Adoption of Lars

• Decision Date: 16 December 1998
• Docket Number: No. 98-P-0008,98-P-0008
• Citation: 46 Mass.App.Ct. 30,702 N.E.2d 1187
• Parties: ADOPTION OF LARS (and three companion cases 1 ).
• Court: Appeals Court of Massachusetts

Page 1187

702 N.E.2d 1187

46 Mass.App.Ct. 30

ADOPTION OF LARS (and three companion cases ¹).

No. 98-P-0008.

Appeals Court of Massachusetts Essex.

Argued Sept. 10, 1998.

Decided Dec. 16, 1998.

Jinanne S.J. Elder, Boston, for the mother.

Nan Myerson Evans, Boston, for the father.

Anne Balmelli O'Connor, Worcester, for Department of Social Services.

Julie Ann Boyden, Easton, for the children.

Before ARMSTRONG, DREBEN and JACOBS, JJ.

JACOBS, Justice.

Acting on petitions filed by the Department of Social Services (DSS), a judge of the Probate and Family Court entered decrees dispensing with parental consent with respect to the adoption of siblings, Lars, Sarah, Vicki, and Gary. The mother and putative father of the children appeal, claiming that the judge failed properly to evaluate or make adequate findings with respect to the adoption plans filed by DSS. ² Neither parent challenges the findings of parental unfitness made pursuant to G.L. c. 210, § 3. In a cross appeal, DSS challenges those portions of the decrees that require any ensuing adoption decrees to provide for "supervised visitation of not less than one (1) hour duration between [each] child and [the mother] not less than two (2) times each year, so long as the mother consistently participates in said visitation. The supervisor of any given visit may be an adoptive parent of the child or a person or organization chosen and approved by an adoptive parent of the child. Such visits may, and ideally will, occur at the same time the mother visits with [each] child's siblings."

1. The adoption plans. Because the children, ranging in age from six to ten at the time of trial, suffered from various severe behavioral, developmental, and emotional problems and had not been placed in preadoptive homes at the time the adoption plans were filed, those plans neither identify the prospective adoptive parents nor do more than generally outline the children's needs and requirements.

Under G.L. c. 210, § 3(c ), a judge, in addition to evaluating a subject child's parents, must "also consider the plan proposed by the department or other agency initiating the petition." It is not essential, albeit beneficial to that consideration, that the proposed plan be "fully developed." Adoption of Paula, 420 Mass. 716, 722-723 n. 7, 651 N.E.2d 1222 (1995). Nor need the plan identify the prospective adoptive parents. Care & Protection of Three Minors, 392 Mass. 704, 717, 467 N.E.2d 851 (1984). "The adoption plan must, however, have content and substance enough to permit the court meaningfully to evaluate and consider ... what DSS proposes to do for the child by way of adoption." Adoption of Stuart, 39 Mass.App.Ct. 380, 393, 656 N.E.2d 916 (1995). In keeping with the obligation to "demonstrate that close attention has been given the evidence," Custody of Eleanor, 414 Mass. 795, 799, 610 N.E.2d 938 (1993), the judge considering an adoption plan must make specific findings reflecting careful evaluation of the suitability of the DSS proposal. Adoption of Gabrielle, 39 Mass.App.Ct. 484, 488, 657 N.E.2d 1281 (1995).

The plans submitted by DSS or in its behalf, ³ although abbreviated, were sufficiently substantive to permit the requisite meaningful evaluation. In the case of Lars, the plan recommends recruitment of a "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 delays, along with Attention Deficit Disorder and Post Traumatic Stress Disorder." It is noted that this family should also have no more than two children and be willing to continue postadoption sibling contact. With respect to Gary and Sarah, the respective plan recommendations are that the recruitment focus should be on placing them in the same home and that the adoptive family be committed to sibling contact with Lars and Vicki. It is also proposed that the adoptive family not have children younger than Gary and Sarah because they require considerable intervention. The plan posits a family which is experienced with severe behaviors and establishes firm limits. It indicates that the adoptive family must "be able to accept and advocate for the children's severe special needs" and emphasizes the necessity of a "stable, firm, structured home." The plan for Vicki requires that the adoptive family should not have children younger than she because of her aggressive acting out and her need for a great deal of intervention. It indicates that "[t]he ideal family will be experienced with severe behaviors and have firm limits" and be able to accept and advocate for Vicki's "severe special needs." It notes that she needs a structured residence where she safely can explore her emotions and reach understanding concerning how her past history affects her current behavior. The plan also requires a family willing to commit to permitting Vicki to have contact with her siblings.

