IN RE ADOPTION OF FLAVIA, Mass: Appeals Court 2023:
“In this consolidated appeal, we affirm Juvenile Court decrees
terminating the mother’s and the father’s parental rights to their twin
daughters, Flavia and Helen, but we vacate an order denying postdecree
motions filed by the twins and their older half-brother, Mark (a
pseudonym). The motions cited G. L. c. 119, § 26B (b), and requested an
order for sibling visitation.[2] Because we conclude that an order should have entered, we remand the matter for further proceedings.
Background. 1. Facts. The Department of Children and Families
(department) became involved with the family in 2014, after the mother
committed an assault and battery on Mark, then five years old. Diagnosed
with trauma and a variety of behavioral and emotional disorders, Mark
“require[d] a high level of care and supervision” to manage behaviors
such as fire setting, self-harm, and aggressiveness toward animals;
behaviors that the judge found resulted from the way the parents cared
for Mark and increased after the twins’ birth in 2015.[3]
In 2016, Mark was placed in a residential treatment center (residential
center) due to his inability to be safe in a less restrictive setting,
and the department filed a care and protection petition on his behalf
pursuant to G. L. c. 119, § 24. At the residential center, Mark
continued to struggle with emotional regulation, impulsivity, lack of
personal boundaries, and enuresis. In 2017, Mark was committed to the
department’s custody. In February 2019, the department transitioned him
home to live with the parents and the twins.
Seven reports in as many months were then filed with the department
pursuant to G. L. c. 119, § 51A (51A report), alleging neglect of all
three children due to the parents’ substance use and failure to engage
with services for Mark. On investigation pursuant to G. L. c. 119, §
51B, the department learned that the parents had not followed
recommendations for managing Mark’s behaviors at home, such as
establishing rules and consequences and implementing behavior charts.
Instead, without consulting a doctor, the mother gave Mark a “vape pen”
containing cannabidiol oil and had Mark smoke it “to help with his
behaviors.” Then twenty-nine years old, the mother reported poor liver
function and regularly drank beer during meetings with in-home support
workers, but she denied alcohol use, while the father, then thirty-one
years old and addicted to Adderall after being prescribed it in 2016 for
a childhood diagnosis of attention deficit hyperactivity disorder
(ADHD), said in June 2019 that he bought Adderall “off the street and
used it . . ., as it helped with his ADHD,” but in July, he “denied any
medications or diagnosis.”
In September 2019, the mother reported that the father relapsed, and
the department also learned that the parents had failed to seek
immediate medical attention for Mark’s broken arm after Mark hit a
moving car while riding his scooter near a busy road. All three children
were removed from the home, and the department filed a second petition
pursuant to G. L. c. 119, § 24, this one naming Flavia and Helen. The
petitions were consolidated, and by the time of trial, eleven year old
Mark was living at the residential center where he had lived for periods
totaling over five years. Flavia and Helen were six years old and
living in the same foster home where they had been for two years, with a
family that was prepared to adopt them. Both twins suffered from
enuresis not caused by physical concerns, were diagnosed with
unspecified trauma and stressor-related disorders, and received weekly
therapy. Helen was additionally diagnosed with posttraumatic stress
disorder with dissociative features and had developmental delays and
emotional disabilities that “require[d] significant interventions.”
2. Trial. Trial took place on thirteen nonconsecutive days between
May of 2021 and 2022. On the eighth day, before the department
introduced documentary evidence, the father moved for a directed verdict
as to the twins. In response, the department reported that it had no
more witnesses because the foster mother was not available that day to
testify about each twin’s functioning and needs. A discussion ensued
wherein the judge questioned the sufficiency of the evidence as to
Flavia and Helen. The judge made the following comments: “I need more
than what I have to make a determination,” and “I need to know more
about the girls’ functioning. That’s what I’m telling you.” She asked
whether the department would introduce reports for each twin that she
knew had been, or were being, prepared, and she said, “[T]here’s a bunch
of information in [the reports] that I feel that I need in order to
make a determination for these girls.” The judge concluded that portion
of the discussion by stating, “I leave it to you to conference how the
evidence is going to get in. . . . [P]erhaps, the [d]epartment is going
to call, like, the foster parent.”
Later, the judge suggested that counsel for the parents and children
“have a conversation” about their permanency plans — all three children
returning home — in light of testimony that, the judge said, “raised
real concerns for me about the legal viability” of that plan. A social
worker had testified that Mark struggled at the residential center “with
sexualized behaviors, impulsivity, limit setting, following directions,
and respecting personal boundaries.” The judge commented, “[I]f I
credit that testimony . . . it creates a difficult situation wherein, if
[Mark] goes home, the girls can’t go home; or if the girls go home,
[Mark] can’t go home.”
