the legal
relation between parent and child." Adoption of Ilona, 459
Mass. 53, 59 (2011). "The natural bond between parent and child
should not be permanently severed unless the child's present or
future welfare demands it." Adoption of Carlos, 413 Mass. 339,
350 (1992). We review a termination of parental rights decision
to "determine whether the trial judge abused [their] discretion
or committed a clear error of law." Adoption of Elena, 446
Mass. 24, 30 (2006).
Varnell does not challenge the judge's finding of the
father's unfitness, but argues that the judge abused her
discretion by concluding that the termination of his father's
parental rights served Varnell's best interests. See Adoption
of Carlos, 413 Mass. at 350 ("The natural bond between parent
and child should not be permanently severed unless the child's
present or future welfare demands" termination [emphasis
added]). Although the evidence here clearly supported the
judge's finding of the father's unfitness, we conclude that the 12
evidence failed to demonstrate that termination served the
child's best interests.
We are mindful of the judge's findings that the father
"never attended to the child's welfare, education, medical care,
psychological well-being, or living situation" and never sought
to be his custodian. Indeed, the father did not engage with the
department and asked the department to stop contacting him.
However, "even if a parent is found to be unfit, there are some
situations in which the child's best interest may be served
without a decree of termination." Adoption of Flora, 60 Mass.
App. Ct. 334, 342 (2004). Based on our review of the record,
which is devoid of evidence that the father would attempt to
interfere with decisions about Varnell's placement or otherwise
do anything contrary to Varnell's best interests, we conclude
that this is one of those situations. To be clear, our holding
is limited to these facts and we can certainly envision cases
where a parent's lack of engagement with the department and
services contribute to a conclusion that terminating the
parent's rights serves a child's best interests. See Adoption
of Meaghan, 461 Mass. 1006, 1007 (2012) ("While a child has an
interest in family integrity, it may also be in the child's best
interests permanently to terminate the parent's rights").
Here, the evidence demonstrated that Varnell wanted the
possibility to have his father be part of his life, even if on 13
an inconsistent basis. Prior to the department's removal of
Varnell from his mother, Varnell had a relationship with his
father, who took him out for pizza and milkshakes, bought him a
bike, and at a minimum, had phone calls with him during the
month Varnell reunified with his mother.6 We do not equate the
father's disinterest in having contact with the department after
Varnell was placed in the department's custody with a
disinterest in maintaining contact with Varnell. Importantly,
Varnell wanted to preserve his relationship with his father and
believed that his father wanted to see him but could not because
his father had not signed paperwork with the department.
Varnell's wishes regarding whether his father's parental rights
should be terminated should be considered in assessing his best
interests. See Adoption of Ramona, 61 Mass. App. Ct. 260, 267
(2004) ("Because [the children] are old enough to have a final
say as to their own adoptions, the wishes of each child as to
termination should be considered in determining their best
interests"); Adoption of Flora, 60 Mass. App. Ct. at 342
(child's wishes as to termination should be considered on
remand). Varnell opposed the termination of his father's
6 Varnell's social worker admitted that he did not know exactly how much contact Varnell had with the father because Varnell tended to withhold information from the worker. 14
parental rights at trial and continues to oppose termination on
appeal.7
Moreover, the evidence here did not support a concern that
the father would attempt to interfere in any way with future
custody decisions or "other disposition[s]" for Varnell.8
Although the judge appeared to be motivated by the laudable goal
of preventing the father from disrupting future custody
decisions, the evidence demonstrated that the father never
7 The department social worker had not discussed with Varnell the issue of adoption or the possibility that his father's parental rights would be terminated. The judge found, based on the social worker's testimony, that "[h]aving a therapist in place [for Varnell] to help him process the termination of his father's rights would be beneficial." Yet Varnell had no therapist during the five months before trial, and at the time of trial he was still on a waiting list to obtain one. Although the judge credited the social worker's opinion testimony that "a termination decree would [not] have much impact on [Varnell's] mental health," we note with concern that the department advocated at trial for the termination of the father's parental rights as serving Varnell's best interests, without having first discussed the issue with Varnell and potentially giving him an opportunity to process it in therapy or at least with the social worker. The social worker agreed that exploring the topic in therapy "would be better," because Varnell "often needs extra time and extra support around big decisions."
