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15-P-1047 Appeals Court
S.M. & another1 vs. M.P. & another.2
No. 15-P-1047.
Bristol. April 12, 2016. - July 14, 2017.
Present: Green, Trainor, & Milkey, JJ.
Adoption, Visitation rights. Minor, Adoption, Visitation rights. Parent and Child, Adoption. Jurisdiction, Juvenile Court, Equitable. Juvenile Court, Jurisdiction. Contract, Visitation rights, Condition, Implied covenant of good faith and fair dealing.
Complaint in equity filed in the Bristol County Division of the Juvenile Court Department on July 14, 2014.
The case was heard by Siobhan E. Foley, J.
Harold N. Robertson for the defendants.
TRAINOR, J. The plaintiffs are the biological parents of
two children whom the defendants have adopted. At the time the
plaintiffs (biological parents) surrendered their parental
1 G.R. 2 J.P. 2
rights, they entered into open adoption agreements with the
defendants (adoptive parents) that allowed for continued
visitation on certain specified terms.3 After the adoptive
parents notified the biological parents that they were
terminating visitation under the agreements, the biological
parents filed an equity complaint for noncompliance with the
adoption agreements, seeking their specific performance.
Following a hearing, a Juvenile Court judge ruled in the
biological parents' favor, while at the same time ordering them
to discontinue a particular practice that the adoptive parents
opposed. On the adoptive parents' appeal, we vacate the judge's
order and remand the matter for further proceedings.
Background. The older child, Abby,4 was born on June
2, 2008. From about two weeks after her birth until thirteen
months old, she lived with a cousin. At age thirteen months,
she was placed with her now parents, who adopted her when she
was about three and one-half years old. She has diagnoses of
fetal alcohol syndrome, neurosensory hearing loss, and anxiety.
She uses hearing aids; she has had physical therapy and
occupational therapy services; she is followed by a speech
therapist; and she has been involved with a counselor at school.
3 Although we refer to the defendants as the "adoptive parents" for ease of reference, we emphasize that they are now the children's legal parents. 4 A pseudonym. 3
The child was subject to a care and protection petition
brought by the Department of Children and Families (DCF) in the
Bristol County Division of the Juvenile Court Department. That
matter was ultimately concluded with the biological parents and
the adoptive parents executing an open adoption agreement.
On January 1, 2012, the biological parents had a second
child, Betsy.5 She was born with neonatal abstinence syndrome
and was hospitalized following birth in the neonatal intensive
care unit (NICU). She was placed directly with the adoptive
parents upon discharge from the NICU, and at no point did the
biological parents provide care for her. There was another care
and protection petition brought by DCF on behalf of this child.
She was also adopted by the adoptive parents. Open adoption
agreements were executed identically for each biological parent,
which declared the prior agreements to be null and void, became
the governing agreements for both children, and provided for
four supervised visits per year. Because the substantive terms
of these agreements are identical, we will refer to them as "the
agreement."
As pertinent here, the agreement provides that, in the
event a visit "causes undue stress or anxiety to the Child," the
adoptive parents "have the sole ability to modify visitation to
conform to what they believe is in that child's best interest,
5 A pseudonym. 4
including the ability to terminate the visit." Further, "[t]he
visits will be considered unduly stressful if either as a result
of a visit, or in anticipation of one, the Child demonstrates,
either verbally or behaviorally, that the visit is detrimental
to the [child's] welfare." The agreement also requires the
biological parents to provide a working telephone number to the
adoptive parents, and further provides that failure to do so
"may result in this agreement becoming null and void at the
discretion of [the adoptive parents]." Lastly, the agreement
provides that either party may seek specific performance of its
terms.
In June, 2014, the adoptive mother sent the biological
parents a letter purporting to terminate all future visits. As
reasons therefor, she stated that the biological parents had
failed to provide a working telephone number; they had "failed
to stop referring to [themselves] as 'mom and dad' as agreed
upon";6 and the visits were causing "undue stress, anxiety and
confusion to the children,"7 and thus, "[w]e do not feel that it
is in the best interest of the children to continue visits."
6 The adoptive parents had made this request of the biological parents, although it was not made part of the written agreement. 7 At the hearing below, the adoptive mother testified that she believed the visits were causing Abby undue stress because "several days" after the visits, she would resume her old habit 5
After a hearing on the biological parents' petition for
specific performance of the agreement, the judge found that
their failure to provide a telephone number was not a material
breach of the agreement, and that there was no indication that
their use of the term "mom and dad" had caused undue stress or
anxiety to Abby. The judge issued an order reinstating
visitation pursuant to the terms of the agreement, and further
ordering the biological parents to provide a working telephone
number to the adoptive parents, and to refrain from engaging the
children in conversation as to their status as biological
parents.
On appeal, the adoptive parents allege that the judge erred
by not following the requirements of G. L. c. 210, §§ 6C-6E
(statute), which governs the enforcement of an open adoption
agreement.8 The adoptive parents claim that the judge
of picking the skin off her fingers and toes, and this behavior would resolve several weeks after the visit. 8 The adoptive parents state in their brief:
"Open Adoption Agreements are governed by [G. L. c. 210, §§ 6C-6E,] which limit judicial authority over their enforcement and preserve the rights of adoptive parents to make decisions on behalf of their children."
The adoptive parents specifically argue in this regard that
"[t]he court has no authority over conduct in a visit. It may modify an agreement only if it finds a change in circumstances . . . , which the court expressly did not find." 6
substituted her judgment for that of the adoptive parents,
thereby abrogating their statutory and contractual rights. The
adoptive parents also claim that the judge erred by finding that
the biological parents' admitted breach of the provision in the
agreement requiring them to provide a telephone number was an
insufficient basis for the adoptive parents to exercise their
explicit right to terminate visitation based on that breach. We
discuss each argument in turn.
