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Adoption of Zak

Appeals Court of Massachusetts, Norfolk

January 9, 2017

ADOPTION OF ZAK (and two companion cases).[1]

         Petitions filed in the Norfolk County Division of the Juvenile Court Department on May 19, 2010, and September 9, 2011.

         Following review by this court, 87 Mass.App.Ct. 540 (2015), the cases were heard by Dana Gershengorn, J.

          Julia A. B. Pearson for the mother.

          Sherrie Krasner for the father.

          Kari B. Kipf Horstmann for Department of Children and Families.

          Steven B. Rosenthal for Zak.

          Yvette L. Kruger for Carol & another.

          SULLIVAN, J.

         In this case we consider whether a mother and father, whose parental rights have been terminated, have standing to participate in a hearing on posttermination visitation under the following circumstances. Termination of parental rights and posttermination visitation were originally litigated in a single trial. The termination of parental rights was affirmed on appeal, but the matter was remanded to the Juvenile Court on the question of posttermination visitation. The parents were not notified of the remand hearing and did not participate. Following the entry of an "amended order for posttermination/adoption visitation" (posttermination visitation order), the parents appealed again to this court. We now conclude that the remand hearing was a continuation of the original proceeding, and that the parents had standing to participate in the remand hearing. Accordingly, we vacate the posttermination visitation order and remand for further proceedings.

         Background.

         In Adoption of Zak, 87 Mass.App.Ct. 540 (2015) (Zak I), we affirmed the entry of decrees by a judge of the Juvenile Court terminating parental rights and dispensing with consent to adoption, but remanded on the question of posttermination visitation. Although the judge had considered the effect of domestic violence on the question of termination of parental rights, her order on the visitation issue was silent as to the impact of domestic violence on the question of posttermination visitation.[2] We remanded the case for further findings and rulings in order to permit the judge to consider that issue. We also noted the authority of the judge to consider whether circumstances had changed since the issuance of the original decrees. I_d. at 547 n.10, citing Adoption of Vito, 431 Mass. 550, 557 n.15 (2000), and Adoption of Gwendolyn, 29 Mass.App.Ct. 130, 139 (1990) .

         The Department of Children and Family Services (department) and the children were notified of the remand hearing. The parents were not notified.[3] The judge exercised her discretion to consider both the previously admitted evidence, and to hear new evidence about the children's current circumstances in a combined remand and modification proceeding. Relying on all of the evidence -- the evidence admitted at the previous trial and the additional evidence adduced at the hearing -- the judge found that the children had been profoundly affected by domestic violence. She ruled that there had been a material change in circumstances since the entry of the decrees. Among other things, the children had been placed together in a preadoptive home, and had made "remarkable progress."

         The judge concluded that posttermination visitation was not in the best interests of the youngest child, who had no memory of his biological parents, and that for reasons unique to the two older children, "one visit per year with their biological mother would be in [their] best interests." No posttermination visits with the father were ordered.

         The mother and father appeal, contending that they were entitled to notice of the remand hearing because that hearing was part of the same adjudication as the termination proceeding, and their right to participate had not been extinguished. See Adoption of Douglas, 473 Mass. 1024, 1029 (2016) . The children and the department assert that because parental rights were terminated, the parents had ...


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