MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This case comes before us on appeal from the Juvenile Court for the second time. In the prior appeal, a panel of this court affirmed that aspect of the Juvenile Courts decree dispensing with the need for the mothers consent to adoption of four of her children. See Adoption of Elise, 97 Mass. App. Ct. 1111 (2020). The three children at issue in this appeal all appealed in that prior case from that aspect of the decree that did not order posttermination and postadoption visits with the mother.
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Although we expressed no opinion on the merits, we concluded that the judge should have addressed evidence of the bond between the mother and each of the three children, and we remanded to allow the judge to do so and to determine whether an order of posttermination and postadoption visitation served the childrens best interests. We expressly allowed the parties to introduce new evidence as to evolving factual circumstances that might be considered by the judge.
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An evidentiary hearing was held on remand, at which the adoption supervisor responsible for each of the childrens cases provided evidence for DCF, and at which the mother introduced evidence from a social worker qualified as an expert in visitation and permanency planning. DCF had not permitted any visitation between the mother and any of the three children between August of 2018 and a visit that it allowed in February of 2021, one month before the remand hearing.
The evidence taken at the hearing on remand indicated that Elise, who was thirteen at the time of the remand hearing and fourteen at the time the order under review was issued, was in contact with the mother by social media and that she had been in communication essentially daily with the mother by telephone, something DCF had tacitly permitted. The evidence showed that Elise was fiercely loyal to the mother and had announced that she did not want to be adopted. Meanwhile, in the interim, her placement in the foster home with her younger sister, Karen
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had ended, with those foster parents wanting to adopt only Karen, and two other foster placements were also disrupted due to Elises reported behavioral problems.
The two boys, John and Adam, who had not been in the mothers care since they were three and four years old, were ten and eleven at the time of the remand hearing, and had been in the same foster home since 2015. This foster family had not expressed an interest in adopting the boys. Adam was in need of a neuropsychological evaluation as a first step even to assessing whether he could be adopted. DCF did not contest the existence of a bond between the mother and the boys or the propriety of visitation.
The judge issued an order that “[Elise] shall have three supervised visits per year with Mother, both posttermination and postadoption, as well as telephone contact. Any additional visits shall be left to the clinical decisions of [Elises] treatment providers, DCF and [Elise].” The order went on, “[Adam and John] shall have one supervised visit per year with Mother, both posttermination and postadoption. Any additional visits shall be left to the clinical decisions of the boys’ treatment providers, DCF and adoptive parents.”
The children (Elise, Adam, and John) and the mother have appealed, arguing that the judge abused her discretion by failing to order more frequent visitation. The question before us is whether the judge abused her discretion by issuing a posttermination and postadoption visitation order which “f[ell] outside the range of reasonable alternatives.” L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). We affirm the order of visitation.
Discussion. Primarily, the children argue for additional visitation. The question before us with respect to the number of visits is whether the judge abused her discretion. See Adoption of Douglas, 473 Mass. 1024, 1027 (2016). In general the purpose of posttermination contact between a parent whose parental rights have been terminated and a child “is not to strengthen the bonds between the child and his [or her] biological mother or father, but to assist the child as he [or she] negotiates, often at a very young age, the tortuous path from one family to another.” Adoption of Vito, 431 Mass. 550, 564-565 (2000). However, Adoption of Rico, 453 Mass. 749, 755-757 (2009), establishes that visitation may serve an additional purpose for older children with an established bond with a biological parent who do not have a current preadoptive placement. In such cases the visitation order may “give the child greater assurance that he [or she] would be able to preserve the one meaningful parent-child relationship in his [or her] life.” Adoption of Ilona, 459 Mass. 53, 65 (2011). Therefore the “order offers protection to the child that is absent if the judge leaves all visitation matters up to the department and future adoptive parents.” Adoption of Rico, supra at 756. In cases such as this, a visitation order “provides clarity, and, perhaps more importantly, gives the child a certain sense of security about his [or her] ability to maintain contact and a relationship with a person who has been shown to be critical to him [or her].” Id. at 757.
With respect to Elise, the judge ordered thrice yearly visitation as well as telephone contact. Of course, DCF is permitted to allow more visitation than this. The order acts as a floor and not a ceiling. The expert, whose testimony the judge credited, made clear that some visitation was appropriate. In his view, the purpose of the visitation would be to give Elise some stability because she is parentified and worries about her mother, and to create an opportunity for the mother essentially to give Elise permission to go on with her life in light of the termination of the mothers parental rights.
There was however evidence that the relationship between Elise and the mother was not healthy. There was also evidence that the mother had recently expressed doubt about the allegations of sexual abuse of the children by the father. This was so notwithstanding the fact that the mothers failure to take those allegations seriously played a critical role in her losing her parental rights.