Discussion. 1. The Juvenile Court's equity powers. While
the Juvenile Court Department has jurisdiction in equity in all
matters arising under the provisions of chapters 119 and 210 of
the General Laws, see G. L. c. 218, § 59, the sole remedy for
the breach of a court-approved agreement (an open adoption
agreement) for postadoption contact is a court order for
specific performance. See G. L. c. 210, § 6D; Adoption of
Tammy, 416 Mass. 205, 210 (1993) (law of adoption is entirely
statutory and governing statute must be strictly followed). See
also Beloin v. Bullett, 310 Mass. 206, 210 (1941). The
agreement here explicitly mirrors the statute and requires that
any enforcement of "the agreement [be pursued] by commencing a
Despite the dissent's contentions to the contrary, the adoptive parents are appealing the fact that the judge modified the agreement without finding a material and substantial change in circumstances. The new prohibition against the biological parents referring to themselves as "mom and dad" was never in the original agreement. 7
civil action for specific performance."9 In addition to the
unequivocal statutory mandate, the general rule for the exercise
of equity jurisdiction is that no adequate and complete remedy
exists at law.10 See Bank of America, N.A. v. Diamond Financial,
LLC, 88 Mass. App. Ct. 564, 567 (2015), quoting from Cadigan v.
Brown, 120 Mass. 493, 494 (1876) ("Our courts . . . have limited
even express grants of equitable authority to situations where
there is no 'plain, adequate and complete remedy at law'").
The prescribed statutory and contractual procedure mandates
that "[i]n an enforcement proceeding, the court may modify the
terms of the agreement if the court finds that there has been a
material and substantial change in circumstances and the
modification is necessary in the best interests of the child"
(emphasis added). G. L. c. 210, § 6D, inserted by St. 1999,
c. 3, § 21. See the similar contract provision in article IV,
§ 3(d) of the agreement. The Juvenile Court judge correctly
stated this standard in her findings and noted that "[t]he court
finds no material and substantial change in circumstances in the
9 The court's order was issued pursuant to a petition in equity. 10 Specific performance is an equitable remedy, but it is one that has been fully incorporated into our common law and is employed when the common-law remedy is insufficient. See Keeton, An Introduction to Equity 241 (Pitman's Equity Series 6th ed. 1965). Here, the General Court has determined that the usual common-law remedy (monetary damages) is inadequate and has provided the statutory remedy of specific performance. 8
present case." The judge, however, then modified the terms of
the agreement by ordering that the biological parents "shall not
intentionally engage the minor children in conversation as to
their status as their Biological Parents."
The fact that the judge did not follow the requirements of
the statute or the agreement when she modified the agreement
suggests that she believed that she was exercising her general
equitable powers. As we have already observed however, the
court's general equitable powers are not available for use in
matters controlled by the provisions of G. L. c. 210, §§ 6C &
6D, or in contradiction of the applicable and specific contract
provisions. Equity cannot be used when there is a prescribed
and adequate remedy at law. See Bank of America, N.A., 88 Mass.
App. Ct. at 567. Instead, the judge must follow the
requirements of the statute and the agreement. As we have
observed, under the statute the judge's ability to modify the
terms of the agreement rests on her finding of a material and
substantial change in circumstances.11 However, the judge made
11 The judge heard the adoptive mother's testimony that she believed that an oral agreement existed, whereby the biological parents agreed not to refer to themselves as "mom and dad," and that such agreement was subsequently breached. Certainly, the judge could, within her discretion, find that the biological parents' persistent references to themselves as "mom and dad," in breach of an oral agreement not to do so, constituted a material and substantial change in circumstances, if she considered the evidence of the agreement and its breach to be both probative and credible. 9
no such finding here.12 Therefore, the judge's order must be
vacated and the matter remanded to the Juvenile Court. This
will afford the judge the opportunity to comply with the
controlling provisions of the statute and the agreement by
entering the appropriate findings and an order of modification
if "a material and substantial change of circumstances" is
found, and the judge determines that "the modification is
necessary in the best interests of the child[ren]."
2. Discretion to terminate visitation. Under the
agreement, the adoptive parents and the biological parents had
12 The only limitation on the court's power to modify an agreement is that it cannot "expand, enlarge or increase the amount of contact between the birth parents and the child or place new obligations on adoptive parents." G. L. c. 210, § 6D. See the similar provision in article IV, § 3(d) of the agreement. There are no other limitations to a modification in either the statute or the agreement, except that any modification be determined to be in the child's best interest. In addition, the adoptive parents' determination that the biological parents should no longer discuss or refer to themselves as the children's biological parents could be based on the provisions of G. L. c. 210, § 6E. Section 6E, inserted by St. 1999, c. 3, § 21, states:
"Nothing contained in sections 6C and 6D shall be construed to abrogate the right of an adoptive parent to make decisions on behalf of his child."
"None of the words of a statute is to be regarded as superfluous, but each is to be given its ordinary meaning without overemphasizing its effect upon the other terms appearing in the statute." Commonwealth v. Woods Hole, Martha's Vineyard & Nantucket S.S. Authy., 352 Mass. 617, 618 (1967), quoting from Bolster v. Commissioner of Corps. & Taxn., 319 Mass. 81, 84-85 (1946). 10
agreed that "[the adoptive parents] or their designated agent
(visitation center staff or monitor) retain[] sole discretion to
terminate the visit if it is determined that either one of the
Child(ren) is suffering from undue stress or anxiety either due
to the actions or behavior of the biological parent or due to
the Child[ren]'s special needs emotionally and/or medically."