8 In terminating the father's parental rights, the judge found that there will no longer be a requirement to seek the father's consent or give him notice "for any legal proceeding affecting the custody, guardianship, or other disposition of [Varnell]. He will not be consulted on [Varnell's] welfare, education, medical care, psychological well-being, living situation, or who his legal custodian will be." See G. L. c. 210, § 3 (b). The judge further concluded that "it is appropriate to cease all attempts to have the father make decisions for his son or to engage him in the process." 15
interfered with the mother's parental decision-making or with
Varnell's foster placements. In fact, the judge found that the
mother facilitated communications between Varnell and his
father. There was no finding, and nothing in the record
suggests, that the father would attempt to disrupt any placement
or oppose any permanency plan if his parental rights remained
intact.
It is also significant that termination of the father's
parental rights did not clearly help Varnell to achieve either
the department's actual permanency goal of reunification or the
judge's recommended concurrent goal. The judge found that,
"[a]lthough it is appropriate to continue working toward
reunification between [Varnell] and his mother, concurrent long-
term planning such as guardianship or adoption also should be
explored . . . due to the length of time Varnell has been in the
[d]epartment's care and the importance of establishing a
permanent and stable home for [Varnell] that can meet his
special needs,"9 as well as the "improbability that [Varnell's]
9 We note that (1) a guardianship appointment may be finalized even if the father's parental rights remain intact, see G. L. c. 190B, § 5-204 (a) (i), (v); (2) a child over the age of fourteen like Varnell may object to the appointment of a guardian pursuant to G. L. c. 190B, § 5-203 (i); and (3) since a child over the age of twelve must consent to a decree of adoption pursuant to G. L. c. 210, § 2, adoption was not a viable permanency goal as of the date of trial. 16
mother can meet his needs."10 Because the department did not
seek to terminate the mother's parental rights, the judge's
decision to terminate the father's parental rights did not free
Varnell for adoption (which was not the department's permanency
goal for Varnell).
To be sure, there may be cases where termination of one
parent's rights while maintaining the other parent's rights
serves a child's best interests, see, e.g., Adoption of Willow,
433 Mass. 636 (2001), even if the permanency plan may not be
adoption. In Adoption of Willow, where the court affirmed the
termination of the mother's rights despite the nontermination of
the father's rights, the court reasoned that "severing all legal
relations between the mother and the children . . . [was] a
critical step in promoting stability in their lives" and that it
was not in the children's best interests "to allow their mother
'to interfere with the child[ren], initiate multiple,
repetitious litigation, and hinder and delay the eventual
adoption of the child[ren] into a fit environment.'" Id. at
647, quoting Adoption of Helen, 429 Mass. 856, 862 (1999).
However, we conclude that the department failed to demonstrate
10If the parent's parental rights remain intact and the department changes Varnell's permanency goal to adoption, any party may file a motion for review and redetermination and seek a hearing to terminate either parent's rights. See G. L. c. 119, § 26 (c). 17
that those concerns are present here, and the facts in this case
are distinguishable from those in Adoption of Willow. The
mother in Adoption of Willow subjected the children to repeated
and brutal physical abuse, failed to ensure that they were
properly clothed and educated, and housed them in deplorable
living conditions. See Adoption of Willow, supra at 640.
Furthermore, unlike the children in Willow, whose permanency
goal was adoption, id. at 639, Varnell's permanency goal is
reunification, albeit with his mother.
Similarly, we can imagine cases where a parent engages in
efforts to obstruct, disrupt, or interfere with the child's
placement or permanency plan to the detriment of the child's
stability. See Adoption of Thea, 78 Mass. App. Ct. 818, 825
(2011), quoting Adoption of Nancy, 443 Mass. 512, 517, 518
(2005) ("We recognize that stability and permanence in a child's
life may in some cases be 'eased' by termination of parental
rights 'even when it is not a prerequisite for the
implementation of the permanency plan'"). However, this is not
such a case -- the father here has never attempted to disrupt
Varnell's stability or placement.
