In a recent case, of interest to adoption attorneys and parties alike, the Massachusetts Appeals Court discussed open adoption agreements, specifically the enforcement of clauses in those agreements which were at the sole discretion of the adoptive parents.
In the case at hand, the adoptive parents adopted two children who were both born to the biological parents. The first child was born in 2008 and placed with the adoptive parents at age thirteen months. As family law lawyers, it’s not uncommon to see substance abuse and mental health issues transcend from biological parents to adoptive children. This particular adoptive child had diagnoses of fetal alcohol syndrome, neurosensory hearing loss, and anxiety. The second child, her sister, was born in 2012 with neonatal abstinence syndrome; she was placed in the adoptive parents’ care immediately after her discharge from intensive care.
The parties opted for an open adoption, putting in place open adoption agreements for each child, executed by the biological parents and adoptive parents. The biological parents were allowed visitation with the children.
Regarding the agreement between the parties, the Court explained as follows: “As pertinent here, the agreement provides that, in the event a visit “causes undue stress or anxiety to the Child,” the adoptive parents “have the sole ability to modify visitation to conform to what they believe is in that child’s best interest, including the ability to terminate the visit.” Further, “[t]he visits will be considered unduly stressful if either as a result of a visit, or in anticipation of one, the Child demonstrates, either verbally or behaviorally, that the visit is detrimental to the [child’s] welfare.” 2 This guidance is instructive to an adoption attorney considering the route of open adoption for his or her client.
In addition, the agreement provided that the biological parents were to provide the adoptive parents with a working phone number at all times. It also provided that either side may seek specific performance from the other.
In June 2014, the adoptive mother sent a letter to the biological parents, notifying them that visitations were terminated. As reasons, she listed that the biological parents failed to provide a working phone number, and that they refused to stop referring to themselves as “mom and dad,” thereby causing the children stress and anxiety.
At a hearing regarding the biological parents’ rights to visitation, the judge issued an order reinstating visitation. She found that the failure to provide a working phone number was not a material breach of the agreement, and that there was no evidence that using the term “mom and dad” was detrimental to the children’s welfare. Experienced adoption attorneys would clearly have an valid argument on either side of that issue.
The adoptive parents appealed. They argued that the hearing judge erred in not following the law regarding enforcement of open adoption agreements, abrogating their statutory and contractual rights. They also argued that they had exercised their explicit right to terminate visitation based on the biological parents’ breach of the agreement.
The Appeals Court vacated the judge’s order, siding with the adoptive parents, and holding that the judge overstepped her bounds. “The fact that the judge did not follow the requirements of the statute or the agreement when she modified the agreement suggests that she believed that she was exercising her general equitable powers,” the Appeals Court explained. “As we have already observed however, the court’s general equitable powers are not available for use in matters controlled by the provisions of [the applicable law], or in contradiction of the applicable and specific contract provisions. Equity cannot be used when there is a prescribed and adequate remedy at law…Instead, the judge must follow the requirements of the statute and the agreement.” 3
The Appeals Court also explained that the biological parents were granted sole discretionary powers as to the occurrence of a condition—in this case, provision of a working phone number, among others. When this is the case, the court explained, the standard to review is whether the parties acted honestly and in good faith.
“The judge must follow the requirements of the relevant statutes, applicable provisions of the agreement, and our common law as related to contract interpretation and enforcement,” The Court noted. “[T}he judge should consider whatever evidence is probative, and necessary, to determine whether the adoptive parents acted honestly and in good faith in terminating the agreement. Pending final disposition, the judge may make such temporary orders for continued visitation as she may deem appropriate.”
1 S.M. & another v. M.P. & another, No. 15-P-1047 (April 12, 2017-July 14, 2017).
2 Id., at 4.
3 Id., at 8.