Opinion
20-P-792
05-21-2021
ADOPTION OF BENNET.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After trial in the Juvenile Court, the child's mother and father were found to be unfit parents by clear and convincing evidence and their parental rights were terminated. In addition, the judge determined that it was in the best interests of the child to be adopted by the child's foster parents, rather than distant kin of the child (Mr. and Mrs. Smith, pseudonyms). On appeal, the mother does not object to the finding of unfitness, but contests only the judge's decision to allow the foster parents to adopt the child instead of Mr. and Mrs. Smith. We affirm.
The father is not a party to this appeal.
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Background. The child was born substance exposed in July 2018, and upon his discharge from the hospital, he was immediately placed with the foster family with whom he has lived his entire life. About six months later, in late January of 2019, the Department of Children and Families (DCF) changed the goal for the child from reunification with one of his parents to adoption. The foster parents immediately submitted a letter to DCF asking to be considered as an adoptive resource for the child. The foster family then underwent a preadoptive licensing study (PALS), which was not completed until late November 2019, after the end of trial.
Shortly after the child's birth, DCF had sought a kinship placement. At that stage, it explored only the maternal grandmother and maternal aunt as potential placements for the child, but it found them unsuitable due to their own histories with DCF. Sometime in March 2019, about two months after the goal change, an adoption social worker at DCF did a more comprehensive "Family Find" search and notified forty-nine of the child's relatives about the proceedings concerning the child, asking them to respond in writing by April 29, 2019, if they wanted to be considered as an adoptive resource for the child. Out-of-State relatives, including Mr. and Mrs. Smith, were notified by mail.
Mrs. Smith is the mother's second cousin and a cousin to the child's maternal grandmother. Mrs. Smith had not seen the mother since the mother was a child and had not seen the child's maternal grandmother or anyone else in the mother's immediate family in over a decade. Shortly after receiving the Family Find letter, Mr. Smith called the adoption social worker, concerned that the child was in an emergency situation. The adoption social worker explained to him that it was not an emergency and that the child had been in a placement for over a year. After a few more calls, the adoption social worker told the Smiths to respond in writing as outlined in her letter if they were interested in adopting the child.
On May 15, DCF received the Smiths’ letter, and an assessment through the Interstate Compact on the Placement of Children (ICPC) was started because they lived in New Jersey. By the time of trial, the ICPC study was not completed, but Mr. and Mrs. Smith testified at trial that they wanted to adopt the child and take care of him and expressed their desire that the child be placed with them. The ICPC study was completed on October 30, 2019, in the middle of trial, approving Mr. and Mrs. Smith as an adoption resource for the child.
Although DCF had not approved an adoption resource for the child at the time of trial, DCF's counsel in opening statements and throughout the trial advocated for the child to be adopted by the foster parents, and the judge found that to be DCF's position at trial. In closing, the DCF lawyer, while seeming to take a more neutral approach to the child's placement options, continued to indicate DCF's preference, saying:
"the good news before this Court for [the child] is that this one-year-old child has two families that want to provide him a home. This Court has heard testimony from the [Smiths] who offer an opportunity for permanency with kin, and this Court has also heard testimony from [the foster mother] who offers [the child] the stability of never going through a removal, of remaining with the mother, father, and sister that he knows, of staying in the arms of the parent who held him while his body withdrew from the poison it took in in utero."
At the end of the trial, the mother and father supported adoption by the Smiths; the child supported adoption by the foster parents.
After the close of evidence on November 15, 2019, DCF received the approved PALS for the foster parents. Having received the approved licensing studies for both the foster family and the Smith family, DCF was required by policy to hold a "matching meeting" where it reviewed the potential adoption placements in order to decide which one DCF would support. The matching meeting occurred on December 10, 2019, and at that meeting, DCF concluded that placement with the Smiths was in the child's best interests.
Having changed its position, DCF submitted a new plan of adoption identifying the Smiths as their preferred adoptive resource. The plan contained no mention of the foster parents, of how the child was doing there, or of the consequences of moving the child who was bonded with the foster parents and had lived with them his whole life.
As a result of DCF's change in position, the parents filed an emergency motion to reopen the evidence. The judge allowed the reopening of evidence and held a one-day hearing, but only for the limited purpose of determining whether there was new evidence or information that caused DCF to change its position. DCF's area program manager explained that DCF changed its position because the Smiths offered a "kin connection" and a "relationship with birth family," and because the child was emotionally healthy and had formed healthy attachments, DCF thought he would be successful in transferring those attachments to another family. She further stated that there is no requirement that placement decisions be based solely on kinship and that ultimately, placement depends on the best interests of the child, but she also explained that some connection to the birth family is helpful to adoptees because it can "demystify" the birth family and help with the "rejection process" that adopted children go through. At that hearing, the father changed his position, supporting the foster parents as the appropriate adoptive parents because the child would remain in geographical proximity to him. The child continued to support adoption by the foster parents, and the mother supported adoption by the Smiths.
Following the posttrial hearing, the judge issued her decision. She found that the child is bonded with the foster parents and their adopted daughter, who shares a sibling relationship with the child, and that allowing him to stay with them would ensure that the child would experience no disruption or ill effects from being removed from the only family that he had ever known. The judge acknowledged that "[n]o information was provided from which this Court can determine what lasting effects or trauma, if any, such a move would have on [the child]" but made a "reasonable inference that [the child] would experience some effects of such a significant disruption in his life."
