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 who were placed in foster care after their mother died 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 whom were born in the Commonwealth and were U.S. citizens. Two months before the second daughter’s birth, the father was deported to Guatemala after a criminal conviction for assault and battery. Being deported prevented the father from acknowledging paternity on the second daughter’s birth certificate.

After he was deported, 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 reports that the children were being neglected due to the mother’s alcoholism. After the mother’s death, a maternal uncle and his girlfriend became temporary guardian 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, DCFs goal shifted from reunification of the children and their father to finding a permanent family for the girls through adoption.

After a one-day trial, at which the father was represented but not present, the father’s parental rights were terminated, with no post-termination contact awarded to the father. The judge found that the father had abandoned the children by getting deported. 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. In regards to the case at hand, the Appeals Court 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 Appeals Court was troubled by the “swiftness” in DCF’s change of focus from reunification to permanent adoption. The Department noted at the hearing that its focus changed after the father was deported, as 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’s conclusion that the father “abandoned” his children was correct. 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, 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, reversing the trial judge’s decision to terminate parental rights.

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