Adoption of Odetta , 87 Mass. App. Ct. 576 ( 2015 )

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14-P-211 Appeals Court
ADOPTION OF ODETTA.1
No. 14-P-211.
Bristol. April 9, 2015. - June 26, 2015.
Present: Grainger, Rubin, & Blake, JJ.
Adoption, Visitation rights. Parent and Child, Adoption. Minor,
Adoption, Visitation rights.
Petition filed in the Bristol County Division of the
Juvenile Court Department on March 30, 2009.
The case was heard by Robert F. Murray, J.
Afton M. Templin (Belle Soloway with her) for the father.
William Cuttle, Assistant Attorney General, for Department
of Children and Families.
David Jonathan Cohen for the child.
BLAKE, J. In a case of first impression, we determine that
under the limited circumstances present in this case, it is in
the best interests of the child to enjoy postadoption visitation
1
A pseudonym.
2
with a relative who is neither a de facto parent, sibling, or
grandparent.
The father and the mother were the unmarried parents of
Odetta, born in September, 2005. The father and the mother
separated when Odetta was an infant. While Odetta lived with
her mother, the father and his brother (the paternal uncle)
assisted in raising her, including attending doctor
appointments. The father and the mother did not have a formal
parenting schedule, but Odetta spent time with her father and
his wife, as well as with the paternal uncle and his family.
Odetta also spent time with the mother's extended family.
In March, 2009, the mother was found strangled to death.
Three days later, the father was charged with and ultimately
convicted of her murder.2 The Department of Children and
Families (department) placed Odetta with her maternal aunt and
uncle. It then sought to terminate the father's rights and
place Odetta for adoption with her maternal aunt and uncle.
Initially, the father filed a guardianship petition requesting
that the paternal uncle be appointed Odetta's guardian.
2
The father was later charged with and convicted of first
degree murder. The conviction was affirmed on appeal.
3
Thereafter, the paternal uncle, a Muslim, petitioned for
guardianship of Odetta.3
Following a lengthy trial over multiple days, a judge of
the Juvenile Court terminated the father's parental rights,
approved the department's plan for placement of Odetta, and
ordered monthly visitation between the paternal uncle and
Odetta. The visitation order was largely based on a
determination that Odetta's best interests will be served by
allowing "her to have some contact with her father's family, the
tenets and practices of Islam which are part of her family
heritage and which the adoptive family, who are not Islamic,
cannot or will not provide for her."
The father, Odetta, and the department now appeal. The
father asserts the adoption plan approved by the judge is not in
the best interests of Odetta because, among other things, it
attenuates her ties to the paternal uncle and her Muslim
heritage.4 Odetta and the department challenge the judge's
authority to order postadoption contact with the paternal uncle.
We affirm.
Discussion. 1. Competing adoption plans. A trial judge's
ruling on competing adoption plans is entitled to substantial
3
The paternal uncle did not pursue adoption because it is
not recognized by his religion.
4
The father does not contest the judge's finding of
unfitness.
4
deference and will not be reversed in the absence of an abuse of
discretion. Adoption of Inez, 428 Mass. 717, 720 (1999). When
alternative plans are presented, the trial judge must choose the
plan that is in the child's best interests after an "even
handed" assessment of all the facts surrounding both plans.
Adoption of Hugo, 428 Mass. 219, 226 n.8 (1998), cert. denied
sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999).
Here, the judge's conclusion that it is in Odetta's best
interests to be placed permanently with the maternal aunt and
uncle, rather than with the paternal uncle, is amply supported
by the record. The judge entered extensive findings of fact,5
and found that Odetta was thriving under the care of her
preadoptive family and that, for the past three years, all of
her essential needs have been met.6 He balanced Odetta's need
for stability and the possible trauma of removing her from her
preadoptive home. See Adoption of Hugo, supra at 227-229. The
judge did not credit the father's argument that the maternal
aunt and uncle did not appreciate Odetta's need for therapy. In
light of the foregoing, the judge's conclusion that permanent
5
The judge entered ninety-four findings of fact and twenty-
six conclusions of law, which also included findings of fact.
