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Full Opinion
This appeal arises from the denial of a petition to dispense with parental consent to adoption.
On February 16, 1996, the Department of Social Services (department or DSS) filed a petition to dispense with parental consent for the adoption of Vito in the Probate and Family Court Department, pursuant to G. L. c. 210, § 3 (1998 ed.).
The department appealed.
We vacate the judge’s order denying the petition to dispense with parental consent to adoption. The judge’s conclusion that the mother is unfit is not challenged.
Judicial exercise of equitable power to require postadoption contact is not warranted in this case, however, because there is little or no evidence of a significant, existing bond between Vito and his biological mother, and no other compelling reason for concluding that postadoption contact is currently in his best interests. Vito has formed strong, nurturing bonds with his preadoptive family; and the record supports little more than speculation that postadoption contact will be important for his adjustment years later, in adolescence. See Adoption of Greta, post 577, 589 (2000). Accordingly, we remand the case to the Probate and Family Court and direct that a decree enter granting the department’s petition to dispense with the biological mother’s consent to Vito’s adoption.
I
We summarize in some detail the findings of fact and conclusions of law made by the judge. In 1990 Vito’s biological mother began using crack cocaine, which she continued to do until 1995, with occasional periods of nonuse. Prior to May, 1991, when a judge in the Boston Juvenile Court awarded temporary custody of her three oldest children to the department, see G. L. c. 119, § 24, she had been trading food stamps and using public welfare benefits to purchase crack cocaine. Her children were often left at home alone. When Vito tested positive for cocaine at birth, an abuse and neglect report concerning him was filed two days after his birth, alleging his positive cocaine screen and his mother’s failure to obtain prenatal care. See G. L. c. 119, § 51A. The report was substantiated. In February, 1992, the existing care and protection petition for Vito’s three older siblings was amended to include Vito, and he was placed in the temporary custody of the department.
Vito was discharged from the hospital one month after his birth and was placed in the home of his foster parents; his siblings had been placed in other homes. In March, 1992, the Boston Juvenile Court ordered the department to assume permanent custody of Vito and his three older siblings; the
From the time of his removal from his mother’s care in January, 1992, while in the hospital, until January, 1995, his biological mother visited Vito only once.
In 1995, while back in Massachusetts in prison on shoplifting charges, Vito’s mother signed a department service plan, entered a drug rehabilitation program and began visits with Vito and his siblings.
In contrast, the judge found that Vito is “fully integrated into his foster family both emotionally and ethnically.” The judge found that it was “important” to Vito to belong to his foster family “because that was the only family he had known,” and that “[t]he foster parents are invested in adopting [Vito]; they perceive him as their own son.”
The judge concluded that, by clear and convincing evidence,
The judge further determined that “racial issues may at sometime in the future” become a problem for Vito (emphasis added). She found that Vito’s relationship with his biological mother is “crucial” for his “racial and cultural development and adjustment,” that his best interests will be served by continued “significant” contact with her after any adoption, and that under the department’s adoption plan Vito would have limited or no connection to his African-American family or culture.