The evidence closed in March 2022, after the foster mother testified
and after Mark’s twelfth birthday. Two months later, in court, the judge
announced her decisions regarding the parents’ fitness and each child’s
best interests without mentioning posttermination or postadoption
visitation, for the parents or for Mark, with the twins. All three
children were adjudged in need of care and protection and committed to
the department’s custody. The parents were found unfit, but termination
of the mother’s rights was not found to be in Mark’s best interests,
“given his strong position against adoption” and high level of need. See
G. L. c. 210, § 2 (child’s written consent to adoption required if
child is “above the age of twelve”).
As to Flavia and Helen, the judge expressed her view that “[f]or
[Mark] to have any future, it’s going to mean that the parents have to
pour all of their attention towards reunification with him” and give him
“all of the family’s efforts,” leaving an inadequate amount of time and
attention for what she described as each twin’s “significant needs as a
result of the ongoing issues in regards to the parents’ fitness.”
Although she “recognize[d] that there ha[d] been some progress” by the
parents in addressing their “ongoing issues,” the judge considered that
“when [she] reviewed the record, it was replete with instances of
obfuscation and deception”; the father relapsed during trial; and there
was a risk that the parents had not really changed After “po[ring] over”
the exhibits, listening to the testimony, and reviewing her notes, the
judge made “a very, very difficult decision” that freeing Flavia and
Helen for adoption by their foster parents was in each twin’s best
interests. Decrees entered accordingly. See G. L. c. 119, § 26 (b) (4);
G. L. c. 210, § 3. As to Mark, a judgment entered committing him to the
department’s permanent custody, and his placement in the residential
center continued, see G. L. c. 119, § 26 (b) (2) (iii) — a judgment from
which neither he nor the mother appealed.
3. Appeals and postdecree motions. One week after the decrees
entered, the parents and the twins filed a joint notice of appeal from
the decrees. On the same day, the parents and the twins also filed a
“joint motion for orders regarding post-termination and post-adoption
contact,” seeking specific orders for posttermination and postadoption
visitation, for the parents and for Mark, with the twins. The judge did
not expressly discuss the joint motion for visitation in her September
2022 findings of fact, conclusions of law, and rationale, wherein she
expanded on her reasoning after trial in 450 findings of fact and forty
conclusions of law. The judge provided for parent-child visitation with
the twins to be “held at the discretion of the [d]epartment and then the
adoptive parents, who will determine the frequency, length, location,
and manner of such visitation,” and sibling visitation between the twins
and Mark “as often as the adoptive resource is able to accommodate”
until after adoption, at which time “sibling visitation will be left to
the sound discretion of the adoptive parents.”
The following month, the judge allowed the mother’s request for a
ruling on the joint motion for specific orders and entered an order,
nunc pro tunc to May 19, 2022, the date the motion was filed, that
posttermination and postadoption visitation with the twins “will be
addressed with the [t]rial evidence.” In other words, the judge denied
the joint motion for orders more specific than the provisions contained
in the findings of fact, conclusions of law, and rationale. No one
appealed from this decision.
In November 2022 and January 2023, Mark, Flavia, and Helen jointly
filed a motion and a supplemental motion “to reconsider” that identified
the judge’s decision, as specified in her findings of fact and
conclusions of law, to leave sibling visitation to the discretion of the
department and adoptive parents (children’s motions). Supported by
exhibits, the children’s motions (1) cited G. L. c. 119, § 26B (b); (2)
asserted that the department had reduced sibling visits to an
insufficient level and requested an order mandating a specific number of
in-person visits plus weekly virtual contact; and (3) requested an
evidentiary hearing. The department opposed the motions and argued that
reconsideration was neither timely nor warranted. At a hearing on
February 1, 2023, the judge received offers of proof that the department
had reduced sibling visitation by one-half, no sibling visits had been
or were then scheduled to occur, and the children wanted to see each
other every week if not more. Reasoning that there was no new evidence
and that she had not made an error in her “interpretation of the law . .
. that [she could] leave it in the sound discretion of the foster
parent if [she] believe[s] that, yes, it’s in the best interest of the
children,” the judge denied the children’s motions from the bench. All
three children appealed.
Discussion. 1. Parental rights. “Parental unfitness must be
determined by taking into consideration 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 Mary, 414 Mass. 705, 711 (1993).
The concepts of parental fitness and a child’s best interests “are not
separate and distinct but, instead, are `cognate and connected steps’
that `reflect different degrees of emphasis on the same factors'”
(citation omitted). Adoption of Ulrich, 94 Mass. App. Ct. 668, 675 (2019).
“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. 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. An abuse of discretion exists where the
decision amounts to a clear error of judgment [in weighing the relevant
factors, such] that [the decision] falls outside the range of reasonable
alternatives.” (Quotations and citations omitted.)
Adoption of Xarissa, 99 Mass. App. Ct. 610, 615-616 (2021).