The department's permanency goal for Varnell was not
adoption nor did the termination of the father's parental rights
free Varnell for adoption, and there was no evidence that the
father would attempt to interfere with or obstruct any future 18
placement or custody decisions. Although the father did not
engage with the department or with court proceedings, the record
demonstrated that Varnell and his father continued to have a
relationship, one that Varnell wishes to maintain.
Conclusion. While we can imagine that a parent's lack of
engagement and unfitness might help support a conclusion that
termination of that parent's rights serves the child's best
interests in some cases, in this case the department failed to
prove that termination of the father's parental rights served
the child's best interests. Accordingly, we reverse so much of
the April 9, 2024 decree that terminated the father's rights.11
So ordered.
11In light of our disposition, we need not reach the child's arguments that the judge erred in concluding that the child's derivative rights, such as his rights to inherit from his father or any rights that might arise under the Social Security Act, stemming from his legal relationship with his father survive the termination of the father's parental rights. Nor do we reach the child's argument that the judge erroneously found that the department sought termination of the father's rights "based upon clinical advice from [the child's] providers," although we note that the department concedes the point. HENRY, J. (concurring). I agree with the reasoning and the
outcome of the court's opinion. I write separately because I
think that we also should decide what rights are and are not
terminated when a judge "terminates parental rights" by a decree
issued pursuant to G. L. c. 119, § 26, and G. L. c. 210, § 3.
Are we rendering children legal orphans or legal half-orphans
even if they are never adopted?1 If so, why? We are needlessly
adding to the trauma of children and parents and should stop
causing that harm.
The scope of the rights terminated was ruled upon by the
trial judge here, is fiercely disputed by the child and the
department, and is likely to arise on remand. Moreover, this is
a significant question for the many children who were or will
not be adopted after the termination of parental rights. We owe
1 The phrase "legal orphan" is not hyperbole. It has been referenced and not disavowed in the case law under G. L. c. 119, § 26, and G. L. c. 210, § 3. See, e.g., Adoption of Nancy, 443 Mass. 512, 516 (2005) (father and children argued termination of father's parental rights will render children "legal orphans"); Adoption of Ramona, 61 Mass. App. Ct. 260, 265, 266 (2004) (noting, where sons opposed adoption and "remained connected" with mother, "there is reason to think that terminating the mother's rights as to either boy might render them legal orphans"); Adoption of Gertrude, 99 Mass. App. Ct. 817, 820 (2021) (mother and daughters argued as part of their cost- benefit analysis that one negative impact of termination was daughters would be rendered "legal orphans"). Numerous unpublished memoranda and orders pursuant to our rule 23.0 also use the phrase "legal orphan." 2
them a decision and a coherent rationale consistent with the
language of the statutory scheme.
Consistent with the language in both statutes, the judge
entered a decree that "terminate[d] the rights of the [father]
to receive notice of or to consent to any legal proceeding
affecting the custody, guardianship, adoption or other
disposition of the child."2 This statutory language is referred
to in our cases by the phrase "termination of parental rights."
What is terminated or dispensed with is "the need for
consent" of the parent or other individual "to the adoption,
custody, guardianship or other disposition of the child named
2 Parental custodial rights may be terminated under either G. L. c. 119, the care and protection statute, or G. L. c. 210, the adoption statute. See Adoption of Willow, 433 Mass. 636, 643 (2001). General Laws c. 119, § 26 (b) (4), provides: "[I]f the court adjudicates the child to be in need of care and protection under this section, the court shall enter an order dispensing with the need for consent to adoption upon finding that the best interests of the child . . . will be served thereby. The entry of such an order shall have the effect of terminating the rights of a person named [in G. L. c. 210, § 2] to receive notice of or to consent to any legal proceeding affecting the custody, guardianship, adoption or other disposition of the child named [in the petition]." Similarly, G. L. c. 210, § 3 (b), provides: "[If the court] finds that the best interests of the child . . . will be served[,]" the court "shall issue a decree dispensing with the need for consent or notice . . . The entry of such a decree shall have the effect of terminating the rights of a person named [in G. L. c. 210, § 2] to receive notice of or to consent to any legal proceeding affecting the custody, guardianship, adoption or other disposition of the child named [in the petition]." 3
therein." G. L. c. 119, § 26 (b) (4).3 In other words, once
both parents' rights are terminated, the child is legally free
for adoption. Unless and until the child is adopted, nothing
more has occurred.