6
The judge found that Odetta was up to date medically, she
was surrounded by extended family, her educational needs were
being met, she was well adjusted both in school and socially,
and she was, as described by her therapist, "a happy child."
5
placement with the preadoptive family would be best for Odetta
did not constitute an abuse of his considerable discretion.
2. Postadoption visitation. A judge's authority to order
postadoption visitation is rooted in his broad equitable powers
and conditioned upon a finding that visitation is in the child's
best interests. See Adoption of Vito, 431 Mass. 550, 557-558
(2000); Matter of Moe, 385 Mass. 555, 561 (1982). Our
decisional law has addressed visitation under related
circumstances, but has yet to address an order of visitation
with an individual other than a biological parent or sibling,
former guardian, de facto parent, or grandparent. Nonetheless,
these cases provide guidance on the issue before us. In Youmans
v. Ramos, 429 Mass. 774 (1999), for instance, the court affirmed
the trial judge's sua sponte order of visitation between the
child and his former guardian, an aunt, in a guardian
termination proceeding granting custody to the father. The
court did not specifically address whether a non-legal parent
has the right to affirmatively seek visitation, but reaffirmed
that such a question is to be left to the sound discretion of
the trial judge. Id. at 780-783 ("although there is no
statutory authority for postadoption visitation, the 'broad
equitable powers' of courts in this area permit a judge, in his
discretion, to evaluate a proposed adoption plan providing for
such visitation and to decide whether visitation is in the
6
child's best interests"), quoting from Petition of the Dept. of
Social Servs. to Dispense with Consent to Adoption, 392 Mass.
696, 702-703 (1984).
In E.N.O. v. L.M.M., 429 Mass. 824 (1999), the court
adopted and defined the concept of a "de facto parent" and the
rights and obligations flowing from such a designation, in
affirming an order of temporary visitation with the birth
mother's former partner.7 Id. at 829. E.N.O. is instructive in
that it recognizes the broad equity power of a judge to protect
a child's best interests, including maintaining contact with a
de facto parent. Id. at 827-828.
The plaintiff in Sayre v. Aisner, 51 Mass. App. Ct. 794,
795 (2001), alleged that she was a "surrogate grandmother"
entitled to visitation with the minor child under G. L. c. 119,
§ 39D.8 The dismissal of the plaintiff's complaint for lack of
standing was upheld on appeal. Nevertheless, this court
recognized that the Probate and Family Court has authority to
exercise its equity jurisdiction to order visitation with a
7
Here, the father does not contend, and the record does not
support, a conclusion that the paternal uncle was the de facto
parent of Aisha.
8
"General Laws c. 119, § 39D, grants the grandparents of an
unmarried minor child reasonable visitation rights under certain
circumstances when the parents are living apart under a
temporary order or judgment of separate support, following the
divorce of the parents, or after the death of either or both of
the parents." Sayre v. Aisner, supra at 795 n.2.
7
person who otherwise lacks standing under the grandparent
visitation statute. Id. at 798.
The judge relied, in part, on Sayre in exercising his
equitable authority to enter the visitation order in this case.
We agree that a judge's equitable authority to order visitation
is not limited to a certain category of persons, as the
department and the child suggest, but may extend to situations,
such as the one present here, where the judge has found
continuing contact to be in the child's best interests.9 See
Adoption of Vito, 431 Mass. at 553 (postadoption contact may be
warranted where there is a compelling reason, and such contact
is in the child's best interests).
Here, the judge concluded that, in the particular set of
circumstances presented, the "preservation of both
religions/cultures" to which Odetta had been exposed was
fundamental to her development and in her best interests. Upon
her birth, Odetta was given a Muslim name, and the family took
part in a ceremony in which she was formally recognized into the
9
Without citing authority to support its proposition, the
department and the child argue, in essence, that we are limited
by the case law as it stands. The absence of statutory language
or specific case law governing the unusual circumstances present
in this case does not preclude a judge from entering an order
that it determines to be in the child's best interests. See
Matter of Moe, 385 Mass. at 561 ("Our Probate Courts . . .