The mother, the father, and the twins challenge the sufficiency of
the evidence to support the decrees and join in each other’s arguments
that the judge made several errors. The parties allege that the judge
relied on stale evidence and clearly erroneous findings about Mark’s
history, needs, and “sexualized behaviors,” the mother’s alcohol use
disorder, and the twins’ needs and each parent’s ability to meet them;[4]
weighed evidence relating to Mark too heavily and pitted his return
home against that of the twins; did not make sufficiently individualized
findings about Flavia and Helen or support the decision permanently to
separate Mark from the twins with findings that such action was in each
child’s best interests; and deprived the parents of due process of law
by her comments on the eighth day of trial.
Indeed, many of the parties’ challenges “amount to no more than a
disagreement with the judge’s weighing of the evidence and credibility
determinations regarding the witnesses,” Adoption of Don, 435 Mass. 158, 166 (2001), but “our task is not to decide whether we, presented with the same facts, would have made the same decision,” Adoption of Hugo, 428 Mass. 219, 225 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999). “We do not sit as a trial court to review de novo the evidence presented by the parties.” Adoption of Paula, 420 Mass. 716, 730 (1995).
Our review is limited to determining (1) whether the judge erred in
concluding, based on subsidiary findings proved by a preponderance of
evidence, that there was clear and convincing evidence that the parents
were currently unfit to parent each twin and likely to remain so, and
(2) whether the judge’s conclusion that it was in each twin’s best
interests to terminate the legal relation between the parents and child
was infected by clearly erroneous findings of fact or any clear error of
law or abuse of discretion. See Adoption of Talik, 92 Mass. App. Ct. 367, 370 (2017), and cases cited.
“A judge whose order will have the effect of irreversibly terminating
the legal parent-child relationship must focus on the present
circumstances of the parent and the child, taking into account recent
positive gains (if any), and, in appropriate cases, the likelihood of
future improvement, in a parent’s ability to care for the child who is
the subject of the petition.” Adoption of Paula, 420 Mass. at 731. Here, the parents experienced housing instability that was relevant to their fitness to care for the twins.[5] See Adoption of Yvonne, 99 Mass. App. Ct. 574, 580-581 (2021),
and cases cited. Also relevant was the parents’ failure at every home
where they lived with the twins to supervise them properly, maintain a
safe and stable environment, or obtain consistent therapeutic services
required for the children to thrive. See Adoption of Ulrich, 94 Mass. App. Ct. at 676
(judge may rely on patterns of past conduct to assess parent’s future
performance and ability). Although the parents engaged in services,
their work did not ameliorate the concerns that brought the twins into
the department’s care, see id. at 677, as they were unable to keep a
home clean for any significant period, see Care & Protection of Vick, 89 Mass. App. Ct. 704, 706 (2016), and unable to supervise the twins or Mark closely enough to prevent injuries, including substantial ones,[6] see Bezio v. Patenaude, 381 Mass. 563, 579 (1980) (finding of unfitness “must be predicated upon parental behavior which adversely affects the child”).
The parents also struggled with substance use that “was a factor
contributing to established neglect” of all three children and therefore
relevant. Adoption of Anton, 72 Mass. App. Ct. 667, 676 (2008).
The judge found that evidence of the mother’s alcohol use disorder was
not stale based largely on the parents’ minimizations of the issue and
lack of acknowledgment at trial,[7]
but she also discussed what she called “substituted behaviors” by the
mother, in findings the mother challenges as clearly erroneous. To the
extent that we agree, erroneous findings about drinking soda and
gambling do not detract from the judge’s ultimate conclusions, because
it is clear to us from the larger picture painted by the findings that
the judge’s concern was not that the mother struggled with addiction.
See Adoption of Katharine, 42 Mass. App. Ct. 25, 32 (1997)
(addiction by itself does not necessarily translate into unfitness). It
was that the mother’s inability to recognize the severity of the issue,
combined with each twin’s significant needs requiring recognition and
appreciation for the appropriate response, created a risk to Flavia and
Helen that the mother would not promptly recognize if, when, or how the
twins might need support.[8] This was not based on stale evidence or clearly erroneous findings.
Even after three years of engagement in substance use services that
included monthly injections to curb cravings — a period equaling
one-half of the twins’ lives — the mother’s sobriety was still “in its
infancy.” Until July 2021, when the mother “stated that after testifying
[on two previous dates] she realized that she is an alcoholic and had
begun attending Alcoholics Anonymous,” the mother would only say that
she had “a problem with drinking.” While we commend the mother for her
acknowledgment, neither she nor the father demonstrated such
understanding or appreciation for “the complex emotional and physical
needs of” Flavia and Helen. Adoption of Paula, 420 Mass. at 730.
