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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 twentysix 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.