Adoption of Varnell

NOTICE: All slip opinions and orders are subject to formal

revision and are superseded by the advance sheets and bound

volumes of the Official Reports. If you find a typographical

error or other formal error, please notify the Reporter of

Decisions, Supreme Judicial Court, John Adams Courthouse, 1

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

25-P-202 Appeals Court

ADOPTION OF VARNELL.1

No. 25-P-202.

Hampden. November 7, 2025. – May 6, 2026.

Present: Henry, Sacks, & Tan, JJ.

Adoption, Care and protection, Parent's consent. Parent and

Child, Care and protection of minor, Adoption, Dispensing

with parent's consent to adoption. Minor, Care and

protection, Adoption. Practice, Civil, Care and protection

proceeding, Adoption, Appeal.

Petition filed in the Hampden County Division of the

Juvenile Court Department on August 20, 2020.

The case was heard by Lois M. Eaton, J.

Tsvetelina Gerova-Wilson for the child.

Julie A. Gallup for Department of Children and Families.

TAN, J. After a trial, a Juvenile Court judge adjudicated

the father of Varnell (child or Varnell) unfit and terminated

his parental rights pursuant to G. L. c. 119, § 26, and G. L.

1 A pseudonym.

2

c. 210, § 3.2 Varnell appeals the judge's decision to terminate

the father's parental rights. In this case, we address for the

first time the question whether a child is entitled to appeal an

adjudication or decree in a care and protection case where the

parent does not file a notice of appeal. We conclude that

because a child possesses an independent interest in maintaining

a connection with a legal parent, a child may seek appellate

relief even if the parent does not. We also conclude that the

evidence at trial was insufficient to demonstrate that

termination of the father's parental rights served the child's

best interests. Accordingly, we reverse so much of the April 9,

2024 decree that terminated the father's parental rights.

Background. We summarize the judge's findings of fact,

supplemented by uncontroverted evidence from the record, and

reserve certain facts for later discussion.3

Varnell's parents separated when he was a baby, and Varnell

lived with his mother. Between 2014 to 2020, the Department of

Children and Families (department) conducted investigations into

2 The Department of Children and Families (department) did

not seek to terminate the mother's parental rights, and she

entered into a stipulation to unfitness in March 2024. Neither

the mother nor the father appealed.

3 The parties are not challenging the judge's findings of

fact as clearly erroneous, with one immaterial exception

discussed in note 11, infra.

3

several reports of neglect of Varnell by the mother, pursuant to

G. L. c. 119, § 51A (51A report).4 None of the incidents

involved the father.

In September 2019, the department spoke to the father

during the investigation of a 51A report, and he stated that his

involvement with Varnell was "minimal." The father said he

would take Varnell to his aunt's house for four or five hours

many weekends and that he called and spoke to Varnell several

times a week. He told the department that he sometimes took

Varnell out to eat or for a haircut and had attended parent

meetings at Varnell's school. The father reported that he was

living with friends and waiting for a low income apartment to

become available.

In August 2020, the department took emergency custody of

Varnell after his mother's arrest for allegedly stabbing her

boyfriend. Varnell, who was ten years old at the time, was

present during the incident. On August 20, 2020, the department

filed the present care and protection petition pursuant to G. L.

c. 119, § 24, and was awarded emergency temporary custody of

Varnell.

4 The department's investigations focused on the mother's

history of domestic violence incidents, both as a perpetrator

and a victim. Following the investigations, the allegations of

neglect were supported due to the mother's exposing Varnell to

those incidents and the risk of physical abuse to Varnell.

4

At the time of Varnell's removal from his mother, Varnell

told the department that he would sometimes see his father but

could not say how often. Varnell told the department that his

father would pick him up and they would visit at his aunt's

house. In September 2019, Varnell also had told the department

that he and the father would get pizza and a milkshake and that

his father bought him a bicycle. However, sometimes the father

broke his promises and did not show up for visits.

The day after removing Varnell from his mother's care, the

department contacted the father, who stated that he had no place

for Varnell to stay and had no family members who could care for

him. At that time, the father told the department that he saw

Varnell every few months for a few hours and did not know what

went on at the mother's home.