The agreement further states, "In the event that a visit with
[the biological parent] causes undue stress or anxiety to the
child[ren], [the adoptive parents] have the sole ability to
modify visitation to conform to what they believe is in that
child's best interest, including the ability to terminate the
visit."
When a party to a contract is given sole discretionary
power as to the occurrence of a condition, the exercise of such
right is measured by whether the party has acted honestly and in
good faith. See 1A Corbin, Contracts § 165, at 86-87 (1963)
("Even if the promisor is himself to be the judge of the cause
or condition [in a contract], he must use good faith and an
honest judgment"). See also Murach v. Massachusetts Bonding &
Ins. Co., 339 Mass. 184, 187 (1959) (insurer must exercise
discretionary power to settle claims in good faith).
Similar to a contract in which the promisor agrees to
perform on the condition that the promisor is personally
satisfied, the occurrence of the condition present in this case, 11
as to the adoptive parents' ability to modify the children's
visitation with the biological parents, "is dependent on the
. . . individual judgment of [the adoptive parents as] the party
to be satisfied." 2 Corbin, Contracts § 31.8, at 102 (rev. ed.
fall supp. 2016).13 In circumstances where a promise is
conditioned solely on one party's personal satisfaction, the
promisor's determination "even on the witness stand, is not
conclusive." 2 Corbin, Contracts § 5.33, at 187 (rev. ed.
1995). Instead, "the promisor is subject to the requirement of
good faith." Ibid. See 2 Corbin, Contracts § 5.32, at 177 n.5
(rev. ed. 1995), citing California Lettuce Growers v. Union
Sugar Co., 45 Cal. 2d 474 (1955) ("[W]here a contract confers on
one party a discretionary power affecting the rights of the
other, a duty is imposed to exercise that discretion in good
faith and in accordance with fair dealing"); 8 Corbin, Contracts
§ 31.8, at 102 (rev. ed. fall supp. 2016) ("[T]he party's
dissatisfaction cannot be given in bad faith, dishonestly,
insincerely, or fraudulently").
13 Where, as here, parties expressly agree that a condition is determined solely by one party's personal satisfaction, good faith measures that party's determination, and "the reasonableness or justice of the party's dissatisfaction cannot be questioned." 8 Corbin, Contracts § 31.8, at 102 (rev. ed. fall supp. 2016). In contrast, when a contract requires that a condition be determined by one party based on objective standards, the reasonableness of the determinant's decision is considered. See 2 Corbin, Contracts § 5.33 (rev. ed. 1995). 12
The agreement provides that the adoptive parents "retain[]
sole discretion to terminate the visit[ation] if it is
determined that either one of the Child(ren) is suffering from
undue stress or anxiety." The adoptive parents have the sole
ability to modify visitation to what they believe is in the
child's best interest and, in making this determination, they
"shall rely upon the input and observations made by the
person(s) supervising the visit." The agreement further
provides that "[the adoptive parents] or their designated agent
. . . retains sole discretion to terminate the visit[ation] if
it is determined that either . . . child[] is suffering from
undue stress or anxiety" (emphasis added). The particular party
supervising the visit is given the sole discretion to make that
determination. But here, where Abby's symptoms manifested
themselves after the actual visits, the adoptive parents
retained the sole discretion to make that determination.
The adoptive parents' sole discretionary power is also
similar to an option to terminate14 that is contractually
provided to a party when "supervening events or new information
makes the original bargain unsatisfactory to the holder of the
14 "The 'option to terminate' is a common method of producing a result very similar to that produced by making a promise conditional on personal satisfaction." 2 Corbin, Contracts § 6.10, at 291 (rev. ed. 1995). "The party having the power can . . . observ[e] results as performance of the contract proceeds and terminat[e] the contract if these results are not found to be satisfactory." Ibid. 13
power." 2 Corbin, Contracts § 6.10, at 291 (rev. ed. 1995).
Here, the adoptive parents have the discretionary right to
modify or terminate, if they so desire, the biological parents'
visitation with the children if such visitation causes the
children undue anxiety or stress.15 See ibid. ("[T]he . . .
'option to terminate' is not generally made conditional upon
dissatisfaction with the results[;] [i]t is a power to terminate
[the contract] if the contractor so wills and desires").
However, a party may not exercise its power to terminate a
contract without exercising such discretion in good faith. See
2 Corbin, Contracts § 6.14 (rev. ed. 1995).
Therefore, the judge's review, upon remand, should be
primarily focused on, and limited to, a determination of whether
the adoptive parents exercised their sole discretion to
terminate the children's visitation with the biological parents
honestly and in good faith.
"[E]very contract in Massachusetts is subject to an implied
covenant of good faith and fair dealing." Robert & Ardis James
Foundation v. Meyers, 474 Mass. 181, 188 (2016). Here, the
judge, as the finder of fact, must make an explicit
15 While the adoptive parents have an option to terminate merely visitation, and not the agreement, under these provisions, they also possess the discretionary right to terminate the agreement upon a separate condition, if the biological parents fail "to provide [the adoptive parents] with a current address and working telephone number at all times." 14
determination as to whether the adoptive parents exercised their
discretion in good faith. See Bay Colony R.R. v. Yarmouth, 470
Mass. 515, 524 (2015) (jury reasonably concluded party failed to
act in good faith under contract). See also 2 Corbin, Contracts
§ 5.33, at 187 (rev. ed. 1995) ("[T]he honesty of the promisor's
assertions and testimony [as to his personal satisfaction] is a
matter of fact to be determined by the trier of fact"). In
determining whether a party has breached the implied covenant of
good faith and fair dealing, the judge may "look to the party's
manner of performance." Weiler v. PortfolioScope, Inc., 469
Mass. 75, 82 (2014), quoting from T.W. Nickerson, Inc. v. Fleet
Natl. Bank, 456 Mass. 562, 570 (2010).16 While "[t]here is no
requirement that bad faith be shown . . . [t]he lack of good
faith can be inferred from the totality of the circumstances."