The parents were not aware of either twin’s diagnoses or work in
therapy; neither expressed what services or supports they would want
Flavia or Helen to engage in were they returned home; and they “could
articulate no realistic plan for meeting” the needs of either twin or
both twins together. Id. Thus, the supported findings “place this case
within the line of authority holding that, although a parent’s
shortcomings, viewed in isolation, would not preclude his or her meeting
the law’s somewhat undemanding standard of parental unfitness, they
nevertheless do so when viewed against the more complex and
attention-consuming needs of a child who has been impaired in his
development by early neglect.” Adoption of Oliver, 28 Mass. App. Ct. 620, 625 (1990).
Similarly, the parents’ significant history of domestic violence was
not stale even though the relationship had improved by the time of
trial, because in their testimony both parents denied and minimized the
abuse and its effects on all three children.[9]
The judge found that the twins were clearly affected by the violence
because, on removal, Flavia was physically assaultive and verbally
dominating to Helen and showed her no empathy, while Helen “was
dysregulated, could dissociate, and [also] exhibited some aggressive
behaviors.” Solidly based in the evidence, the judge’s findings did not
overstate Flavia’s or Helen’s issues or needs, which the judge did not
have to be an expert to infer were, at least in part, a result of the
parents’ caregiving. “It is well established that exposure to domestic
violence works a `distinctly grievous kind of harm’ on children” that
can include imperiling their physical safety and psychological
development. Adoption of Talik, 92 Mass. App. Ct. at 374, quoting Custody of Vaughn, 422 Mass. 590, 595 (1996). See Adoption of Yvonne, 99 Mass. App. Ct. at 578,
and cases cited. This remains true even if the issues were also
attributable, in part, to the twins’ removal from the home, as the
parents maintain.
The parents’ pattern of minimizing responsibility for incidents
resulting in harm to all three children, their inability to recognize
the effects of the violence on the twins, and their limited
understanding of their roles in causing (1) trauma in the family, or (2)
all three children to be removed in September 2019,[10] were “compelling evidence for a finding of parental unfitness.” Adoption of Talik, 92 Mass. App. Ct. at 374.
Against this evidence the judge weighed the recent improvements. She
found that the parents’ dishonesty “at various junctures regarding
issues of critical importance,” such as substance use, violence in the
home, and significant mental health concerns into which the parents also
demonstrated minimal insight and a lack of transparency,[11]
combined with their present inability to articulate how they would deal
with intrarelationship strife differently or better if any or all the
children were returned to their care, “creates a likelihood that old
patterns of abusive and unhealthy behavior may recur” and harm the
twins. See Adoption of Luc, 484 Mass. 139, 146 & n.17 (2020)
(parent’s mental illness relevant if there is nexus to child’s
neglect). This was not a risk to which the judge was required to expose
the twins. See Adoption of Katharine, 42 Mass. App. Ct. at 32.
The “constellation of factors” at play here amply supports the judge’s
assessment that the mother and the father had not fully addressed their
deficiencies to the degree that they would not recur were the twins
placed back with them, such that neither parent was or soon would be
able to provide Flavia and Helen with a safe, stable home with
responsible caretakers dedicated to their safety and well-being. Adoption of Yvonne, 99 Mass. App. Ct. at 582, quoting Adoption of Greta, 431 Mass. 577, 588 (2000).
The foster parents provided their full attention to Flavia and Helen,
advocated for them, recognized when extra supports were required, and
provided an environment in which each twin’s specialized needs were met
on a consistent basis. Consequently, after two years in the “stability
and security” of that home, Flavia and Helen “made great strides in
overcoming their past trauma, understanding their behaviors, and forming
connections.”[12]
Both twins had also formed a strong secondary attachment to the foster
family that, the bonding expert testified, “allowed [Flavia and Helen]
to stay resilient . . . in the face of some really difficult
situations.” It was the judge’s sole province to weigh the secondary
bond and the twins’ “extraordinary progress” in foster care, and we see
no error of law or abuse of discretion in her choice to weigh that
evidence heavily. Adoption of Ilona, 459 Mass. 53, 62 (2011). See Adoption of Daniel, 58 Mass. App. Ct. 195, 202-203 (2003). “Here we have a case where the [twins] are finally in [a] stable situation[].” Adoption of Nancy, 443 Mass. 512, 517 (2005).
The judge’s finding that removing Flavia and Helen from the foster home
would cause severe psychological and emotional harm did not require any
manipulation of the expert’s testimony; the expert opined that each
twin would experience such a removal as a loss, and “it would be
important for them to have the supports to negotiate that loss.” Neither
the mother nor the father, however, demonstrated an understanding of
the harm that either twin would experience if the placement were
disrupted, had the initiative and insight to seek out services for
Flavia or Helen, or exhibited the ability to explain to providers why
the twins might need services.
As there was clear and convincing evidence to support a conclusion
that termination of parental rights was in the best interests of the
twins together or as individuals, the judge’s findings on these issues
were sufficient. See Adoption of Nancy, 443 Mass. at 516; Adoption of Garret, 92 Mass. App. Ct. 664, 675 n.20 (2018).