II
A
Despite numerous appellate decisions to the contrary, the department argues that there is no authority for the judge to enter an order requiring postadoption visitation in a termination proceeding, pursuant to G. L. c. 210, § 3, or at least, that such an order cannot be made where there is an identified, preadoptive family and the child has no bond with the biological parent. Sixteen years ago we commented on whether “post-adoption visitation for the benefit of the child may be ordered” in connection with a decree dispensing with the need for a parent’s consent to adoption. Petition of the Dep’t of Social Servs. to Dispense with Consent to Adoption, 392 Mass. 696, 702 (1984). We said then that under the terms of G. L. c. 210, § 3 (c), “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’ ... in relation to all the elements
Since our 1984 decision, numerous Appeals Court decisions have expressed an understanding that judges may effect or require postadoption visitation as an outcome of termination proceedings. See, e.g., Adoption of Vito, 47 Mass. App. Ct. 349, 354-355 (1999); Adoption of Lars, 46 Mass. App. Ct. 30, 34-36 (1998); Adoption of Hugo, 44 Mass. App. Ct. 863, 865, 868, S.C., 428 Mass. 219 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999); Adoption of Warren, 44 Mass. App. Ct. 620, 626 n.5 (1998); Adoption of Nicole, 40 Mass. App. Ct. 259, 264 (1996); Adoption of Arthur, 34 Mass. App. Ct. 1105 (1993); Adoption of Gwendolyn, 29 Mass. App. Ct. 130, 137 n.5, 138-139 (1990). See also Adoption of Kristin, 43 Mass. App. Ct. 915, 915-916 (1997) (assuming power of probate judge to establish mechanism for biological mother to request postadoption visitation of adoptive parents and for adoptive parents to respond); Adoption of Abigail, 23 Mass. App. Ct. 191, 199 (1986) (postadoption visitation may be included in adoption plan). That was a correct understanding of our law.
The concurrence argues that G. L. c. 210, § 3, “does not
The department acknowledges that our case law has recog
With the possible, narrow exception of postadoption judicial modification of voluntary contact agreements between biological parents and adoptive parents, see G. L. c. 210, § 6D, we see nothing in the relevant, amended provisions of G. L. c. 210 that erodes this long-recognized equitable authority to act in the best interests of the child. Even where biological and prospective adoptive parents do agree on postadoption contact, the Legislature provided for judicial involvement to approve the agreement. See G. L. c. 210, § 6C. It would be anomalous to conclude that such provisions were meant to eliminate entirely judicial involvement in other related contexts.
Where the 1999 legislative amendments address postadoption contact agreements between biological parents and preadoptive parents in the context of termination proceedings, they presuppose the identification of the prospective adoptive parents at the time the proceedings occur. See St. 1999, c. 3, §§ 17, 21. These statutory postadoption contact provisions do not address those circumstances when termination proceedings occur and there is as yet no preadoptive parent identified. In such circumstances the equitable authority of the judge may be especially important in safeguarding the child’s best interests. Even where preadoptive parents are identified and attempt to make an agreement with the biological parents concerning postadoption contact, an impasse may be reached between the parties, as happened in this case.
A judge’s equitable power to order postadoption contact, however, is not without limit.
Constitutional considerations also guide the exercise of this equitable power. Adoptive parents have the same legal rights toward their children that biological parents do. See G. L. c. 210, § 6. See also Bottoms v. Carlz, 310 Mass. 29, 33 (1941). Parental rights to raise one’s children are essential, basic rights that are constitutionally protected.
At a pragmatic level, unnecessary involvement of the courts in long-term, wide-ranging monitoring and enforcement of the numerous postadoption contact arrangements could result from too ready an application of the court’s equitable power to issue contact orders.
We also recognize the concern raised by the department and the amici that untrammeled equitable power used to impose postadoption contact might reduce the number of prospective parents willing to adopt. Any practice that potentially reduces the pool of prospective adoptive parents raises grave concerns. We note that there are mechanisms to review the adoption plan and reassess it if a particular postadoption contact requirement might be delaying adoption. See Uniform Probate Court Practices Xa (14), (15) (2000) (providing for new court hearing and possible vacating of termination decree where adoption does not occur within specified time).
