MA - HOUSING RESOURCES MAY 8

 

CHILD WELFARE - SIBLING VISITATION RIGHTS

IN RE ADOPTION OF FLAVIA, Mass: Appeals Court 2023:

"In this consolidated appeal, we affirm Juvenile Court decrees terminating the mother's and the father's parental rights to their twin daughters, Flavia and Helen, but we vacate an order denying postdecree motions filed by the twins and their older half-brother, Mark (a pseudonym). The motions cited G. L. c. 119, § 26B (b), and requested an order for sibling visitation.^[2] Because we conclude that an order should have entered, we remand the matter for further proceedings.

Background. 1. Facts. The Department of Children and Families (department) became involved with the family in 2014, after the mother committed an assault and battery on Mark, then five years old. Diagnosed with trauma and a variety of behavioral and emotional disorders, Mark "require[d] a high level of care and supervision" to manage behaviors such as fire setting, self-harm, and aggressiveness toward animals; behaviors that the judge found resulted from the way the parents cared for Mark and increased after the twins' birth in 2015.^[3] In 2016, Mark was placed in a residential treatment center (residential center) due to his inability to be safe in a less restrictive setting, and the department filed a care and protection petition on his behalf pursuant to G. L. c. 119, § 24. At the residential center, Mark continued to struggle with emotional regulation, impulsivity, lack of personal boundaries, and enuresis. In 2017, Mark was committed to the department's custody. In February 2019, the department transitioned him home to live with the parents and the twins.

Seven reports in as many months were then filed with the department pursuant to G. L. c. 119, § 51A (51A report), alleging neglect of all three children due to the parents' substance use and failure to engage with services for Mark. On investigation pursuant to G. L. c. 119, § 51B, the department learned that the parents had not followed recommendations for managing Mark's behaviors at home, such as establishing rules and consequences and implementing behavior charts. Instead, without consulting a doctor, the mother gave Mark a "vape pen" containing cannabidiol oil and had Mark smoke it "to help with his behaviors." Then twenty-nine years old, the mother reported poor liver function and regularly drank beer during meetings with in-home support workers, but she denied alcohol use, while the father, then thirty-one years old and addicted to Adderall after being prescribed it in 2016 for a childhood diagnosis of attention deficit hyperactivity disorder (ADHD), said in June 2019 that he bought Adderall "off the street and used it . . ., as it helped with his ADHD," but in July, he "denied any medications or diagnosis."

In September 2019, the mother reported that the father relapsed, and the department also learned that the parents had failed to seek immediate medical attention for Mark's broken arm after Mark hit a moving car while riding his scooter near a busy road. All three children were removed from the home, and the department filed a second petition pursuant to G. L. c. 119, § 24, this one naming Flavia and Helen. The petitions were consolidated, and by the time of trial, eleven year old Mark was living at the residential center where he had lived for periods totaling over five years. Flavia and Helen were six years old and living in the same foster home where they had been for two years, with a family that was prepared to adopt them. Both twins suffered from enuresis not caused by physical concerns, were diagnosed with unspecified trauma and stressor-related disorders, and received weekly therapy. Helen was additionally diagnosed with posttraumatic stress disorder with dissociative features and had developmental delays and emotional disabilities that "require[d] significant interventions."

2. Trial. Trial took place on thirteen nonconsecutive days between May of 2021 and 2022. On the eighth day, before the department introduced documentary evidence, the father moved for a directed verdict as to the twins. In response, the department reported that it had no more witnesses because the foster mother was not available that day to testify about each twin's functioning and needs. A discussion ensued wherein the judge questioned the sufficiency of the evidence as to Flavia and Helen. The judge made the following comments: "I need more than what I have to make a determination," and "I need to know more about the girls' functioning. That's what I'm telling you." She asked whether the department would introduce reports for each twin that she knew had been, or were being, prepared, and she said, "[T]here's a bunch of information in [the reports] that I feel that I need in order to make a determination for these girls." The judge concluded that portion of the discussion by stating, "I leave it to you to conference how the evidence is going to get in. . . . [P]erhaps, the [d]epartment is going to call, like, the foster parent."

Later, the judge suggested that counsel for the parents and children "have a conversation" about their permanency plans — all three children returning home — in light of testimony that, the judge said, "raised real concerns for me about the legal viability" of that plan. A social worker had testified that Mark struggled at the residential center "with sexualized behaviors, impulsivity, limit setting, following directions, and respecting personal boundaries." The judge commented, "[I]f I credit that testimony . . . it creates a difficult situation wherein, if [Mark] goes home, the girls can't go home; or if the girls go home, [Mark] can't go home."

The evidence closed in March 2022, after the foster mother testified and after Mark's twelfth birthday. Two months later, in court, the judge announced her decisions regarding the parents' fitness and each child's best interests without mentioning posttermination or postadoption visitation, for the parents or for Mark, with the twins. All three children were adjudged in need of care and protection and committed to the department's custody. The parents were found unfit, but termination of the mother's rights was not found to be in Mark's best interests, "given his strong position against adoption" and high level of need. See G. L. c. 210, § 2 (child's written consent to adoption required if child is "above the age of twelve").

As to Flavia and Helen, the judge expressed her view that "[f]or [Mark] to have any future, it's going to mean that the parents have to pour all of their attention towards reunification with him" and give him "all of the family's efforts," leaving an inadequate amount of time and attention for what she described as each twin's "significant needs as a result of the ongoing issues in regards to the parents' fitness." Although she "recognize[d] that there ha[d] been some progress" by the parents in addressing their "ongoing issues," the judge considered that "when [she] reviewed the record, it was replete with instances of obfuscation and deception"; the father relapsed during trial; and there was a risk that the parents had not really changed After "po[ring] over" the exhibits, listening to the testimony, and reviewing her notes, the judge made "a very, very difficult decision" that freeing Flavia and Helen for adoption by their foster parents was in each twin's best interests. Decrees entered accordingly. See G. L. c. 119, § 26 (b) (4); G. L. c. 210, § 3. As to Mark, a judgment entered committing him to the department's permanent custody, and his placement in the residential center continued, see G. L. c. 119, § 26 (b) (2) (iii) — a judgment from which neither he nor the mother appealed.

3. Appeals and postdecree motions. One week after the decrees entered, the parents and the twins filed a joint notice of appeal from the decrees. On the same day, the parents and the twins also filed a "joint motion for orders regarding post-termination and post-adoption contact," seeking specific orders for posttermination and postadoption visitation, for the parents and for Mark, with the twins. The judge did not expressly discuss the joint motion for visitation in her September 2022 findings of fact, conclusions of law, and rationale, wherein she expanded on her reasoning after trial in 450 findings of fact and forty conclusions of law. The judge provided for parent-child visitation with the twins to be "held at the discretion of the [d]epartment and then the adoptive parents, who will determine the frequency, length, location, and manner of such visitation," and sibling visitation between the twins and Mark "as often as the adoptive resource is able to accommodate" until after adoption, at which time "sibling visitation will be left to the sound discretion of the adoptive parents."

The following month, the judge allowed the mother's request for a ruling on the joint motion for specific orders and entered an order, nunc pro tunc to May 19, 2022, the date the motion was filed, that posttermination and postadoption visitation with the twins "will be addressed with the [t]rial evidence." In other words, the judge denied the joint motion for orders more specific than the provisions contained in the findings of fact, conclusions of law, and rationale. No one appealed from this decision.

In November 2022 and January 2023, Mark, Flavia, and Helen jointly filed a motion and a supplemental motion "to reconsider" that identified the judge's decision, as specified in her findings of fact and conclusions of law, to leave sibling visitation to the discretion of the department and adoptive parents (children's motions). Supported by exhibits, the children's motions (1) cited G. L. c. 119, § 26B (b); (2) asserted that the department had reduced sibling visits to an insufficient level and requested an order mandating a specific number of in-person visits plus weekly virtual contact; and (3) requested an evidentiary hearing. The department opposed the motions and argued that reconsideration was neither timely nor warranted. At a hearing on February 1, 2023, the judge received offers of proof that the department had reduced sibling visitation by one-half, no sibling visits had been or were then scheduled to occur, and the children wanted to see each other every week if not more. Reasoning that there was no new evidence and that she had not made an error in her "interpretation of the law . . . that [she could] leave it in the sound discretion of the foster parent if [she] believe[s] that, yes, it's in the best interest of the children," the judge denied the children's motions from the bench. All three children appealed.

Discussion. 1. Parental rights. "Parental unfitness must be determined by taking into consideration a parent's character, temperament, conduct, and capacity to provide for the child in the same context with the child's particular needs, affections, and age." Adoption of Mary, 414 Mass. 705, 711 (1993). The concepts of parental fitness and a child's best interests "are not separate and distinct but, instead, are `cognate and connected steps' that `reflect different degrees of emphasis on the same factors'" (citation omitted). Adoption of Ulrich, 94 Mass. App. Ct. 668, 675 (2019).

"Where there is clear and convincing evidence that the parent is unfit and likely to remain so, we give substantial deference to the trial judge's decision regarding the child's best interests and reverse only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion. A finding is clearly erroneous when there is no evidence to support it, or when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. An abuse of discretion exists where the decision amounts to a clear error of judgment [in weighing the relevant factors, such] that [the decision] falls outside the range of reasonable alternatives." (Quotations and citations omitted.)

Adoption of Xarissa, 99 Mass. App. Ct. 610, 615-616 (2021).

The mother, the father, and the twins challenge the sufficiency of the evidence to support the decrees and join in each other's arguments that the judge made several errors. The parties allege that the judge relied on stale evidence and clearly erroneous findings about Mark's history, needs, and "sexualized behaviors," the mother's alcohol use disorder, and the twins' needs and each parent's ability to meet them;^[4] weighed evidence relating to Mark too heavily and pitted his return home against that of the twins; did not make sufficiently individualized findings about Flavia and Helen or support the decision permanently to separate Mark from the twins with findings that such action was in each child's best interests; and deprived the parents of due process of law by her comments on the eighth day of trial.