The department made numerous attempts to contact the father

during the pendency of the case, but he did not communicate or

cooperate with the department, nor did the evidence show that

he had any visits with Varnell. The father never appeared in

court, and the department was unable to serve him in-hand with

notice of the proceedings.5 The father's action plan tasks

included contacting the department about his intentions around

parenting Varnell. In 2022, the father called the department

Service to the father was accomplished through

5

publication.

5

and told the social worker that he did not want anything to do

with the case and to stop sending him letters.

The department initially placed Varnell in a foster home

but moved him to a "Short-term Assessment and Rapid

Reunification program." During his first year in placement,

Varnell exhibited "significant trauma reactive behaviors," such

as running away, jumping out windows, sexualized behavior,

destruction of property, and homicidal and suicidal ideation.

He was hospitalized in a psychiatric hospital several times and

placed on antipsychotic medication to manage his behavior. In

December 2021, Varnell was placed in a Department of Mental

Health (DMH) clinically intensive residential treatment program,

which was the most intensive residential treatment setting of

its kind in the State. Varnell is diagnosed with developmental

trauma and attention deficit hyperactivity disorder (ADHD) and

is prescribed antipsychotic medication and a mood stabilizer.

He also has a DMH worker and has engaged with therapists,

although he did not have a therapist at the time of trial.

In March 2022, as part of the plan to reunify Varnell with

his mother, Varnell had an in-home supervised visit with his

mother in her home. The visit went well, but afterward Varnell

became dysregulated. A few months later, the department halted

the reunification plan after it became aware that the mother

continued to associate with "violent individuals."

6

Varnell reunified with his mother again in August 2023 but

returned to residential care a month later after reports that a

physical altercation took place between Varnell and his mother

while she was intoxicated. During the department's

investigation of the physical altercation allegations, Varnell

stated that he did not want to return to his mother's house and

preferred to be placed with the individual who was serving as

his educational surrogate (foster parent). Varnell told the

department that his father was not involved with him. However,

Varnell and his father spoke by phone at least twice during the

month he was reunified with his mother and once while he was

placed at the DMH program. Varnell believed that his father

wanted to be involved with him but was not allowed to do so

because his father had not "sign[ed] some paperwork with the

department." Varnell requested to have contact with his

paternal half-siblings, but the department's kinship letters

elicited no response.

Varnell was fourteen years old when trial commenced.

Varnell remained connected with his mother but also had formed a

connection with the foster parent "that is substantial and

important to him." The department's permanency goal for Varnell

at trial was reunification with his mother. The foster parent

"wishe[d] to make a long-term commitment to [Varnell], while

helping him maintain his relationship with his mother."

7

Only one witness, Varnell's social worker, testified at

trial. When asked why the department sought to terminate the

father's rights, the social worker noted the father's

unavailability, lack of engagement with the department, and the

department's concern that the father would not be able to meet

Varnell's needs "if he ever even wanted to step up for

[Varnell]."

Discussion. 1. The child's right to appeal. The first

issue we address is whether a child may appeal from a decree

terminating parental rights where the parent does not file a

notice of appeal. Relying on Guardianship of Wilson, 496 Mass.

60 (2025), and Guardianship of Tara, 97 Mass. App. Ct. 11

(2020), the department contends that we cannot grant the child

relief because the father is an indispensable party to the

appeal, but he did not file a notice of appeal. See

Guardianship of Wilson, supra at 64 ("Generally, a court will

not proceed to a final determination without an indispensable

party"). We are not persuaded and conclude that the

department's reliance on these cases is misplaced.

In Guardianship of Wilson, 496 Mass. at 64, the Supreme

Judicial Court held that the relatives who had filed the

guardianship petitions that were dismissed by a Juvenile Court

judge, but who had failed to join in the appeal from the order

allowing the department's motion to dismiss, were indispensable

8

parties to the appeal. Their interests (in their appointment as

guardians of the children) and the children's requested relief

(vacating the dismissal of the guardianship petitions) "[were]

so intertwined" that the court could not grant the relief sought

by the children "in the absence of the relatives," whose failure

to file a timely notice of appeal in the trial court and to

diligently pursue their single justice appeal evinced a lack of

"continuing commitment" to serving as guardians. Id. at 64-65.