Where, as here, the child has formed strong, nurturing bonds with his preadoptive family, and there is little or no evidence of a significant, existing bond with the biological parent, judicial exercise of equitable power to require postadoption contact would usually be unwarranted. On the other hand, a judicial order for postadoption contact may be warranted where the evidence readily points to significant, existing bonds between the child and a biological parent, such that a court order abruptly disrupting that relationship would run counter to the child’s best interests. See Youmans v. Ramos, 429 Mass. 774, 783, 785-786 (1999), and cases cited. Cases warranting a postadoption contact
In such cases, the judge has the equitable authority to ensure that contact in the best interests of the child is maintained during an appropriate transitional period posttermination, see Adoption of Helen, 429 Mass. 856, 863 (1999), or even postadoption. The purpose of such contact is not to strengthen the bonds
Transitional provision for posttermination or postadoption contact in the best interests of the child, however, is a far different thing from judicial meddling in the child’s and adoptive family’s life, based not on evidence of the emotional ties and current dynamics between the child and the biological parent, but on speculation concerning some hypothetical dynamic between parent and child several years hence, later in adolescence, for example. Parental and familial autonomy cannot be so lightly cast aside. In Vito’s case the probate judge apparently favored postadoption contact because she was concerned about Vito’s future racial and cultural development and adjustment, presumably based on the guardian ad litem’s testimony that transracial adoptees, generally speaking, often have adjustment problems that emerge in adolescence. The judge appears to have inappropriately relied on the guardian ad litem’s speculation as to the future need of Vito to have contact with his mother in order to secure his identity years later, in adolescence. That is a matter that is properly left to the wise guidance of Vito’s new family. Cf. Adoption of Gwendolyn, 29 Mass. App. Ct. 130, 139 (1990) (adoptive parents will be in best position to determine, as child grows up, what visitation is in her best interests).
Looking at the evidence of the actual circumstances of Vito’s life and relationships, testimony of the guardian ad litem made clear that Vito’s monthly visits with the biological mother had little or no impact on Vito’s sense of identity.
There was also little in the record before us to suggest that Vito’s relationship with his biological mother was likely to become important to Vito’s adolescent identity. There was evidence of some possible future significance of the relationship in the guardian ad litem’s acknowledgment that, generally, adolescence may be a time when a transracial adoptee may experience adjustment problems, and that Vito would have little connection to an African-American family or culture living with his adoptive family. Generalities about what may be in the best interests of some children, without more, cannot be the basis of judicial orders concerning postadoption contact of a particular child; the best interests of the child standard is one grounded in the particular needs and circumstances of the individual child in question. See Petition of the Dep’t of Pub. Welfare to Dispense with Consent to Adoption, 376 Mass. 252, 266 (1978), quoting Custody of a Minor, 375 Mass. 733, 753 (1978).
Assuming that it was proper to use racial grounds for determining Vito’s best interest, there was no evidence in the record that showed Vito would be deprived of all African-American contacts in his adolescence if regular visits with his biological mother were not mandated.
We conclude, therefore, that, although the probate judge had a statutory mandate to review the department’s adoption plan to determine whether the best interests of the child would be served by a termination decree with that plan, see G. L. c. 210, § 3 (b), (c), and although the judge had equitable authority to order post-adoption contact, including visitation, see Petition of the Dep’t of Social Servs. to Dispense with Consent to Adoption, 392 Mass. 696, 702-703 (1984), the judge’s determination that such postadoption contact was required was clearly erroneous in this case. See Adoption of Kimberly, 414 Mass. 526, 529 (1993). We recognize that judges must often make difficult choices, balancing the powerful ties that bind biological mothers to their children, however flawed their behavior to a child may have been, and the rights of children to be protected and nurtured in an often hostile world. Here, the evidence clearly revealed a strong bond to the preadoptive family, the only family Vito has ever known, and little to no attachment by him to his biological mother or his biological siblings. In such circumstances it was inappropriate to stall Vito’s adoption at the hurdle of termination proceedings, based on speculation about Vito’s need for contact with his biological mother to facilitate his adjustment later in adolescence to his racial identity.
B
The department makes the related argument that the judge cannot properly order it to amend its adoption plan to provide for postadoption contact. The department asserts that a judicial order to amend the department’s plan offends the separation of powers mandated by art. 30 of the Massachusetts Declaration of Rights.
m
The department also argues that the probate judge erred in requiring its continued involvement with the biological mother or the adoptive family postadoption. The issue is not squarely before us because the judge denied the petition and did not directly order the department to continue its involvement post-adoption.
