Adoption of Xarissa

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20-P-654 Appeals Court
ADOPTION OF XARISSA.1
No. 20-P-654.
Bristol. March 3, 2021. – May 24, 2021.
Present: Massing, Henry, & Ditkoff, JJ.
Adoption, Dispensing with parent's consent, Visitation rights,
Care and protection. Parent and Child, Adoption, Custody,
Custody of minor, Dispensing with parent's consent to
adoption, Care and protection of minor. Minor, Adoption,
Custody, Visitation rights, Care and protection.
Department of Children & Families. Practice, Civil, Care
and protection proceeding, Adoption, Findings by judge.
Evidence, Child custody proceeding.
Petition filed in the Bristol County Division of the
Juvenile Court Department on March 31, 2016.
The case was heard by Siobhan E. Foley, J.
Dana C. Chenevert for the mother.
Jared B. Cohen, Assistant Attorney General, for Department
of Children and Families.
Hugh F. Ferguson for the child.
1 A pseudonym.
2
DITKOFF, J. The mother appeals from a decree issued by a
Juvenile Court judge terminating her parental rights to the
child, approving the adoption plan of the Department of Children
and Families (department), and granting her one posttermination
visit per year. We clarify that, when a child's mental health
and behavioral needs are in flux, an adoption plan need not
describe the kind of home environment and adoptive family makeup
that ideally would best meet the child's particular needs when
the child stabilizes enough to be adopted. We conclude that the
judge reasonably found that the adoption plan here was specific
enough in these circumstances. Further concluding that the
trial judge properly found clear and convincing evidence of
parental unfitness caused primarily by the mother's inadequately
addressed mental health problems, which ultimately led her to
abuse the child physically, and that the judge acted within her
discretion in ordering one posttermination visit per year, we
affirm.
1. Background. The mother has a long history with the
department. We, however, limit our discussion to the events
since the birth of the child in August 2009. In March 2010, the
mother called the police to report that her former boyfriend
(apparently the child's father), was calling and threatening to
"destroy" her, and that there was a history of domestic violence
3
between them.2 In 2012, the mother was diagnosed with substance
dependence disorder.
In July 2013, police responded to the mother's apartment
after receiving a report that a woman was screaming. The mother
claimed that she had been "jumped" at a bar by a man and a woman
for no apparent reason, and that some of her hair had been
pulled out of her head. During this interview, she slammed her
cell phone on the kitchen table multiple times, claiming it was
not charging.
In May 2014, a G. L. c. 119, § 51A, report (51A report) was
filed regarding the child and her older sister, who is
approximately twelve years older than the child, citing concerns
of marijuana use in the home, supervisory issues with the child,
and loud arguments with the older daughter. Although the
allegations were unsupported, the mother admitted to having
screaming matches with her older daughter, and that these fights
had an effect on the child.
In March 2016, the mother called the police from the
child's elementary school, reporting that the child had
"destroyed the classroom" by throwing things around the room.
The mother claimed that the police officer she spoke to told her
2 The department was unable to locate the child's father,
and he never appeared at the trial. The parental rights of "any
unknown/unnamed father of" the child were terminated.
4
to give the child "a butt whipping," but that she did not follow
the advice of the officer because the department would take the
child away, pondering that "maybe [she] should have done it."
Roughly two weeks later, on March 30, the principal of the
child's school called the mother before school to discuss the
child's recent problematic behavior, consisting of running
through the halls, kicking the principal, and refusing to go to
daycare or return home after school. At some point, the mother
hung up and called back minutes later, stating that she "just
beat the shit out of [the child]" and that she was "ready to
give her up."3 A child was crying in the background.