Indeed, many of the parties' challenges "amount to no more than a disagreement with the judge's weighing of the evidence and credibility determinations regarding the witnesses," Adoption of Don, 435 Mass. 158, 166 (2001), but "our task is not to decide whether we, presented with the same facts, would have made the same decision," Adoption of Hugo, 428 Mass. 219, 225 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999). "We do not sit as a trial court to review de novo the evidence presented by the parties." Adoption of Paula, 420 Mass. 716, 730 (1995). Our review is limited to determining (1) whether the judge erred in concluding, based on subsidiary findings proved by a preponderance of evidence, that there was clear and convincing evidence that the parents were currently unfit to parent each twin and likely to remain so, and (2) whether the judge's conclusion that it was in each twin's best interests to terminate the legal relation between the parents and child was infected by clearly erroneous findings of fact or any clear error of law or abuse of discretion. See Adoption of Talik, 92 Mass. App. Ct. 367, 370 (2017), and cases cited.

"A judge whose order will have the effect of irreversibly terminating the legal parent-child relationship must focus on the present circumstances of the parent and the child, taking into account recent positive gains (if any), and, in appropriate cases, the likelihood of future improvement, in a parent's ability to care for the child who is the subject of the petition." Adoption of Paula, 420 Mass. at 731. Here, the parents experienced housing instability that was relevant to their fitness to care for the twins.^[5] See Adoption of Yvonne, 99 Mass. App. Ct. 574, 580-581 (2021), and cases cited. Also relevant was the parents' failure at every home where they lived with the twins to supervise them properly, maintain a safe and stable environment, or obtain consistent therapeutic services required for the children to thrive. See Adoption of Ulrich, 94 Mass. App. Ct. at 676 (judge may rely on patterns of past conduct to assess parent's future performance and ability). Although the parents engaged in services, their work did not ameliorate the concerns that brought the twins into the department's care, see id. at 677, as they were unable to keep a home clean for any significant period, see Care & Protection of Vick, 89 Mass. App. Ct. 704, 706 (2016), and unable to supervise the twins or Mark closely enough to prevent injuries, including substantial ones,^[6] see Bezio v. Patenaude, 381 Mass. 563, 579 (1980) (finding of unfitness "must be predicated upon parental behavior which adversely affects the child").

The parents also struggled with substance use that "was a factor contributing to established neglect" of all three children and therefore relevant. Adoption of Anton, 72 Mass. App. Ct. 667, 676 (2008). The judge found that evidence of the mother's alcohol use disorder was not stale based largely on the parents' minimizations of the issue and lack of acknowledgment at trial,^[7] but she also discussed what she called "substituted behaviors" by the mother, in findings the mother challenges as clearly erroneous. To the extent that we agree, erroneous findings about drinking soda and gambling do not detract from the judge's ultimate conclusions, because it is clear to us from the larger picture painted by the findings that the judge's concern was not that the mother struggled with addiction. See Adoption of Katharine, 42 Mass. App. Ct. 25, 32 (1997) (addiction by itself does not necessarily translate into unfitness). It was that the mother's inability to recognize the severity of the issue, combined with each twin's significant needs requiring recognition and appreciation for the appropriate response, created a risk to Flavia and Helen that the mother would not promptly recognize if, when, or how the twins might need support.^[8] This was not based on stale evidence or clearly erroneous findings.

Even after three years of engagement in substance use services that included monthly injections to curb cravings — a period equaling one-half of the twins' lives — the mother's sobriety was still "in its infancy." Until July 2021, when the mother "stated that after testifying [on two previous dates] she realized that she is an alcoholic and had begun attending Alcoholics Anonymous," the mother would only say that she had "a problem with drinking." While we commend the mother for her acknowledgment, neither she nor the father demonstrated such understanding or appreciation for "the complex emotional and physical needs of" Flavia and Helen. Adoption of Paula, 420 Mass. at 730. The parents were not aware of either twin's diagnoses or work in therapy; neither expressed what services or supports they would want Flavia or Helen to engage in were they returned home; and they "could articulate no realistic plan for meeting" the needs of either twin or both twins together. Id. Thus, the supported findings "place this case within the line of authority holding that, although a parent's shortcomings, viewed in isolation, would not preclude his or her meeting the law's somewhat undemanding standard of parental unfitness, they nevertheless do so when viewed against the more complex and attention-consuming needs of a child who has been impaired in his development by early neglect." Adoption of Oliver, 28 Mass. App. Ct. 620, 625 (1990).

Similarly, the parents' significant history of domestic violence was not stale even though the relationship had improved by the time of trial, because in their testimony both parents denied and minimized the abuse and its effects on all three children.^[9] The judge found that the twins were clearly affected by the violence because, on removal, Flavia was physically assaultive and verbally dominating to Helen and showed her no empathy, while Helen "was dysregulated, could dissociate, and [also] exhibited some aggressive behaviors." Solidly based in the evidence, the judge's findings did not overstate Flavia's or Helen's issues or needs, which the judge did not have to be an expert to infer were, at least in part, a result of the parents' caregiving. "It is well established that exposure to domestic violence works a `distinctly grievous kind of harm' on children" that can include imperiling their physical safety and psychological development. Adoption of Talik, 92 Mass. App. Ct. at 374, quoting Custody of Vaughn, 422 Mass. 590, 595 (1996). See Adoption of Yvonne, 99 Mass. App. Ct. at 578, and cases cited. This remains true even if the issues were also attributable, in part, to the twins' removal from the home, as the parents maintain.

The parents' pattern of minimizing responsibility for incidents resulting in harm to all three children, their inability to recognize the effects of the violence on the twins, and their limited understanding of their roles in causing (1) trauma in the family, or (2) all three children to be removed in September 2019,^[10] were "compelling evidence for a finding of parental unfitness." Adoption of Talik, 92 Mass. App. Ct. at 374. Against this evidence the judge weighed the recent improvements. She found that the parents' dishonesty "at various junctures regarding issues of critical importance," such as substance use, violence in the home, and significant mental health concerns into which the parents also demonstrated minimal insight and a lack of transparency,^[11] combined with their present inability to articulate how they would deal with intrarelationship strife differently or better if any or all the children were returned to their care, "creates a likelihood that old patterns of abusive and unhealthy behavior may recur" and harm the twins. See Adoption of Luc, 484 Mass. 139, 146 & n.17 (2020) (parent's mental illness relevant if there is nexus to child's neglect). This was not a risk to which the judge was required to expose the twins. See Adoption of Katharine, 42 Mass. App. Ct. at 32. The "constellation of factors" at play here amply supports the judge's assessment that the mother and the father had not fully addressed their deficiencies to the degree that they would not recur were the twins placed back with them, such that neither parent was or soon would be able to provide Flavia and Helen with a safe, stable home with responsible caretakers dedicated to their safety and well-being. Adoption of Yvonne, 99 Mass. App. Ct. at 582, quoting Adoption of Greta, 431 Mass. 577, 588 (2000).

The foster parents provided their full attention to Flavia and Helen, advocated for them, recognized when extra supports were required, and provided an environment in which each twin's specialized needs were met on a consistent basis. Consequently, after two years in the "stability and security" of that home, Flavia and Helen "made great strides in overcoming their past trauma, understanding their behaviors, and forming connections."^[12] Both twins had also formed a strong secondary attachment to the foster family that, the bonding expert testified, "allowed [Flavia and Helen] to stay resilient . . . in the face of some really difficult situations." It was the judge's sole province to weigh the secondary bond and the twins' "extraordinary progress" in foster care, and we see no error of law or abuse of discretion in her choice to weigh that evidence heavily. Adoption of Ilona, 459 Mass. 53, 62 (2011). See Adoption of Daniel, 58 Mass. App. Ct. 195, 202-203 (2003). "Here we have a case where the [twins] are finally in [a] stable situation[]." Adoption of Nancy, 443 Mass. 512, 517 (2005). The judge's finding that removing Flavia and Helen from the foster home would cause severe psychological and emotional harm did not require any manipulation of the expert's testimony; the expert opined that each twin would experience such a removal as a loss, and "it would be important for them to have the supports to negotiate that loss." Neither the mother nor the father, however, demonstrated an understanding of the harm that either twin would experience if the placement were disrupted, had the initiative and insight to seek out services for Flavia or Helen, or exhibited the ability to explain to providers why the twins might need services.

As there was clear and convincing evidence to support a conclusion that termination of parental rights was in the best interests of the twins together or as individuals, the judge's findings on these issues were sufficient. See Adoption of Nancy, 443 Mass. at 516; Adoption of Garret, 92 Mass. App. Ct. 664, 675 n.20 (2018). We do not agree that the findings reflect a disproportionate focus on Mark or that the judge treated the twins as a unit. After making seventy-five findings specifically about Mark, thirty-four findings about Flavia, and fifty-two findings about Helen, the judge approved of the department's permanency plans for the twins in part because the "[f]oster parents have already demonstrated their commitment to addressing each child's unique needs." The judge also "ha[d] no doubt" that the foster parents would "treat [Flavia] and [Helen] as individuals despite the fact that they are twins."

We do agree that the judge's focus on Mark's so-called "sexualized behaviors" at the residential center was misplaced due to a lack of a nexus to the twins,^[13] but once again we conclude that reversal is not required, because the rest of the "findings are amply specific and detailed to support the judge's determination." Adoption of Cadence, 81 Mass. App. Ct. 162, 168-169 (2012). As demonstrated by their omission from our discussion, the findings to which the parties cite are not necessary to the judge's decision. See Care & Protection of Olga, 57 Mass. App. Ct. 821, 825 (2003). Taken as a whole, the judge's analysis reflects appropriate consideration of Mark's history and needs as factors among many bearing on the parents' current and future fitness and the best interests of Flavia and Helen. See Adoption of Luc, 484 Mass. at 145. For the judge, it was the parents' patterns of behavior, not Mark's, that put the twins "at serious risk of peril" if all three children were returned, because she thought it unlikely that the parents would be vigilant about accessing services on behalf of the twins while also doing so for Mark. Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998). Having carefully reviewed the record, "[w]e see no basis for disturbing the judge's view of the evidence." Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997).

