ADOPTION OF RAMSEY (And a Companion Case). ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-763
ADOPTION OF RAMSEY (and a companion case1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother appeals from decrees by a judge of the Juvenile
Court terminating her parental rights to her son, Ramsey, and
her daughter, Amy.2 She does not challenge the judge's finding
of unfitness, nor does she contest the termination of her
parental rights. She argues only that the judge abused her
discretion in not ordering posttermination and postadoption
visitation, and that some of the judge's findings of fact on
this point were clearly erroneous. We affirm.
Background. We summarize only those facts relevant to the
issue presented on appeal. In January 2020, after several
months of involvement with the mother and father stemming from,
among other things, incidences of domestic violence within the
family and concerns about the mother's mental health and
1 Adoption of Amy. The children's names are pseudonyms.
2 The father did not join in the mother's appeal and is not a
party to these proceedings.
substance misuse, the Department of Children and Families
(department) obtained emergency custody of Ramsey and Amy. The
following day, the department filed a care and protection
petition pursuant to G. L. c. 119, § 24, on behalf of both
children. Ramsey was sixteen months old, and Amy was one month
old at that time. The department was awarded temporary custody
and retained custody through trial.
Initially, the department, intending to unify the children
with the mother, provided the mother with weekly visitation.
From January 2020 through March 12, 2020, the visits went well
with the mother, who brought the necessary supplies and
appropriate snacks. The visits were virtual from March through
July 2020 as a result of the COVID-19 pandemic. When in-person
visits resumed on July 28, 2020, mother continued to be engaged.
Visitation was expanded to include unsupervised visits in
November of 2020, and then to overnight visits in December of
2020. These visits went relatively well, but in April 2021,
visitation was decreased to one-hour supervised weekly visits
due to recurring incidents of domestic violence resulting in
mother's arrest on several occasions. In addition, the mother
failed to participate in mental health services as required by
her action plan. From July 2021 until the date of trial, the
mother cancelled approximately one-half of her scheduled visits.
2
A trial was held on November 4, 2021. The mother, who had
an outstanding warrant for assault and battery on a family or
household member, did not appear, and the judge drew a negative
inference against her. At the conclusion of the trial, the
judge found that the children were in need of care and
protection, terminated the mother and the father's parental
rights, and dispensed with the need for parental consent to
adoption. The judge also found that posttermination or
postadoption visitation or contact would not be in the
children's best interests because there was no significant,
existing bond between them and the mother. Specifically, the
judge explained:
"[Ramsey] was one and a half years old when he was removed
from Mother's care. [Amy] was only three weeks old at the
time of removal. Both children have now spent more time
living apart from Mother than with her. Despite consistent
visitation between Mother and the children for much of this
case, Mother continues to engage in behaviors including
domestic violence and substance use that inhibit the
formation of a healthy bond with the subject children.
Prior to July 2020, Mother was engaged with the children
during the visits. After July 2020, there is nothing to
demonstrate to show that she did anything beyond merely
attending the visits. Mother did not testify and did not
submit evidence indicating positive interactions during the
visits. Mother did not offer, for example, anything to
indicate [that] she and the children have a bond."
In reaching her conclusion, the judge also considered the fact
that there was nothing to suggest that the children's foster
parents, with whom they had spent the majority of their lives,
would not facilitate visitation between the children and mother.
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Discussion. The mother argues that the judge abused her
discretion by not ordering posttermination and postadoption
visitation. She asserts that the judge's finding that there was
no evidence of a significant bond between her and the children
was clearly erroneous, that the judge erred in finding that her
behaviors inhibited the formation of a healthy bond with the
children, and that the judge's consideration of the foster
family's willingness to facilitate visitation was clear error.
As an initial matter, the department and the children argue
that the mother has waived the issue of posttermination and
postadoption visitation because she failed to request such
visitation at trial. In response, the mother claims that the
entry of an order for posttermination and postadoption
visitation is always within the court's equitable authority, and
therefore no additional notice is required to preserve the issue
for appeal. Although we are inclined to agree with the
department and the children that the issue is waived, see
Adoption of Gregory, 434 Mass. 117, 129 (2001), we need not
resolve this issue because we discern no abuse of discretion in
the judge's decision.