Weiler, supra, quoting from T.W. Nickerson, Inc., supra.
When considering whether the implied covenant of good faith
and fair dealing was violated in the context of one party's
discretion as the sole determinant of a condition, the Supreme
Judicial Court has held that, in the totality of the
circumstances, there was no breach where the party acted in good
faith within its sole discretion as provided by the terms in the
16 "[In Massachusetts,] [t]here is a presumption that all parties act in good faith, and the plaintiff bears the burden of presenting evidence of bad faith or an absence of good faith." T.W. Nickerson, Inc. v. Fleet Natl. Bank, supra at 574, citing 23 Williston, Contracts § 63.22, at 507 (Lord 4th ed. 2002). 15
contract. See Eigerman v. Putnam Invs., Inc., 450 Mass. 281,
287-290 (2007). "[T]he implied covenant of good faith and fair
dealing cannot create rights and duties that are not already
present in the contractual relationship." Id. at 289. See
Merriam v. Demoulas Super Mkts., Inc., 464 Mass. 721, 731
(2013), quoting from Uno Restaurants, Inc. v. Boston Kenmore
Realty Corp., 441 Mass. 376, 386 (2004) (stating that covenant
does not "provide[] a specific form of protection that is not
mentioned in the parties' contract"). Thus, the judge must look
to the duties and terms provided in the agreement when
determining whether the adoptive parents' discretionary action
was within the scope of the covenant of good faith and fair
dealing. See Eigerman, supra ("The covenant concerns the manner
in which existing contractual duties are performed"); 2 Corbin,
Contracts § 6.10, at 295 (rev. ed. 1995) ("The extent of the
reserved power [to terminate a contract] depends upon the
expressions in the agreement and the reasonable implications to
be drawn therefrom").
Further, a party breaches the covenant of good faith and
fair dealing when the party exceeds its contractual discretion
or uses its discretionary power in a pretextual manner. See
Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 473
(1991) (party's use of discretionary right as pretext justified
judge's finding of breach of good faith and fair dealing); 16
Robert & Ardis James Foundation, 474 Mass. at 191 (breaching
party "had taken an extreme and unwarranted view of his rights
under the contract"). The party may also be in breach of the
covenant of good faith and fair dealing as a result of the
party's motivations. See T.W. Nickerson, Inc., 456 Mass. at 574
(looking to whether party's motive was "to affect negatively the
plaintiff's rights" under the contract); Weiler, 469 Mass. at 84
(considering party's desire to enrich another at expense of
plaintiff in determining breach of covenant of good faith and
fair dealing).
In viewing the totality of the circumstances and terms
provided by the adoption agreement, the judge may review not
only the adoptive mother's testimony, but also, to the extent
appropriate, the conclusions of the guardian ad litem (GAL) and
the assigned supervisor's notes in determining whether the
adoptive parents exercised good faith in making their
discretionary determination.17 Paragraph 13 of the agreement
clearly states that the adoptive parents maintain "the sole
ability to modify visitation to conform to what they believe is
in th[e] child's best interest" (emphasis added). In making
this determination they shall rely upon input and observations
17 We note, however, that little, if any of these conclusions and notes may be probative of the adoptive parents' good faith because Abby's concerning behavior occurred after the visits, outside of the GAL and the visit supervisor's observation. 17
made by the person supervising the visit.18 The judge may
consider, therefore, the GAL's conclusions and the assigned
supervisors' observations only when determining if the adoptive
parents' discretionary decision to terminate the children's
visitation with the biological parents was made in good faith.
See Uno Restaurants, Inc., 441 Mass. at 385 ("[T]he purpose of
the covenant [of good faith and fair dealing] is to guarantee
that the parties remain faithful to the intended and agreed
expectations of the parties in their performance"); Eigerman,
450 Mass. at 289 (scope of breach of covenant of good faith and
fair dealing is within contract).
3. Contact information requirement. Finally, paragraph 25
of the agreement states that "[f]ailure on the part of [the
biological parents] to provide [the adoptive parents] with a
current address and working telephone number at all times may
result in this agreement becoming null and void at the
discretion of [the adoptive parents]." This language is
sufficient to create an express condition, which means, simply
18 Paragraph 13 of the agreement reads in its entirety:
"In the event that a visit with [the biological parent] causes undue stress or anxiety to the Child, [the adoptive parents] have the sole ability to modify visitation to conform to what they believe is in that child's best interest, including the ability to terminate the visit. In making this determination, [the adoptive parents] shall rely upon the input and observations made by the person(s) supervising the visit." 18
stated, that in the event that the plaintiffs fail to provide a
working telephone number at all times, the adoptive parents, in
their discretion, may terminate the agreement.19
Even if we were to determine that this provision was not an
express condition and that the manner of enforcing the condition
was discretionary (a question we do not decide), the exercise of
the adoptive parents' subjective discretion would have
appropriate limitations in contract law. The covenant of good
faith and fair dealing would be applicable in such a situation.
"Where a party to a contract makes the manner of its performance
a matter of its own discretion, the law does not hesitate to
imply the proviso that such discretion be exercised honestly and
in good faith. See 3A Corbin, Contracts, § 644, pp 78-84."