Our decision is not changed by information that, in April 2023, while this appeal was pending, a motion by the department to return custody of Mark to the mother was allowed after hearing, and the care and protection petition naming Mark was dismissed. The judge praised the parents for their "demonstrable progress toward being able to address [Mark's] behavioral issues," and so do we. Although we cannot ascertain the reasons from the docket sheet, it is reasonable to think that the department sought to return custody, because after trial the parents had gained the enhanced understanding of trauma and its impact on development that the judge thought necessary to properly care for Mark. When she was making the decisions at issue in this appeal, however, the judge was required "to focus on the present." Adoption of Ramona, 61 Mass. App. Ct. 260, 264 (2004). At that time, each parent "demonstrated a current deficiency in this area." Both "acknowledged that they do not know what [Mark]'s diagnoses are" and were not "prepared with the skills needed to be able to supervise [Mark] were he to return home," despite eight years of engaging with the department and Mark's providers. They were not entitled to an indefinite opportunity to reform. See Adoption of Cadence, 81 Mass. App. Ct. at 166. See also Adoption of Ilona, 459 Mass. at 60 ("childhood is fleeting"). Considering the record "replete with instances in which the parents demonstrate progress and then regress at the expense of the children," the judge decided on balance that the parents were not then, and would not soon be, in a position if all three children were returned home to ensure each attended appointments and services on time, or to provide the heightened level of supervision that is required to protect the children. As to the twins, Mark's reunification with the mother does not undermine this analysis.

We are not persuaded by the parties' claim that G. L. c. 119, § 26B (b), creates a presumption that siblings should be placed together, such that specific findings that it was in each child's best interests were required before the twins could permanently be separated from Mark.^[14] In pertinent part, § 26B (b) provides:

"The court or the department shall, whenever reasonable and practical and based upon a determination of the best interests of the child, ensure that children placed in foster care shall have access to and visitation with siblings . . . if the children or their siblings are separated through adoption or . . . placements in foster care.

"The court or the department shall determine, at the time of the initial placements wherein children and their siblings are separated through placements in foster, pre-adoptive or adoptive care, that sibling visitation rights be implemented through a schedule of visitations or supervised visitations. . . ."

Rather than presume they are to be placed together, the statute protects the rights of siblings who "are separated." The rights protected by G. L. c. 119, § 29B (b), relate to "visitation with siblings," not permanent placements, which are governed by a statute that does not mention siblings. As required by G. L. c. 119, § 26 (b), the judge considered the factors enumerated in G. L. c. 210, § 3 (c), and found factors (ii), (iv), (vi), (vii), (viii), and (xii) applicable to Flavia and Helen. See Adoption of Cadence, 81 Mass. App. Ct. at 167. Then she considered the applicable factors along with the department's permanency plans for Flavia and Helen and found that the plans represented the best ones for each twin's "future stability and success." This was not outside the range of reasonable alternatives where, at the time of trial, Mark lived in the residential home and was not "discharge ready." Obviously, the twins could not permanently be placed with him there. There was no evidence that placing Mark with the twins in their preadoptive home was an option, and the judge found it was not in the twins' best interests to be placed with the parents, for all the reasons we have discussed.

The parties' final claim is that the parents were deprived of impartial justice by the judge's comments on the eighth day of trial, because the comments tipped the scale in the department's favor and reflected bias and prejudgment. Again, we are not persuaded. The department had not yet rested when the judge asked about further evidence, and her comments did not reflect bias when taken in context. In addition to the examples we gave supra, the judge also remarked, "[I]t's not about the [d]epartment not meeting its burden; it's about the cognate and connected issue of what a child's needs are and the parental capacities to meet those needs"; "[M]ind you, I haven't looked at the documentary evidence"; and "I'm not pre-judging the case." The challenged remarks were "issue-spotting alerts," not the sort of premature "weighted assessments of the evidence" that are not permitted, and a close reading of the transcript does not support that the parents were denied due process of law. Adoption of Tia, 73 Mass. App. Ct. 115, 121 (2008). See Adoption of Norbert, 83 Mass. App. Ct. 542, 547 (2013).

2. Posttermination and postadoption visitation with the twins. The parents and the twins challenge the judge's initial decisions to leave postdecree visitation to the discretion of the department and the adoptive parents. All five parties fault the judge for not entering an order on the postdecree sibling visitation motions on February 1, 2023. We review the judge's initial decisions for an abuse of discretion. See Adoption of Xarissa, 99 Mass. App. Ct. at 623-624 (parent-child contact); Adoption of Garret, 92 Mass. App. Ct. at 680-681 (sibling contact). The February 1, 2023 order was based on the judge's interpretation of G. L. c. 119, § 26B (b), which we review de novo. See Adoption of Daphne, 484 Mass. 421, 424 (2020).

a. For the parents. Before mandating posttermination and postadoption visitation between a child and parent whose rights have been terminated, a judge must find both that visitation would be in the child's best interests and that those interests will not be adequately served by the preadoptive or adoptive parent's discretion. See Adoption of Cadence, 81 Mass. App. Ct. at 168. Absent (1) a reason to question the presumption that preadoptive and adoptive parents will act in a child's interest in evaluating whether such visitation is in the child's best interests now and in the future, or (2) a compelling reason requiring that an order be entered to protect the best interests of a child, judges have discretion to leave decisions about parent-child visitation to the sound judgment of the department and preadoptive or adoptive parents. See Adoption of Ilona, 459 Mass. at 66.

Here, the judge considered whether posttermination and postadoption visitation with the parents was in each twin's best interests and concluded that it was, because Flavia and Helen both had a primary attachment to the parents. The judge then considered the foster mother's testimony that her family "would have an open-door relationship with [the] [p]arents, allowing them to see the twins and facilitating contact, including visits, phone calls, and FaceTime, as long as this was in the best interests of all parties involved." "[C]onfident that the foster parents will heed the advice of clinicians and other professionals and be conscientious of the twins' trauma histories and other behavioral and medical issues as they continue to care for the girls," the judge concluded that a specific order for parent-child visitation was not necessary to protect either twin's best interests. Her conclusion was not outside the range of reasonable alternatives.

b. For Mark. In support of her initial orders for sibling visitation, the judge found that the foster parents "have demonstrated an understanding of the importance of the twins' connection to [Mark] and have consistently supported the visitation," which prior to the COVID-19 pandemic consisted of biweekly supervised visits by the twins with Mark and both parents. During and after the pandemic, Mark, Flavia, and Helen had weekly virtual contact with just each other. Mark looked forward to visits with the twins, asked about them frequently, and spoke about them affectionately. He was described as "very, very nurturing to his sisters." Flavia and Helen would like to visit with Mark more often, and their permanency plans recommended "frequent and meaningful contact" with him. The judge found that "it is in [Flavia] and [Helen]'s best interests to continue to have sibling visitation with [Mark]."

Explaining her decision to leave the form and frequency of such visits in the discretion of the department and then the twins' adoptive parents, the judge said, "I have . . . a preadoptive [parent] that I have heard from who I feel confident in her judgment in regarding being able to assess what is in the best interest of the [twins], and that she respects the sibling attachments and bond that they have . . . . I've left it in her sound discretion because I believe that, going forward, she will be in the best position to evaluate what is . . . in the girls' best interest." On this record, we cannot say the judge made a clear error in weighing the factors relevant to the decision such that her initial sibling visitation order falls outside the range of reasonable alternatives. See Adoption of Garret, 92 Mass. App. Ct. at 680-681.

The children's motions, filed in November 2022 and January 2023, stand on different footing. While we appreciate that the judge approached the children's motions as ones to reconsider her initial decisions, because that is what the parties asked her to do, substantively, they were "petition[s] for sibling visitation" under G. L. c. 119, § 26B (b), fourth par., and should have been treated as such. See Care & Protection of Rashida, 488 Mass. 217, 233 (2021), S.C., 489 Mass. 128 (2022), and cases cited (label attached to motion not dispositive). The judge should have considered not whether there were grounds to revisit her initial decisions, but whether sibling visitation was currently reasonable and practical and in the best interests of the petitioning child and "of the minor siblings with whom visitation is sought." Care & Protection of Jamison, 467 Mass. 269, 277 n.20 (2014). See G. L. c. 119, § 26B (b), first par. If the judge concluded that it was, then she should have entered an order.

It is a general rule of statutory construction "that the use of the term `shall' imports a mandatory or imperative obligation." Newton-Wellesley Hosp. v. Magrini, 451 Mass. 777, 785 (2008). The rule "is at its strongest when the protection of rights is involved." Commonwealth v. Cook, 426 Mass. 174, 181 (1997). Previously, sibling visitation was governed by a provision of the general care and protection statute that read, in part, "The court shall, whenever reasonable and practical, and based upon a determination of the best interests of the child, ensure that [State-separated siblings] have access to, and visitation rights with, such siblings." G. L. c. 119, § 26 (5), inserted by St. 1997, c. 43, § 99. We said this language meant that a judge must decide whether and if so how sibling visitation is to occur, and then provide a schedule and conditions of visitation, and on further appellate review, the Supreme Judicial Court "agree[d] that the judge should have specified in an order or orders whether sibling visitation would be in [the subject child]'s best interests; if so, visitation with which siblings; and, if so, the form of visitation (in person contact or otherwise), and the schedule of such visitation." Adoption of Rico, 453 Mass. 749, 753 n.12 (2009), citing Adoption of Rico, 72 Mass. App. Ct. 214, 220-221 (2008).

General Laws c. 119, § 26 (5), was replaced while further appellate review in Adoption of Rico was pending, with a separate section, c. 119, § 26B (b), first par., that twice contains the word "shall" and includes mechanisms for enforcement. See St. 2008, c. 176, § 84. Now, a child in foster care (or the sibling of a child voluntarily placed in foster care) who is "denied visitation rights by the department . . . may appeal through the department's fair hearing process" and then file a petition for review of any decision in the Probate and Family Court, whereupon "[t]hat child or sibling shall have the right to court review by trial de novo." G. L. c. 119, § 26B (b), third par. "For children in the custody of the department," the child or a sibling "may file a petition for sibling visitation in the court committing the child to the custody of the department." G. L. c. 119, § 26B (b), fourth par. If sibling visitation is "reasonable and practical" and in "the best interests of the child," then the court "shall . . . ensure that [the child] shall have access to and visitation with siblings." G. L. c. 119, § 26B (b), first par.