When the child arrived at school that day, dropped off by
an unknown man, she was walking as if she was in pain. She
stated that her mother hit her with a broom, and said that it
hurt when she walked. She had a laceration on her lip and
bruises "all over her body," in addition to marks on her face
consistent with having been slapped, scratches on the back of
her neck, and red areas on her arms. She had strong body odor
and was not wearing underwear, her socks were full of holes, and
her clothes were dirty. The child also stated that her mother
punched her front tooth out and flushed it down the toilet,
telling the child that the tooth fairy was not coming. The
3 At trial, the mother denied making these statements.
5
department conducted an emergency removal on that date, and the
child was taken to the hospital for further evaluation. She
continued to report that her whole body hurt and became upset
when she learned that blood had to be drawn, stating that she
"hated" the nurses, that she could not breathe, and that they
were choking her "like her mother." The mother was subsequently
charged with assault and battery and later convicted by a jury.4
The day after her removal, the child disclosed that a man
named "Greg," someone who had babysat her and visited her home,
had "touched her pee-pee . . . numerous times," that he did the
same to his own children, and that she was "afraid of him." She
stated that she told her mother but that "her [m]other did not
believe her." At the care and protection trial, the parties
stipulated that the child later recanted her allegations of
physical abuse at the hands of the mother and of sexual abuse at
the hands of Greg.5
The mother has steadfastly denied hitting the child, and
stated at trial that the allegations of physical abuse were
devised by the school. The mother stated the tooth came out
4 In 2020, a panel of this court affirmed the judgment, and
the Supreme Judicial Court denied further appellate review.
5 The parties stipulated so that the child would not have to
testify. According to the police report, the child had been
told by other children that she would never see her mother again
and she explained to the forensic interviewer, "I miss my mom!
I'm never going to see her ever again."
6
naturally when she removed a barrette from the child's mouth.6
She denied that the child had any marks, bruises, or injuries
from this incident.
Although the mother denied that she had a substance use
disorder, she admitted to trying drugs and smoking marijuana.7
The mother has been diagnosed with posttraumatic stress disorder
(PTSD), and has experienced chronic depression for which she was
hospitalized several times, both involuntarily and voluntarily.
In spring 2019, she was hospitalized at an inpatient mental
health treatment facility. The mother has consistently refused
to sign releases for the department to speak with medical
professionals about her treatment, with the exception of one of
her therapists. She soon thereafter revoked that release.
In July 2016, the mother completed a parenting class, and
started another to focus on children with attention deficit
hyperactivity disorder (ADHD), one of the child's diagnoses,
although she never completed it.8 The mother testified that she
6 The mother made disparate statements about what she did
with the tooth. At a visit with the child, the mother said that
she brought the tooth to the dentist. At another time, the
mother stated that she told the child that she had flushed the
tooth down the toilet and that the tooth fairy would not be
coming, consistent with the child's account.
7 The mother admitted to using cocaine as recently as 2018.
8 When a social worker reminded her that she needed to take
a class specific to the child's diagnosis, the mother stated
that she was busy and did not care about the action plan.
7
did not believe in medications, and stated to the court
investigator that she did not put the child on ADHD medication
because she did not want the child to be "stigmatized or
labeled."
The majority of the mother's parent-child visits went well.
There were, however, some noteworthy exceptions. In April 2017,
a social worker confronted the mother to tell her that an
individual that she brought to a visit was a registered sex
offender. The mother responded that she was not "judgmental
about people," and that the individual had been victimized by
his stepfather. She later texted the social worker, in relevant
part, "[T]hank you for informing me . . . , I let him know he is
not allowed in our lives even though I know the truth of his
situation. Thanks."9
In June 2017, the mother and the child had a visit at a
hair salon, at the mother's request, so that the child could get
her hair done, even though the mother knew that the child
screamed whenever her hair was touched; the mother stated that
9 Shortly after this, the mother's visits were switched to
biweekly instead of weekly. The day after they were switched,
the mother sent the social worker a slew of text messages
beginning at 5:22 A.M. Amongst her extensive comments, the
mother stated, "Did you and your children sleep well last night
because I didn't," "hey what the hell you don't care you got
your kids living happily ever after," "my daughter is 7 years
old, she got 2 boyfriends and you think it's funny, yeah it's
cool," and "you're a loser." A different social worker was
subsequently assigned to the family.
