Mass Lawyers Weekly (This Week's Decisions) 1/27/2020
Where a mother's parental rights were terminated based on a finding of unfitness, a remand for further proceedings is necessary regarding postadoption visitation.
"An order of 'visitation between a child and a parent whose parental rights have been terminated' is authorized 'where such visitation is in the child's best interest.' Adoption of Ilona, 459 Mass. 53, 63 (2011). Two questions must be asked: 'First, is visitation in the child's best interest? Second, in cases where a family is ready to adopt the child, is an order of visitation necessary to protect the child's best interest, or may decisions regarding visitation be left to the judgment of the adoptive family?'...
"In the present case, after the judge announced her decision to terminate the mother's rights, she said, 'So, I do want to talk about post termination and post adoption visits because I do think that the mother and maternal grandmother are important parts of the child's life and I do want to hear from the parties as to what post termination and post adoption visits should look like. Because I do think it's appropriate. ...They do seem to have a bond. ...I think it's important to have that continued contact. This is a very young child who has a relationship with these two woman in his life.' In her written decision, however, the judge made no findings whether post adoption visitation would be in the best interests of the child, did not enter a specific order of postadoption visitation, and simply concluded summarily that 'visition with mother is in the sole discretion of th pre-adoptive parents.' The mother and child argue that the judge erred in failing to enter an order for postadoption visition.
"In the absence of findings sililar to those in Adoption of Ilona, 459 Mass. at 66, concerning the willingness of the preadoptive family to support visitation (and, hence, the likelihood that visitation of the sort acknowledged by the judge to be in the child's best interests would occur), or other explanation why an order for postadoption visatation was not warranted despite evidence that visitation would be in the child's best interests, we are without a basis to evaluate on the present record the contention by the mother and child that the judge abused her discretion in failing to include a specific order for postadoption visitation in her decision. Accordingly, we remand the case for the judge to consider this issue and make appropriate findings. The judge may hear further evidence if she deems it necessary.
"The decree finding the child in need of care and protection, G.L.c 119, S26, and terminating the mother's parental rights, G.L.c. 210, S3, is affirmed. The case is remanded for further proceedings regarding postadoption visitation."