[possess] inherent powers apart from statutory authorization.
These powers are broad and flexible, and extend to actions
necessary to afford any relief in the best interests of a person
under their jurisdiction").
8
Muslim faith.10 Odetta attended the same mosque as the paternal
uncle from her infancy to age three, when, at the time of her
mother's death, she was placed with her maternal aunt. Prior to
this time, Odetta sporadically attended a Christian church11 with
her mother and, on occasion, with her father as well. At the
time of the mother's death, Odetta's parents had not chosen one
religion or culture for her but, instead, chose to expose her to
both religions and cultures. The paternal uncle is the sole
family member available and able to continue to expose Odetta to
a culture and religion that was an integral part of her life
until the mother's untimely death.
We agree that, where supported by a record of purposeful
exposure to both parents' religions and cultures, and in the
absence of evidence of harm to the child, continuing that
exposure may be in a child's best interests. See Felton v.
Felton, 383 Mass. 232, 233-234, 239-241 (1981). In Felton, the
court examined the exposure of children to the religions of
their parents in the context of divorce, noting that our "law
sees a value in . . . contact with the parents' separate
religious preferences. . . . And it is suggested, sometimes,
10
Her name has cultural significance in the Muslim
community.
11
The mother and her family are Seventh Day Adventists.
Odetta continues to attend church regularly with her maternal
aunt and uncle.
9
that a diversity of religious experience is itself a sound
stimulant for a child." Id. at 234-235. The Felton court
accordingly held that, absent detailed demonstration of harm to
the children, the limitations imposed upon the father's
religious instructions or practices were not justified. Id. at
234, 239-240. See Kendall v. Kendall, 426 Mass. 238, 243, 248-
249 (1997).
The judge also ordered visitation with the paternal uncle
"in order to preserve the child's relationship with her paternal
aunt and uncle" in light of the "inherent if latent animosity
between the maternal family and the paternal family." Given the
unusual and tragic nature of this case, the judge's order makes
sense. The paternal uncle has been a part of Odetta's life
since birth, and has attended many milestone events, including
her first three birthdays. Prior to the mother's death, the
paternal uncle would take Odetta once or twice a month, usually
to the mall to buy her clothes and toys. At times, Odetta also
spent the night at the paternal uncle's home, and the paternal
uncle would watch Odetta while the mother was at work. After
the department became involved with the family, the paternal
uncle continued to visit with Odetta. At first Odetta was
reluctant, but she quickly grew comfortable with monthly visits
that began as supervised, and transitioned to unsupervised, all
without incident. Moreover, in spite of any understandable
10
discord between the maternal and paternal families,12 the
maternal aunt and uncle testified that, if allowed to adopt
Odetta, they would be open to permitting the paternal uncle to
visit. Indeed, the maternal uncle conceded that "it [is]
probably in [Odetta's] best interest" to maintain a relationship
with the paternal uncle.
In the ordinary case, the adoptive parents must be relied
upon to ensure that the child is exposed to her ethnic and
religious heritage, and to make certain, where appropriate and
permitted, that there is continued contact with the child's
biological extended family. While all parents, including
adoptive ones, are presumed to act in the best interests of
their children, Blixt v. Blixt, 437 Mass. 649, 658 (2002), the
judge found that a court order was necessary in this case to
insure that Odetta's best interests are met. The order is
narrowly tailored and not intended to interfere with the
adoptive parents' ability to raise Odetta. We do not deem such
an order to be an abuse of the judge's broad discretion.
Judgment affirmed.
12
As Christmas of 2012 approached, the maternal uncle
cancelled one of the paternal uncle's visits with Odetta, due to
the apparent distrust between the families.