8
the child "needed discipline." The child protested when the
hairdresser cut her hair, and the mother picked up the hair
clippings and said she was bringing them to court. Although she
was eventually able to console the child to get her to leave the
salon, the mother stepped outside and yelled at an unidentified
man, remarking that "this is fucking crazy." Lastly, in
February 2018, she gave the child a cell phone despite
instructions from the department that the mother would have to
wait until the foster family agreed to the child's having the
phone. Upon the social worker's inspection of the phone, she
found several sexually explicit photographs of women. After the
social worker took the phone away, the child had to be
transported by ambulance to the hospital for a crisis
evaluation, and the mother's visits were suspended for six
weeks.10
In November 2018, the mother's youngest daughter was born
and removed by the department at birth, as her meconium tested
positive for cocaine. The mother reported that the youngest
daughter's father had hit her throughout her pregnancy,
10In addition, in 2016 the mother told a social worker that
the mother would, or did, tell the child that the mother went to
jail because of the child's disclosure of abuse. When the
social worker told her that this was an inappropriate topic to
discuss with a seven year old child, the mother stated that she
did not care and that the child should know that "lies has
consequences."
9
including on her "stomach."11 Nonetheless, the mother remained
in a relationship with him, and continued to deny that any
domestic violence occurred between them. In March 2019, the
mother was arrested and charged with solicitation.
The child has been diagnosed with reactive attachment
disorder (RAD), PTSD, major depressive disorder, and ADHD.
Although she was placed initially in a foster home, she was
admitted to community-based acute treatment in February 2018
because of severe episodes of aggressive, unsafe behaviors. In
May 2018, it was determined that the child could no longer be
maintained in a home environment, and she has been in
residential care since then. The child has an individualized
education program (IEP) to address her "social-emotional needs,"
and, despite experiencing periods of stabilization, she
"consistently has episodes of dysregulation."
On February 27, 2020, after a trial, the judge issued
findings of fact and conclusions of law, in which she found the
mother unfit, terminated the mother's parental rights, approved
11In March 2018, prior to the birth of the youngest
daughter, police responded to an incident in which both the
father of the youngest daughter and the mother claimed that each
had been assaulted by the other. Both parties were criminally
charged. The youngest daughter's father obtained a restraining
order against the mother in the same month. The youngest
daughter is not involved in these proceedings.
10
the department's adoption plan, and granted the mother one
posttermination visit per year. This appeal followed.
2. Standard of review. "To terminate parental rights to a
child and to dispense with parental consent to adoption, a judge
must find by clear and convincing evidence, based on subsidiary
findings proved by at least a fair preponderance of evidence,
that the parent is unfit to care for the child and that
termination is in the child's best interests." Adoption of
Jacques, 82 Mass. App. Ct. 601, 606 (2012). "Because
termination of a parent's rights is an 'extreme step,' . . . a
judge must decide both whether the parent is currently unfit and
whether, 'on the basis of credible evidence, there is a
reasonable likelihood that the parent's unfitness at the time of
trial may be only temporary.'" Adoption of Ilona, 459 Mass. 53,
59 (2011), quoting Adoption of Carlos, 413 Mass. 339, 350
(1992). "In making this determination, a judge must consider 'a
parent's character, temperament, conduct, and capacity to
provide for the child in the same context with the child's
particular needs, affections, and age.'" Adoption of Garret, 92
Mass. App. Ct. 664, 671 (2018), quoting Adoption of Mary, 414
Mass. 705, 711 (1993). General Laws c. 210, § 3 (c), provides a
nonexhaustive list of factors to be weighed in determining the
fitness of a parent.
11
Where there is clear and convincing evidence that the
parent is unfit and likely to remain so, we give substantial
deference to the trial judge's decision regarding the child's
best interests and "reverse only where the findings of fact are
clearly erroneous or where there is a clear error of law or
abuse of discretion." Adoption of Ilona, 459 Mass. at 59. "A
finding is clearly erroneous when there is no evidence to
support it, or when, 'although there is evidence to support it,
the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.'" Adoption of Larry, 434 Mass. 456, 462 (2001),
quoting Custody of Eleanor, 414 Mass. 795, 799 (1993). An abuse
of discretion exists where the decision "amounts to a 'clear
error of judgment' that falls 'outside the range of reasonable
alternatives.'" Adoption of Talik, 92 Mass. App. Ct. 367, 375
(2017), quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27
(2014).
