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14-P-211                                            Appeals Court

                         ADOPTION OF ODETTA.1


                           No.   14-P-211.

           Bristol.      April 9, 2015. - June 26, 2015.


              Present:   Grainger, Rubin, & Blake, JJ.

Adoption, Visitation rights. Parent and Child, Adoption. Minor,
     Adoption, Visitation rights.



     Petition filed in the Bristol County Division of the
Juvenile Court Department on March 30, 2009.

    The case was heard by Robert F. Murray, J.


     Afton M. Templin (Belle Soloway with her) for the father.
     William Cuttle, Assistant Attorney General, for Department
of Children and Families.
     David Jonathan Cohen for the child.


    BLAKE, J.    In a case of first impression, we determine that

under the limited circumstances present in this case, it is in

the best interests of the child to enjoy postadoption visitation




    1
        A pseudonym.
                                                                  2


with a relative who is neither a de facto parent, sibling, or

grandparent.

     The father and the mother were the unmarried parents of

Odetta, born in September, 2005.   The father and the mother

separated when Odetta was an infant.   While Odetta lived with

her mother, the father and his brother (the paternal uncle)

assisted in raising her, including attending doctor

appointments.   The father and the mother did not have a formal

parenting schedule, but Odetta spent time with her father and

his wife, as well as with the paternal uncle and his family.

Odetta also spent time with the mother's extended family.

     In March, 2009, the mother was found strangled to death.

Three days later, the father was charged with and ultimately

convicted of her murder.2   The Department of Children and

Families (department) placed Odetta with her maternal aunt and

uncle.   It then sought to terminate the father's rights and

place Odetta for adoption with her maternal aunt and uncle.

Initially, the father filed a guardianship petition requesting

that the paternal uncle be appointed Odetta's guardian.




     2
       The father was later charged with and convicted of first
degree murder. The conviction was affirmed on appeal.
                                                                   3


Thereafter, the paternal uncle, a Muslim, petitioned for

guardianship of Odetta.3

     Following a lengthy trial over multiple days, a judge of

the Juvenile Court terminated the father's parental rights,

approved the department's plan for placement of Odetta, and

ordered monthly visitation between the paternal uncle and

Odetta.   The visitation order was largely based on a

determination that Odetta's best interests will be served by

allowing "her to have some contact with her father's family, the

tenets and practices of Islam which are part of her family

heritage and which the adoptive family, who are not Islamic,

cannot or will not provide for her."

     The father, Odetta, and the department now appeal.     The

father asserts the adoption plan approved by the judge is not in

the best interests of Odetta because, among other things, it

attenuates her ties to the paternal uncle and her Muslim

heritage.4   Odetta and the department challenge the judge's

authority to order postadoption contact with the paternal uncle.

We affirm.

     Discussion.   1.   Competing adoption plans.   A trial judge's

ruling on competing adoption plans is entitled to substantial

     3
       The paternal uncle did not pursue adoption because it is
not recognized by his religion.
     4
       The father does not contest the judge's finding of
unfitness.
                                                                     4


deference and will not be reversed in the absence of an abuse of

discretion.   Adoption of Inez, 428 Mass. 717, 720 (1999).    When

alternative plans are presented, the trial judge must choose the

plan that is in the child's best interests after an "even

handed" assessment of all the facts surrounding both plans.

Adoption of Hugo, 428 Mass. 219, 226 n.8 (1998), cert. denied

sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999).

     Here, the judge's conclusion that it is in Odetta's best

interests to be placed permanently with the maternal aunt and

uncle, rather than with the paternal uncle, is amply supported

by the record.   The judge entered extensive findings of fact,5

and found that Odetta was thriving under the care of her

preadoptive family and that, for the past three years, all of

her essential needs have been met.6   He balanced Odetta's need

for stability and the possible trauma of removing her from her

preadoptive home.   See Adoption of Hugo, supra at 227-229.    The

judge did not credit the father's argument that the maternal

aunt and uncle did not appreciate Odetta's need for therapy.      In

light of the foregoing, the judge's conclusion that permanent



     5
       The judge entered ninety-four findings of fact and twenty-
six conclusions of law, which also included findings of fact.
     6
       The judge found that Odetta was up to date medically, she
was surrounded by extended family, her educational needs were
being met, she was well adjusted both in school and socially,
and she was, as described by her therapist, "a happy child."
                                                                    5


placement with the preadoptive family would be best for Odetta

did not constitute an abuse of his considerable discretion.