In Guardianship of Tara, 97 Mass. App. Ct. at 11-12, we

concluded that we could not grant the children's request to

reverse the denial of the grandmother's guardianship petition

and grant guardianship of them to their grandmother. We so held

because the grandmother did not appeal, no longer appeared to be

seeking appointment as a guardian, and we could not provide any

effective appellate relief. Id. "We cannot force a person,

even a relative, to assume guardianship over children . . . ."

Id. at 12.

This case is distinguishable from Guardianship of Wilson

and Guardianship of Tara. The father, because of his existing

legal relationship to the child, was a party to the care and

protection proceedings. In contrast, the relatives in

Guardianship of Wilson and Guardianship of Tara had no

underlying legal relationship to the children and were seeking

to establish a legal relationship through the filing of

9

guardianship petitions. Those relatives therefore could not be

forced to assume a legal relationship they no longer sought by

failing to appeal.

We agree with Varnell's contention that a child has an

independent interest in maintaining a connection with a legal

parent and that the father's lack of participation or even

willingness to remain the parent is immaterial. "Massachusetts

law recognizes children's interests in parental consortium as

filial needs for closeness, guidance, and nurture" (quotation

and citation omitted). Adoption of Mariano, 77 Mass. App. Ct.

656, 662 (2010). Our laws confer upon a child the right to

appeal "from the adjudication of the court and from any order of

commitment made as a result of the adjudication . . . to the

appeals court." G. L. c. 119, § 27. Nothing in G. L. c. 119,

§ 27, limits the child's right to appeal or conditions it upon a

parent's filing a notice of appeal.

This conclusion is consistent with our recognition, in

other contexts, of the importance of establishing and

maintaining a legal relationship between a child and a parent,

even when a parent does not demonstrate an interest or desire in

doing so. For example, in parentage petitions, a child has the

right to file a complaint to establish parentage and support

against a father regardless of whether the father wishes to

recognize the child. G. L. c. 209C, § 5 (a). See Adoption of

10

Mariano, 77 Mass. App. Ct. at 662 ("[A child's] entitlement to

the potential consortium of a father remains intact even against

the present will of the father").

In Adoption of Mariano, 77 Mass. App. Ct. at 656-657, the

divorcing parents of an infant submitted to the Probate and

Family Court an adoption petition filed by the mother and an

adoption surrender form executed by the father such that "the

mother would assume the role of sole parent." The judge denied

the adoption petition, finding that "it is not the wishes of the

parents, but rather the best interests of the child that

determine adoption" and that "in this instance the preservation

of a connection between [the child] and his father served the

best interests of the child and maintained a link to his

biological identity." Id. at 659. In upholding the dismissal

of the adoption petition, we recognized not only the public

policy interest in ensuring "that parents, not the State, should

support their children," id. at 662, quoting Adoption of

Marlene, 443 Mass. 494, 501 (2005), but also the child's

interest in parental consortium, "in the identification of a

biological father[,] and in the potentiality of the guidance,

companionship, and affection of that biological father either

now or later." Adoption of Mariano, supra at 663. See id.

(child had "important interest in the reservation of the

father's option for a change of mind or heart over time").

11

Accordingly, we conclude that the child has a right to

appeal even though the father did not file a notice of appeal.

2. Termination of the father's parental rights. "In

deciding whether to terminate a parent's rights, a judge must

determine whether there is clear and convincing evidence that

the parent is unfit and, if the parent is unfit, whether the

child's best interests will be served by terminating the legal

relation between parent and child." Adoption of Ilona, 459

Mass. 53, 59 (2011). "The natural bond between parent and child

should not be permanently severed unless the child's present or

future welfare demands it." Adoption of Carlos, 413 Mass. 339,

350 (1992). We review a termination of parental rights decision

to "determine whether the trial judge abused [their] discretion

or committed a clear error of law." Adoption of Elena, 446

Mass. 24, 30 (2006).