3. Unfitness and termination of parental rights.
"[P]hysical force within the family is both intolerable and too
readily tolerated, and . . . a child who has been either the
victim or the spectator of such abuse suffers a distinctly
grievous kind of harm." Adoption of Garret, 92 Mass. App. Ct.
at 671, quoting Custody of Vaughn, 422 Mass. 590, 595 (1996).
Contrary to the mother's suggestion that the judge failed to
12
address material evidence in relation to her conviction of
assaulting and battering the child, the judge considered the
fact that the child recanted her allegations of abuse, as well
as the mother's persistent denials of abuse. It is, of course,
not uncommon that a victim of domestic abuse denies the abuse.
See Commonwealth v. King, 436 Mass. 252, 262 (2002) ("We
recognize that victims of domestic violence often change their
minds about whether to testify and whether to press charges in
connection with a prior attack").
In addition to acknowledging the fact that a jury
determined beyond a reasonable doubt that the mother had beaten
the child, the judge examined the initial report of the incident
and the statements the child made to a court investigator,
reviewed the record of the child's injuries, and considered the
mother's own prior statement that she "beat the shit" out of the
child in reasonably concluding that the mother abused the child.
Although "evidence of prior criminal convictions will not be
conclusive of parental unfitness in every case[,] . . . [t]o the
extent it bears on fitness, . . . evidence of prior convictions
may properly be weighed in the balance." Care & Protection of
Frank, 409 Mass. 492, 495 (1991). Cf. Adoption of Garret, 92
Mass. App. Ct. at 673 (mother's guilty plea to criminal charges
13
brought against her for child abuse probative of unfitness to
parent children not directly subjected to abuse).12
The judge reasonably concluded that the mother's failure to
address her mental health concerns properly perpetuated the
issues that brought the child into the department's custody.
"Mental disorder is relevant only to the extent that it affects
the parents' capacity to assume parental responsibility, and
ability to deal with a child's special needs." Adoption of Luc,
484 Mass. 139, 146 (2020), quoting Adoption of Frederick, 405
Mass. 1, 9 (1989). The mother's continuous struggle with her
mental health has had a lasting effect on the child.
Presumably, the mother's mental health issues led to the
incident of abuse that precipitated the child's removal. As the
judge reasonably found, the "[m]other's untreated mental health
was a significant factor resulting in her losing her temper,
losing control and beating her daughter in March of 2016."
Weeks before the allegations of physical abuse came to light,
the mother called the police to report that her six year old
daughter threw things around her classroom. During a discussion
12In making the ultimate determination of unfitness, the
judge did not rely on the child's allegation that she was
sexually abused by a man who had supervised her. Although the
judge mentioned this potential abuse in passing, she determined
that the factor of "severe or repetitive conduct toward the
child or another child in the home of a physically, emotionally
or sexually abusive or neglectful nature" under G. L. c. 210,
§ 3 (c) (ix), applied only "in regards to physical abuse."
14
with the school principal, the mother stated that she "just beat
the shit" out of the child and that she was "ready to give her
up." In several of her visits with the child, the mother
demonstrated an inability to recognize the inappropriateness of
her actions. For example, she brought a registered sex offender
to a visit and fixated on the child's hair, knowing that the
child screamed when her hair was touched. The hair salon visit,
along with the visit during which the mother provided an
unauthorized cell phone to the child containing naked
photographs of women, resulted in the child's dysregulation, and
in one instance required a transport by ambulance for a crisis
evaluation.