For the foregoing reasons, the judge’s order denying the petition to dispense with parental consent to adoption is vacated. We remand the case to the Probate and Family Court Department and direct that a decree enter granting the department’s petition to dispense with parental consent to Vito’s adoption. Because several years have passed since judgment was entered in the trial court,
So ordered.
This case and Adoption of Greta, post 577 (2000), were paired for argument in this court. Certain arguments of the parties common to both of the cases are addressed in the case where the discussion is most appropriate.
The amici, The Home for Little Wanderers, Inc., and Massachusetts Appleseed Center for Law and Justice, requested that this court consider for this case their amicus briefs submitted in Adoption of Lars, post 1151 (2000), which we have done.
Vito’s biological father did not object to the department’s petition, nor did he appeal. Adoption of Vito, supra at 351 n.5.
The department obtained permanent custody of Vito within weeks of his birth. The lengthy delay before the petition was filed may be explained by the department’s efforts to place Vito permanently with a member of his biological family, by concerns raised by foster care review panels about the cultural and ethnic “inappropriateness” of his foster care placement, and his foster family’s temporary change of heart regarding adoption when his foster mother was diagnosed with leukemia, later successfully treated. See Adoption of Vito, supra at 350 n.2. Nevertheless, we express our concern about any lengthy delay before a young child is placed within the secure environment of a permanent family.
The language of the judgment suggests that the judge was using the term contact to mean visitation. The plan proposed by the department to implement the adoption of Vito by his foster parents contained no provisions for contact with Vito’s biological mother or siblings.
Vito did not appeal. Vito’s motion to enlarge the time for filing a notice of appeal was denied by the Appeals Court. Vito nonetheless submitted a brief in the Appeals Court, supporting the department’s challenge of the decision.
We limited our review to the issues raised by the department’s application for further appellate review.
The father did not object to the petition. See note 3, supra. The mother did not appeal, but did file a brief in the case, disputing the judge’s finding of her unfitness. Because the department claimed the petition should have been allowed based on the finding of her unfitness, the Appeals Court considered the mother’s arguments on this point. Adoption of Vito, 47 Mass. App. Ct. 349, 351 n.5 (1999). Parental unfitness in termination proceedings must be established by clear and convincing evidence. See Santosky v. Kramer, 455 U.S. 745, 769 (1982); Petition of the Dep’t of Social Servs. to Dispense with Consent to Adoption, 392 Mass. 696, 698, 700 (1984). Although we need not review the judge’s conclusion that, by clear and convincing evidence, the mother was unfit to parent Vito, see note 7, supra, we agree with the reasoning of the Appeals Court and we see no error in this conclusion.
When the department obtains custody of a child, it has the power to control visits with the child, but in most cases the parents have the right to visit their children if “the welfare of the child and the public interest will not be injured.” Custody of a Minor (No. 2), 392 Mass. 719, 726 (1984), quoting G.L. c. 119, § 35. See 110 Code Mass. Regs. § 7.128 (1993) (DSS will plan and promote regular visitation between children in substitute care and their parents consistent with service plan; for department to terminate visitation, judge must find visits will harm child or public welfare, or parental consent must have been terminated).
Because the department now knew where Vito’s biological mother was located, it initiated the effort to begin visits between Vito and her. See note 9, supra. The first such visit took place in March, 1995, at the Massachusetts Correctional Institution at Framingham. Departmental regulations provide that the department shall make reasonable efforts to work with incarcerated parents to promote a healthy relationship with their children, such efforts to include regular visitation at the correctional facility. See 110 Code Mass. Regs. § 1.10 (1994).
During a May, 1995, visit Vito’s mother was seen attempting to interact with Vito, talking to him and exchanging toys. During subsequent visits Vito began to direct more conversation to his mother, although he did not refer to her by name or by any version of “mother.” One social worker testified that as Vito began to understand English better, between May and September of 1995, he began to relate bette