These provisions reflect even more strongly a legislative determination that, where siblings who have been permanently separated through no fault of their own "are dissatisfied with the state of visitation" and seek relief under G. L. c. 119, § 26B (b), Adoption of Garret, 92 Mass. App. Ct. at 680 n.25, the judge must "specif[y] in an order or orders whether sibling visitation would be in" the best interests of the petitioning child and each sibling with whom visitation is sought "and, if so, the form of visitation (in person contact or otherwise), and the schedule of such visitation." Adoption of Rico, 453 Mass. at 753 n.12. See id. at 757 n.16; Adoption of Zander, 83 Mass. App. Ct. 363, 367 (2013). As the court stated in Adoption of Rico, supra at 756-757, "The additional, but highly significant, value of a court order" in this context is that it "provides clarity and, perhaps more importantly, gives the child a present sense of security about [their] ability to maintain contact and a relationship with a person who has been shown to be critical to [them]"; it provides "protection to the child that is absent if the judge leaves all visitation matters up to the department and future adoptive parents." Although in that case the court was discussing parent-child visitation, which differs from sibling visitation in material respects, its reasoning also applies here. Whereas the department has an independent obligation under the statute to ensure sibling visitation, adoptive parents are not so obligated. See Adoption of Garret, supra at 679-681; Adoption of Zander, supra.

While the statute does not expressly state whether a de novo trial may be had on a petition filed pursuant to G. L. c. 119, § 26B (b), fourth par., it is clear to us as a result of the change in circumstances, specifically Mark's reunification with the parents, that further evidence will be required before the judge can enter an appropriate order under G. L. c. 119, § 26B (b). See Adoption of Rico, 453 Mass. at 758 ("current context is critical" to assessing child's best interests). For these reasons, the children's motions, filed in November 2022 and January 2023, are remanded for evidentiary hearing and entry of an order. In the interim, the judge should consider whether a temporary order for sibling visitation is reasonable, practical, and in the current best interests of Mark, Flavia, and Helen. See G. L. c. 119, § 26B (b), first par.

Conclusion. The decrees terminating the mother's and father's parental rights are affirmed. The order entered February 1, 2023, denying the children's motions, is vacated, and the matter is remanded for consideration of those motions consistent with this opinion.

So ordered.

[1] Adoption of Helen. The children's names are pseudonyms.

[2] Our use herein of the word "visitation" is not meant to exclude virtual contact, which the children also sought.

[3] We refer to the father of Flavia and Helen as "the father" throughout our decision. Although the father is not Mark's biological father, he is the only father figure that Mark has known. Mark's biological father stipulated to the termination of his parental rights.

[4] In particular, the parties maintain that the judge overstated the needs of each twin and unreasonably inferred that those needs were, at least in part, a result of the parents' caregiving; erroneously found that removal from the foster home would cause each twin "severe psychological and emotional harm"; and weighed the bond between each twin and the foster family too heavily and manipulated the testimony of the bonding expert to reach the conclusions she wanted.

[5] The parents moved seven times in the four years between the twins' birth and their removal and again the week before trial began.

[6] In 2017, the parents failed to notice Helen playing near an industrial dryer at the mother's place of work. Helen's shirt became lodged in the dryer's moving gears, pulling in her arm and resulting in injuries requiring multiple surgeries to reattach her thumb and repair damage to her skin. Throughout 2018, when Mark returned to the residential center after off-site visits with the parents, he frequently had minor injuries. In 2019, Mark collided with a car and broke his arm at a time when the father claimed to have been watching him, and then the parents failed to take him to the hospital until the next day. See Adoption of Anton, 72 Mass. App. Ct. 667, 676 (2008) ("Where a parent is ineffective in obtaining medical care for a child, causing neglect of the child, it is relevant to finding of unfitness").

[7] For example, the judge found that the mother did not testify credibly when she claimed to store her prescribed Adderall elsewhere to prevent tempting the father, who by then had relapsed, and that she failed to testify credibly or consistently about how much alcohol she consumed at various times throughout the case. The judge likewise "did not credit Father's testimony regarding his and Mother's use of alcohol."

[8] Flavia "requires supervision to ensure she is not aggressive or overpowering in peer interactions," while Helen "needs consistent redirection and supervision, as she has hygiene, dissociation, and learning difficulties that require skilled caregivers to monitor." Helen also becomes emotionally dysregulated when correction is used, "even just verbal correction or instruction. . . . Even when a correction was given by the foster parents in a whisper, [Helen] would sometimes appear to dissociate. . . . Any kind of physical touch, even a gentle rub on the back, would trigger an aggressive response, usually punching or kicking."

[9] The father frequently perpetrated abuse on the mother while some or all the children were present and was arrested multiple times for assaulting the mother, who at one point obtained an abuse prevention order against him.

[10] The mother testified that there was no reason for the removal.

[11] The mother denied and minimized diagnoses for which she was prescribed and took medication and made claims about storing her Adderall that the judge did not credit; the father also lied about medications, testifying that he was taking them as prescribed when he had stopped taking them without consulting his psychiatrist. In addition, while trial was ongoing, the father slept through a scheduled parent-child visit before presenting to a social worker as agitated, anxious, and incoherent — "conclusive evidence" for the judge that the father had "not developed an appreciation for the severity of his mental health conditions or an adequate understanding of how to manage them or his sobriety effectively."

[12] Flavia's "aggression [wa]s minimal, and she no longer ha[d] frequent enuretic episodes," while Helen was "able to self-regulate and reengage more quickly after a dissociative episode."

[13] None of the behaviors cited by the judge was directed at the twins or any other young girl or demonstrated after August or September of 2021. Although the judge found that Mark "needs to be touching someone when speaking to them or will try to put his hands on someone when he is talking to them" and that he "exhibited this behavior with the twins during visits as well," she did not find, and there was no suggestion, that the behavior was sexual or negatively affected either twin. To the contrary, the judge found that Mark tried to help Helen when she exhibited dysregulated behavior during visits, and there was testimony that "physical reassurance" helped Helen manage transitions.

[14] The parties also cite to 110 Code Mass. Regs. § 7.101 (2009), in support of this argument, but we do not address the regulatory claim, because it was not raised below. The joint motion for orders stated that "110 [Code Mass. Regs.] § 7.210 provides that [the department] will provide necessary services to families post-adoption," but this contention is not pressed on appeal."

CHILD WELFARE - A MASSACHUSETTS WRONGFUL EMERGENCY REMOVAL?

Sabey v. Butterfield, Dist. Court, D. Massachusetts 2024:

"Joshua Sabey and Sarah Perkins are the parents of two young children who were removed from their home at 1:00 A.M. on a Saturday morning by the Massachusetts Department of Child and Family Services ("DCF") with the assistance of police officers from the City of Waltham. The forced removal took place without a warrant three days after an emergency room doctor discovered that the youngest child had two healing rib fractures, the cause of which was uncertain. Sabey and Perkins, individually and on behalf of their two children, brought suit against the City of Waltham, the four police officers who were present at the removal, and the DCF employees involved in the removal in their personal capacities. Both the DCF Defendants and the City of Waltham have moved to dismiss. After review of the briefing and oral argument, the Court ALLOWS the City of Waltham's Motion to Dismiss (Dkt. 39) and ALLOWS the DCF Defendants' Motion to Dismiss (Dkt. 30) with respect to Count VIII only; the latter motion is otherwise DENIED.

BACKGROUND

The facts below are taken from the Complaint and are assumed to be true.

I. Hospital Visit on July 12-13, 2022

At the time of the events, the older child ("C.S. 1") was three years old and the younger child ("C.S. 2") was three months old. On July 12, 2022, C.S. 2 began vomiting and developed a fever. At around 2:00 A.M., Perkins took him to the emergency room at Newton Wellesley Hospital with a 103.5 degree fever. Sabey remained home with C.S. 1. At the hospital, it was determined that C.S. 2 had low oxygen levels and a respiratory infection. In order to check his lungs for possible pneumonia, C.S. 2 was given an x-ray.

The x-ray revealed a healing rib fracture, which was estimated to be between ten days and six weeks old. This discovery prompted an internal hospital investigation. Perkins was informed of the fracture at 8:00 A.M. on July 13, and was questioned about the source of the injury. She responded that neither she nor her husband knew about the rib fracture and did not know what could have caused it. The hospital then ordered more detailed imaging and further testing of C.S. 2, including a full skeletal exam, which showed that the rib injury actually comprised two adjacent healing rib fractures. The hospital requested permission to conduct a brain scan, which Perkins initially declined. The brain scan did not reveal any cause for concern.

As part of the hospital investigation, social worker Jill Saks conducted interviews with Perkins at the hospital that day When pressed by the social worker to speculate, Perkins suggested that the injuries may have been caused by C.S. 2's short fall from bed several weeks before, which had not resulted in any apparent injury. Perkins denied any physical or substance abuse in the home. Hospital officials also spoke with the family's pediatrician, Dr. Kristen Haddon, who reported that she had no concerns about C.S. 2's safety and well-being. At the hospital's request, C.S. 1 was brought to the pediatrician to be medically cleared. After a thorough examination, the pediatrician found no signs of abuse, mistreatment, or injury. That same day, the social worker sent a report to DCF alleging physical abuse of C.S. 2 by his parents. The report outlined the injuries to C.S. 2's ribs and stated that Perkins's "affect" was "flat" and that she "rolled her eyes" when questioned. The report also indicated that the rib fractures were not consistent with a fall from a bed.

Shortly after receiving the report from the hospital, DCF sent emergency response workers Axel Rivera and Ana Piedade to the hospital to further investigate whether there were indications of abuse or neglect. The hospital officials informed them that, with the exception of the rib fractures, there were no signs of physical abuse, no signs of substance abuse, and that the family's pediatrician had told hospital officials that she had no concerns about the children's wellbeing. After speaking with hospital officials, Rivera and Piedade individually interviewed Sabey, Perkins, and C.S. 1. After the interviews, Sabey and C.S. 1 returned home while Perkins and C.S. 2 were required to stay at the hospital overnight. That night, Piedade and Rivera went to the family's home in Waltham, where they reported no concerns.