We do not agree that the findings reflect a disproportionate focus on
Mark or that the judge treated the twins as a unit. After making
seventy-five findings specifically about Mark, thirty-four findings
about Flavia, and fifty-two findings about Helen, the judge approved of
the department’s permanency plans for the twins in part because the
“[f]oster parents have already demonstrated their commitment to
addressing each child’s unique needs.” The judge also “ha[d] no doubt”
that the foster parents would “treat [Flavia] and [Helen] as individuals
despite the fact that they are twins.”
We do agree that the judge’s focus on Mark’s so-called “sexualized
behaviors” at the residential center was misplaced due to a lack of a
nexus to the twins,[13]
but once again we conclude that reversal is not required, because the
rest of the “findings are amply specific and detailed to support the
judge’s determination.” Adoption of Cadence, 81 Mass. App. Ct. 162, 168-169 (2012).
As demonstrated by their omission from our discussion, the findings to
which the parties cite are not necessary to the judge’s decision. See Care & Protection of Olga, 57 Mass. App. Ct. 821, 825 (2003).
Taken as a whole, the judge’s analysis reflects appropriate
consideration of Mark’s history and needs as factors among many bearing
on the parents’ current and future fitness and the best interests of
Flavia and Helen. See Adoption of Luc, 484 Mass. at 145.
For the judge, it was the parents’ patterns of behavior, not Mark’s,
that put the twins “at serious risk of peril” if all three children were
returned, because she thought it unlikely that the parents would be
vigilant about accessing services on behalf of the twins while also
doing so for Mark. Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998). Having carefully reviewed the record, “[w]e see no basis for disturbing the judge’s view of the evidence.” Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997).
Our decision is not changed by information that, in April 2023, while
this appeal was pending, a motion by the department to return custody
of Mark to the mother was allowed after hearing, and the care and
protection petition naming Mark was dismissed. The judge praised the
parents for their “demonstrable progress toward being able to address
[Mark’s] behavioral issues,” and so do we. Although we cannot ascertain
the reasons from the docket sheet, it is reasonable to think that the
department sought to return custody, because after trial the parents had
gained the enhanced understanding of trauma and its impact on
development that the judge thought necessary to properly care for Mark.
When she was making the decisions at issue in this appeal, however, the
judge was required “to focus on the present.” Adoption of Ramona, 61 Mass. App. Ct. 260, 264 (2004).
At that time, each parent “demonstrated a current deficiency in this
area.” Both “acknowledged that they do not know what [Mark]’s diagnoses
are” and were not “prepared with the skills needed to be able to
supervise [Mark] were he to return home,” despite eight years of
engaging with the department and Mark’s providers. They were not
entitled to an indefinite opportunity to reform. See Adoption of Cadence, 81 Mass. App. Ct. at 166. See also Adoption of Ilona, 459 Mass. at 60
(“childhood is fleeting”). Considering the record “replete with
instances in which the parents demonstrate progress and then regress at
the expense of the children,” the judge decided on balance that the
parents were not then, and would not soon be, in a position if all three
children were returned home to ensure each attended appointments and
services on time, or to provide the heightened level of supervision that
is required to protect the children. As to the twins, Mark’s
reunification with the mother does not undermine this analysis.
We are not persuaded by the parties’ claim that G. L. c. 119, § 26B
(b), creates a presumption that siblings should be placed together, such
that specific findings that it was in each child’s best interests were
required before the twins could permanently be separated from Mark.[14] In pertinent part, § 26B (b) provides:
“The court or the department shall, whenever reasonable and
practical and based upon a determination of the best interests of the
child, ensure that children placed in foster care shall have access to
and visitation with siblings . . . if the children or their siblings are
separated through adoption or . . . placements in foster care.
“The court or the department shall determine, at the time of
the initial placements wherein children and their siblings are
separated through placements in foster, pre-adoptive or adoptive care,
that sibling visitation rights be implemented through a schedule of
visitations or supervised visitations. . . .”
Rather than presume they are to be placed together, the statute
protects the rights of siblings who “are separated.” The rights
protected by G. L. c. 119, § 29B (b), relate to “visitation with
siblings,” not permanent placements, which are governed by a statute
that does not mention siblings. As required by G. L. c. 119, § 26 (b),
the judge considered the factors enumerated in G. L. c. 210, § 3 (c),
and found factors (ii), (iv), (vi), (vii), (viii), and (xii) applicable
to Flavia and Helen. See Adoption of Cadence, 81 Mass. App. Ct. at 167.
Then she considered the applicable factors along with the department’s
permanency plans for Flavia and Helen and found that the plans
represented the best ones for each twin’s “future stability and
success.” This was not outside the range of reasonable alternatives
where, at the time of trial, Mark lived in the residential home and was
not “discharge ready.” Obviously, the twins could not permanently be
placed with him there. There was no evidence that placing Mark with the
twins in their preadoptive home was an option, and the judge found it
was not in the twins’ best interests to be placed with the parents, for
all the reasons we have discussed.