The judge, in the course of setting out two hundred and forty-four careful and comprehensive findings, included ten specific findings dedicated to the adoption plans. These findings set forth the essence of the plans for each of the children, including the intention of DSS to maintain contact between them and to find "homes which are experienced in dealing with children who have severe behavioral issues and special needs." Mindful of the need to keep siblings together, the judge, in his findings, interprets the plans as not foreclosing the possibility of placing three of the children together if a suitable family can be found. These findings, coupled with the judge's analysis of visitation rights in conjunction with the proposed plans and his conclusion that those plans will serve the children's best interests, indicate that the requisite careful consideration was given the plans.

2. Postadoption visitation. ⁴ The judge's findings in this matter are based upon a trial conducted over four days in January of 1997. The children have been in the custody of DSS continuously since November, 1992. There was evidence that the mother visited with them once a week until sometime in 1993, and thereafter once every two or three weeks until the time of the trial. In a conclusory statement, supported by the evidence, ⁵ the judge found that "in light of the current and ongoing relationship and bonding between the mother and each of the children, it would be in the best interests of the children to allow [the mother] to have some limited visitation ... such as: two supervised visits with the children each year." Neither this factual conclusion nor the findings of fact upon which it is based are clearly erroneous. The submitted adoption plans did not contain any provisions for postadoption visitation and DSS resisted any mandatory arrangement at trial and in argument to us.

Because the "law of adoption is purely statutory ... and the governing statute, G.L. c. 210 ..., is to be strictly followed in all its essential particulars," Adoption of Tammy, 416 Mass. 205, 210, 619 N.E.2d 315 (1993) (citations omitted), DSS argues that the judge was without authority to require that any adoption decree provide for supervised visitation between the mother and her children. Not only is there nothing in the language of G.L. c. 210, § 3, that appears to authorize attaching such a condition to a decree dispensing with parental consent, but the termination clause of G.L. c. 210, § 6, may be read as affirmatively concluding all rights deriving from the biological relationship between an adopted child and his biological parents except as regards inheritance. ⁶ See Adoption of Tammy, supra at 216, 619 N.E.2d 315 ("The purpose of the termination provision is to protect the security of the child's newly-created family unit by eliminating involvement with the child's natural parents"). DSS also maintains that there is nothing in the adoption statute or our case law that authorizes a court to intrude upon the custodial right of postadoptive parents to determine who should visit with their child. In addition to pressing these arguments, DSS raises practical issues relating to the chilling effect on the adoption process and the difficulty of enforcement after adoption.

Until 1984, the issue of whether mandated postadoption visitation could be imposed on adoptive parents in the absence of express statutory authorization was acknowledged but not resolved. See Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 376, 379-380, 419 N.E.2d 285 (1981); Adoption and Visitation of a Minor, 14 Mass.App.Ct. 992, 992, 440 N.E.2d 766 (1982). However, in 1984, in a case which we believe to be controlling, the Supreme Judicial Court, in the course of affirming a decree dispensing with the need for a mother's consent to the adoption of her child, indicated that "[g]iven the 'broad, equitable powers' of courts in this area ..., we see no reason why a judge dealing with a petition to dispense with parental consent may not evaluate 'the plan proposed by the department' (G.L. c. 210, § 3[c ] ) in relation to all the elements the judge finds are in the child's best interests, including parental visitation." Petition of the Dept. of Soc. Servs. to Dispense with Consent to Adoption, 392 Mass. 696, 702, 467 N.E.2d 861 (1984) (citations omitted). ⁷ Making the assumption that the adoption plan in that case did not contemplate visitation by the biological mother, the court ordered that its rescript provide "that the trial judge may in his discretion consider any petition that the plan proposed by [DSS] be amended to provide for rights of visitation." Id. at 703, 467 N.E.2d 861. The only other direct reference by the Supreme Judicial Court to postadoption visitation under our current adoption statutes is found in Adoption of Mary, 414 Mass. 705, 711-712, 610 N.E.2d 898 (1993), in which the court concluded that the probate judge sufficiently addressed the issue...