Varnell does not challenge the judge's finding of the

father's unfitness, but argues that the judge abused her

discretion by concluding that the termination of his father's

parental rights served Varnell's best interests. See Adoption

of Carlos, 413 Mass. at 350 ("The natural bond between parent

and child should not be permanently severed unless the child's

present or future welfare demands" termination [emphasis

added]). Although the evidence here clearly supported the

judge's finding of the father's unfitness, we conclude that the

12

evidence failed to demonstrate that termination served the

child's best interests.

We are mindful of the judge's findings that the father

"never attended to the child's welfare, education, medical care,

psychological well-being, or living situation" and never sought

to be his custodian. Indeed, the father did not engage with the

department and asked the department to stop contacting him.

However, "even if a parent is found to be unfit, there are some

situations in which the child's best interest may be served

without a decree of termination." Adoption of Flora, 60 Mass.

App. Ct. 334, 342 (2004). Based on our review of the record,

which is devoid of evidence that the father would attempt to

interfere with decisions about Varnell's placement or otherwise

do anything contrary to Varnell's best interests, we conclude

that this is one of those situations. To be clear, our holding

is limited to these facts and we can certainly envision cases

where a parent's lack of engagement with the department and

services contribute to a conclusion that terminating the

parent's rights serves a child's best interests. See Adoption

of Meaghan, 461 Mass. 1006, 1007 (2012) ("While a child has an

interest in family integrity, it may also be in the child's best

interests permanently to terminate the parent's rights").

Here, the evidence demonstrated that Varnell wanted the

possibility to have his father be part of his life, even if on

13

an inconsistent basis. Prior to the department's removal of

Varnell from his mother, Varnell had a relationship with his

father, who took him out for pizza and milkshakes, bought him a

bike, and at a minimum, had phone calls with him during the

month Varnell reunified with his mother.6 We do not equate the

father's disinterest in having contact with the department after

Varnell was placed in the department's custody with a

disinterest in maintaining contact with Varnell. Importantly,

Varnell wanted to preserve his relationship with his father and

believed that his father wanted to see him but could not because

his father had not signed paperwork with the department.

Varnell's wishes regarding whether his father's parental rights

should be terminated should be considered in assessing his best

interests. See Adoption of Ramona, 61 Mass. App. Ct. 260, 267

(2004) ("Because [the children] are old enough to have a final

say as to their own adoptions, the wishes of each child as to

termination should be considered in determining their best

interests"); Adoption of Flora, 60 Mass. App. Ct. at 342

(child's wishes as to termination should be considered on

remand). Varnell opposed the termination of his father's

6 Varnell's social worker admitted that he did not know

exactly how much contact Varnell had with the father because

Varnell tended to withhold information from the worker.

14

parental rights at trial and continues to oppose termination on

appeal.7

Moreover, the evidence here did not support a concern that

the father would attempt to interfere in any way with future

custody decisions or "other disposition[s]" for Varnell.8

Although the judge appeared to be motivated by the laudable goal

of preventing the father from disrupting future custody

decisions, the evidence demonstrated that the father never

7 The department social worker had not discussed with

Varnell the issue of adoption or the possibility that his

father's parental rights would be terminated. The judge found,

based on the social worker's testimony, that "[h]aving a

therapist in place [for Varnell] to help him process the

termination of his father's rights would be beneficial." Yet

Varnell had no therapist during the five months before trial,

and at the time of trial he was still on a waiting list to

obtain one. Although the judge credited the social worker's

opinion testimony that "a termination decree would [not] have

much impact on [Varnell's] mental health," we note with concern

that the department advocated at trial for the termination of

the father's parental rights as serving Varnell's best

interests, without having first discussed the issue with Varnell

and potentially giving him an opportunity to process it in

therapy or at least with the social worker. The social worker

agreed that exploring the topic in therapy "would be better,"

because Varnell "often needs extra time and extra support around

big decisions."

8 In terminating the father's parental rights, the judge

found that there will no longer be a requirement to seek the

father's consent or give him notice "for any legal proceeding

affecting the custody, guardianship, or other disposition of

[Varnell]. He will not be consulted on [Varnell's] welfare,

education, medical care, psychological well-being, living

situation, or who his legal custodian will be." See G. L.

c. 210, § 3 (b). The judge further concluded that "it is

appropriate to cease all attempts to have the father make

decisions for his son or to engage him in the process."

