Adoption of Odetta (Lawyers Weekly No. 11-068-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 14-P-211 Appeals Court ADOPTION OF ODETTA.[1] No. 14-P-211. Bristol. April 9, 2015. – June 26, 2015. Present: Grainger, Rubin, & Blake, JJ. Adoption, Visitation rights. Parent and Child, Adoption. Minor, Adoption, Visitation rights. Petition filed in the Bristol County Division of the Juvenile Court Department on March 30, 2009. The case was heard by Robert F. Murray, J. Afton M. Templin (Belle Soloway with her) for the father. William Cuttle, Assistant Attorney General, for Department of Children and Families. David Jonathan Cohen for the child. BLAKE, J. In a case of first impression, we determine that under the limited circumstances present in this case, it is in the best interests of the child to enjoy postadoption visitation with a relative who is neither a de facto parent, sibling, or grandparent. The father and the mother were the unmarried parents of Odetta, born in September, 2005. The father and the mother separated when Odetta was an infant. While Odetta lived with her mother, the father and his brother (the paternal uncle) assisted in raising her, including attending doctor appointments. The father and the mother did not have a formal parenting schedule, but Odetta spent time with her father and his wife, as well as with the paternal uncle and his family. Odetta also spent time with the mother’s extended family. In March, 2009, the mother was found strangled to death. Three days later, the father was charged with and ultimately convicted of her murder.[2] The Department of Children and Families (department) placed Odetta with her maternal aunt and uncle. It then sought to terminate the father’s rights and place Odetta for adoption with her maternal aunt and uncle. Initially, the father filed a guardianship petition requesting that the paternal uncle be appointed Odetta’s guardian. Thereafter, the paternal uncle, a Muslim, petitioned for guardianship of Odetta.[3] Following a lengthy trial over multiple days, a judge of the Juvenile Court terminated the father’s parental rights, approved the department’s plan for placement of Odetta, and ordered monthly visitation between the paternal uncle and Odetta. The visitation order was largely based on a determination that Odetta’s best interests will be served by allowing “her to have some contact with her father’s family, the tenets and practices of Islam which are part of her family heritage and […]
Adoption of Zak (Lawyers Weekly No. 11-065-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-780 Appeals Court ADOPTION OF ZAK (and two companion cases[1]). No. 13-P-780. Norfolk. December 10, 2014. – June 19, 2015. Present: Katzmann, Hanlon, & Maldonado, JJ. Adoption, Parent’s consent, Dispensing with parent’s consent, Visitation rights. Parent and Child, Adoption, Dispensing with parent’s consent to adoption. Minor, Adoption, Visitation rights. Practice, Civil, Adoption. Petitions filed in the Norfolk County Division of the Juvenile Court Department on May 19, 2010, and September 9, 2011. The cases were heard by Dana Gershengorn, J. Sherrie Krasner for the father. Deborah Sirotkin Butler for the mother. Kari B. Kipf-Horstmann, Assistant Attorney General, for Department of Children and Families. Ann Belmelli O’Connor for Zak. Yvette L. Kruger for Carol & another. MALDONADO, J. The mother and father separately appeal from Juvenile Court decrees terminating their parental rights. In addition, the judge ordered posttermination and postadoption visitation for both parents.[2] The father and mother contend that the termination of their parental rights lacked evidentiary support. They also argue that the judge erred in denying placement of the children either with the mother’s aunt or father’s mother. Finally, the mother, but not the father, challenges the terms of posttermination and postadoption visitation. She asserts that the children’s best interests favors more than the three yearly visits the judge ordered. Carol and Nick cross-appeal. They contest the judge’s orders for posttermination and postadoption visitation, arguing that there should be no postadoption visitation, and assert that the judge erred in failing to consider the effect on the children of domestic violence as it relates to those visits. Having in mind the trial judge’s careful and thorough findings of fact and rulings of law, we conclude that the judge did not abuse her discretion in terminating the mother and father’s parental rights, or in refusing to place the children either with their maternal great-aunt or paternal grandmother; we therefore affirm those portions of the decrees. However, we vacate the posttermination and postadoption visitation orders and remand for further consideration and specific findings regarding whether posttermination and postadoption visitation is in the children’s best interests, given the domestic violence that they have witnessed. 1. Termination of parental rights. The mother and father assert that the termination of their parental rights was based upon a single 2006 incident of […]