"'Custody,' as statutorily defined, entails 'the following
powers: (1) to determine the child's place of abode, medical
care and education; (2) to control visits to the child; (3) to
consent to enlistments, marriages and other contracts otherwise
requiring parental consent.'" Petition of Catholic Charitable
Bur. of the Archdiocese of Boston, Inc., to Dispense with
Consent to Adoption, 392 Mass. 738, 740 (1984), quoting G. L.
c. 119, § 21, as amended through St. 1978, c. 552, § 28.4
It is unfortunate but true that some cases have been
imprecise in their language about the different legal
consequences associated with termination of parental rights in
contrast to adoption. For example, in Adoption of Helen, 429
Mass. 856 (1999), the Supreme Judicial Court stated that, "[t]he
focus of [a termination] proceeding is not whether the parent
3 The statute refers to the parent or "any other any person named in section 2 of chapter 210." G. L. c. 119, § 26 (b) (4). General Laws, c. 210, § 3 (b), contains a similar provision. See note 2, supra.
4 The statutory definition of "custody" has remained essentially unchanged since 1978. See G. L. c. 119, § 21, as amended through St. 2020, c. 227, § 44. 4
should be deprived of 'custody' in order to safeguard the
child's well-being, but rather whether 'it would be in the best
interests of the child for all legal relations [with the parent]
to be ended'" (citation omitted). Id. at 863. However, the
case on which Adoption of Helen relies for this proposition
states that it is "[w]hen a child is adopted" that "all rights,
duties and other legal consequences of the natural relation of
child and parent . . . except as regards marriage, incest or
cohabitation, terminate between the child so adopted and his
natural parents[5] and kindred" (emphasis added; citation
omitted). Petition of the Dep't of Social Servs. to Dispense
with Consent to Adoption, 391 Mass. 113, 119 (1984). See
Adoption of Carlos, 413 Mass. 339, 350-351 (1992) (referring
without reasoning to "the irreversible termination of the
parent-child legal relationship under c. 210, § 3"). Logically,
if the termination of parental rights severed all legal
5 It also time for the judiciary to stop referring to "natural parents." The Massachusetts Parentage Act (MPA), effective January 1, 2025, updated State law to ensure equal parentage rights for all families, particularly benefiting those who establish parentage through marriage, those who use assisted reproduction or surrogacy, and lesbian, gay, bisexual, transgender, or queer (or questioning), and others (LGBTQ+ persons). The MPA replaces gendered and outdated language, simplifies establishing legal parentage, and recognizes de facto and intended parents. See G. L. c. 209C, as amended through St. 2024, c. 166, §§ 5-9 (effective Jan. 1, 2025). 5
relations between the parent and child, then there would be
nothing left for adoption to sever.
Adoption is what terminates all rights of the parent -- not
a termination decree pursuant to G. L. c. 119, § 26, and G. L.
c. 210, § 3. In fact, in Adoption of Helen, 429 Mass. at 863,
the Supreme Judicial Court continued on to correctly state the
consequence of a termination of parental rights: "[t]ermination
denies the natural parents physical custody, as well as the
rights ever to visit, communicate with, or regain custody of the
child."6,7 In other words, the termination of parental rights
pursuant to G. L. c. 119, § 26, and G. L. c. 210, § 3, may
6 This court also collapsed the difference between the consequences of adoption and termination of custodial rights in Adoption of Donald, 52 Mass. App. Ct. 901 (2001). We stated that the mother argued both "that not all parental rights are terminated upon the entry of a decree pursuant to G. L. c. 119, § 26, or G. L. c. 210, § 3, and further that until the decree terminating her rights to notice or to give consent has run the course of possible appellate review," she could participate in postdecree permanency hearings. Adoption of Donald, 52 Mass. App. Ct. at 902. Although we identified two arguments by the mother, we said "[t]his argument" was without merit. We then addressed only the second argument, stating "[i]t is the entry of the decree, and not affirmance on appeal or eventual adoption of the child, that terminates a parent's rights to physical custody and right to regain custody, as well as to notice of or consent to adoption, of the child." Id.