The mother's reluctance to utilize medications to treat her
own mental health diagnoses affected the child, especially when
the mother decided to decline ADHD medication for the child
because she thought it would stigmatize the child. Moreover,
the mother continuously failed to provide releases to the
department to speak with her doctors, refused to provide the
department with a psychological evaluation that she completed,
and checked herself in and out of inpatient facilities but
failed to maintain consistency with treatment throughout the
case. See Adoption of Luc, 484 Mass. at 146-147, quoting
Petitions of the Dep't of Social Servs. to Dispense with Consent
to Adoption, 399 Mass. 279, 289 (1987) (mother's "fail[ure] to
15
recognize the need for or to engage consistently in treatment,"
and failure to provide the department with psychological
evaluation was "relevant to the determination of unfitness").13
The mother's consistent failure to address her mental health
issues provided substantial support for the judge's conclusion
that her unfitness was likely to continue indefinitely.
Additionally, in determining parental unfitness, the judge
considered factors such as the mother's possible substance use
disorder and the domestic violence and tumultuous relationships
in which she had continuously involved herself. The mother's
possible substance use disorder was referred to in passing in
the judge's conclusions of law, but was not a focal point of her
decision. Although the mother is correct in stating that any
alleged substance use did not overtly affect her parenting of
the child, the judge reasonably considered it as a contributing
13The mother takes issue with her service plans, arguing
that they were not specifically tailored to meet her needs and
failed to identify a particular type of service that would best
assist her. This contention is without merit. Her service
plans, among other things, instructed her to "[c]omplete a
psychological evaluation to accurately identify current mental
health issues," "gain a better understanding of [the child's]
diagnosis of ADHD," participate in "therapeutic support services
such as individual therapy and home-based therapy," and
"[d]emonstrate the ability to communicate with" her children
without "using threatening language, yelling nor by using any
type of physical disciplining." It was precisely the mother's
refusal to share a psychological evaluation with the department
that prevented the department from further tailoring the service
plans to her needs.
16
factor to the mother's "depression, anger, and volatile nature,"
which rendered her unfit.14
The domestic violence that has infected the mother's life
was also a proper factor for the judge to consider in
determining unfitness. In addition to the mother's domestic
violence against the child, the judge found a pattern of
domestic violence that the mother experienced as both a
perpetrator and a victim. In May 2014, after a 51A report was
filed alleging loud arguments with her oldest daughter, the
mother admitted that these fights, consisting of yelling and
screaming, and sometimes resulting in a police response, had an
effect on the child. Additionally, the mother had a history of
domestic violence in both her romantic and platonic
relationships, including her relationship with her current
boyfriend. Although she admitted that there was domestic
violence within that relationship in the past, and charges had
been filed against both of them stemming from allegations of
14For example, in October 2017, the mother was observed
"nodding off" and had slurred speech, making no sense while
speaking to a social worker at the Juvenile Court. When the
social worker suggested the mother obtain a substance evaluation
and engage in services, she denied any use of substances. She
also failed to complete her service plan task of participating
in a substance evaluation. Despite her diagnosis in 2012 of
"substance dependence disorder," the mother denied she had ever
had such a problem and did not feel related services were
necessary. In 2018, her youngest daughter was born with
meconium testing positive for cocaine.
17
assault in addition to a restraining order filed against the
mother by the boyfriend, she subsequently denied that any
domestic violence occurred between them, and planned to stay in
a relationship with him going forward. See Adoption of Zak, 87
Mass. App. Ct. 540, 543 (2015), S.C., 90 Mass. App. Ct. 840(2017), quoting Custody of Vaughn, 422 Mass. at 599 ("witnessing
domestic violence, as well as being one of its victims, has a
profound impact on children"). Contrast Adoption of Posy, 94
Mass. App. Ct. 748, 754 (2019) (clearly erroneous for judge to
conclude father had "longstanding issues of domestic violence"
where no abuse prevention order was filed against father, there
was firm denial of abuse by both mother and father, and there
were no police reports documenting response to domestic
violence). Accordingly, evidence of domestic violence was not
stale, as the mother suggests. Contrast Adoption of Rhona, 57
Mass. App. Ct. 479, 486 (2003), S.C., 63 Mass. App. Ct. 117(2005) ("The passage of four years is too long a period to rely
on the predictive value of past behavior without verification --
especially when evidence contradicting the prediction is readily
available" [footnote omitted]). Rather, the mother's consistent
failure to address these issues supported the judge's conclusion
that her unfitness would continue indefinitely.
