Adoption of Zak

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16-P-393 Appeals Court

ADOPTION OF ZAK (and two companion cases).1

No. 16-P-393.

Norfolk. October 7, 2016. - January 9, 2017.

Present: Hanlon, Sullivan, & Blake, JJ.

Adoption, Visitation rights, Standing. Parent and Child,
Adoption. Minor, Adoption, Visitation rights. Practice,
Civil, Adoption, Standing.

Petitions filed in the Norfolk County Division of the
Juvenile Court Department on May 19, 2010, and September 9,
2011.

Following review by this court, 87 Mass. App. Ct. 540
(2015), the cases were heard by Dana Gershengorn, J.

Julia A. B. Pearson for the mother.
Sherrie Krasner for the father.
Kari B. Kipf Horstmann for Department of Children and
Families.
Steven B. Rosenthal for Zak.
Yvette L. Kruger for Carol & another.

SULLIVAN, J. In this case we consider whether a mother and

father, whose parental rights have been terminated, have

1
Adoption of Carol and Adoption of Nick. The children's
names are pseudonyms.
2

standing to participate in a hearing on posttermination

visitation under the following circumstances. Termination of

parental rights and posttermination visitation were originally

litigated in a single trial. The termination of parental rights

was affirmed on appeal, but the matter was remanded to the

Juvenile Court on the question of posttermination visitation.

The parents were not notified of the remand hearing and did not

participate. Following the entry of an "amended order for

posttermination/adoption visitation" (posttermination visitation

order), the parents appealed again to this court. We now

conclude that the remand hearing was a continuation of the

original proceeding, and that the parents had standing to

participate in the remand hearing. Accordingly, we vacate the

posttermination visitation order and remand for further

proceedings.

Background. In Adoption of Zak, 87 Mass. App. Ct. 540

(2015) (Zak I), we affirmed the entry of decrees by a judge of

the Juvenile Court terminating parental rights and dispensing

with consent to adoption, but remanded on the question of

posttermination visitation. Although the judge had considered

the effect of domestic violence on the question of termination

of parental rights, her order on the visitation issue was silent

as to the impact of domestic violence on the question of
3

posttermination visitation.2 We remanded the case for further

findings and rulings in order to permit the judge to consider

that issue. We also noted the authority of the judge to

consider whether circumstances had changed since the issuance of

the original decrees. Id. at 547 n.10, citing Adoption of Vito,

431 Mass. 550, 557 n.15 (2000), and Adoption of Gwendolyn, 29

Mass. App. Ct. 130, 139 (1990).

The Department of Children and Family Services (department)

and the children were notified of the remand hearing. The

parents were not notified.3 The judge exercised her discretion

to consider both the previously admitted evidence, and to hear

new evidence about the children's current circumstances in a

combined remand and modification proceeding. Relying on all of

the evidence -- the evidence admitted at the previous trial and

the additional evidence adduced at the hearing -- the judge

found that the children had been profoundly affected by domestic

violence. She ruled that there had been a material change in

2
The original order granted the father and mother three
visits per year with their respective biological children. The
mother is the biological mother of all three children and seeks
posttermination visitation with all three. The father is the
biological father of the two younger children. He is not the
biological father of the oldest child, and claims no right of
posttermination visitation as to him.
3
The hearing was held after our opinion in Adoption of
Malik, 84 Mass. App. Ct. 436 (2013), and before the Supreme
Judicial Court decided Adoption of Douglas, 473 Mass. 1024
(2016).
4

circumstances since the entry of the decrees. Among other

things, the children had been placed together in a preadoptive

home, and had made "remarkable progress."

The judge concluded that posttermination visitation was not

in the best interests of the youngest child, who had no memory

of his biological parents, and that for reasons unique to the

two older children, "one visit per year with their biological

mother would be in [their] best interests." No posttermination

visits with the father were ordered.

The mother and father appeal, contending that they were

entitled to notice of the remand hearing because that hearing

was part of the same adjudication as the termination proceeding,

and their right to participate had not been extinguished. See

Adoption of Douglas, 473 Mass. 1024, 1029 (2016). The children

and the department assert that because parental rights were

terminated, the parents had no standing to participate in the

remand hearing. See Adoption of Malik, 84 Mass. App. Ct. 436,

438-439 (2013).

Waiver. Before turning to the merits of the appeal, we

must address one threshold issue. The two younger children

argue that, because their father appealed only the termination

order in Zak I, and not the visitation order, he has waived his

right to argue the issue here. This contention overlooks the

fact that the father was content with the original visitation
5

order, even if his parental rights were terminated. The two

children were not content, however, and filed a cross appeal

requesting that there be no posttermination visitation. The

father actively opposed the cross appeal, filing a reply brief

in this court and seeking further appellate review. The father

did not waive his rights to litigate the issue of standing or

posttermination visitation at any time. Contrast Nader v.