II. The Investigation Continues on July 14-15

The next morning, at about 9:30 A.M. on July 14, Rivera spoke with Dr. Haddon. Dr. Haddon reported no concerns and was surprised to hear of the injuries. Additionally, Dr. Haddon told Rivera that C.S. 2 was medically up to date and that his parents take him to monthly pediatrician visits, none of which had revealed any concerns of abuse, injury, or neglect. In addition to speaking with the family's pediatrician, Rivera also spoke with Dr. David Dominguez, who had completed the medical clearance on C.S. 1 the previous day. Dr. Dominguez reported no concerns with C.S. 1 Rivera also contacted the Waltham Police Department to request background checks on Sabey and Perkins. Their background checks showed that there had been no police calls to the home and revealed no concerns with either parent.

At about 3:00 P.M. on July 14, DCF officials allowed Perkins and C.S. 2 to leave the hospital and return home. That same day, around 5:00 P.M., Rivera spoke with Sabey over the phone about a safety plan for the family, which he subsequently emailed. The family agreed to sign the safety plan and to have a home visit on July 18.

Defendant Katheryn Butterfield, an Area Program Manager for DCF, was informed of the C.S. 2 investigation the following day, July 15. Soon after learning of the investigation, Butterfield ordered Rivera to go to the Sabey home and to provide her with an update after the visit. At about 5:15 P.M. that day, Rivera conducted an unannounced home visit. He spoke with the family, observed both children, and ultimately reported no concerns. Rivera reported that C.S. 1 "was walking around and was smiling," while C.S. 2 "looked presentable" while being held by his visiting grandmother. Dkt. 1 at 11. During this unannounced home visit, Rivera and the family agreed to also move forward with the previously scheduled July 18 home visit.

III. Removal of the Two Children

At 6:00 P.M. that same day, a Friday, after receiving confirmation from Rivera that he had completed his unannounced visit to the home, Butterfield made the decision to remove the children from the home. She made this determination based on the hospital's discovery of C.S. 2's healing rib fractures and not on any new evidence or information found during DCF's investigation. At approximately 8:00 P.M., Defendant Butterfield called Defendant Aaron Griffin, a supervisor with DCF, to discuss a plan for the removal. About an hour later, at 9:00 P.M., Defendants Carolyn Kalvinek and Bonnie Arruda, officers with DCF, were contacted and asked to proceed with the removal of the children from the home. After a conversation with Defendant Griffin to gather more information about the case and removal plan, Defendants Kalvinek and Arruda went to the Waltham Police Department ("WPD") station at around 12:30 A.M. to request assistance in removing the Sabey children. At approximately 1:00 A.M., Kalvinek and Arruda from DCF, together with three police officers from WPD — Defendants Anthony Scichilone, Elias Makrigianis, and Stefano Visco — arrived at the Sabey home.

The Sabey home was a rented ground-floor apartment in a shared building. It shared a common entryway, or breezeway, with a closed outer front door that faced the street and was usually locked. The family accessed their apartment through this front door since their apartment door was located just inside the front door within the breezeway. The stairs within the breezeway led to the upstairs tenants' apartment, but those tenants rarely used the front door and preferred to enter their unit through a separate external door. As a result, the family used the breezeway as an extension of their home, often locking the outer door and using the space to store personal property, such as car seats and strollers.

When the DCF and WPD officers arrived at the Sabey home, the police officers, Defendants Makrigianis and Visco, opened and entered through the outer front door into the breezeway. While standing within the breezeway, Defendant Makrigianis knocked on the inner door to the home. Sabey answered the inner door and asked the officials if they had a warrant; they informed him they did not. In response, Sabey refused to allow the DCF workers and WPD officials to enter the apartment, telling them to leave and return with a warrant or other court order. The officials remained on the property, including the breezeway, despite Sabey's repeated requests that they leave and return with a warrant or other court order. One police officer stood against the front outer door, intentionally jutting his elbow into the threshold to prevent any attempt to close the outer door. Another officer stood on the bottom step of the stairs within the breezeway, flanking the door to the home on the left.

Eventually, the police officers told the family that DCF was taking emergency custody of both children. None of the officials had any paperwork on them. Instead, they claimed repeatedly (and falsely) to have an "emergency order" that authorized them to take the children. Dkt. 1 at 16. Concerned about the lack of paperwork, Defendant Scichilone contacted his supervisor, Defendant Richard Couture, to seek guidance about the removal. Sabey called the family's lawyer, who then spoke with Defendant Couture and other officials from DCF and WPD. Defendant Couture and WPD officers informed the lawyer that if the parents did not surrender the children, then the officers would break into the home and seize the children by force. Faced with this alternative, the parents woke their children up and placed them, crying, into the DCF vehicle.

After removing the children at about 2:30 A.M. on Saturday, July 16, Defendants Kalvinek and Arruda placed them in the care of a foster parent. Later that day the children were placed in the care of their paternal grandparents.

The following Monday, July 18, at approximately 4:15 P.M., almost three days after the removal of the Sabey children from the home, DCF filed a petition with the Juvenile Court seeking permission to continue its custody of both C.S. 1 and C.S. 2. The court granted that petition, gave emergency custody of the children to DCF, and scheduled a temporary custody hearing.

The temporary custody hearing began on August 8, and lasted three days. At the conclusion of the hearing, temporary custody of the children was returned to their parents, subject to conditions. DCF proceeded with an almost four-month investigation, which ultimately failed to uncover any evidence of abuse, neglect, or maltreatment of the children by their parents. For the next three months the parents did not have full custody of their children.

LEGAL STANDARD

To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the factual allegations in a complaint must "possess enough heft" to set forth "a plausible entitlement to relief." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 559 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level." Id. at 555. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In addressing a motion to dismiss, the Court must accept all allegations in the complaint as true except legal conclusions. Id.

A preliminary issue is whether the Court should consider DCF's "Section 51B" investigative report of Sabey and Perkins, which was not annexed to the Complaint but was referenced in it. Defendants argue that the report, and certain audio recordings, should be considered. A court may consider the allegations contained in the complaint and materials "fairly incorporated into the complaint." Rodi v. S. New Eng. Sch. of L., 389 F.3d 5, 12 (1st Cir. 2004). Defendants point out that the Complaint refers to information in the report, particularly with respect to the sequence of events. They ask the Court to consider the eighteen-page report in its entirety, including conclusions by DCF that the injuries were nonaccidental. Though the report will likely be considered at summary judgment, I do not agree that it was fairly incorporated in its entirety into the Complaint. Defendants' reliance on Goodall v. Worcester School Committee is misplaced because the District Court there ultimately declined to rely on the extraneous exhibits. 405 F. Supp. 3d 253, 259-60 (D. Mass. 2019).

DISCUSSION

I. Claims Against DCF Defendants in Violation of Fourth and Fourteenth Amendments (Count I)

Plaintiffs allege in Count I that the DCF Defendants conducted an unreasonable search and seizure of their house and curtilage in violation of the Fourth and Fourteenth Amendments. They assert there were no exigent circumstances justifying the warrantless entry, that they did not consent to the search, and the entry was by threat of force. The DCF Defendants argue that exigent circumstances justified the warrantless entry.

The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV. The core of the Fourth Amendment is the right of a family to retreat into their own home and "there be free from unreasonable governmental intrusion." Florida v. Jardines, 569 U.S. 1, 6 (2013) (quoting Silverman v. United States, 365 U.S. 505, 511 (1961)) ("But when it comes to the Fourth Amendment, the home is first among equals"). Absent exigent circumstances, the threshold of a home "may not reasonably be crossed without a warrant." Payton v. New York, 445 U.S. 573, 590 (1980). This protection includes the "curtilage" which is the area "immediately surrounding and associated with the home." Collins v. Virginia 584 U.S. 586, 592 (2018) (quoting Jardines, 569 U.S. at 6). The "Fourth Amendment requires government officials, including social workers, who go to a home to investigate reported child abuse or neglect allegations for the purpose of assuring the well-being of the child to obtain a warrant unless an exception to the warrant requirement applies." Goodall, 405 F. Supp. 3d at 273 (citing Andrews v. Hickman Cnty., 700 F.3d 845, 861 (6th Cir. 2012)).

The exigent circumstances exception to the warrant requirement applies when the exigency of the situation makes the need of law enforcement so compelling that a warrantless search is "objectively reasonable." Lange v. California, 141 S. Ct. 2011, 2017 (2021). For example, an officer may enter a home without a warrant to render emergency assistance to an injured occupant. Id. The exigent circumstances exception must be analyzed on a caseby-case basis by looking at the "totality of circumstances" confronting the officer. Id. at 2018.

In addition to the exigency exception, the First Circuit has held that an officer's entry into a home may be exempted from the warrant requirement under the so-called "special need" exception. See McCabe v. Life-Line Ambulance Serv., Inc., 77 F.3d 540, 545 (1st Cir. 1996). In McCabe, the First Circuit permitted warrantless entry into a home when police officers executed a "pink paper," which is an order authorized by a licensed psychiatric physician for involuntary commitment for a medical psychiatric examination. Where there is an "important administrative or regulatory purpose . . . which would be undermined systematically by an impracticable warrant or probable-cause requirement," no warrant is necessary Id. However, the First Circuit has declined to extend the special need exception beyond the "pink sheets" context. See Hill v. Walsh 884 F.3d 16, 22 n.2 (1st Cir. 2018).

Defendants' reliance on Wilmot v. Tracey is misplaced. In Wilmot the Court rejected a Fourth Amendment challenge to the warrantless entry into a home by DCF. 938 F. Supp. 2d 116, 128 (D. Mass. 2013) (involving a family member alleging ongoing physical and sexual child abuse). The key distinction is that the wife consented to entry of DCF. Id. at 137-38. Moreover, the court found that the warrantless entry into the home fell within the exigent circumstances exception because of the information of past and ongoing abuse. Id. at 138.

Here, Plaintiffs allege they did not consent and the entry at 1:00 A.M. was by threat of force. Though the youngest child was found to have two rib fractures, the injuries here were not new and were healing. The DCF investigation revealed that the children's pediatrician had no concerns about either child. The parents were cooperative at the home visit and the children seemed happy. Importantly, there was no warrant or court order — and plenty of time to get one. When all reasonable inferences are drawn in favor of the moving party, Plaintiffs state a viable Fourth Amendment claim.