Adoption of a Minor (Lawyers Weekly No. 10-076-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11797 ADOPTION OF A MINOR. Middlesex. March 2, 2015. – May 7, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Adoption, Parent’s consent. Parent and Child, Adoption. Minor, Adoption. Practice, Civil, Adoption. Notice. Consent. Words, “Lawful parent.” Petition filed in the Middlesex Division of the Probate and Family Court Department on April 25, 2014. A motion to proceed without further notice was heard by Jeffrey A. Abber, J., and a question of law was reported by him to the Appeals Court. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Patience Crozier for the petitioners. Kari Hong, of California, & Mary L. Bonauto & Vickie Henry, for American Academy of Adoption Attorneys & others, amici curiae, submitted a brief. DUFFLY, J. The petitioners, J.S. and V.K, a married same-sex couple, filed a joint petition for adoption in the Probate and Family Court, seeking to adopt their son Nicholas.[1] Nicholas was born to J.S. in 2014, during the petitioners’ marriage. He was conceived through in vitro fertilization (IVF),[2] using a known sperm donor[3] selected by J.S. and V.K., whose names appear on his birth certificate. The petitioners sought to adopt their son as a means of ensuring recognition of their parentage when they travel outside the Commonwealth, or in the event of their relocation to a State where same-sex marriage is not recognized. The petitioners filed a motion to proceed with the adoption without further notice, arguing that, as Nicholas’s lawful parents, they could consent to the adoption, no other consent was necessary, and no notice to any other person was required under G. L. c. 210, § 4. While recognizing the petitioners as Nicholas’s legal parents in Massachusetts, a Probate and Family Court judge issued an interlocutory order denying the motion, and reserving and reporting to the Appeals Court the question “whether the lawful parents of a child must give notice to the known biological father/sperm donor pursuant to G. L. c. 210, § 2,” in conjunction with their petition for adoption. We transferred the case to this court on our own motion to consider the correctness of the judge’s ruling. See Roberts v. Enterprise Rent-A-Car Co. of Boston, Inc., 438 Mass. 187, 188 & n.4 (2002), citing O’Brien v. Dwight, 363 Mass. 256, 276 (1973).[4] We […]
Adoption of Malik (Lawyers Weekly No. 11-129-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13‑P‑384 Appeals Court ADOPTION OF MALIK.[1] No. 13‑P‑384. Worcester. September 12, 2013. ‑ October 22, 2013. Present: Green, Grainger, & Fecteau, JJ. Adoption, Standing, Dispensing with parent’s consent. Parent and Child, Dispensing with parent’s consent to adoption, Adoption. Petition filed in the Worcester County Division of the Juvenile Court Department on April 16, 2010. The case was heard by George F. Leary, J. Joshua D. Woda for the mother. Bryan F. Bertram, Assistant Attorney General, for Department of Children and Families. Jacqueline Y. Parker for the child. GREEN, J. After Malik suffered serious but unexplained injuries as an infant while in the care of his birth mother (mother), the Department of Children and Families (department) commenced a petition for his care and protection, under G. L c. 119, § 24. Eventually, both birth parents stipulated to their unfitness and to termination of their parental rights, and decrees entered to that effect.[2] Thereafter, the care and protection proceeding was consolidated with a petition by Malik’s maternal grandparents seeking guardianship, and an evidentiary hearing was conducted to determine whether Malik’s best interests would be served by guardianship by the maternal grandparents or, alternatively, by adoption by the foster family with whom the child had been placed during the pendency of the care and protection proceeding. After hearing, a judge of the Juvenile Court concluded that the adoption plan proposed by the department, in which the foster family would adopt the child, would serve the child’s best interests. The mother filed a notice of appeal, claiming that the judge’s order constituted an abuse of discretion.[3] We conclude that the appeal must be dismissed, as the mother is without standing to maintain it. Background. At the time of Malik’s birth, on February 19, 2010, the mother was eighteen years old and living with her parents. She had an active restraining order against Malik’s father, and was involved in a relationship with a new boyfriend (who also lived with her in her parents’ home). The mother’s behavior at the hospital prompted a mandated reporter to file a report under G. L. c. 119, § 51A, alleging neglect of the then two day old Malik.[4] After investigation, the department determined that Malik should remain with his mother, based […]