4. Adoption plan. a. Generally. "In determining the
best interests of the child, the judge must consider, among
18
other things, 'the plan proposed by the department.'" Adoption
of Varik, 95 Mass. App. Ct. 762, 770 (2019), quoting G. L.
c. 210, § 3 (c). "The judge also must consider parental
nominations of caretakers and then determine which placement
will serve the best interests of the child." Adoption of Dora,
52 Mass. App. Ct. 472, 474-475 (2001). The plan does not need
to be "'fully developed' in order to support a termination
order, but it must provide 'sufficient information about the
prospective adoptive placement "so that the judge may properly
evaluate the suitability of the department's proposal."'"
Adoption of Varik, supra, quoting Adoption of Willow, 433 Mass.
636, 652 (2001). To determine the sufficiency of the plan, the
judge may consider evidence and testimony "regarding unfitness
and the child's best interests, in addition to the written
plan." Adoption of Varik, supra. The judge's determination
that a particular plan is in the child's best interests
"presents 'a classic example of a discretionary decision' to
which we accord substantial deference." Adoption of Jacob, 99
Mass. App. Ct. 258, 272 (2021), quoting Adoption of Peggy, 436
Mass. 690, 705, cert. denied sub nom. S.T. v. Massachusetts
Dep't of Social Servs., 537 U.S. 1020 (2002).
b. Competing plans. There were three placement plans
proposed at the trial. The mother proposed two maternal great
aunts (hereinafter, maternal aunts or maternal aunt) for
19
guardianship, and the department had its own written plan. The
first maternal aunt lived in the city of Lowell with her husband
and mother-in-law. She contacted the department in 2017 to be
considered as a placement for the child, but a home study was
not completed as her husband expressed that he did not want the
child in the home. The department considered her again the
following year and again had concerns, primarily with the
husband.
The second maternal aunt lived in Lowell with three of her
grandchildren, ranging in age from three to eight years. All of
the grandchildren were in therapy and suffered from the effects
of "abuse and neglect." One of these grandchildren was
diagnosed with RAD and PTSD.
Finally, the department's written plan described the
child's "significant mental health and behavioral needs" in some
length. The plan discussed the first maternal aunt and stated
that she "should be very carefully screened should she apply
again."15 Next, the plan set out the intention to initiate an
Interstate Compact for the Placement of Children case with a
third maternal aunt in Texas once the child "has made adequate
progress in the group home and is getting ready to step down to
15The plan did not address the second maternal aunt,
presumably because she was first brought to the attention of the
department several months after the department created the plan.
20
a lower level of care." The plan also expressed the possibility
of the child's older sister serving as guardian, although she
did not meet residency requirements at the time the plan was
written. The plan then indicated that the former foster family
wanted to be explored as an adoptive resource. The plan
provided that, if none of the child's "relatives or former
foster parents" were approved, the department would seek
adoption by recruitment, and the recruitment worker would
"attempt to match this child with an appropriate waiting
adoptive family that has been approved by [the department]."
The plan went on to describe the various methods available to
recruit an adoptive family.
c. Kinship adoption plans. The judge acted within her
discretion in finding that placement with either of the two
maternal aunts proposed by the mother was not in the best
interests of the child, at least at the time of the termination.
As to the first maternal aunt, there were unresolved issues
about her husband's willingness to support the child.16 With
respect to the second maternal aunt proposed by the mother,
there were concerns that she might find the child's needs
16The first maternal aunt testified that she was willing to
go to classes and fill out "packets," but when asked if her
husband would be willing, she stated, "I don't usually make him
go to things. I'm willing to do it for us." When asked again
whether her husband would be willing to take classes to get
custody of the child, she said, "I wouldn't even ask him."
21
difficult to meet, as there was another child in the home who
was diagnosed with RAD and PTSD, and the two other children
living in the home had "trauma histories of their own."