As a backstop, the DCF officers contend that they are not liable for the alleged search and seizure because it was the police officers, not they, who entered the property. However, the First Circuit has held that in such circumstances liability may arise through a joint tortfeasor theory when each defendant has "intentionally engaged in a series of acts that would foreseeably result in some member of the team inflicting constitutional injury." Eldrege v. Town of Falmouth, 662 F.3d 100, 105-06 (1st Cir. 2011). According to the Complaint, the decision to remove the children was a team effort. It was made in the first instance by Defendant Butterfield. She discussed the case and the process of removal with Defendant Griffin, who in turn discussed the removal with Defendants Kalvinek and Arruda. Kalvinek and Arruda appeared with WPD officers at Plaintiffs' home without a warrant at 1:00 A.M. and took the children without a court order. At the very least, these alleged actions are enough to give rise to a plausible inference that each of the DCF Defendants understood that their affirmative actions would foreseeably result in a violation of the family's Fourth Amendment rights.

II. Unreasonable Seizure of the Children in Violation of the Fourth Amendment (Count II) and Deprivation of Parental Rights in Violation of Fourteenth Amendment (Count III)

The DCF Defendants move to dismiss Count II for unreasonable seizure of the children and Count III for deprivation of parental rights in violation of the Fourteenth Amendment.

"The interest of parents in the care, custody, and control of their children is among the most venerable of the liberty interests embedded in the Constitution." Hatch v. Dep't for Child., 274 F.3d 12, 20 (1st Cir. 2001) (citing Troxel v. Granville, 530 U.S. 57, 65 (2000)). "As such, it is protected by the Due Process Clause." Id. However, "[i]n cases where the safety of the child is at risk, there are competing liberty interests, and so the parents' rights are not absolute." Suboh v. Dist. Att'y's Off., 298 F.3d 81, 91 (1st Cir. 2002).

Generally, "the question of what process is due involves weighing of the different interests of the child, the parents, and the state." Id. at 92 (citing Hatch, 274 F.3d at 20). Accordingly, "[d]ue process protects a parent's rights even when a state temporarily removes a child before obtaining a court order," and "the state may place a child in temporary custody only when it has evidence giving rise to a suspicion that the child has been abused or is in imminent danger." Id.

Defendants argue that DCF had a reasonable basis for believing removal was necessary. By statute, DCF may take a child into temporary custody when it "has reasonable cause to believe that removal is necessary to protect a child from abuse or neglect." Mass. Gen. Laws ch. 119, § 51B(e). By regulation, a "child may be immediately taken into custody if, after viewing the child, the Department's response worker finds reasonable cause to believe . . . [t]he nature of the emergency is such that there is inadequate time to seek a court order for removal." 110 Mass. Code Regs. § 4.29(2).

Here, an emergency physician diagnosed two broken ribs in a three-month-old boy. The ribs had been broken days or weeks before and were healing. The pediatrician saw no signs of abuse in either child. Defendants point to information in the 51B report which supported a reasonable suspicion that the broken ribs were a sign of child abuse in the three-month-old, but this information is outside the four corners of the Complaint and more properly addressed at summary judgment. Moreover, there is no information about child abuse concerning the three-year-old. When all reasonable inferences are drawn in Plaintiffs' favor, the Complaint states a plausible claim that DCF Defendants lacked reasonable suspicion of child abuse.

III. Claims Against DCF Defendants Alleging Violation of Article 14 of the Massachusetts Declaration of Rights (Counts VI, VII)

Plaintiffs assert constitutional claims under state law Count VI (unreasonable search and seizure of the house and curtilage in violation of the Massachusetts Declaration of Rights and Count VII (unreasonable seizure of the children in violation of the Massachusetts Declaration of Rights). To state a claim under state law, plaintiffs must plausibly allege that there was interference of their rights through "threats, intimidation, or coercion," which Defendants argue the Complaint fails to do. Bally v. Ne. Univ., 532 N.E.2d 49, 51-52 (Mass. 1989).

As alleged in the Complaint, Plaintiffs only handed their children over to DCF after being told that if they refused to do so, the children would be taken by force. Accordingly, Counts VI and VII have been adequately pled.

IV. Qualified Immunity

"Determining whether qualified immunity is available to a particular defendant at a particular time requires a trifurcated inquiry." Hatch, 274 F.3d at 20. First, it must be determined "whether the plaintiff has alleged the violation of a constitutional right." Id. Next, if a constitutional right violation is identified, then the Court evaluates "whether the contours of the right were sufficiently established at the time of the alleged violation." Id. This step consists of two subquestions: the Court must determine whether (1) "the contours of the right, in general, were sufficiently clear," and (2) if, under the specific facts of the case, an objectively reasonable official would have believed that the action taken or omitted violated the right at issue. Hunt v. Massi, 773 F.3d 361, 367 (1st Cir. 2014) (quoting Ford v. Bender, 768 F.3d 15, 23 (1st Cir. 2014)). These three inquiries are made in a sequence, "mindful that a single negative answer suffices to defeat the plaintiff's claim for damages." Hatch, 274 F.3d at 20.

Plaintiffs have alleged violations of constitutional right that are sufficiently established, the contours of which are clear, and which a reasonable official would understand themselves to be violating if they engaged in the alleged conduct: the Fourth and Fourteenth Amendment right to be free of warrantless searches in the home and seizures absent exigent circumstance, a court order, warrant, or consent; and the Fourteenth Amendment right to due process before the State impinges on the right to family integrity The Defendants vigorously assert that they had a reasonable belief that child abuse had occurred. However, the Court must draw all reasonable inferences in favor of Plaintiffs. Qualified immunity on all constitutional counts is more properly addressed at summary judgment when the court will consider a full record. Accordingly, DCF Defendants' motion to dismiss Count I is DENIED without prejudice.

V. Claims Against DCF Defendants Alleging Violation of the Massachusetts Privacy Act

The Massachusetts Privacy Act provides parties with a private right of action to defend against "unreasonable, substantial or serious interference" with privacy. Mass. Gen. Laws ch. 214, § 1B. Defendants argue that this claim should be dismissed because (1) the DCF Defendants are protected by the common law doctrine of immunity, and (2) because the DCF Defendants did not engage in "unreasonable, substantial or serious" interference with Plaintiffs' rights.

Common law immunity is broader than qualified immunity. "At common law, . . . a public official, exercising judgment and discretion, is not liable for negligence or other error in the making of an official decision if the official acted in good faith, without malice, and without corruption." Chaney v. City of Framingham, No. 18-10413, 2019 WL 6496842, at *7 (D. Mass. Dec. 3, 2019) (quoting Nelson v. Salem State Coll., 845 N.E.2d 338, 348 (Mass. 2006)). Though the Complaint alleges a substantial invasion of privacy, it does not allege that those violations were the result of bad faith, malice, or corruption. Accordingly, DCF Defendants' motion to dismiss Count VIII is ALLOWED.

VII. Monell Claims Against the City of Waltham for Violation of Due Process (Counts IV and V)

Municipalities become liable for the constitutional violations of their employees when those violations are attributable to a custom or practice of the municipality. Bordanaro v. McLeod, 871 F.2d 1151, 1156 (1st Cir. 1989). Courts routinely require evidence of a pattern of similar past violations to support a municipal liability claim. See Connick v. Thompson, 563 U.S. 51, 62 (2011). When a Monell claim is pursued under a failure to train theory, "the unconstitutional consequences of failing to train could be so patently obvious that a city could be liable under § 1983 without proof of a pre-existing pattern of violations." Id. at 64.

The Complaint does not allege any specific facts suggesting that the City of Waltham has any policy, custom, or established practice of depriving persons of their constitutional rights through illegal searches and seizures of the home (Count IV) or by stripping them of their parental rights without due process (Count V). Plaintiffs argue that their Monell claims are well pled because the egregiousness of the alleged constitutional violations demonstrates that either the police were conforming with an unconstitutional policy or established practice, or that the City failed to train the officers to respect Plaintiffs' constitutional rights.

These arguments are unavailing. The violations alleged — that the police officers, informed by DCF that there was reason for emergency removal, effectuated the removal — do not rise to the level of egregiousness that has allowed courts to infer Monell liability in the absence of allegations of specific failures to train. See, e.g., Connick, 563 U.S. at 63-64 (holding that a district attorney's office cannot be held liable under a § 1983 claim based on a single Brady violation). Accordingly, the City of Waltham's Motion to Dismiss Count IV and Count V (Dkt. 39) is ALLOWED.

ORDER

For the foregoing reasons, Defendants City of Waltham's Motion to Dismiss (Dkt. 39) is ALLOWED. The DCF Defendants' Motion to Dismiss (Dkt. 30) is ALLOWED with respect to Count VIII only, and is otherwise DENIED. The Court also denies the motion to dismiss based on qualified immunity.

SO ORDERED.

MASSACHUSETTS LAW - NOTICE OF ADOPTION TO UNMARRIED FATHER WITH NO ORDER OF PATERNITY

Apparently, the father never sought a paternity order or any order for visitation, custody, etc. An interesting question came to me today: mother is expecting and wants to give it up for adoption and father objects. The best approach for unmarried fathers who believe that the mother may not acknowledge them on the birth certificate is to seek a paternity order ASAP.  

IN RE ADOPTION OF ARLENE, Mass: Appeals Court 2022:

"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, XXXXX-XXXX; (617) 557-1030; SJCReporter@sjc.state.ma.us

ENGLANDER, J.

The putative father^[2] of Arlene (child) appeals from an adoption decree entered by the Probate and Family Court, which granted a petition for adoption filed by the child's mother and the mother's husband (the child's stepfather). The putative father did not receive notice of the adoption proceedings, and the adoption decree entered while the putative father's petition to establish paternity was pending in Alaska State court, where the mother and the child had lived before coming to Massachusetts. The putative father contends, and we agree, that in these circumstances the lack of notice deprived him of his due process rights under the United States Constitution. We therefore remand this matter for the father to be afforded the opportunity to prove his paternity and, if proved, for further proceedings on the merits of the adoption petition.

Background.

We summarize the findings of the Probate and Family Court judge, supplementing them with undisputed evidence in the record where necessary. The mother and the putative father met online in 2010, and eventually in person in April 2011. When they met, the mother had one child from a prior relationship and was also pregnant with another child. In June 2011, the mother and the putative father began residing together in Florida. In late 2012, the mother learned that she was pregnant with the child and told the putative father, "[W]e are pregnant." During the probable period of the child's conception, the mother and the putative father had engaged in sexual intercourse, and the putative father believed that they were in an exclusive relationship. They informed their families of the pregnancy and agreed that the child would have the putative father's last name.