The parties’ final claim is that the parents were deprived of
impartial justice by the judge’s comments on the eighth day of trial,
because the comments tipped the scale in the department’s favor and
reflected bias and prejudgment. Again, we are not persuaded. The
department had not yet rested when the judge asked about further
evidence, and her comments did not reflect bias when taken in context.
In addition to the examples we gave supra, the judge also remarked,
“[I]t’s not about the [d]epartment not meeting its burden; it’s about
the cognate and connected issue of what a child’s needs are and the
parental capacities to meet those needs”; “[M]ind you, I haven’t looked
at the documentary evidence”; and “I’m not pre-judging the case.” The
challenged remarks were “issue-spotting alerts,” not the sort of
premature “weighted assessments of the evidence” that are not permitted,
and a close reading of the transcript does not support that the parents
were denied due process of law. Adoption of Tia, 73 Mass. App. Ct. 115, 121 (2008). See Adoption of Norbert, 83 Mass. App. Ct. 542, 547 (2013).
2. Posttermination and postadoption visitation with the twins. The
parents and the twins challenge the judge’s initial decisions to leave
postdecree visitation to the discretion of the department and the
adoptive parents. All five parties fault the judge for not entering an
order on the postdecree sibling visitation motions on February 1, 2023.
We review the judge’s initial decisions for an abuse of discretion. See Adoption of Xarissa, 99 Mass. App. Ct. at 623-624 (parent-child contact); Adoption of Garret, 92 Mass. App. Ct. at 680-681
(sibling contact). The February 1, 2023 order was based on the judge’s
interpretation of G. L. c. 119, § 26B (b), which we review de novo. See Adoption of Daphne, 484 Mass. 421, 424 (2020).
a. For the parents. Before mandating posttermination and postadoption
visitation between a child and parent whose rights have been
terminated, a judge must find both that visitation would be in the
child’s best interests and that those interests will not be adequately
served by the preadoptive or adoptive parent’s discretion. See Adoption of Cadence, 81 Mass. App. Ct. at 168.
Absent (1) a reason to question the presumption that preadoptive and
adoptive parents will act in a child’s interest in evaluating whether
such visitation is in the child’s best interests now and in the future,
or (2) a compelling reason requiring that an order be entered to protect
the best interests of a child, judges have discretion to leave
decisions about parent-child visitation to the sound judgment of the
department and preadoptive or adoptive parents. See Adoption of Ilona, 459 Mass. at 66.
Here, the judge considered whether posttermination and postadoption
visitation with the parents was in each twin’s best interests and
concluded that it was, because Flavia and Helen both had a primary
attachment to the parents. The judge then considered the foster mother’s
testimony that her family “would have an open-door relationship with
[the] [p]arents, allowing them to see the twins and facilitating
contact, including visits, phone calls, and FaceTime, as long as this
was in the best interests of all parties involved.” “[C]onfident that
the foster parents will heed the advice of clinicians and other
professionals and be conscientious of the twins’ trauma histories and
other behavioral and medical issues as they continue to care for the
girls,” the judge concluded that a specific order for parent-child
visitation was not necessary to protect either twin’s best interests.
Her conclusion was not outside the range of reasonable alternatives.
b. For Mark. In support of her initial orders for sibling visitation,
the judge found that the foster parents “have demonstrated an
understanding of the importance of the twins’ connection to [Mark] and
have consistently supported the visitation,” which prior to the COVID-19
pandemic consisted of biweekly supervised visits by the twins with Mark
and both parents. During and after the pandemic, Mark, Flavia, and
Helen had weekly virtual contact with just each other. Mark looked
forward to visits with the twins, asked about them frequently, and spoke
about them affectionately. He was described as “very, very nurturing to
his sisters.” Flavia and Helen would like to visit with Mark more
often, and their permanency plans recommended “frequent and meaningful
contact” with him. The judge found that “it is in [Flavia] and [Helen]’s
best interests to continue to have sibling visitation with [Mark].”
Explaining her decision to leave the form and frequency of such
visits in the discretion of the department and then the twins’ adoptive
parents, the judge said, “I have . . . a preadoptive [parent] that I
have heard from who I feel confident in her judgment in regarding being
able to assess what is in the best interest of the [twins], and that she
respects the sibling attachments and bond that they have . . . . I’ve
left it in her sound discretion because I believe that, going forward,
she will be in the best position to evaluate what is . . . in the girls’
best interest.” On this record, we cannot say the judge made a clear
error in weighing the factors relevant to the decision such that her
initial sibling visitation order falls outside the range of reasonable
alternatives. See Adoption of Garret, 92 Mass. App. Ct. at 680-681.
The children’s motions, filed in November 2022 and January 2023,
stand on different footing. While we appreciate that the judge
approached the children’s motions as ones to reconsider her initial
decisions, because that is what the parties asked her to do,
substantively, they were “petition[s] for sibling visitation” under G.