Once it is established that a parent is unfit, the decision
whether to grant posttermination or postadoption visitation is
left to the sound discretion of the trial judge. See Adoption
of John, 53 Mass. App. Ct. 431, 439 (2001). The decision must
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be grounded in the best interests of the child. See Adoption of
Terrance, 57 Mass. App. Ct. 832, 839 (2003). An order for
posttermination or postadoption visitation is not warranted in
the absence of a finding that a significant bond exists between
the child and a biological parent and that continued contact is
currently in the best interests of the child. See Adoption of
Vito, 431 Mass. 550, 563-564 (2000).
The judge did not abuse her discretion or rely on clearly
erroneous findings to reach her conclusion. As the judge noted,
at the time of trial Ramsey had not lived with the mother since
he was sixteen months old, and Amy had not lived with the mother
since she was three weeks old. Although many of the visits
between the mother and the children were successful at first,
later, as the judge observed, "Mother continue[d] to engage in
behaviors including domestic violence and substance use," and
"there is nothing to demonstrate . . . that she did anything
beyond merely attending the visits" after July 2020.
The mother argues that the judge's finding that there was
no evidence of positive engagement by the mother during visits
after July 2020 was arbitrary and clearly erroneous. At oral
argument, counsel for the children conceded that this date may
have been a scrivener's error and that the judge may have
intended to write "July 2021." This may be so, but any
potential error in the date is not dispositive. Contrary to the
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mother's assertion, the record fully supports the judge's
finding that at the time of trial there was no evidence of
positive engagement. As previously noted, by April 2021, the
mother's visits were significantly reduced because she had
disengaged from all services and had been arrested for assault
and battery on a family member and malicious destruction of
property.
The mother also argues that the judge erred in finding that
her "behaviors," including domestic violence and substance use,
were inhibiting the formation of a healthy bond with her
children. She argues that it was improper for the judge to
consider the impact of these behaviors on the bond between her
and the children absent any expert testimony or other
corroborating evidence.
We are not persuaded. The judge could properly consider,
as she did, the effects of domestic violence and the mother's
substance use on her ability to form a bond with the children.
For example, in April 2021, the mother's visits were decreased
from overnight visitation to one-hour supervised visitation "due
to Mother's continued involvement in domestic disputes with
Father, due to Mother's medication issues, and her discharge
from all mental health services." Then, from July 2021 to the
date of trial, the mother cancelled eight of her seventeen
scheduled visits. On the basis of these facts, it was
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reasonable to conclude that the mother's behavior was preventing
her from establishing a positive relationship with her children.
See Vito, 431 Mass. at 562 (orders for postadoption visitation
are "based on emotional bonding and other circumstances of the
actual personal relationship of the child and the biological
parent").
Finally, the mother argues that the judge erred in
considering the foster parents' willingness to facilitate
posttermination visitation. The judge found that the "[m]other
likewise presented no evidence to indicate that the current
foster home is unable or unwilling to facilitate visits in the
best interests of the subject children such that they should not
be given discretion to determine post-termination contact." The
mother argues that, since the foster parents were not designated
as a preadoptive resource, the judge should not have considered
their position on visitation.
In support of her position, the mother cites Adoption of
Rico, 453 Mass. 749, 754 (2009), in which the Supreme Judicial
Court stated that "an order for postadoption contact is more
likely 'where no preadoptive family has yet been identified, and
where a principal, if not the only parent-child relationship in
the child's life remains with the biological parent.'" Id.,quoting Adoption of Vito, 431 Mass. at 564. However, Adoption
of Rico states only that postadoption visitation is more likely
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where there is no identified preadoptive family, not that it is
mandatory. Adoption of Rico, supra. Here, the judge's decision
was grounded in the best interests of the children, and her
consideration of the foster parents' position was only one
factor in the calculus. We discern no error in these
circumstances.
Decrees affirmed.
By the Court (Vuono,
Sullivan & Singh, JJ.3),
Clerk
Entered: March 28, 2023.
3 The panelists are listed in order of seniority.
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