The child was born in April 2013. The putative father was present at the child's birth, but his name was not listed on the child's birth certificate at the mother's request, because the birth certificates of her two other children did not have a father listed. The putative father believed that he would eventually be listed on all three children's birth certificates. The child did, however, have the putative father's surname listed as one of her middle names. Following the child's birth, the putative father continued to live with the mother and the child, provided the child with financial support, took her to doctors' appointments, and did activities with her (including reading books and coloring together). The mother listed the putative father as the child's emergency contact in November 2015. When the child learned to speak, she called the putative father "father" and his parents "grandmother" and "grandfather," respectively.

In 2017, when the child was approximately four years old, the parties moved to Alaska. At some point, the putative father's relationship with the mother ended, although the father did see the child a number of times while they were in Alaska. The putative father last saw the child in March 2018; thereafter, the mother did not allow him to visit the child. In April 2018, the mother and the child traveled from Alaska to Massachusetts. At the time the mother left, the putative father believed that the trip was temporary; however, the mother remained in Massachusetts with the child and eventually married her current husband.

Within weeks of the mother and the child leaving, on May 11, 2018, the putative father, while still in Alaska, filed a complaint to establish paternity and custody in Alaska Superior Court (Alaska paternity complaint), in which he requested a genetic marker test for the child. In June or July 2018, the father filed a parental responsibility claim form with the Massachusetts Department of Children and Families (DCF) pursuant to G. L. c. 210, § 4A,^[3] asserting that he was the child's father, receipt of which DCF confirmed in a letter dated July 30, 2018.

Meanwhile, on July 11, 2018, the mother and her husband filed a petition for adoption in the Massachusetts Probate and Family Court, together with a motion for waiver of notice to DCF, which motion was allowed. The petition for adoption was accompanied by an "Affidavit Disclosing Care or Custody Proceedings" (affidavit disclosing other proceedings), signed by the mother's husband on June 27, 2018, which averred that the husband had no knowledge "of other care or custody proceedings involving the [child] in Massachusetts or in any other state or country." Although the affidavit disclosing other proceedings was signed only by the mother's husband, it was accompanied by an "Affidavit of Petitioner for Adoption" that was signed by the mother and listed her as a copetitioner.

On August 14, 2018, the mother and her husband filed a "Motion to Waive Notice" in the Massachusetts adoption proceedings, which argued, among other things, that notice to the putative father was not required under G. L.c. 210, § 4.^[4] The motion did not inform the Probate and Family Court of the pending paternity action in Alaska.^[5], ^[6]

The motion to waive notice of citation was allowed, and thereafter the adoption decree entered on December 27, 2018, indicating that "notice was waived" because it was a "step parent adoption." The putative father did not receive any notice of the Massachusetts adoption proceedings before the adoption decree entered. It was not until several months later, in March 2019, that the putative father's Alaska counsel was informed by the mother's Alaska counsel (who had been informed by the mother's Massachusetts counsel) of the adoption.^[7] Eventually, after further motion practice to obtain the confidential adoption records from the Massachusetts Probate and Family Court, the putative father received a copy of the adoption decree on April 17, 2019.

On August 14, 2019, the putative father filed a petition in the Supreme Judicial Court seeking leave to appeal from the adoption decree pursuant to G. L. c. 210, § 11. On December 11, 2019, the Supreme Judicial Court issued an order remanding the matter to the Probate and Family Court for the limited purpose of addressing the statutory prerequisites for appealing under G. L. c. 210, § 11.^[8] A judge of the Probate and Family Court then held an evidentiary hearing, at which the putative father came to Massachusetts and testified. The judge found, among other things, that the putative father (1) did not receive notice before the adoption decree entered, (2) did not waive notice, nor was he the subject of a decree dispensing with the need for notice; and (3) did file a notice of appeal within 120 days of receiving actual notice. On March 10, 2021, the Supreme Judicial Court issued an order allowing the putative father to proceed with this appeal.

Discussion.

The putative father contends that he was deprived of his liberty interest, as the child's father, without due process, because that right was terminated by the adoption decree without notice or a meaningful opportunity to be heard. For the reasons that follow we agree, in light of the particular circumstances of the putative father's parental relationship with the child. Before jumping into the constitutional due process analysis, however, we first need to discuss the notice and consent framework of the Massachusetts adoption statute, G. L. c. 210, as the mother contends, incorrectly in our view, that the putative father was not entitled to notice under that statute.

1. Adoption statute.

"Adoption of children in the Commonwealth is governed by G. L. c. 210 . . . `The law of adoption is purely statutory, . . . and the governing statute, G. L. c. 210[], is to be strictly followed in all its essential particulars.'" Adoption of a Minor, 471 Mass. 373, 374 (2015), quoting Adoption of Tammy, 416 Mass. 205, 210 (1993). Two sections of the adoption statute, § 4 and § 4A, address persons required to be notified upon the filing of a petition for adoption. Of these, the important provision for present purposes is § 4, which requires notice to any person listed in G. L. c. 210, § 2, who has not given their consent to the adoption, and which further permits the court to "require additional notice and consent." G. L. c. 210, § 4.^[9]

The difficulty in this case is that the putative father does not appear to fall into any of the express categories of § 2 of the adoption statute, for which notice is required by § 4. Those categories in § 2 include (1) the child, "if above the age of twelve;" (2) "the child's spouse, if any"; (3) the child's "lawful parents"; and (4) "the mother only if the child was born out of wedlock and not previously adopted." G. L. c. 210, § 2. Of these, the only category the putative father could possibly fit is "lawful parent" — a term that is not expressly defined in the adoption statute. See G. L. c. 210, §§ 1 et seq.; Adoption of a Minor, 471 Mass. at 376-379. However, with respect to children born out of wedlock, G. L. c. 209C sets forth two methods of establishing legal paternity: a voluntary acknowledgment of parentage executed by both parents (a form unmarried parents complete to list the father on the birth certificate), or a formal adjudication of paternity by a judge. See G. L. c. 209C, §§ 1, 2, 5, 11; Culliton v. Beth Israel Deaconess Med. Ctr., 435 Mass. 285, 289 (2001). See also G. L. c. 209C, § 10(b) ("Prior to or in the absence of an adjudication or voluntary acknowledgment of paternity, the mother shall have custody of a child born out of wedlock"). Here, because the putative father did not execute a voluntary acknowledgment of parentage with the mother, nor has his paternity been formally adjudicated by a judge, he does not appear to be a "lawful parent" for purposes of G. L. c. 210, § 2.^[10]

The mother accordingly contends that the father was not entitled to notice under the adoption statute because neither § 4 nor § 4A explicitly requires notice of an adoption proceeding to the putative father of a child born out of wedlock, where the mother has retained her parental rights.^[11] The mother relies in particular on dicta from Adoption of a Minor, 471 Mass. at 375, in which the Supreme Judicial Court stated that "G. L. c. 210, § 4, requires notice of a petition for adoption to be given only to those persons from whom written consent to the adoption must be obtained . . . and a person who does not fit into one of the statutory categories is not entitled to notice" (quotation and citation omitted).

We do not, however, read § 4 or Adoption of a Minor to state that a person who does not fit into the statutory "categories" is never entitled to notice, even under circumstances where that person is entitled to notice under the United States Constitution. Rather, § 4 identifies certain persons who must always be notified (i.e., persons whose consent is required under § 2, and who have not consented), but it also provides judges with the ability to "require additional notice and consent." This language contemplates, and makes provision for, the potential need for notice to persons not falling squarely within the § 2 categories. See G. L. c. 210, § 4. We note that in Adoption of a Minor, the Supreme Judicial Court was not faced with the issue presented here — that is, whether a putative father of a child born out of wedlock, who does not fit into one of the statutory categories, nevertheless has a due process right to receive notice of a pending stepparent adoption. Consistent with the general rule that "we assume that the Legislature intends its statutes to pass constitutional muster, and therefore `we construe statutes to avoid constitutional problems where possible,'" Chapman, petitioner, 482 Mass. 293, 305-306 (2019), quoting Commonwealth v. Maloney, 447 Mass. 577, 589 (2006), we construe G. L. c. 210, § 4, as requiring notice not only to the persons specifically identified in § 2, but also to any person having a due process right to notice under the United States Constitution. See Commonwealth v. Jones, 471 Mass. 138, 143 (2015) ("a statute is to be construed where fairly possible so as to avoid constitutional questions" [citation omitted]); Commonwealth v. Kenney, 449 Mass. 840, 851 (2007), citing Commonwealth v. Lammi, 386 Mass. 299, 301 (1982) (court must presume every enactment of Legislature intended to comply with constitutional constraints).

2. Putative father's constitutional right to notice.

Against this backdrop, we turn to the question whether the putative father in this case was constitutionally entitled to notice of adoption proceedings that would terminate his parental rights. The interest of parents "in the care, custody, and control of their children `is perhaps the oldest of the fundamental liberty interests recognized by [the United States Supreme] Court.'" Adoption of Patty, 489 Mass. 630, 638 (2022), quoting Care & Protection of M.C., 479 Mass. 246, 256 (2018), S.C., 483 Mass. 444 (2019). "Before parents can be deprived of custody of their child, therefore, the requirements of due process must be satisfied." Adoption of Patty, supra. As bedrock as the above propositions are, however, they beg the question whether, and under what circumstances, a putative father is entitled to notice of adoption proceedings, where (1) the putative father and the mother were never married, (2) the child remains with the mother, and (3) the putative father's paternity has not been legally established, through either an adjudication of paternity or a voluntary acknowledgment of parentage executed by both parents. See G. L. c. 209C, § 2.

The United States Supreme Court addressed this issue in Lehr v. Robertson, 463 U.S. 248, 262 (1983), and the teaching of Lehr is that whether such a putative father is entitled to notice will depend on the facts — and in particular, whether the putative father has previously established a "significant custodial, personal, or financial relationship with [the child]." Lehr involved a putative father in New York State who, as here, did not receive notice of a pending stepparent adoption. See id. at 249-250. The putative father was not listed on the birth certificate and his paternity had never been adjudicated. See id. at 251-252. In Lehr, however, the putative father "never had any significant custodial, personal, or financial relationship with [the child], and . . . did not seek to establish a legal tie until after" the adoption proceedings had already commenced. Id. at 262. The Lehr Court ultimately concluded that, under those circumstances, the putative father did not have a constitutional right to notice of the adoption proceedings. See id. at 262-265.

