Parent and child – Visitation

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Where a Juvenile Court judge made visitation determinations concerning adopted siblings, a remand must be ordered for a visitation schedule between the three oldest children.

Appeals Court’s conclusions

“Marjorie, Amy, Zander and Sam are siblings. They have the same biological mother. Marjorie and Zander were adopted by the biological mother’s sister and husband. Amy was adopted by the Fisher family, and Sam was adopted by the Williams family. This appeal arises from the adoption plan for Sam and from the visitation determinations by a judge of the Juvenile Court.

“Different parties to the adoption appeal separate aspects of the decrees: (1) Sam’s biological father and mother appeal the judge’s decision to accept the Department of Children and Families (DCF) adoption plan rather than the biological father’s plan and the judge’s decision to deny them postadoption visits with Sam; (2) Marjorie, Amy, and Zander (the three oldest children) and the mother argue that the judge did not order sufficient visitation between the above children and the mother; and (3) the three older children and the mother also argue that the judge committed error in refusing to issue an official sibling visitation schedule. …

“… Ultimately, the judge accepted the DCF plan for the Williams family to adopt Sam. The biological father’s plan was for his ex-girlfriend’s daughter, Patricia Gray [a pseudonym], who is thirty years old, to adopt the child. The judge had legitimate concerns about Gray adopting Sam — namely, Gray’s close relationship with the biological father, as she allows him to babysit her son. Given that the judge specifically prohibited any visitation between the biological father and Sam, the judge reasonably doubted Gray’s ability to comply with this provision.

“Furthermore, the biological father argues that the judge arrived at his decision prematurely because Margaret Grant, a licensed independent clinical social worker, did not finish her home evaluation of Gray. However, neither biological parent requested a continuance of the trial to complete the home study or objected to the conclusion of the trial before completion of the home study. Grant, moreover, gave extensive testimony about her preliminary home study. The judge did not commit error in making a decision prior to the completion of the home study, because he reasonably determined that between Gray and Grant’s testimony, he already had sufficient information to make his decision. …

“Sam’s biological parents argue that the judge issued an improper postadoption parental visitation order for Sam. …

“The judge reasonably declined to order postadoption visitation between the biological parents and Sam. The judge found that neither the father nor the mother had developed a significant attachment with the child. Unlike his siblings, Sam had never lived with either the mother or the father for a significant period of time. With respect to the mother, the judge found the adoptive family to be sincere in their expressed desire to allow visitations consistent with Sam’s best interests. Thus, the judge found it unnecessary to issue a visitation schedule. … On the other hand, with respect to the biological father, the judge received sufficient evidence to determine that given the father’s troublesome behavior, he is unfit to interact with the child. Thus, the judge terminated the father’s visitation rights. The judge acted well within his discretion in arriving at these determinations. …

“… The judge acknowledged the necessity of sibling visitation, but left the timing and frequency of such visits to the discretion of the adoptive parents.

“If siblings are separated through adoption, a judge ‘shall, whenever reasonable and practical and based upon the best interests of the child, ensure that children … shall have access to and visitation with siblings.’ G.L.c. 119, section26B(b), inserted by St. 2008, c. 176, section 84. The Supreme Judicial Court in Adoption of Rico, 453 Mass. 453 Mass. 749, 753 n.12 (2009), agreed with the Appeals Court in distinguishing between parental and sibling visitation based on G.L.c. 119, section26(5), inserted by St. 1997, c. 43, section99, a prior statute which is as to the same effect as the current one, G.L.c. 119, section26B(b). As we stated, the statutory ‘provisions reflect a legislative determination that the judge must decide whether and, if so, how sibling visitation is to occur, … but also the schedule and conditions of visitation.’ Adoption of Rico, 72 Mass. App. Ct. 214, 220-221 (2008). …

“In light of the above, and respectful of the judge’s determinations, we remand for the judge to provide a schedule for posttermination and postadoption sibling visitation. In all others respects, we affirm the decrees.”

Adoption of Zander (and three companion cases) (Lawyers Weekly No. 11-036-13) (7 pages) (Katzmann, J.) (Appeals Court) Cases heard by Johnston, J., in Juvenile Court. Michael S. Penta for the mother; Ann V. Crowley for Zander and others; Daniel R. Katz for the father; Timothy J. Casey for the Department of Children and Families; Debra Perrotta Dow for Sam (Docket No. 12-P-491) (Feb. 27, 2013).