In light of all the evidence before the judge, we are not in a position to conclude that the order for three visits per year plus telephone contact was an abuse of the judges considerable discretion. Determining what is best for this child in terms of visitation is a difficult matter and arguments could be made for more or less frequent visitation.
Elise argues that the order need not have included a postadoption as well as a posttermination order for visitation, because the former must contemplate the intrusion into the rights of any adoptive parents, who have not been identified in this case, while the latter must only consider the childs present circumstances. However, while a judge may enter separate orders for posttermination visitation and postadoption visitation, the judge is not required to do so. See Adoption of Jacques, 82 Mass. App. Ct. 601, 610 (2012). Further, should the current visitation order turn out to be inappropriate in light of the identification of a preadoptive resource, or in light of an eventual adoption of the child, DCF or the children may seek to modify it. See Adoption of Edgar, 67 Mass. App. Ct. 368, 374 n.6 (2006) (court may modify postadoption visitation order due to changed circumstances).
Elise also notes that the order does not specify the type of telephone contact that must be permitted, including whether it “contemplate[d] social media accounts accessed via a telephone.”
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Again, however, our review is for abuse of discretion or other error of law. See Adoption of Jacques, 82 Mass. App. Ct. at 610. Without minimizing the need for precision, given all the variables in a dynamic relationship, creating a priori an enforceable regime for telephone contact between a teenager and her mother with whom she has had essentially daily telephone contact would present difficult challenges. A judge could order less contact than might be best for Elise or than, at least at some points, Elise might want. There is some risk, then, that a precise order could be used by DCF, even though it might have discretion to provide more, to limit inappropriately her telephone contact. In light of this, we cannot say that the order as written amounted to an abuse of discretion. We note, however, that Elise retains the right to seek clarification or modification of the visitation order in the trial court. See Adoption of Douglas, 473 Mass. at 1028 n.11.
At argument, counsel for Elise also raised the possibility that she might be forced to have telephone contact -- or indeed to have one or another of the thrice-yearly in-person visits -- when she did not want them, or when they were not in her best interests. If, however, DCF or the mother were to insist on visitation or contact against the wishes of Elise, Elise herself could seek modification of the order. And, again, although the order was within the scope of the judges discretion, the child retains the right to seek clarification or modification of it in the trial court.
Likewise, we do not think it was an abuse of discretion to leave “additional visits” “to the clinical decisions of [Elises] treatment providers, DCF and [Elise].” Although the order does not set out any precise mechanism for decision-making, it makes clear that DCF alone cannot deny additional visits without taking into account the views of the child and her treatment providers. Despite the imprecision, it was not an abuse of discretion.
With respect to Adam and John (boys), DCF again does not dispute that there was a bond with the mother that warranted visitation. We do not think the burden was on the boys to demonstrate how much visitation was appropriate, but we do think that DCF met its burden to show that its proposed visitation schedule, one visit per year, was within the scope of the judges discretion.
The evidence indicated that there was a risk that a visitation order would make it harder to find a preadoptive home for the boys, although it is true that DCF can seek to eliminate visits if a preadoptive home is identified. The only reason given by the boys for requesting three visits is that that is how many visits were ordered for Elise, and it would be “arbitrary” to give them less. But the circumstances of the boys, who were found by the judge to have a bond with their mother but who, unlike Elise, had no contact with the mother for two years, and who left her care at an earlier age, three and four years, compared with age seven for Elise, supports a conclusion that a different amount of visitation is appropriate for them than for Elise. The judge was not required to give a perceived need to avoid that difference determinative weight. Consequently, we think that, given the finding of a bond by the judge, and the history of contact described in the record, the judge was within her discretion in providing for one visit annually, though a case could be made for more, or indeed, less, visits.
Finally, the mother argues that limitations on cross-examination by the judge were erroneous and prejudicial. However, given the fact that a bond was conceded and found by the judge, and that the issue before the judge was not determining the source of the childrens dysregulation after visits prior to the original trial, we see no prejudice from the limitation of cross-examination. We need not, therefore, determine whether there was error.
Order of visitation affirmed.
FOOTNOTES
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. The fourth child (Karen, a pseudonym) did not join her siblings in that appeal.
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. We noted that the judge had found dysregulation in response to supervised visits with the mother. We noted that such dysregulation “might be explained ․ by the existence of strong emotional bonds.” We did not, however, instruct the judge on remand to determine the basis for that dysregulation.
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. See note 2, supra. Karen was not involved in the remand proceedings and is not involved in this appeal.
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. At oral argument, counsel for Elise argued that the order was not “clear and unequivocal,” and asked that the case be remanded for clarification of the order.