    2.   Postadoption visitation.    A judge's authority to order

postadoption visitation is rooted in his broad equitable powers

and conditioned upon a finding that visitation is in the child's

best interests.    See Adoption of Vito, 431 Mass. 550, 557-558

(2000); Matter of Moe, 385 Mass. 555, 561 (1982).    Our

decisional law has addressed visitation under related

circumstances, but has yet to address an order of visitation

with an individual other than a biological parent or sibling,

former guardian, de facto parent, or grandparent.    Nonetheless,

these cases provide guidance on the issue before us.       In Youmans

v. Ramos, 429 Mass. 774 (1999), for instance, the court affirmed

the trial judge's sua sponte order of visitation between the

child and his former guardian, an aunt, in a guardian

termination proceeding granting custody to the father.       The

court did not specifically address whether a non-legal parent

has the right to affirmatively seek visitation, but reaffirmed

that such a question is to be left to the sound discretion of

the trial judge.    Id. at 780-783 ("although there is no

statutory authority for postadoption visitation, the 'broad

equitable powers' of courts in this area permit a judge, in his

discretion, to evaluate a proposed adoption plan providing for

such visitation and to decide whether visitation is in the
                                                                     6


child's best interests"), quoting from Petition of the Dept. of

Social Servs. to Dispense with Consent to Adoption, 392 Mass.

696, 702-703 (1984).

     In E.N.O. v. L.M.M., 429 Mass. 824 (1999), the court

adopted and defined the concept of a "de facto parent" and the

rights and obligations flowing from such a designation, in

affirming an order of temporary visitation with the birth

mother's former partner.7   Id. at 829.   E.N.O. is instructive in

that it recognizes the broad equity power of a judge to protect

a child's best interests, including maintaining contact with a

de facto parent.   Id. at 827-828.

     The plaintiff in Sayre v. Aisner, 51 Mass. App. Ct. 794,

795 (2001), alleged that she was a "surrogate grandmother"

entitled to visitation with the minor child under G. L. c. 119,

§ 39D.8   The dismissal of the plaintiff's complaint for lack of

standing was upheld on appeal.   Nevertheless, this court

recognized that the Probate and Family Court has authority to

exercise its equity jurisdiction to order visitation with a


     7
       Here, the father does not contend, and the record does not
support, a conclusion that the paternal uncle was the de facto
parent of Odetta.
     8
       "General Laws c. 119, § 39D, grants the grandparents of an
unmarried minor child reasonable visitation rights under certain
circumstances when the parents are living apart under a
temporary order or judgment of separate support, following the
divorce of the parents, or after the death of either or both of
the parents." Sayre v. Aisner, supra at 795 n.2.
                                                                    7


person who otherwise lacks standing under the grandparent

visitation statute.   Id. at 798.

     The judge relied, in part, on Sayre in exercising his

equitable authority to enter the visitation order in this case.

We agree that a judge's equitable authority to order visitation

is not limited to a certain category of persons, as the

department and the child suggest, but may extend to situations,

such as the one present here, where the judge has found

continuing contact to be in the child's best interests.9    See

Adoption of Vito, 431 Mass. at 553 (postadoption contact may be

warranted where there is a compelling reason, and such contact

is in the child's best interests).