Considering that the department plan does not foreclose adoption
by either of the maternal aunts when the child stabilizes, the
judge acted within her discretion in finding that neither
placement was in the best interests of the child at the time.17
d. Sufficiency of the department's plan. The mother
argues that the department's plan is deficient. In Adoption of
Varik, 95 Mass. App. Ct. at 771, we held that the plan must
"specify the type of adoptive parents and the characteristics of
the home environment best suited to meet [the child's] specific
needs." See Adoption of Lars, 46 Mass. App. Ct. 30, 32 (1998),
S.C., 431 Mass. 1106 (2000) (plan deemed adequate which
recommended recruitment of, in consideration of further child-
specific details, "one or two-parent family who are trained or
have knowledge in special needs and are specifically capable of
dealing with children who have neurological and developmental
17As the process continues, if either of the maternal aunts
proposed by the mother continues to express interest in adopting
the child and advances to the preadoptive stage, we expect that
the department will meet with her and inform her about the
child's diagnoses and behavioral concerns, assuming she has not
already been so informed. See DCF Permanency Planning Policy,
Achieving Permanency through Adoption, at 38 (2013) (during
disclosure meeting, "the identified pre-adoptive family is
provided with all required adoption information and disclosure
material regarding the child").
22
delays, along with [ADHD] and [PTSD]," and "have no more than
two children and [are] willing to continue postadoption sibling
contact"). We did not, however, mean to suggest that this
information is always necessary for a plan to be sufficient.
In Adoption of Varik, 95 Mass. App. Ct. at 765, the child's
behavioral issues had largely stabilized by the time of trial,
such that he "was doing well academically, was medically up-to-
date, and had graduated from an after-school mentoring program."
He was "consistently engaged in therapeutic counselling
treatment, and the department had made a referral for him to
resume services with his former therapeutic mentor." Id. In
those circumstances, it was reasonable to require the department
to provide a description of "the kind of home environment and
adoptive family makeup that ideally would best meet [the
child's] particular needs." Id. at 771.
Here, by contrast, the child's mental health and behavioral
issues were very much in flux. In such a situation, it was
reasonable -- and indeed prudent -- to allow for flexibility in
the plan. In that regard, the written plan discussed in detail
the child's mental health and behavioral needs. It indicated
that she "has significant mental health and behavioral needs
that impact her daily functioning. [She] often dysregulates and
has become aggressive toward her foster family members,
including kicking and throwing objects. . . . [H]er level of
23
dysregulation and aggressive, unsafe behavior became so extreme
that her needs could not be met in a home environment." The
plan set out the child's diagnoses of RAD, PTSD, major
depressive disorder, and ADHD, and discussed at length the
treatment that she had received. Additionally, the plan
discussed her IEP and stated that, although she "had a positive
start to the 2018/2019 school year," she had "several bouts of
dysregulation" that "have led to multiple evaluations by
crisis." What the plan could not do is describe what special
needs the child would still have once she stabilizes enough to
be placed for adoption.
The judge acted within her discretion in finding that the
department's proposed adoption plan served the best interests of
the child and had, in these circumstances, "enough detailed and
specific information to properly evaluate its suitability for
[the child]." The judge delayed issuing the decree, "hoping to
re-open the evidence" to hear what the child's preferences were,
but the child remained too unstable to voice her preferences.
Additionally, the judge immediately scheduled the case sixty
days from the filing of the decision for "a report from [the
department] as to movement towards its goal and possible
identified adoptive resources." These were proper actions for
the judge to take. See Adoption of Jacob, 99 Mass. App. Ct. at
274, quoting Adoption of Cadence, 81 Mass. App. Ct. 162, 170-171
24
(2012) ("the judge took extra steps to oversee the department's
recruitment efforts. Rather than wait twelve months for the
mandatory review of the department's permanency plan . . . the
judge retained jurisdiction and ordered the department to report
to her every thirty days . . . . The judge did not 'merely
. . . issue a broad dispositional order committing the child to
the department's custody'").