15

interfered with the mother's parental decision-making or with

Varnell's foster placements. In fact, the judge found that the

mother facilitated communications between Varnell and his

father. There was no finding, and nothing in the record

suggests, that the father would attempt to disrupt any placement

or oppose any permanency plan if his parental rights remained

intact.

It is also significant that termination of the father's

parental rights did not clearly help Varnell to achieve either

the department's actual permanency goal of reunification or the

judge's recommended concurrent goal. The judge found that,

"[a]lthough it is appropriate to continue working toward

reunification between [Varnell] and his mother, concurrent long-

term planning such as guardianship or adoption also should be

explored . . . due to the length of time Varnell has been in the

[d]epartment's care and the importance of establishing a

permanent and stable home for [Varnell] that can meet his

special needs,"9 as well as the "improbability that [Varnell's]

9 We note that (1) a guardianship appointment may be

finalized even if the father's parental rights remain intact,

see G. L. c. 190B, § 5-204 (a) (i), (v); (2) a child over the

age of fourteen like Varnell may object to the appointment of a

guardian pursuant to G. L. c. 190B, § 5-203 (i); and (3) since a

child over the age of twelve must consent to a decree of

adoption pursuant to G. L. c. 210, § 2, adoption was not a

viable permanency goal as of the date of trial.

16

mother can meet his needs."10 Because the department did not

seek to terminate the mother's parental rights, the judge's

decision to terminate the father's parental rights did not free

Varnell for adoption (which was not the department's permanency

goal for Varnell).

To be sure, there may be cases where termination of one

parent's rights while maintaining the other parent's rights

serves a child's best interests, see, e.g., Adoption of Willow,

433 Mass. 636 (2001), even if the permanency plan may not be

adoption. In Adoption of Willow, where the court affirmed the

termination of the mother's rights despite the nontermination of

the father's rights, the court reasoned that "severing all legal

relations between the mother and the children . . . [was] a

critical step in promoting stability in their lives" and that it

was not in the children's best interests "to allow their mother

'to interfere with the child[ren], initiate multiple,

repetitious litigation, and hinder and delay the eventual

adoption of the child[ren] into a fit environment.'" Id. at

647, quoting Adoption of Helen, 429 Mass. 856, 862 (1999).

However, we conclude that the department failed to demonstrate

10If the parent's parental rights remain intact and the

department changes Varnell's permanency goal to adoption, any

party may file a motion for review and redetermination and seek

a hearing to terminate either parent's rights. See G. L.

c. 119, § 26 (c).

17

that those concerns are present here, and the facts in this case

are distinguishable from those in Adoption of Willow. The

mother in Adoption of Willow subjected the children to repeated

and brutal physical abuse, failed to ensure that they were

properly clothed and educated, and housed them in deplorable

living conditions. See Adoption of Willow, supra at 640.

Furthermore, unlike the children in Willow, whose permanency

goal was adoption, id. at 639, Varnell's permanency goal is

reunification, albeit with his mother.

Similarly, we can imagine cases where a parent engages in

efforts to obstruct, disrupt, or interfere with the child's

placement or permanency plan to the detriment of the child's

stability. See Adoption of Thea, 78 Mass. App. Ct. 818, 825

(2011), quoting Adoption of Nancy, 443 Mass. 512, 517, 518

(2005) ("We recognize that stability and permanence in a child's

life may in some cases be 'eased' by termination of parental

rights 'even when it is not a prerequisite for the

implementation of the permanency plan'"). However, this is not

such a case -- the father here has never attempted to disrupt

Varnell's stability or placement.

The department's permanency goal for Varnell was not

adoption nor did the termination of the father's parental rights

free Varnell for adoption, and there was no evidence that the

father would attempt to interfere with or obstruct any future

18

placement or custody decisions. Although the father did not

engage with the department or with court proceedings, the record

demonstrated that Varnell and his father continued to have a

relationship, one that Varnell wishes to maintain.

Conclusion. While we can imagine that a parent's lack of

engagement and unfitness might help support a conclusion that

termination of that parent's rights serves the child's best

interests in some cases, in this case the department failed to

prove that termination of the father's parental rights served

the child's best interests. Accordingly, we reverse so much of

the April 9, 2024 decree that terminated the father's rights.11

So ordered.