L. c. 119, § 26B (b), fourth par., and should have been treated as such.
See Care & Protection of Rashida, 488 Mass. 217, 233 (2021),
S.C., 489 Mass. 128 (2022), and cases cited (label attached to motion
not dispositive). The judge should have considered not whether there
were grounds to revisit her initial decisions, but whether sibling
visitation was currently reasonable and practical and in the best
interests of the petitioning child and “of the minor siblings with whom
visitation is sought.” Care & Protection of Jamison, 467 Mass. 269, 277 n.20 (2014). See G. L. c. 119, § 26B (b), first par. If the judge concluded that it was, then she should have entered an order.
It is a general rule of statutory construction “that the use of the term `shall’ imports a mandatory or imperative obligation.” Newton-Wellesley Hosp. v. Magrini, 451 Mass. 777, 785 (2008). The rule “is at its strongest when the protection of rights is involved.” Commonwealth v. Cook, 426 Mass. 174, 181 (1997).
Previously, sibling visitation was governed by a provision of the
general care and protection statute that read, in part, “The court
shall, whenever reasonable and practical, and based upon a determination
of the best interests of the child, ensure that [State-separated
siblings] have access to, and visitation rights with, such siblings.” G.
L. c. 119, § 26 (5), inserted by St. 1997, c. 43, § 99. We said this
language meant that a judge must decide whether and if so how sibling
visitation is to occur, and then provide a schedule and conditions of
visitation, and on further appellate review, the Supreme Judicial Court
“agree[d] that the judge should have specified in an order or orders
whether sibling visitation would be in [the subject child]’s best
interests; if so, visitation with which siblings; and, if so, the form
of visitation (in person contact or otherwise), and the schedule of such
visitation.” Adoption of Rico, 453 Mass. 749, 753 n.12 (2009), citing Adoption of Rico, 72 Mass. App. Ct. 214, 220-221 (2008).
General Laws c. 119, § 26 (5), was replaced while further appellate
review in Adoption of Rico was pending, with a separate section, c. 119,
§ 26B (b), first par., that twice contains the word “shall” and
includes mechanisms for enforcement. See St. 2008, c. 176, § 84. Now, a
child in foster care (or the sibling of a child voluntarily placed in
foster care) who is “denied visitation rights by the department . . .
may appeal through the department’s fair hearing process” and then file a
petition for review of any decision in the Probate and Family Court,
whereupon “[t]hat child or sibling shall have the right to court review
by trial de novo.” G. L. c. 119, § 26B (b), third par. “For children in
the custody of the department,” the child or a sibling “may file a
petition for sibling visitation in the court committing the child to the
custody of the department.” G. L. c. 119, § 26B (b), fourth par. If
sibling visitation is “reasonable and practical” and in “the best
interests of the child,” then the court “shall . . . ensure that [the
child] shall have access to and visitation with siblings.” G. L. c. 119,
§ 26B (b), first par.
These provisions reflect even more strongly a legislative
determination that, where siblings who have been permanently separated
through no fault of their own “are dissatisfied with the state of
visitation” and seek relief under G. L. c. 119, § 26B (b), Adoption of Garret, 92 Mass. App. Ct. at 680 n.25,
the judge must “specif[y] in an order or orders whether sibling
visitation would be in” the best interests of the petitioning child and
each sibling with whom visitation is sought “and, if so, the form of
visitation (in person contact or otherwise), and the schedule of such
visitation.” Adoption of Rico, 453 Mass. at 753 n.12. See id. at 757 n.16; Adoption of Zander, 83 Mass. App. Ct. 363, 367 (2013). As the court stated in Adoption of Rico, supra at 756-757,
“The additional, but highly significant, value of a court order” in
this context is that it “provides clarity and, perhaps more importantly,
gives the child a present sense of security about [their] ability to
maintain contact and a relationship with a person who has been shown to
be critical to [them]”; it provides “protection to the child that is
absent if the judge leaves all visitation matters up to the department
and future adoptive parents.” Although in that case the court was
discussing parent-child visitation, which differs from sibling
visitation in material respects, its reasoning also applies here.
Whereas the department has an independent obligation under the statute
to ensure sibling visitation, adoptive parents are not so obligated. See
Adoption of Garret, supra at 679-681; Adoption of Zander, supra.
While the statute does not expressly state whether a de novo trial
may be had on a petition filed pursuant to G. L. c. 119, § 26B (b),
fourth par., it is clear to us as a result of the change in
circumstances, specifically Mark’s reunification with the parents, that
further evidence will be required before the judge can enter an
appropriate order under G. L. c. 119, § 26B (b). See Adoption of Rico, 453 Mass. at 758
(“current context is critical” to assessing child’s best interests).