Burkhardt v. City Natl. Bank of Detroit, 57 Mich. App. 649, 652
(1975). See McAdams v. Massachusetts Mut. Life Ins. Co., 391
F.3d 287, 301-302 (1st Cir. 2004); Restatement (Second) of
Contracts § 205 (1981).
There is no burden upon the adoptive parents to show harm
in order to enforce such a contract provision. In theory, the
adoptive parents were only attempting to exercise the explicit
right that they, and the biological parents, freely bargained
19 See Restatement (Second) of Contracts § 226 comment a, at 170 (1981) ("No particular form of language is necessary to make an event a condition"). 19
for in the contract.20 Having said that, however, the judge
concluded that it was inappropriate, in these circumstances, to
terminate the agreement because the biological parents' failure
to provide a working telephone number was not an intentional
act.21 We agree, but for a different reason. The adoptive
parents had acquiesced in this failure for almost a year while
communicating solely by written correspondence. A contract
condition can be waived by continuing to perform or to receive
performance from the other party if there is knowledge that the
condition has not been performed. 8 Corbin, Contracts § 40.4
(rev. ed. 1999). The judge correctly deemed this provision to
have been waived. See KACT, Inc. v. Rubin, 62 Mass. App. Ct.
689, 695 (2004), quoting from Attorney Gen. v. Industrial Natl.
Bank, 380 Mass. 533, 536 n.4 (1980) ("Waiver may occur by an
express and affirmative act, or may be inferred by a party's
20 The judge found:
"The Open Adoption Agreement was entered into by the parties freely, voluntarily and with a free understanding of the consequences. It was a valid contract between the parties. The Court notes all parties were represented by counsel at the signing of the contract." 21 The judge credited the biological mother's statement that it was an accidental oversight on her part to not provide a current telephone number. But see Restatement (Second) of Contracts § 225 comment e, at 169 (1981) ("Ignorance immaterial. The rules stated in this Section apply without regard to whether a party knows or does not know of the non-occurrence of a condition of his duty"). 20
conduct, where the conduct is 'consistent with and indicative of
an intent to relinquish voluntarily a particular right [such]
that no other reasonable explanation of [the] conduct is
possible'"). The judge, appropriately, drew no negative
inferences against the adoptive parents; nor did she impugn
their motives. The judge, also appropriately, reinstated (or
retained) the agreement's requirement of providing a working
telephone number, including the provision for the potential
negative consequences of failing to do so.
Conclusion. The judge's order is vacated and the matter is
remanded to the Juvenile Court for further proceedings
consistent with this opinion. The judge must follow the
requirements of the relevant statutes, applicable provisions of
the agreement, and our common law as related to contract
interpretation and enforcement. Finally, the judge should
consider whatever evidence is probative, and necessary, to
determine whether the adoptive parents acted honestly and in
good faith in terminating the agreement. Pending final
disposition, the judge may make such temporary orders for
continued visitation as she may deem appropriate.
So ordered. MILKEY, J. (dissenting). By today's ruling, we are
displacing the Juvenile Court judge's thoughtful resolution of a
challenging controversy with a problematic remand that is almost
certain to please no one. Because I view that disposition as
neither necessary nor appropriate, I respectfully dissent.
Although the judge rejected the adoptive parents' argument
that they had present cause to terminate the open adoption
agreement, she agreed with them that it was their right to make
"[t]he decision of when and how this information [regarding the
biological parents' status] is to be conveyed to these children
. . .."1 She therefore enjoined the biological parents from
making such references going forward. In this manner, the judge
thoughtfully sought to forge a solution that directly would
address the adoptive parents' concerns, while still allowing the
biological parents the visitation rights that all parties
contemplated in their agreement. This resolution brought the
parties to a point of stasis. If the biological parents abided
by the injunction so as not to engage in the behavior that the
adoptive parents identified as the source of their daughter's
stress, problem solved. If they did not conform their behavior
1 I follow the majority's lead of referring to the defendants as "adoptive parents" for ease of reference, while emphasizing that they now are the children's only legal parents. It bears noting, however, that at the point in time when they committed to allow visitation, the defendants were not the children's parents (adoptive or otherwise). 2
as required, the adoptive parents had multiple remedies
available to them. Notably, the judge achieved this resolution
while deftly sidestepping having to engage in inherently
intrusive inquiries into the adoptive parents' motives.
Two years have now passed with that Solomonic resolution in
place. As the adoptive parents confirmed at oral argument,
because the judge's order was not stayed, the regular visits
between the children and the biological parents have continued
in the interim. Now, we are upending the equilibrium that the
judge achieved. And to make matters worse, we are doing so in a
way that maximizes judicial meddling with the parent-child
relationship.
1. Propriety of the injunctive relief against the
biological parents. The majority remands this case in great
part because of its ruling that the judge erred when she ordered
the biological parents not to refer to their status in front of
the children. According to the majority, the judge could have
granted such relief only through a modification of the adoption
agreement, which could have been done only if the judge had
found a material and substantial change in circumstances. The
judge erred, the theory goes, by effectively modifying the
agreement even though she found no such change in circumstances.2
2 The judge expressly found "no material and substantial change in circumstances in the present case." It is not clear 3
The majority's conclusion that the judge's remedial options were
limited in this manner, in turn, depends on its legal premise
that the specific legislative parameters of G. L. c. 210, § 6D,
effectively ousted the general equity jurisdiction that Juvenile
Court judges otherwise enjoy pursuant to G. L. c. 218, § 59.
That conclusion is the centerpiece of the majority's opinion.