11In light of our disposition, we need not reach the

child's arguments that the judge erred in concluding that the

child's derivative rights, such as his rights to inherit from

his father or any rights that might arise under the Social

Security Act, stemming from his legal relationship with his

father survive the termination of the father's parental rights.

Nor do we reach the child's argument that the judge erroneously

found that the department sought termination of the father's

rights "based upon clinical advice from [the child's]

providers," although we note that the department concedes the

point.

HENRY, J. (concurring). I agree with the reasoning and the

outcome of the court's opinion. I write separately because I

think that we also should decide what rights are and are not

terminated when a judge "terminates parental rights" by a decree

issued pursuant to G. L. c. 119, § 26, and G. L. c. 210, § 3.

Are we rendering children legal orphans or legal half-orphans

even if they are never adopted?1 If so, why? We are needlessly

adding to the trauma of children and parents and should stop

causing that harm.

The scope of the rights terminated was ruled upon by the

trial judge here, is fiercely disputed by the child and the

department, and is likely to arise on remand. Moreover, this is

a significant question for the many children who were or will

not be adopted after the termination of parental rights. We owe

1 The phrase "legal orphan" is not hyperbole. It has been

referenced and not disavowed in the case law under G. L. c. 119,

§ 26, and G. L. c. 210, § 3. See, e.g., Adoption of Nancy, 443

Mass. 512, 516 (2005) (father and children argued termination of

father's parental rights will render children "legal orphans");

Adoption of Ramona, 61 Mass. App. Ct. 260, 265, 266 (2004)

(noting, where sons opposed adoption and "remained connected"

with mother, "there is reason to think that terminating the

mother's rights as to either boy might render them legal

orphans"); Adoption of Gertrude, 99 Mass. App. Ct. 817, 820

(2021) (mother and daughters argued as part of their cost-

benefit analysis that one negative impact of termination was

daughters would be rendered "legal orphans"). Numerous

unpublished memoranda and orders pursuant to our rule 23.0 also

use the phrase "legal orphan."

2

them a decision and a coherent rationale consistent with the

language of the statutory scheme.

Consistent with the language in both statutes, the judge

entered a decree that "terminate[d] the rights of the [father]

to receive notice of or to consent to any legal proceeding

affecting the custody, guardianship, adoption or other

disposition of the child."2 This statutory language is referred

to in our cases by the phrase "termination of parental rights."

What is terminated or dispensed with is "the need for

consent" of the parent or other individual "to the adoption,

custody, guardianship or other disposition of the child named

2 Parental custodial rights may be terminated under either

G. L. c. 119, the care and protection statute, or G. L. c. 210,

the adoption statute. See Adoption of Willow, 433 Mass. 636,

643 (2001). General Laws c. 119, § 26 (b) (4), provides: "[I]f

the court adjudicates the child to be in need of care and

protection under this section, the court shall enter an order

dispensing with the need for consent to adoption upon finding

that the best interests of the child . . . will be served

thereby. The entry of such an order shall have the effect of

terminating the rights of a person named [in G. L. c. 210, § 2]

to receive notice of or to consent to any legal proceeding

affecting the custody, guardianship, adoption or other

disposition of the child named [in the petition]." Similarly,

G. L. c. 210, § 3 (b), provides: "[If the court] finds that the

best interests of the child . . . will be served[,]" the court

"shall issue a decree dispensing with the need for consent or

notice . . . The entry of such a decree shall have the effect

of terminating the rights of a person named [in G. L. c. 210,

§ 2] to receive notice of or to consent to any legal proceeding

affecting the custody, guardianship, adoption or other

disposition of the child named [in the petition]."

3

therein." G. L. c. 119, § 26 (b) (4).3 In other words, once

both parents' rights are terminated, the child is legally free

for adoption. Unless and until the child is adopted, nothing

more has occurred.