In these circumstances, attempting to define the adoption
plan too precisely risked unnecessarily limiting the adoption
options once the child stabilizes. It is possible that some, if
not many, of the child's current difficulties will resolve with
further treatment. A plan designed for the child as she is now
could well require resources and conditions that will prove
unnecessary when the child is ready for adoption. Indeed, a
too-specific plan at this time might well rule out the kinship
adoption options propounded by the mother, even though those
options may be suitable in the future. In consideration of "the
fluidity of [the child's] mental health," we agree with the
judge that "it is difficult, if not impossible, to be precise as
to what will best suit her needs upon discharge from her current
residential treatment program." See Adoption of Paula, 420
Mass. 716, 722 n.7 (1995) ("With the future status of the
children unclear pending the outcome on the petitions under
G. L. c. 210, § 3, the department could not do more than outline
25
in general terms its plans for the children. A fully developed
adoption plan, while preferable, is not an essential element of
proof in a petition brought by the department under G. L.
c. 210, § 3"). Despite this difficulty, in its adoption plan,
the department extensively detailed the child's diagnoses and
treatment, and described several child-specific resources that
may be appropriate for her once she is in a position to be
adopted. In these circumstances, this was a sufficient plan for
the child.
5. Posttermination visitation. A trial judge's decision
whether to order visitation between a child and a parent whose
parental rights have been terminated is reviewed for an abuse of
discretion. See Adoption of Ilona, 459 Mass. at 66. "In
determining whether to exercise the authority to order
visitation, a judge must ask two questions: First, is
visitation in the child's best interest? Second, in cases where
a family is ready to adopt the child, is an order of visitation
necessary to protect the child's best interest, or may decisions
regarding visitation be left to the judgment of the adoptive
family?" Id. at 63.
At the outset, the judge did not ignore the evidence of a
bond between the child and the mother, as the judge ordered one
supervised visit per year, finding it in the child's "best
interest to have post-termination/adoption contact with her
26
[m]other."18 It is of no matter that this was fewer than the
department's recommendation at trial, as the judge was not bound
by the department's recommendation, and the child's custodian
remains free to allow additional visits if the custodian
determines that they are in the child's best interests. See
Adoption of Douglas, 473 Mass. 1024, 1028 (2016) (no abuse of
discretion where department proposed children have visits with
mother but judge declined to order visitation as not in
children's best interests). "[T]he purpose of such contact is
not to strengthen the bonds between the child and [her]
biological mother or father, but to assist the child as [she]
negotiates, often at a very young age, the tortuous path from
one family to another." Id., quoting Adoption of Vito, 431
Mass. 550, 564-565 (2000). Accord Adoption of Virgil, 93 Mass.
App. Ct. 298, 307 (2018), quoting Adoption of Terrence, 57 Mass.
App. Ct. 832, 839 (2003) ("posttermination visitation 'must be
grounded in the over-all best interests of the child, based on
emotional bonding and other circumstances of the actual personal
relationship of the child and the biological parent, not in the
rights of the biological parent [or] the legal consequences of
their natural relation'").
18On appeal, the child argues that the decree should be
affirmed, including the visitation order.
27
Here, the judge acted within her discretion in determining
that one court-ordered visit per year was appropriate. As the
matter progressed, the mother became less and less consistent
with visits. In 2016 through the first half of 2017, the mother
consistently visited the child. In August 2017, she asked for
no visits because she was voluntarily admitting herself into an
inpatient program for her mental health. Her next visit with
the child was in November 2017. She canceled her visits in
December 2017 and January 2018. Visits resumed in February
2018, but were suspended for six weeks because of the cell phone
incident, which sent the child into crisis. After the six-week
suspension, the social worker attempted to schedule a visit with
the mother, but she was difficult to contact, and she did not
schedule another visit until October 2018. In November 2018
through January 2019, visits were canceled or suspended through
no fault of the mother, because of concerns for the child's
mental health. After the last suspension period, the mother did
not schedule another visit with the child up to the date of
trial. Where the child's emotional state was precarious, and
the mother's visits were inconsistent and, in some instances,
inappropriate, the judge acted within her discretion in finding
a bond between the mother and child, but concluding that
requiring one court-ordered visit per year was in the child's
best interests.
28
Decree affirmed.