For these reasons, the children’s motions, filed in November 2022 and
January 2023, are remanded for evidentiary hearing and entry of an
order. In the interim, the judge should consider whether a temporary
order for sibling visitation is reasonable, practical, and in the
current best interests of Mark, Flavia, and Helen. See G. L. c. 119, §
26B (b), first par.
Conclusion. The decrees terminating the mother’s and father’s
parental rights are affirmed. The order entered February 1, 2023,
denying the children’s motions, is vacated, and the matter is remanded
for consideration of those motions consistent with this opinion.
So ordered.
[1] Adoption of Helen. The children’s names are pseudonyms.
[2] Our use herein of the word “visitation” is not meant to exclude virtual contact, which the children also sought.
[3]
We refer to the father of Flavia and Helen as “the father” throughout
our decision. Although the father is not Mark’s biological father, he is
the only father figure that Mark has known. Mark’s biological father
stipulated to the termination of his parental rights.
[4]
In particular, the parties maintain that the judge overstated the
needs of each twin and unreasonably inferred that those needs were, at
least in part, a result of the parents’ caregiving; erroneously found
that removal from the foster home would cause each twin “severe
psychological and emotional harm”; and weighed the bond between each
twin and the foster family too heavily and manipulated the testimony of
the bonding expert to reach the conclusions she wanted.
[5]
The parents moved seven times in the four years between the twins’
birth and their removal and again the week before trial began.
[6]
In 2017, the parents failed to notice Helen playing near an industrial
dryer at the mother’s place of work. Helen’s shirt became lodged in the
dryer’s moving gears, pulling in her arm and resulting in injuries
requiring multiple surgeries to reattach her thumb and repair damage to
her skin. Throughout 2018, when Mark returned to the residential center
after off-site visits with the parents, he frequently had minor
injuries. In 2019, Mark collided with a car and broke his arm at a time
when the father claimed to have been watching him, and then the parents
failed to take him to the hospital until the next day. See Adoption of Anton, 72 Mass. App. Ct. 667, 676 (2008)
(“Where a parent is ineffective in obtaining medical care for a child,
causing neglect of the child, it is relevant to finding of unfitness”).
[7]
For example, the judge found that the mother did not testify credibly
when she claimed to store her prescribed Adderall elsewhere to prevent
tempting the father, who by then had relapsed, and that she failed to
testify credibly or consistently about how much alcohol she consumed at
various times throughout the case. The judge likewise “did not credit
Father’s testimony regarding his and Mother’s use of alcohol.”
[8]
Flavia “requires supervision to ensure she is not aggressive or
overpowering in peer interactions,” while Helen “needs consistent
redirection and supervision, as she has hygiene, dissociation, and
learning difficulties that require skilled caregivers to monitor.” Helen
also becomes emotionally dysregulated when correction is used, “even
just verbal correction or instruction. . . . Even when a correction was
given by the foster parents in a whisper, [Helen] would sometimes appear
to dissociate. . . . Any kind of physical touch, even a gentle rub on
the back, would trigger an aggressive response, usually punching or
kicking.”
[9]
The father frequently perpetrated abuse on the mother while some or
all the children were present and was arrested multiple times for
assaulting the mother, who at one point obtained an abuse prevention
order against him.
[10] The mother testified that there was no reason for the removal.
[11]
The mother denied and minimized diagnoses for which she was prescribed
and took medication and made claims about storing her Adderall that the
judge did not credit; the father also lied about medications,
testifying that he was taking them as prescribed when he had stopped
taking them without consulting his psychiatrist. In addition, while
trial was ongoing, the father slept through a scheduled parent-child
visit before presenting to a social worker as agitated, anxious, and
incoherent — “conclusive evidence” for the judge that the father had
“not developed an appreciation for the severity of his mental health
conditions or an adequate understanding of how to manage them or his
sobriety effectively.”
[12]
Flavia’s “aggression [wa]s minimal, and she no longer ha[d] frequent
enuretic episodes,” while Helen was “able to self-regulate and reengage
more quickly after a dissociative episode.”
[13]
None of the behaviors cited by the judge was directed at the twins or
any other young girl or demonstrated after August or September of 2021.
Although the judge found that Mark “needs to be touching someone when
speaking to them or will try to put his hands on someone when he is
talking to them” and that he “exhibited this behavior with the twins
during visits as well,” she did not find, and there was no suggestion,
that the behavior was sexual or negatively affected either twin. To the
contrary, the judge found that Mark tried to help Helen when she
exhibited dysregulated behavior during visits, and there was testimony
that “physical reassurance” helped Helen manage transitions.
[14]
The parties also cite to 110 Code Mass. Regs. § 7.101 (2009), in
support of this argument, but we do not address the regulatory claim,
because it was not raised below. The joint motion for orders stated that
“110 [Code Mass. Regs.] § 7.210 provides that [the department] will
provide necessary services to families post-adoption,” but this
contention is not pressed on appeal.”