"'Custody,' as statutorily defined, entails 'the following

powers: (1) to determine the child's place of abode, medical

care and education; (2) to control visits to the child; (3) to

consent to enlistments, marriages and other contracts otherwise

requiring parental consent.'" Petition of Catholic Charitable

Bur. of the Archdiocese of Boston, Inc., to Dispense with

Consent to Adoption, 392 Mass. 738, 740 (1984), quoting G. L.

c. 119, § 21, as amended through St. 1978, c. 552, § 28.4

It is unfortunate but true that some cases have been

imprecise in their language about the different legal

consequences associated with termination of parental rights in

contrast to adoption. For example, in Adoption of Helen, 429

Mass. 856 (1999), the Supreme Judicial Court stated that, "[t]he

focus of [a termination] proceeding is not whether the parent

3 The statute refers to the parent or "any other any person

named in section 2 of chapter 210." G. L. c. 119, § 26 (b) (4).

General Laws, c. 210, § 3 (b), contains a similar provision.

See note 2, supra.

4 The statutory definition of "custody" has remained

essentially unchanged since 1978. See G. L. c. 119, § 21, as

amended through St. 2020, c. 227, § 44.

4

should be deprived of 'custody' in order to safeguard the

child's well-being, but rather whether 'it would be in the best

interests of the child for all legal relations [with the parent]

to be ended'" (citation omitted). Id. at 863. However, the

case on which Adoption of Helen relies for this proposition

states that it is "[w]hen a child is adopted" that "all rights,

duties and other legal consequences of the natural relation of

child and parent . . . except as regards marriage, incest or

cohabitation, terminate between the child so adopted and his

natural parents[5] and kindred" (emphasis added; citation

omitted). Petition of the Dep't of Social Servs. to Dispense

with Consent to Adoption, 391 Mass. 113, 119 (1984). See

Adoption of Carlos, 413 Mass. 339, 350-351 (1992) (referring

without reasoning to "the irreversible termination of the

parent-child legal relationship under c. 210, § 3"). Logically,

if the termination of parental rights severed all legal

5 It also time for the judiciary to stop referring to

"natural parents." The Massachusetts Parentage Act (MPA),

effective January 1, 2025, updated State law to ensure equal

parentage rights for all families, particularly benefiting those

who establish parentage through marriage, those who use assisted

reproduction or surrogacy, and lesbian, gay, bisexual,

transgender, or queer (or questioning), and others (LGBTQ+

persons). The MPA replaces gendered and outdated language,

simplifies establishing legal parentage, and recognizes de facto

and intended parents. See G. L. c. 209C, as amended through

St. 2024, c. 166, §§ 5-9 (effective Jan. 1, 2025).

5

relations between the parent and child, then there would be

nothing left for adoption to sever.

Adoption is what terminates all rights of the parent -- not

a termination decree pursuant to G. L. c. 119, § 26, and G. L.

c. 210, § 3. In fact, in Adoption of Helen, 429 Mass. at 863,

the Supreme Judicial Court continued on to correctly state the

consequence of a termination of parental rights: "[t]ermination

denies the natural parents physical custody, as well as the

rights ever to visit, communicate with, or regain custody of the

child."6,7 In other words, the termination of parental rights

pursuant to G. L. c. 119, § 26, and G. L. c. 210, § 3, may

6 This court also collapsed the difference between the

consequences of adoption and termination of custodial rights in

Adoption of Donald, 52 Mass. App. Ct. 901 (2001). We stated

that the mother argued both "that not all parental rights are

terminated upon the entry of a decree pursuant to G. L. c. 119,

§ 26, or G. L. c. 210, § 3, and further that until the decree

terminating her rights to notice or to give consent has run the

course of possible appellate review," she could participate in

postdecree permanency hearings. Adoption of Donald, 52 Mass.

App. Ct. at 902. Although we identified two arguments by the

mother, we said "[t]his argument" was without merit. We then

addressed only the second argument, stating "[i]t is the entry

of the decree, and not affirmance on appeal or eventual adoption

of the child, that terminates a parent's rights to physical

custody and right to regain custody, as well as to notice of or

consent to adoption, of the child." Id.

7 While the parents' right to visit is terminated, if it is

in the best interests of the child, the trial judge has

discretion to continue visitation between the parent and the

child. See Adoption of Douglas, 473 Mass. 1024, 1027 (2016);

Adoption of Warren, 44 Mass. App. Ct. 620, 626 n.5 (1998).