For the reasons it states, the majority may well be correct
that it would have been more proper for the judge to invoke
§ 6D, the modification provision of c. 210, as the basis for
issuing the injunctive relief against the biological parents.
But see Adoption of Vito, 431 Mass. 550, 560-561 (2000)
(rejecting the argument that by enacting the open adoption
agreement statute, the Legislature intended to prohibit judges
from using their equitable power to order postadoption
visitation where the parties had not entered into such an
agreement). My quarrel is not with the majority's substantive
conclusion on this point of law, but instead with its reaching
the issue at all in the present posture of this case.
The injunctive relief requiring the biological parents to
change their behavior was in the adoptive parents' favor;
indeed, it gave the adoptive parents precisely what they
why the judge felt the need to address this issue where neither side requested a modification of the agreement. In any event, it appears that in issuing the injunctive relief against the biological parents, the judge believed she was exercising general equitable powers, not adding a term to the agreement. 4
originally had sought. The biological parents have not filed
any cross appeal challenging the propriety of the injunctive
relief entered against them, and the issue therefore, at a
minimum, is not squarely presented. To be sure, the adoptive
parents did touch on the issue in their appellate brief,3 but
neither they nor the biological parents have adequately briefed
it.4 Accordingly, we should not be reaching this issue in the
current appeal. See Phillips v. Youth Dev. Program, Inc., 390
Mass. 652, 660 (1983) (recognizing that important legal
questions "should not be resolved on an argument raised as an
afterthought and not fully briefed on both sides"). See also
Lee v. Mt. Ivy Press, L.P., 63 Mass. App. Ct. 538, 560 (2005),
citing Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975)
(where a party devoted only one paragraph of a sixty-five page
brief to an issue and included no citations, that issue was
waived).
Nor is the resolution of that issue likely to make any
difference in this case. There are ample grounds on which the
3 Although the relevant portion of the adoptive parents' brief is short and cryptic, they appear to be saying that the judge herself had a problem with the biological parents' conduct and resolved that problem only through an improper means. 4 The adoptive parents addressed the propriety of the injunction against the biological parents only in passing. The biological parents, who are now representing themselves, did not file any brief. 5
judge could have found a material and substantial change in
circumstances -- as the majority itself appears to acknowledge
-- and therefore the judge in any event could have ordered the
injunctive relief that she did.5 Once she focuses on that issue
in the remand, I have little doubt that she will follow that
path.
In sum, where the issue has not squarely been raised or
adequately briefed, and it may not ultimately make any
difference, our choosing to expound on it in the current appeal
is improvident at best. Having explained why I would not have
reached the propriety of the injunctive relief issued against
the biological parents, I turn now to my differences with the
other possible justifications for a remand.
2. Undue stress. Abby6 long has suffered from profound
anxiety. The adoptive parents' concern over that issue and
their efforts to address it are highly laudable, and a testament
to the love they have for their daughter. Moreover, I certainly
agree that if the adoptive parents had demonstrated that the
biological parents' actions during the visits was the cause of
5 Thus, the Juvenile Court plainly had jurisdiction to issue its order; the only question is whether it had to do so as a modification of the adoption agreement. Accordingly, our reaching an issue not properly presented cannot be justified on the theory that it goes to the trial court's subject matter jurisdiction. 6 A pseudonym. 6
Abby's behavior, as the adoptive mother testified, they would be
within their rights to take action, including through
termination of the visitation.7 However, nothing in the language
of the adoption agreement relieves the adoptive parents of the
obligation to demonstrate objectively a threshold connection
between the anxious behaviors that Abby exhibited and the
actions of the biological parents. Rather, the agreement states
that "[i]n the event that" a visit is causing undue stress, the
adoptive parents have the "sole ability" to modify visitation as
they see fit to remedy that stress. Contrary to what the
majority states, the agreement does not by its terms grant the
adoptive parents the "sole ability" to determine the threshold
question whether the visits are causing such stress. Nor does
7 The agreement expressly provides that if a visit is causing either child "undue stress," the adoptive parents "have the sole ability to modify visitation to conform to what they believe is in that child's best interest, including the ability to terminate the visit." Strictly speaking, these provisions speak in terms of the adoptive parents' ability to terminate individual visits, not in terms of terminating the agreement. However, mindful that we are to interpret the rights provided to biological parents by open adoption agreements narrowly in favor of upholding the rights of the children's legal parents, see G. L. c. 210, § 6E, I agree with the adoptive parents that -- in appropriate circumstances -- they could rely on the undue stress provisions as a basis for terminating all visitation with the affected child going forward. It does not follow, as the adoptive parents appear to assume, that if visitation is fully terminated to address the particular sensitivities of one child, then they automatically can terminate any visitation with respect to the other child. Given how she ruled, the judge had no occasion to consider how the relevant language of the agreement would apply with respect to that issue. 7
anything in the agreement imply that the adoptive parents have
unreviewable discretion to determine whether visitation is
causing the children undue stress. In fact, to the contrary,
other provisions in the agreement demonstrate that the adoptive
parents do not have unfettered discretion to terminate
visitation based on unsupported allegations that the visits are
causing stress.8
In addition, it is important to keep in mind the over-all
context in which the question before us arises. Before the
adoptions here were finalized (that is, at a time when the
adoptive parents had no legal relationship with the children),
the adoptive parents legally committed to allowing quarterly
visits to go forward so long as the visits were not causing the
children undue stress (and the biological parents otherwise were
complying with the agreement's terms). In this context, it is
not reasonable to conclude that the biological parents agreed --
in the absence of express language to that effect -- that their
bargained-for rights to visit the children could be terminated
8 For example, to the extent that the asserted stress is grounded in behaviors that the children exhibit during the visits, the agreement expressly provides that in determining what remedial measures should be taken, the adoptive parents "shall rely upon the input and observations made by the person(s) supervising the visit." Although this provision is not implicated here (since, by all third party reports, the visits themselves went remarkably well), its existence undercuts the adoptive parents' assertion that they had unreviewable discretion. 8
permanently based on a mere assertion by the adoptive parents
that the visits were causing the children undue stress. See
Downer & Co., LLC v. STI Holding, Inc., 76 Mass. App. Ct. 786,
797 (2010) (contracts are to be interpreted to fulfil "the
reasonable expectation of the parties when they entered into the
contract"). It follows that the adoptive parents' contention
that the biological parents' behavior was causing the skin
picking was not insulated from judicial review.