Citron, 372 Mass. 96, 101-102, 103 (1977) (waiver of issue on

appeal); Hager v. Hager, 6 Mass. App. Ct. 903, 904 (1978)

(express waiver of appeal); Hammell v. Shooshanian Engr.

Assocs., Inc., 73 Mass. App. Ct. 634, 640 (2009) (waiver of

appeal).4

Standing. "Until parental rights have been terminated by

entry of a decree, parents have the right to participate in

proceedings to determine issues such as placement and visitation

arrangements concerning their children." Douglas, supra at

1025. Here the parents participated fully in a trial of both

their parental fitness and their right to visitation. The first

appeal resulted in the affirmance of the decrees as to

4
The department has also made a similar contention, but has
waived the argument by relying solely on a bare assertion and
failing to brief it on appeal. Assertions of error that lack
legal citation do not rise to the level of appellate argument
and will not be reviewed by this court. Mass.R.A.P. 16(a)(4),
as amended, 367 Mass. 921 (1975). Kellogg v. Board of
Registration in Med., 461 Mass. 1001, 1003 (2011).
6

termination, but did not result in a final order with respect to

visitation.

The fact that the termination became final after trial and

appeal is not, in and of itself, dispositive of the standing

question. The effect of a final termination order on standing

to appeal from a visitation order issued in the same proceeding

was considered in Adoption of Rico, 453 Mass. 749, 757 n.16

(2009). In Rico, the department argued that because the

father's "parental rights have been terminated and he has not

appealed from that decision . . ., the father no longer has

standing to challenge [i.e., appeal] the judge's visitation

order." Ibid. The Supreme Judicial Court rejected this

contention, stating that the father had appealed from a

visitation order issued in the same decision, which "was part of

the adjudication of a termination proceeding to which the father

was a party." Ibid. Similarly, in Douglas, the court held that

"[w]here orders involving termination, placement, and visitation

are issued as part of the same adjudication of termination

proceeding, a parent has standing to press on appeal any

challenge that he or she has not expressly waived to that

adjudication," even though the termination decree was no longer

at issue. Douglas, supra at 1029.5

5
By contrast, in Malik, 84 Mass. App. Ct. at 439, the
mother stipulated to her unfitness and to termination of her
7

The children and the department point out, correctly, that

no appellate case has addressed standing in the context of a

remand, rather than an appeal. However, the rationale of Rico

and Douglas apply fully. In both cases, the termination of the

parents' rights had been adjudicated at the time of the appeals.

In both cases, the Supreme Judicial Court permitted the parents

to prosecute the appeals because the visitation issues were part

of the termination proceeding to which the parents were a party.

We see no principled distinction which would permit a parent to

appeal a visitation order, but bar that parent from

participating in a remand hearing ordered by the very appellate

court that heard the appeal. In short, the parents retained

standing here because the remand proceeding was part of the same

proceeding to which the parents were already a party.

The practical realities of remand proceedings demonstrate

the wisdom of this approach. In some remand proceedings the

judge may consider only the preexisting evidentiary record.

parental rights in a care and protection proceeding, and waived
her right to appeal from the resulting decree. After the decree
was entered, further litigation ensued concerning the child's
placement. A separate guardianship action then was consolidated
with the care and protection proceeding. Id. at 437. The
mother appealed the order denying the guardianship plan and
approving the department's proposal for adoption by the foster
family with whom the child had been living during the course of
the care and protection proceeding. Ibid. In Malik the
termination became final before placement was litigated. Here,
as in Douglas, there was a single proceeding.
8

Here, the judge held a combined remand and modification hearing.

The judge considered evidence of events occurring after the

first appeal, and evidence of domestic violence adduced at

trial.6 Consideration of this evidence at the remand hearing

could only be undertaken in the context of the continuation of

the proceeding to which the parents had been parties,7 because

the judge weighed and considered the facts adduced at trial. As

in Rico and Douglas, the fact that the termination was final did

not divest the parties of standing to participate in a hearing

that was a continuation of the very proceeding in which they had

participated.

Conclusion. Accordingly, we vacate the posttermination

visitation order dated August 28, 2015, and remand the case for

further proceedings consistent with this opinion.

So ordered.

6
This case does not present, and we do not decide, whether
the parents would have had standing to participate in a
posttermination, postappeal modification proceeding.
7
"While a judge may take judicial notice of the fact that
[s]he sat on a related case and also may take judicial notice of
the docket entries in the prior case, Morrison v. Krauss, 353
Mass. 761 (1968), [s]he may not judicially notice 'facts or
evidence brought out at the prior hearing.' Ferriter v.
Borthwick, 346 Mass. 391, 393 (1963). See also Day v. Crowley,
341 Mass. 666, 669-670 (1961); Morrison v. Krauss, supra; Asker
v. Asker, 8 Mass. App. Ct. 634, 639-640 (1979)." Howe v.
Prokop, 21 Mass. App. Ct. 919, 920 (1985).