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Adoption of Jakob

Appeals Court of Massachusetts

June 24, 2015

Adoption of Jakob. [1]

Editorial Note:

This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And pursuant to its rule 1:28, As Amended by 73 Mass.App.Ct. 1001 (2009) are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 N.4, 881 N.E.2d 792 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The mother of Jakob appeals from a decree issued by a judge of the Juvenile Court determining that Jakob is in need of care and protection, that termination of the mother's parental rights is in Jakob's best interests, and dispensing with the mother's consent to adoption. The mother raises a single issue on appeal, arguing that the judge abused his discretion in declining to order posttermination and postadoption visitation with Jakob.

Background.

Jakob was born in December, 2005, while the mother lived in Georgia. She returned to Massachusetts in August, 2011. Soon after, Jakob and his older brother were the subjects of a petition filed by the Department of Children and Families (DCF) in December, 2011. Following considerable involvement of DCF with the mother and the children, trial on the termination of parental rights was held on three days in May, 2014, resulting in the termination of the parental rights of the mother and the fathers of Jakob and his older brother. The Juvenile Court judge issued findings of fact, conclusions of law, and an order to issue decrees dated September 15, 2014.

The mother does not appeal the termination of her parental rights to either child, or the judge's order for posttermination visits with Jakob's older brother, but argues only that the trial judge abused his discretion in failing to order posttermination and postadoption visitation with Jakob.

Discussion.

" Once it is established that a parent is unfit, the decision whether to grant postadoption [or posttermination] visits must be left to the sound discretion of the trial judge." Adoption of John, 53 Mass.App.Ct. 431, 439, 759 N.E.2d 747 (2001). The decision 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." Adoption of Vito, 431 Mass. 550, 562, 728 N.E.2d 292 (2000).

Here, the judge found there was insufficient evidence of bonding and a personal relationship between the mother and Jakob. Almost six months after DCF filed its care and protection petition in this case, Jakob, then about seven years old, was removed from the mother's home and placed at the Italian Home in June, 2012. He remained in foster care until April, 2014, when he was placed in a preadoptive home.

The mother argues that the judge ignored facts of her personal relationship with Jakob, and that at the time of the trial she was the only parental figure Jakob had ever known. Much of the mother's early involvement with DCF resulted from her complaint that Jakob was severely emotionally disturbed and her insistence on testing to prove her belief. Subsequent testing and examinations revealed no learning disabilities or mental health issues, and no such behaviors were observed by therapists or teachers.

The judge found that " [w]hile [Jakob] interacted appropriately at his foster home, at school, and in his after school program, he tended to 'shut down,' refusing to speak to or interact with anyone, during visitation." The judge concluded that Jakob's " negative behaviors, evident while in Mother's care, were virtually nonexistent in his placements and in school." The judge concluded that " [t]here is nothing in the evidence that leads to a conclusion that a posttermination relationship with Mother . . . would benefit [Jakob], and I will not issue an order in this regard."

We agree with the briefs of DCF at pages 18-21, and the children at pages 23-31, reviewing record evidence and providing support for the judge's determination that there was nothing in the evidence that demonstrated a significant bond between Jakob and the mother. In his conclusions of law, the judge stated that Jakob " is living with preadoptive parents who have provided him with a stable home in which his needs have been well met."

As a final argument seeking a visitation order, the mother suggests that an open adoption arrangement could be in Jakob's best interests. Compare Adoption of Rico, 453 Mass. 749, 757, 905 N.E.2d 552 & n.15 (2009). The judge found that the mother sought at trial to regain custody of Jakob, or in the alternative, to enter into an open adoption agreement, but he credited the opinion of the DCF social worker that after consulting with Jakob's therapist, DCF would not support postadoption visitation. Because the mother's parental rights have been terminated, which she does not challenge on appeal, we decline to consider this argument.[2]

We conclude there was neither abuse of discretion or other error of law in the judge's decision not to order posttermination ...


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