As the plaintiffs in a specific performance action, the
biological parents had the burden of proving the existence of
the agreement and the adoptive parents' refusal to comply with
its nominal terms. However, whether the agreement properly had
been terminated was an affirmative defense on which the adoptive
parents bore the burden of proof. See generally Patriot Power,
LLC v. New Rounder, LLC, 91 Mass. App. Ct. 175, 179-180 (2017).
The judge's findings directly address whether they met their
burden of proof regarding undue stress. As she found, and the
adoptive parents do not contest, "[t]here have been no reports
made by the children to a licensed clinical social worker or
other professional relative to stress or anxiety as a result of
visits with the Biological Parents." In fact, the hearing
documented that while the visits between the children and the 9
biological parents went extremely well,9 Abby gave no indication
that she saw the biological parents as anything more than
occasional playmates or that she was confused about who her
parents were.10 As to the adoptive parents' claims that the
visits were causing Abby's skin picking, the judge stated: "At
the present time, this Court does not find a sufficient nexus
between [Abby's] behaviors and statements attributed to [the
biological mother]." Thus, the judge expressly found that the
adoptive parents had not met their burden to provide sufficient
proof that it was the biological parents' behavior during the
visits that was causing Abby undue stress.
9 For example, the court-appointed guardian ad litem (GAL) - - whose conclusions the judge expressly credited -- reported that the visit she observed between the children and the biological parents was "one of the best visits [she had] ever seen" in her thirty-eight-year career, and she emphatically concluded that continued visitation remained in the children's best interests. The adoptive parents appear to fault the GAL for failing to look into whether Abby was exhibiting stress related to the visits outside of the visits themselves. However, the GAL was not asked to examine that issue, something that is hardly surprising given that the adoptive mother raised it for the first time at the evidentiary hearing before the judge. 10 The adoptive mother herself testified that Abby "understands that I'm her mother and [the adoptive father] is her father," and that the biological mother was merely "a friend that she plays with." In addition, the GAL testified that six year olds such as Abby "know the people who take care of them every day as mommy and daddy," and that Abby had "never indicated . . . that she had any type of familial relationship with the [biological parents]," but instead knew them only as people who "were fun and she played with them and she had seen them periodically." 10
In fact, a close examination of the proof that the adoptive
parents put forward demonstrates just how thin it was. The
adoptive mother laid out the basis for her belief that the
visits were causing Abby undue stress for the first time at the
hearing. Specifically, she testified that "several days" after
the visits, Abby would resume her old habit of picking the skin
off her fingers and toes, and that this behavior would resolve
prior to the next quarterly visit. Based on this timing, the
adoptive mother attributed Abby's behavior to the visits causing
her undue stress. Her specific concern was that the biological
parents' references to themselves as "mom and dad" were causing
such stress.11
Thus, the adoptive parents' proof of a causal nexus was
based exclusively on observations that Abby resumed her skin
picking several days after the visits and stopped it at some
unspecified time before the next quarterly visit. Our case law
recognizes the difficulties incumbent in trying to use gross
temporal associations to prove what may be causing emotional
distress in a child. See Guardianship of Yushiko, 50 Mass. App.
11 The adoptive mother admitted in her testimony that, prior to the hearing, she never had raised the skin picking behavior as a reason for her concern about the visits. The biological mother addressed the fact that she was unaware of the skin picking concerns in her pro se closing argument. Although she denied that any actions she took had caused Abby to exhibit such behavior, she indicated that had she been made aware of it, "[w]e would have [taken] precautions." 11
Ct. 157, 159 (2000). In Yushiko, we rejected a trial court
finding that the child in question "experienced stuttering
problems and physical manifestations of emotional upset upon her
return from visitation with her father and that those episodes
occurred more frequently prior to the [child's] move to Florida
[with her guardians]." As we explained,
"[T]here is nothing in the evidence to suggest that the emotional distress experienced by the child after visits with her father was caused by those visits rather than the child's anxiety over the move to Florida. Nor was there evidence that the return to her father would cause the child severe emotional trauma."
Ibid.12 Here, the judge was well within the bounds of her
authority to conclude that the adoptive parents' proof was not
sufficient to meet their burden. Because her findings are not
clearly erroneous, we are bound by them, and we should be
affirming her ruling on that ground.
None of this is to say that I take issue with the
majority's point that the judge could have rejected the adoptive
parents' claims if she found they were put forward in bad faith.