Adoption of Gabe (and one companion case) (Lawyers Weekly No. 11-117-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑1237 Appeals Court ADOPTION OF GABE (and one companion case[1]). No. 12‑P‑1237. Berkshire. March 4, 2013. ‑ September 25, 2013. Present: Berry, Sikora, & Milkey, JJ. Adoption, Dispensing with parent’s consent. Due Process of Law, Adoption, Assistance of counsel. Constitutional Law, Assistance of counsel, Retroactivity of judicial holding, Waiver of constitutional rights. Parent and Child, Adoption, Dispensing with parent’s consent to adoption. Practice, Civil, Assistance of counsel, Waiver. Retroactivity of Judicial Holding. Petitions filed in the Berkshire Division of the Probate and Family Court Department on June 17, 2010. The cases were heard by Richard A. Simons, J. Dorothy Meyer Storrow for the father. Mark A. Papirio for the children. April Ann Knapp, pro se. SIKORA, J. The issue on appeal is whether a biological father (father) had a right to counsel in the adoption proceeding terminating his parental rights. The father appeals from decrees of the Probate and Family Court (probate court) approving the adoption of his two sons and severing his parental rights and duties. The petitioners are the children’s mother and stepfather. Throughout the proceeding in the probate court, the father did not retain counsel nor receive appointed counsel. Four days after the entry of the decrees, the Supreme Judicial Court in Adoption of Meaghan, 461 Mass. 1006, 1007-1008 (2012), held that an indigent parent in a termination and adoption proceeding brought by a private party is entitled to the appointment of counsel; that the children proposed for adoption hold the same entitlement; and that both rights rest on due process and equal protection principles. We conclude that the declaration of constitutional rights in Meaghan has retroactive application to cases of adoption which were not final at the time of its announcement. Therefore, we vacate the decrees and remand for a new trial at which the indigent father and the children will be entitled to appointed counsel. Background. The trial judge received the following evidence. 1. The parties. Gabe and Adam were born in December of 2000, and April of 2004. Their parents never married. The father accumulated a history of verbal and physical abuse of the mother. During the course of their relationship, he continually demeaned her with vicious epithets. When the mother was pregnant with Gabe in September of 2000, the father pushed […]
Adoption of Cecily (Lawyers Weekly No. 11-074-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑926 Appeals Court ADOPTION OF CECILY.[1] No. 12‑P‑926. Essex. January 3, 2013. ‑ June 7, 2013. Present: Graham, Grainger, & Sikora, JJ. Adoption, Care and protection, Dispensing with parent’s consent, Visitation rights. Minor, Adoption, Visitation rights. Parent and Child, Adoption, Dispensing with parent’s consent to adoption. Grand Jury. Evidence, Testimony before grand jury. Practice, Civil, Adoption. Petition filed in the Essex County Division of the Juvenile Court Department on July 29, 2009. The case was heard by Joseph F. Johnston, J. Patricia Quintilian for the mother. Kari B. Kipf‑Horstmann for Department of Children and Families. Jessica Berry for the child. GRAHAM, J. The mother appeals from a decree of the Juvenile Court entered on November 30, 2011, adjudicating her daughter, born in May of 2009, in need of care and protection and dispensing with the mother’s consent to adoption. She contends that the evidence of her parental unfitness was not clear and convincing, that one of the judge’s key findings is not supported in the record, that the judge erred in admitting in evidence grand jury testimony of the child’s maternal grandmother for full substantive evidentiary value, that the judge erred in drawing a negative inference against the mother because she did not testify at trial, and that the judge erred in denying her posttermination visitation. We affirm. Background. We take the facts from the judge’s detailed findings and the uncontradicted evidence before him, reserving recitation of certain facts as they become relevant to the issue raised. The