But while Lehr held against the putative father's due process rights, the Lehr Court was careful to distinguish the facts before it from a situation where "an unwed father demonstrates a full commitment to the responsibilities of parenthood by `com[ing] forward to participate in the rearing of his child.'" Lehr, 463 U.S. at 261, quoting Caban v. Mohammed, 441 U.S. 380, 392 (1979). The Court stated that under those circumstances, the father's "interest in personal contact with his child acquires substantial protection under the Due Process Clause." Lehr, supra. The Court characterized this as "grasp[ing]" the "opportunity" to establish a relationship with the child and "accept[ing] some measure of responsibility for the child's future." Id. at 262. Lehr therefore teaches that a putative father who has established such a "significant custodial, personal, or financial relationship" with the child prior to the commencement of the adoption proceedings is entitled to notice, and a meaningful opportunity to be heard, before the child is adopted.^[12] Id.

Cases decided in the wake of Lehr have construed it as we do — that is, to require notice to a putative father who has "timely grasped his `opportunity'" in establishing a relationship with the child.<sup>[13]</sup> Matter of M.N.M., 605 A.2d 921, 922 (D.C.), cert. denied, 506 U.S. 1014 (1992), quoting Lehr, 463 U.S. at 262. See M.N.M., supra at 927 (putative father "`early on, and continually,' asserted his paternity and the right to assume the obligations of fathering" [citation omitted]). See also Heidbreder v. Carton, 645 N.W.2d 355, 372 (Minn.), cert. denied, 537 U.S. 1046 (2002) (Lehr recognizes putative father's entitlement to due process protection where he can demonstrate "`significant custodial, personal, or financial relationship' with the child" [citation omitted]); F.E. v. G.F.M., 35 Va. App. 648, 663 (2001) ("a biological parent who participates in the rearing of his or her child has a fundamental right to continue to participate in that relationship unless the relationship is altered or terminated by due process of law"). Indeed, the central premise of Lehr has been echoed by this court, insofar as we have said that "parents have a constitutionally protected interest in maintaining a relationship with their children . . . [and] [b]efore that relationship is severed, due process requires that there be notice and an opportunity to be heard `at a meaningful time and in a meaningful manner'" (emphasis added). Adoption of Hugh, 35 Mass. App. Ct. 346, 347 (1993), quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965).

We therefore turn to whether the putative father in this case has established the necessary relationship with the child under the Lehr criteria. We conclude that he has. The record clearly demonstrates that the putative father had a "significant custodial, personal, [and] financial relationship" with the child: he lived with the mother before and after the child's birth; he was present at the child's birth and his surname was included in the child's middle name; the child called him "father" and his parents "grandmother" and "grandfather"; and, for the first four years of the child's life, he lived with the child, provided financial support to the child, took the child to medical appointments, and participated in enrichment activities with the child. He continued to have a relationship with the child until the mother prevented same. Moreover, the father promptly took steps to establish a legal tie to the child, by initiating a paternity action in Alaska before the adoption petition in Massachusetts was filed. See M.N.M., 605 A.2d at 926-927 (putative father "`grasped' his opportunity interest" by asserting his paternity continuously from child's birth and filing paternity action in Missouri before adoption proceedings commenced in District of Columbia). Contrast Lehr, 463 U.S. at 251-252, 263-264 (father failed to register with putative father registry and did not commence paternity action until after adoption proceedings had already commenced).

Accordingly, we conclude that the putative father should have received notice, and a meaningful opportunity to be heard, with respect to the petition for adoption filed in Massachusetts. See M.N.M., 605 A.2d at 930. The putative father asks us to vacate the adoption decree in light of the failure to notify; however, before disturbing the decree, the trial court must resolve the question of his paternity. See id. (where putative father's "paternity remains in dispute[,] before anything else takes place, the parties and the trial court must resolve that question"). If the putative father's paternity is legally established, the judge must reopen proceedings on the petition for adoption so that the putative father may participate in the proceedings under G. L. c. 210.^[14]

Conclusion.^[15]

We remand the case to the Probate and Family Court for further proceedings as follows. The putative father and child must undergo appropriate testing to determine the putative father's paternity. If the putative father is not adjudicated the child's biological father, the adoption decree shall stand. If, however, he is adjudicated the child's biological father, the judge shall (1) reopen proceedings on the petition for adoption; (2) allow the putative father to participate in the G. L. c. 210 proceedings; and (3) make any further orders, including vacating the adoption decree, as the judge deems appropriate.

So ordered.

[1] A pseudonym.

[2] "A putative father is an `alleged biological father.'" Adoption of a Minor, 471 Mass. 373, 377 n.7 (2015), quoting Black's Law Dictionary 725 (10th ed. 2014).

[3] Pursuant to G. L. c. 210, § 4A, a putative father may file a "parental responsibility claim" with DCF, entitling him (1) to receive notice of either the mother's voluntary surrender of the child, or the involuntary termination of the mother's right to withhold consent to the child's adoption; and (2) to file a petition for adoption or custody of the child, which petition shall be considered by the court "expeditiously" and "without regard to other potential adoptive parents."

[4] Upon the filing of a petition for adoption, the Probate and Family Court issues a citation ordering service on the persons entitled to notice of the petition. See Adoption of a Minor, 363 Mass. 537, 541 (1973); G. L. c. 210, §§ 4, 4A; Rules 3 and 6 of the Supplemental Rules of the Probate and Family Court (2012).

[5] There is no finding as to whether the mother, her husband, or both, knew of the putative father's pending Alaska paternity action at the time that they filed the petition for adoption in Massachusetts. The record reflects that, at the very latest, the mother knew of the Alaska paternity action by August 2018, because she retained Alaska counsel who appeared on her behalf at the initial Alaska paternity hearing in August 2018. The mother did not, however, inform the Probate and Family Court of the pending Alaska paternity action once she learned of it, and the affidavit disclosing other proceedings was never amended to reflect the Alaska paternity action. Moreover, although the mother appeared through her Alaska counsel at three hearings on the putative father's paternity complaint between August and October 2018, she did not inform the Alaska court of the Massachusetts adoption proceedings during any of those hearings.

[6] In the affidavit accompanying the motion to waive notice, the mother averred that the putative father was a "sadist" and a "pedophile," and that he had sexually abused the child and threatened to kidnap her. While we acknowledge the mother's allegations, those allegations do not bear on whether the putative father was entitled to notice of the adoption proceedings.

[7] The putative father represents in his brief that due to the Massachusetts adoption, the Alaska proceeding was initially stayed, and has since been dismissed.

[8] "The supreme judicial court may allow a parent, who, upon a petition for adoption, had no notice of the proceedings before the decree and had neither waived notice in accordance with section two nor been the subject of a decree dispensing with need for notice in accordance with section three, to appeal therefrom within one hundred and twenty days after actual notice thereof." G. L. c. 210, § 11. The term "parent" set forth in § 11 is not defined.

[9] General Laws c. 210, § 4, provides: "If the written consent required by section two is not submitted to the court with the petition, the court shall . . . order notice by personal service upon the parties of an order of notice, . . . and the court may require additional notice and consent. But if such child is of unknown parentage and is a foundling, publication as herein set forth shall not be required; but notice of the petition shall be given to the department of children and families."

[10] We have analyzed the question whether the putative father is a "lawful parent" under Massachusetts law. No party has suggested that a different State's law might apply, or be materially different. Nor does the putative father contend that the court did not have jurisdiction, see G. L. c. 209B, § 2, and we therefore do not consider the matter.

[11] Section 4A identifies an additional person entitled to notice: a putative father of a child born out of wedlock, but only if (1) he has filed a parental responsibility claim with DCF consistent with the procedure set forth in § 4A, and (2) the mother's parental rights have been terminated, either voluntarily or involuntarily. See G. L. c. 210, § 4A.

We do not agree with the putative father's contention that he was entitled to notice under § 4A. By its plain language, § 4A applies "[w]henever the mother of a child born out of wedlock has surrendered the child in accordance with section two, or whenever the right of such mother to withhold consent for adoption has been terminated in accordance with section three." G. L. c. 210, § 4A. Despite this limiting language in the first sentence of § 4A, the father contends that the last sentence of § 4A entitles a putative father to notice of any adoption proceeding (even where the mother's parental rights have not been terminated), if he has filed a parental responsibility claim. We do not agree with the father's overly broad reading of § 4A's last sentence, which merely provides that "[n]o other petition for adoption shall be allowed without proof of compliance with this section." The phrase "compliance with this section" necessarily requires compliance with the entire section, including the limiting language set forth in the first sentence.

[12] "Seek[ing] to establish a legal tie" is another factor that should be considered. Lehr, 463 U.S. at 262.

[13] The mother points out that in Matter of J.S.V., 402 Mass. 571, 575 (1988), the Supreme Judicial Court stated that "[a]s a matter of due process, an unmarried, putative father has no absolute due process right to notice, and opportunity to be heard, before the child may be adopted." However, the court also recognized in a footnote that "[w]hen an unwed father demonstrates a full commitment to the responsibilities of parenthood . . . his interest in personal contact with his child acquires substantial protection under the Due Process Clause." Id. at 575 n.6, quoting Lehr, 463 U.S. at 261. Our decision is therefore consistent with the Supreme Judicial Court's opinion in J.S.V. Moreover, this case is factually distinguishable from J.S.V., as in J.S.V. the mother was married at the time of conception, the husband had not denied paternity, and the putative father put forth no offer of proof to overcome the husband's presumption of paternity. See J.S.V., 402 Mass. at 572, 574.

[14] The putative father has not argued that if he is not adjudicated the biological father of the child, he should be deemed the de facto father of the child. The putative father initially argued that he was the de facto parent of the child's two half-siblings, but later dropped that claim. We accordingly do not address any issues that might arise from a claim of de facto parentage.

[15] The father's request for appellate fees and costs is denied."