I certainly agree with that proposition. However, an inquiry
into whether a parent is acting in good faith should be a last
resort given the extent to which this mode of inquiry meddles
12 It bears noting that in other contexts, proof of medical causation "generally must be established by expert testimony." Harlow v. Chin, 405 Mass. 697, 702 (1989) (medical malpractice). I do not think expert proof is necessarily required in the context of the case before us, but more proof than what the adoptive parents offered is. 12
with the parent-child relationship. See Adoption of Vito, 431
Mass. at 565 (cautioning judges against "meddling in the child's
and adoptive family's life"). In fact, I cannot imagine
anything more intrusive to the parent-child relationship than a
searching inquiry into such questions as whether the adoptive
parents sought to terminate visitation here not because it was
going badly, but because it was going so well. In my view, the
judge appropriately resolved the dispute before her without
questioning the adoptive parents' honesty and good faith. She
recognized that regardless of whether the adoptive mother
honestly believed that the biological mother's references led
Abby to pick her skin, this does not mean that such a belief
actually was founded. Simply put, the judge understood that a
good faith belief that a causal link exists does not equate to
adequate proof of it.
3. Absent telephone number. I turn now to the remaining
claim that the adoptive parents raised, namely the biological
parents' temporary failure to provide a working telephone
number. It is undisputed that the agreement required the
biological parents to provide such a number and that the
biological parents had not complied with this provision at the
point that the adoptive parents purported to terminate all
visitation. However, the judge found -- and the adoptive
parents do not contest -- that the parties, historically, had 13
always communicated by mail without incident. It is undisputed
that the adoptive parents never asked for the missing telephone
number, and the judge found that the biological parents promptly
would have cured their omission had the adoptive parents called
it to their attention. Indeed, other than pointing out that
they had to confirm the visits directly with the visitation
center and not with the biological parents, the adoptive parents
were unable to articulate -- either at the hearing in the court
below or in the argument before us -- how the missing telephone
number caused them or their children any problem whatsoever.
Citing to the Restatement (Second) of Contracts, the judge
ruled that the biological parents' failure to provide a working
telephone number was an "oversight" that was too inconsequential
to preclude them from seeking specific performance of the
agreement.13 To the extent that the majority concludes that the
judge's analysis skirts over the fact that the agreement
expressly grants them discretion to determine the agreement
"null and void" based on the biological parents' failure to
supply contact information, I agree.
The majority concludes that the judge's rejection of this
ground should nevertheless be affirmed based on acquiescence.
13 The judge cited the Restatement (Second) of Contracts for the five "significan[t]" factors that determine whether a given breach is material. See Restatement (Second) of Contracts § 241, at 237 (1981): "Circumstances Significant in Determining Whether a Failure is Material." 14
See generally KACT, Inc. v. Rubin, 62 Mass. App. Ct. 689, 695
(2004). Passing over whether such analysis necessarily is
correct, I add that we could uphold what the judge did with
respect to the telephone number issue on a separate ground. The
adoptive parents acknowledge that their effort to declare the
agreement null and void is not immune from all judicial review.14
See Computer Sys. of America, Inc. v. Western Reserve Life
Assur. Co., 19 Mass. App. Ct. 430, 437 & n.11 (1985), citing
Chandler, Gardener & Williams, Inc. v. Reynolds, 250 Mass. 309,
314 (1924) (although a contract for the lease of certain
equipment expressly entitled one party to terminate the
agreement if it determined, in its "sole judgment," that the
equipment had become obsolete, that provision still "must be
exercised . . . in a reasonable and honest fashion"). See also
Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 473
(1991) (party's "use of a discretionary right under the
agreements as a pretext justifies the judge's ruling that [it]
breached the covenant of good faith and fair dealing").
The judge recognized that the adoptive parents purported to
deprive the biological parents of their bargained-for visitation
rights based on the missing telephone number even though the
14 The adoptive parents suggest that their decision could be reviewed either for bad faith or for "an abuse of discretion." As to the latter, it would not be appropriate to graft that administrative law standard of review onto an action involving the exercise of discretion under a private contract. 15
biological parents' lapse in this regard had no material
consequence for them. Because the judge believed that the
telephone number issue could be resolved in the biological
parents' favor on other grounds, she did not directly address
whether the adoptive parents' purporting to declare the
agreement null and void on this ground was pretextual.
Nevertheless, that conclusion flows from the findings that the
judge did make: if someone is unable to offer any justification
for taking an action on a particular ground, then she must have
pursued that action for a different reason. I emphasize that I
accept that the adoptive parents honestly believed that
termination of visitation was in their children's best
interests, and I am not suggesting that they acted in bad faith
in that sense. However, on the facts of this case, it is
inescapable that the missing telephone number issue was not the
real reason they were seeking to terminate the agreement. A
remand is unnecessary to resolve that issue (regardless of
whether acquiescence by itself suffices).15
Conclusion. I close with the following observations. When
circumstances permit, an adopted child potentially can benefit
15 Moreover, our decisions recognize that remands can be avoided in cases involving the welfare of children where "the evidence before us on appeal 'convincingly establishes' that [a] result is correct." Prenaveau v. Prenaveau, 75 Mass. App. Ct. 131, 143 (2009), quoting from Rosenthal v. Maney, 51 Mass. App. Ct. 257, 272 (2001) (Duffly, J.). 16
from supportive relationships with her biological family. Too
much love, by itself, is seldom a problem.
All that said, relationships between adoptive families and
biological families can be challenging even in the best of
circumstances. Open adoption agreements present one means of
assisting parties in navigating such relationships. See
Adoption of Ilona, 459 Mass. 53, 65 n.15 (2011) (endorsing
judges' encouraging biological parents and prospective adoptive
parents to enter into open adoption agreements, presumably
because their doing so minimizes the need for judicial
intervention in familial relationships). Here, the judge issued
an order that thoughtfully sought to honor the agreement the
parties freely reached, while still supporting the adoptive
parents' judgment as to how the biological parents should
conform their conduct in order to serve the best interests of
the children. For the reasons detailed above, we should be
affirming that decision.