7 While the parents' right to visit is terminated, if it is in the best interests of the child, the trial judge has discretion to continue visitation between the parent and the child. See Adoption of Douglas, 473 Mass. 1024, 1027 (2016); Adoption of Warren, 44 Mass. App. Ct. 620, 626 n.5 (1998). 6
potentially lead to the termination of all parental rights. But
the termination of all parental rights occurs only if and when
the child is adopted.8
The Supreme Judicial Court's decision in Adoption of
Marlene, 443 Mass. 494 (2005), supports this conclusion. In
that case, the court held that when a parent consents to the
adoption of their child pursuant to G. L. c. 210, § 2, the
consent "does not terminate the parental duty to support the
child." Adoption of Marlene, supra at 495 (affirming judge's
order granting child's motion seeking child support from father
who voluntarily consented to her adoption). In interpreting the
statutory language, the court held that the words of the statute
"mean only that the surrender is final as to the enumerated
rights being surrendered." Id. at 500. Those rights are to
"notice of any legal proceeding that affects the 'custody,
guardianship, adoption or other disposition' of the child." Id.
at 499, quoting G. L. c. 210, § 2. "Section 2 says nothing and
implies nothing concerning the termination of a parent's support
obligations." Adoption of Marlene, supra at 498. Put
differently, G. L. c. 210, § 2, accomplishes by parental consent
8 I also note that the MPA permits a child to have more than two legal parents. See G. L. c. 209C, § 26 (c), added by St. 2024, c. 166, § 65. It is for another day whether the passage of the MPA should result in changes to the consequences of adoption. 7
what an order pursuant to G. L. c. 119, § 26, and G. L. c. 210,
§ 3, can dispense with involuntarily after a trial. Applying
the same reasoning to those statutes, the effect of a
termination decree is limited to what the statutes say: the
court "may dispense with the need for consent of any person
named in section 2 of chapter 210 to the adoption, custody,
guardianship or other disposition of the child named therein."
G. L. c. 119, § 26 (b) (4).9 See G. L. c. 210, § 3 (b).
Indeed, unless a child is adopted, there is no reason to
terminate all parental rights. What purpose does it serve to
sever entirely the legal relationship between the parent and the
child if the child is never adopted?
In this case, the child objected to the termination of the
father's parental rights. Although the father's involvement in
the child's life has been so limited that when the mother was
found unfit, the child was placed in the custody of the
department, the connection to the father this child feels is
meaningful to him. To the extent the decree made the child a
"legal half-orphan," as the child argues and some cases seem to
9 There is one difference between a voluntary surrender of the right for consent to adoption and the involuntary termination of that right. By statute, after an involuntary termination, the right to support is barred. See G. L. c. 209C, § 22 (a) ("A decree or judgment entered on a petition filed pursuant to sections three or six of chapter two hundred and ten shall be a bar to a proceeding under this chapter"). To the extent that the judge concluded otherwise here, the judge erred. 8
hold, it is not hard to conceive that the severance of the
father's and the child's legal relationship imposed on the child
against his wishes might unnecessarily inflict emotional
distress on him. In addition, it is possible that the
termination of all legal rights prior to adoption could also
cause this child and others financial harm by potentially ending
the child's right to inheritance or other benefits based on the
parent-child relationship. For example, if the father dies
intestate tomorrow, the child should have inheritance rights.
If Adoption of Helen and other cases are read broadly, he would
not.
Even if we abandon the plain language of G. L. c. 119,
§ 26 (b) (4), and G. L. c. 210, § 3, which we should not, I
would hold that the greater statutory authority to terminate all
parental rights includes the authority to do less. In other
words, the trial judge was permitted to, could, and did enter a
decree that terminated the right of the father "to receive
notice of or to consent to any legal proceeding affecting the
custody, guardianship, adoption or other disposition of the
child" and nothing more. As the trial judge explained, it was
the father's rights that were terminated, not the child's. She
ruled that the child retained the right to inherit, obtain
social security benefits (assuming he otherwise qualifies), have
his father on his birth certificate, and pursue visitation with 9
his father. I agree with those legal conclusions. I would hold
that the decree terminated the rights of the father to receive
notice of or to consent to any legal proceeding affecting the
child; the decree did not terminate all legal relations between
this parent and this child.