     Here, the judge concluded that, in the particular set of

circumstances presented, the "preservation of both

religions/cultures" to which Odetta had been exposed was

fundamental to her development and in her best interests.    Upon

her birth, Odetta was given a Muslim name, and the family took

part in a ceremony in which she was formally recognized into the

     9
       Without citing authority to support its proposition, the
department and the child argue, in essence, that we are limited
by the case law as it stands. The absence of statutory language
or specific case law governing the unusual circumstances present
in this case does not preclude a judge from entering an order
that it determines to be in the child's best interests. See
Matter of Moe, 385 Mass. at 561 ("Our Probate Courts . . .
[possess] inherent powers apart from statutory authorization.
These powers are broad and flexible, and extend to actions
necessary to afford any relief in the best interests of a person
under their jurisdiction").
                                                                    8


Muslim faith.10   Odetta attended the same mosque as the paternal

uncle from her infancy to age three, when, at the time of her

mother's death, she was placed with her maternal aunt.     Prior to

this time, Odetta sporadically attended a Christian church11 with

her mother and, on occasion, with her father as well.    At the

time of the mother's death, Odetta's parents had not chosen one

religion or culture for her but, instead, chose to expose her to

both religions and cultures.   The paternal uncle is the sole

family member available and able to continue to expose Odetta to

a culture and religion that was an integral part of her life

until the mother's untimely death.

     We agree that, where supported by a record of purposeful

exposure to both parents' religions and cultures, and in the

absence of evidence of harm to the child, continuing that

exposure may be in a child's best interests.   See Felton v.

Felton, 383 Mass. 232, 233-234, 239-241 (1981).   In Felton, the

court examined the exposure of children to the religions of

their parents in the context of divorce, noting that our "law

sees a value in . . . contact with the parents' separate

religious preferences. . . .   And it is suggested, sometimes,


     10
       Her name has cultural significance in the Muslim
community.
     11
       The mother and her family are Seventh Day Adventists.
Odetta continues to attend church regularly with her maternal
aunt and uncle.
                                                                    9


that a diversity of religious experience is itself a sound

stimulant for a child."   Id. at 234-235.   The Felton court

accordingly held that, absent detailed demonstration of harm to

the children, the limitations imposed upon the father's

religious instructions or practices were not justified.    Id. at

234, 239-240.   See Kendall v. Kendall, 426 Mass. 238, 243, 248-

249 (1997).

    The judge also ordered visitation with the paternal uncle

"in order to preserve the child's relationship with her paternal

aunt and uncle" in light of the "inherent if latent animosity

between the maternal family and the paternal family."     Given the

unusual and tragic nature of this case, the judge's order makes

sense.   The paternal uncle has been a part of Odetta's life

since birth, and has attended many milestone events, including

her first three birthdays.   Prior to the mother's death, the

paternal uncle would take Odetta once or twice a month, usually

to the mall to buy her clothes and toys.    At times, Odetta also

spent the night at the paternal uncle's home, and the paternal

uncle would watch Odetta while the mother was at work.    After

the department became involved with the family, the paternal

uncle continued to visit with Odetta.   At first Odetta was

reluctant, but she quickly grew comfortable with monthly visits

that began as supervised, and transitioned to unsupervised, all

without incident.   Moreover, in spite of any understandable
                                                                 10


discord between the maternal and paternal families,12 the

maternal aunt and uncle testified that, if allowed to adopt

Odetta, they would be open to permitting the paternal uncle to

visit.    Indeed, the maternal uncle conceded that "it [is]

probably in [Odetta's] best interest" to maintain a relationship

with the paternal uncle.

     In the ordinary case, the adoptive parents must be relied

upon to ensure that the child is exposed to her ethnic and

religious heritage, and to make certain, where appropriate and

permitted, that there is continued contact with the child's

biological extended family.   While all parents, including

adoptive ones, are presumed to act in the best interests of

their children, Blixt v. Blixt, 437 Mass. 649, 658 (2002), the

judge found that a court order was necessary in this case to

insure that Odetta's best interests are met.   The order is

narrowly tailored and not intended to interfere with the

adoptive parents' ability to raise Odetta.   We do not deem such

an order to be an abuse of the judge's broad discretion.

                                    Judgment affirmed.




     12
       As Christmas of 2012 approached, the maternal uncle
cancelled one of the paternal uncle's visits with Odetta, due to
the apparent distrust between the families.
