Although family law is its own unique area of law, it often intersects with other parts of the legal field. One example is immigration law. In a recent case, Adoption of Posy, the Massachusetts Appeals Court decided whether the parental rights of an immigrant father, who had been deported, were lawfully terminated by the Family and Probate Court.


The case involved two young girls placed in foster care after their mother died. Her death was due to complications stemming from her alcoholism. The parents were both Guatemalan nationals who met in Massachusetts. They never married, but they had two daughters. Both of the girls were born in the Commonwealth and were U.S. citizens. Two months before the second daughter’s birth, the US deported the father to Guatemala. This was due to a criminal conviction for assault and battery. This deportation prevented the father from acknowledging paternity on the second daughter’s birth certificate.

After deportation, the father maintained telephone contact with the children and mother. The Department of Children and Families became involved with the children and mother after it received certain reports. These reports concerned the neglect of the children due to the mother’s alcoholism. After the mother’s death, a maternal uncle and his girlfriend became temporary guardians of the children. However, DCF was unable to place the girls with them permanently due to their immigration status. The Department took custody of the children and placed them in a foster home, also assigning a social worker.

The social worker kept in contact with the father in Guatemala. The father sought custody of the children, and DCF put in place a service plan for the family. However, less than a month later, DCF’s goal shifted from reunification of the children and their father. The goal became finding a permanent family for the girls through adoption.

Decision and Appeal:

At a one-day trial, someone did represent the father though not present. The court terminated the father’s parental rights. It did not award the father a post-termination contact. The judge found abandonment of the children because of the deportation. The father appealed.

The Appeals Court noted that in order to terminate parental rights, it must be determined by clear and convincing evidence that the parent is unfit to further the child’s best interests. The Appeals Court examined the case at hand. It stated that many of the judge’s findings of fact were without support in the record. “The conclusions of law, which encompass ten single-spaced pages, recite generic propositions of law, without regard to the issues in the case,” the Court said. “The ultimate conclusions are untethered to any specific findings of fact and generally assail the father with references to poor parenting choices,’ ‘poor parenting,’ ‘poor decision making,’ and ‘parental neglect.’”

In addition, the “swiftness” in DCF’s change of focus from reunification to permanent adoption troubled the Appeals Court. As the Department noted at the hearing, this change in focus occurred after the deportation. This was because it was impossible for him to come to the U.S., and the children were U.S. citizens. “This explanation, making no mention of the father’s alleged lack of progress [with the service plan] indicates a greater concern with the father’s immigration status,” the Court explained. “We are cognizant of the department’s charge to establish permanency for the children and that deported parents present a special challenge. That challenge must be met, however, consistent with due process.”


The Court next looked at whether the trial judge was correct in his conclusion that the father “abandoned” his children. According to the Massachusetts statute regarding the factors to be considered in terminating parental rights, abandonment means “being left without any provision for support and without any person responsible to maintain care, custody and control because the whereabouts of the person responsible therefor is unknown and reasonable efforts to locate the person have been unsuccessful.”

In this case, the Court noted that the father kept in extensive contact with the social worker. He also suggested various temporary caretakers for the children and apprised the Department of his location. The Appeals Court found that he did not abandon his children under the statute. The Court also found the trial judge’s holding that the father had a serious issue with criminal activity and domestic violence erroneous. It reversed the trial judge’s decision to terminate parental rights.

Contact Us:

If you have any questions about divorce, custody, or family law issues, you may schedule a free consultation with our experienced attorneys. Are you looking for an experienced Newburyport or Andover divorce lawyer? Call (866) 995-6663 during regular business hours or complete our online contact form, and we will respond to your phone call or submission promptly.