The judge dedicated about seven pages in her detailed findings of fact to the competing adoption plans and presented multiple reasons why the child should be adopted by the foster parents instead of the Smiths. The judge found that the Smiths were capable of providing the child with a safe and stable home and that they would love the child unconditionally, but the judge also found that the Smiths did not fully acknowledge the bond between the child and the foster parents and that they did not appreciate or acknowledge that the child could potentially experience ill effects from being removed from his only known home and family. Moreover, the judge found that staying with the foster parents, who reside in Massachusetts, would allow the child to easily maintain communication with his biological parents, biological grandparents, and step siblings, all of whom live in Massachusetts or New Hampshire. Maintaining those relationships would be more difficult if the child was adopted by the Smiths, who live in New Jersey.
Discussion. When choosing among competing adoption plans, the judge must make the determination based on the best interests of the child. See Adoption of Hugo, 428 Mass. 219, 225 (1998) cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999). The best interests of the child determination is a "classic example of a discretionary decision" and "much must be left to the trial judge's experience and judgment" (quotations and citations omitted). Id. In reviewing that decision, we owe the judge "substantial deference," and we will reverse only for an abuse of discretion or a clear error of law. Id.
The mother argues that the trial judge abused her discretion by basing her placement decision solely on the fact that the child had bonded with the foster parents. She further contends that there was no evidence at trial to indicate that the child would suffer harm as a result of separation from the foster family and that the area program manager testified that the child would be successful in transferring his attachments to another family.
We discern no abuse of discretion by the judge in considering the bond between the child and his foster parents and making the reasonable inference, notwithstanding the lack of evidence and the area program manager's testimony, that removing the child from that family would have some negative effect on the child.
Moreover, the judge did not rely solely on the child's bond with the foster parents, as the mother argues, but considered other factors as well in making her placement decision. Thus, we conclude that the judge did not make the potential disruption of the bond between the child and the foster family "the determining factor" or a "self-fulfilling prophecy," but instead that she "considered both plans carefully, and appropriately sought to determine which plan was in the child's best interests" (quotation and citation omitted). Adoption of Hugo, 428 Mass. at 226, 230.
The mother also argues that the judge overlooked factors that showed that the Smiths were the better parents for the child. The mother asserts that the judge should have considered the fact that the foster parents plan on continuing to foster children and that the child would experience disruption whenever a new foster child joined or left the family. She also asserts that Mr. Smith, who is retired, could care for the child full-time while the foster parents both work full-time, requiring the foster father's mother, who does not live in the foster parents’ home, to provide day care. Additionally, unlike the foster parents, who receive government assistance to care for the child, the Smiths would care for the child without such assistance.
Contrary to the mother's argument, the judge noted that the child's foster parents had been foster parents before taking in the child and that they reopened their home to foster placements after the trial began. The judge also noted the occupations of both sets of proposed parents, including the fact that Mr. Smith was retired. We do not consider the mere fact that the foster parents received government assistance to care for the child -- or even that they would receive government assistance after adoption, even if they would -- as a relevant consideration for determining the best interests of the child, especially where the judge found that the foster parents loved the child and wanted him to be a permanent part of their family.
Additionally, the judge did not ignore factors that were positive for the Smiths. She found that they were financially able to care for the child, that they would provide him with a safe and stable home, and that visits between the child and the Smiths went well. In the end, we think there was support for the judge's statement that "both the [Smith family] and the [foster family] are financially stable and able to meet [the child's] needs financially. Both homes would provide a physically safe and financially stable place for [the child]. In addition, the Court believes that both sets of parents would love [the child] unconditionally." We conclude that the judge, faced with the specific facts and circumstances of this case, made "an ‘even handed’ assessment of all the facts surrounding both plans" in coming to a decision and that there was no abuse of discretion. Adoption of Odetta, 87 Mass. App. Ct. 576, 577 (2015), quoting Adoption of Hugo, 428 Mass. at 226 n.8.
Lastly, the mother argues that DCF "stacked the deck" in favor of the foster parents. She contends that DCF failed to follow its own policy by not notifying the child's adult kin sooner about the child's placement in DCF custody and that DCF prematurely argued in favor of the foster family during the trial only to decide later that it supported Mr. and Mrs. Smith as the child's adoption resource.
We need not decide at what point DCF was required to contact distant kin such as the Smiths, nor whether it violated its own procedures. Even assuming it did, the judge was well aware of the Smiths and their desire to adopt the child. At trial, both parents preferred the Smiths as the adoptive resource, and Mr. and Mrs. Smith testified extensively about their willingness, desire, and ability to care for the child in a way that clearly impressed the judge. Indeed, before issuing her decision, the judge knew that DCF itself supported adoption of the child by the Smith family. In these circumstances, we do not think that earlier action by DCF would have made a difference in the judge's assessment of the best interests of the child.
Nor are we persuaded that DCF's premature support of the foster family at trial and its subsequent change of position influenced the judge's ultimate determination. At the posttrial hearing, where she reopened the evidence for the limited purpose of determining whether DCF had learned any new, relevant evidence not introduced at trial, she explained that she was "going to make a decision based on the evidence" she had heard and said that "[DCF] changing its position is not in and of itself relevant to me." Thus, the judge made it clear that she did not place any "presumptive or artificial weight" on DCF's position or the adoption plan that it supported, and that she based her decision on careful consideration of the evidence. Adoption of Hugo, 428 Mass. at 226.
In short, the record reflects that the judge based her placement decision on the best interests of the child, and we discern no abuse of discretion in that decision. The decree of the Juvenile Court is affirmed.
So ordered.
Affirmed