mother, a secretary at the Lynn Community Health Center, was born in the Dominican Republic and came to the United States with her family when she was six years old. The father first came to the United States in 1996 with a ten-year visa which has expired; he is not a United States citizen. The mother and father met in 2007 and married in 2008. The following year, the mother’s only child, Cecily, was born. After a six week maternity leave, the mother, who was the sole financial provider for the family, returned to work, and the father was the sole caretaker for Cecily while the mother worked from 8:30 A.M. to 5:00 P.M. during the week. In July, 2009, shortly after the mother’s return to work from maternity […]
Adoption of Norbert (and a companion case) (Lawyers Weekly No. 11-055-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑651 Appeals Court ADOPTION OF NORBERT (and a companion case).[1] No. 12‑P‑651. Worcester. October 11, 2012. ‑ April 25, 2013. Present: Graham, Vuono, & Hanlon, JJ. Adoption, Dispensing with parent’s consent. Minor, Adoption. Parent and Child, Adoption, Dispensing with parent’s consent to adoption. Due Process of Law, Adoption. Judge. Practice, Civil, Adoption, Disqualification of judge, Questioning of witness by judge. Petitions filed in the Worcester County Division of the Juvenile Court Department on November 14, 2008, and June 30, 2010. After consolidation, the cases were heard by George F. Leary, J. Mark A. Papirio for the mother. Brian R. Pariser for Department of Children and Families. S. Michael Fournier for the children. VUONO, J. The mother appeals from decrees entered in the Juvenile Court terminating her parental rights as to her son, Norbert, and her daughter, Monica, and dispensing with her consent to their adoption.[2] She argues that the decrees should be vacated because the judge was biased and her right to due process was violated by the judge’s extensive questioning of her and other witnesses throughout the trial. We affirm. Background. Because the mother does not challenge the judge’s findings, including the ultimate finding of her parental unfitness, we provide only the necessary background. On November 14, 2008, and June 30, 2010, the Department of Children and Families (department) filed petitions alleging that Norbert and Monica were in need of care and protection. After six nonconsecutive days of trial and consideration of numerous exhibits and reports, the judge issued decrees that permanently committed the children to the custody of the department and terminated the mother’s parental rights. The judge, in his findings of fact and conclusions of law, all of which were amply supported by the evidence, found that the mother suffered from chronic untreated mental health issues and lacked insight into her parenting deficiencies. During the time the children were in the mother’s custody, they were frequently exposed to domestic violence. In addition, the mother often acted inappropriately. For example, on at least on occasion, the mother invited a stranger whom she met on a telephone date line into her home for a sexual encounter while the children were present. Furthermore, the mother missed numerous visits with her children when they were in the custody […]
Adoption of Zander (and three companion cases) (Lawyers Weekly No. 11-036-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑491 Appeals Court ADOPTION OF ZANDER (and three companion cases[1]). No. 12‑P‑491. Essex. December 4, 2012. ‑ February 27, 2013. Present: Kantrowitz, Katzmann, & Hanlon, JJ. Adoption, Visitation rights. Minor, Adoption, Visitation rights. Parent and Child, Adoption. Petitions filed in the Essex County Division of the Juvenile Court Department on September 5, 2008. The cases were heard by Joseph F. Johnston, J. Michael S. Penta for the mother. Ann V. Crowley for Zander & others. Daniel R. Katz for the father. Timothy J. Casey, Assistant Attorney General, for Department of Children and Families. Debra Perrotta Dow for Sam. KATZMANN, J. 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. We affirm in part and remand on the issue of sibling visitation between the three oldest children. Discussion. 1. Adoption plan for Sam. The biological parents argue that the judge abused his discretion when he accepted the DCF adoption plan over the biological father’s plan. In arriving at such a decision, the judge properly considered the best interests of Sam. This court may only review such a decision for abuse of discretion or clear error of law. Adoption of Hugo, 428 Mass. 219, 225 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999). As a general matter, the trial judge is charged with evaluating each of the adoption plans. […]