6

potentially lead to the termination of all parental rights. But

the termination of all parental rights occurs only if and when

the child is adopted.8

The Supreme Judicial Court's decision in Adoption of

Marlene, 443 Mass. 494 (2005), supports this conclusion. In

that case, the court held that when a parent consents to the

adoption of their child pursuant to G. L. c. 210, § 2, the

consent "does not terminate the parental duty to support the

child." Adoption of Marlene, supra at 495 (affirming judge's

order granting child's motion seeking child support from father

who voluntarily consented to her adoption). In interpreting the

statutory language, the court held that the words of the statute

"mean only that the surrender is final as to the enumerated

rights being surrendered." Id. at 500. Those rights are to

"notice of any legal proceeding that affects the 'custody,

guardianship, adoption or other disposition' of the child." Id.

at 499, quoting G. L. c. 210, § 2. "Section 2 says nothing and

implies nothing concerning the termination of a parent's support

obligations." Adoption of Marlene, supra at 498. Put

differently, G. L. c. 210, § 2, accomplishes by parental consent

8 I also note that the MPA permits a child to have more than

two legal parents. See G. L. c. 209C, § 26 (c), added by

St. 2024, c. 166, § 65. It is for another day whether the

passage of the MPA should result in changes to the consequences

of adoption.

7

what an order pursuant to G. L. c. 119, § 26, and G. L. c. 210,

§ 3, can dispense with involuntarily after a trial. Applying

the same reasoning to those statutes, the effect of a

termination decree is limited to what the statutes say: the

court "may dispense with the need for consent of any person

named in section 2 of chapter 210 to the adoption, custody,

guardianship or other disposition of the child named therein."

G. L. c. 119, § 26 (b) (4).9 See G. L. c. 210, § 3 (b).

Indeed, unless a child is adopted, there is no reason to

terminate all parental rights. What purpose does it serve to

sever entirely the legal relationship between the parent and the

child if the child is never adopted?

In this case, the child objected to the termination of the

father's parental rights. Although the father's involvement in

the child's life has been so limited that when the mother was

found unfit, the child was placed in the custody of the

department, the connection to the father this child feels is

meaningful to him. To the extent the decree made the child a

"legal half-orphan," as the child argues and some cases seem to

9 There is one difference between a voluntary surrender of

the right for consent to adoption and the involuntary

termination of that right. By statute, after an involuntary

termination, the right to support is barred. See G. L. c. 209C,

§ 22 (a) ("A decree or judgment entered on a petition filed

pursuant to sections three or six of chapter two hundred and ten

shall be a bar to a proceeding under this chapter"). To the

extent that the judge concluded otherwise here, the judge erred.

8

hold, it is not hard to conceive that the severance of the

father's and the child's legal relationship imposed on the child

against his wishes might unnecessarily inflict emotional

distress on him. In addition, it is possible that the

termination of all legal rights prior to adoption could also

cause this child and others financial harm by potentially ending

the child's right to inheritance or other benefits based on the

parent-child relationship. For example, if the father dies

intestate tomorrow, the child should have inheritance rights.

If Adoption of Helen and other cases are read broadly, he would

not.

Even if we abandon the plain language of G. L. c. 119,

§ 26 (b) (4), and G. L. c. 210, § 3, which we should not, I

would hold that the greater statutory authority to terminate all

parental rights includes the authority to do less. In other

words, the trial judge was permitted to, could, and did enter a

decree that terminated the right of the father "to receive

notice of or to consent to any legal proceeding affecting the

custody, guardianship, adoption or other disposition of the

child" and nothing more. As the trial judge explained, it was

the father's rights that were terminated, not the child's. She

ruled that the child retained the right to inherit, obtain

social security benefits (assuming he otherwise qualifies), have

his father on his birth certificate, and pursue visitation with

9

his father. I agree with those legal conclusions. I would hold

that the decree terminated the rights of the father to receive

notice of or to consent to any legal proceeding affecting the

custody, guardianship, adoption or other disposition of the

child; the decree did not terminate all legal relations between

this parent and this child.