S.M. v. M.P.

NOTICE: All slip opinions and orders are subject to formal

revision and are superseded by the advance sheets and bound

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15-P-1047 Appeals Court

S.M. & another1 vs. M.P. & another.2

No. 15-P-1047.

Bristol. April 12, 2016. - July 14, 2017.

Present: Green, Trainor, & Milkey, JJ.

Adoption, Visitation rights. Minor, Adoption, Visitation

rights. Parent and Child, Adoption. Jurisdiction,

Juvenile Court, Equitable. Juvenile Court, Jurisdiction.

Contract, Visitation rights, Condition, Implied covenant of

good faith and fair dealing.

Complaint in equity filed in the Bristol County Division of

the Juvenile Court Department on July 14, 2014.

The case was heard by Siobhan E. Foley, J.

Harold N. Robertson for the defendants.

TRAINOR, J. The plaintiffs are the biological parents of

two children whom the defendants have adopted. At the time the

plaintiffs (biological parents) surrendered their parental

1

G.R.

2

J.P.

2

rights, they entered into open adoption agreements with the

defendants (adoptive parents) that allowed for continued

visitation on certain specified terms.3 After the adoptive

parents notified the biological parents that they were

terminating visitation under the agreements, the biological

parents filed an equity complaint for noncompliance with the

adoption agreements, seeking their specific performance.

Following a hearing, a Juvenile Court judge ruled in the

biological parents' favor, while at the same time ordering them

to discontinue a particular practice that the adoptive parents

opposed. On the adoptive parents' appeal, we vacate the judge's

order and remand the matter for further proceedings.

Background. The older child, Abby,4 was born on June

2, 2008. From about two weeks after her birth until thirteen

months old, she lived with a cousin. At age thirteen months,

she was placed with her now parents, who adopted her when she

was about three and one-half years old. She has diagnoses of

fetal alcohol syndrome, neurosensory hearing loss, and anxiety.

She uses hearing aids; she has had physical therapy and

occupational therapy services; she is followed by a speech

therapist; and she has been involved with a counselor at school.

3

Although we refer to the defendants as the "adoptive

parents" for ease of reference, we emphasize that they are now

the children's legal parents.

4

A pseudonym.

3

The child was subject to a care and protection petition

brought by the Department of Children and Families (DCF) in the

Bristol County Division of the Juvenile Court Department. That

matter was ultimately concluded with the biological parents and

the adoptive parents executing an open adoption agreement.

On January 1, 2012, the biological parents had a second

child, Betsy.5 She was born with neonatal abstinence syndrome

and was hospitalized following birth in the neonatal intensive

care unit (NICU). She was placed directly with the adoptive

parents upon discharge from the NICU, and at no point did the

biological parents provide care for her. There was another care

and protection petition brought by DCF on behalf of this child.

She was also adopted by the adoptive parents. Open adoption

agreements were executed identically for each biological parent,

which declared the prior agreements to be null and void, became

the governing agreements for both children, and provided for

four supervised visits per year. Because the substantive terms

of these agreements are identical, we will refer to them as "the

agreement."

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,

5

A pseudonym.

4

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." The agreement also requires the

biological parents to provide a working telephone number to the

adoptive parents, and further provides that failure to do so

"may result in this agreement becoming null and void at the

discretion of [the adoptive parents]." Lastly, the agreement

provides that either party may seek specific performance of its

terms.

In June, 2014, the adoptive mother sent the biological

parents a letter purporting to terminate all future visits. As

reasons therefor, she stated that the biological parents had

failed to provide a working telephone number; they had "failed

to stop referring to [themselves] as 'mom and dad' as agreed

upon";6 and the visits were causing "undue stress, anxiety and

confusion to the children,"7 and thus, "[w]e do not feel that it

is in the best interest of the children to continue visits."

6

The adoptive parents had made this request of the

biological parents, although it was not made part of the written

agreement.

7

At the hearing below, the adoptive mother testified that

she believed the visits were causing Abby undue stress because

"several days" after the visits, she would resume her old habit

5

After a hearing on the biological parents' petition for

specific performance of the agreement, the judge found that

their failure to provide a telephone number was not a material

breach of the agreement, and that there was no indication that

their use of the term "mom and dad" had caused undue stress or

anxiety to Abby. The judge issued an order reinstating

visitation pursuant to the terms of the agreement, and further

ordering the biological parents to provide a working telephone

number to the adoptive parents, and to refrain from engaging the

children in conversation as to their status as biological

parents.

On appeal, the adoptive parents allege that the judge erred

by not following the requirements of G. L. c. 210, §§ 6C-6E

(statute), which governs the enforcement of an open adoption

agreement.8 The adoptive parents claim that the judge

of picking the skin off her fingers and toes, and this behavior

would resolve several weeks after the visit.

8

The adoptive parents state in their brief:

"Open Adoption Agreements are governed by [G. L.

c. 210, §§ 6C-6E,] which limit judicial authority over

their enforcement and preserve the rights of adoptive

parents to make decisions on behalf of their children."

The adoptive parents specifically argue in this regard that

"[t]he court has no authority over conduct in a visit. It

may modify an agreement only if it finds a change in

circumstances . . . , which the court expressly did not

find."

6

substituted her judgment for that of the adoptive parents,

thereby abrogating their statutory and contractual rights. The

adoptive parents also claim that the judge erred by finding that

the biological parents' admitted breach of the provision in the

agreement requiring them to provide a telephone number was an

insufficient basis for the adoptive parents to exercise their

explicit right to terminate visitation based on that breach. We

discuss each argument in turn.

Discussion. 1. The Juvenile Court's equity powers. While

the Juvenile Court Department has jurisdiction in equity in all

matters arising under the provisions of chapters 119 and 210 of

the General Laws, see G. L. c. 218, § 59, the sole remedy for

the breach of a court-approved agreement (an open adoption

agreement) for postadoption contact is a court order for

specific performance. See G. L. c. 210, § 6D; Adoption of

Tammy, 416 Mass. 205, 210 (1993) (law of adoption is entirely

statutory and governing statute must be strictly followed). See

also Beloin v. Bullett, 310 Mass. 206, 210 (1941). The

agreement here explicitly mirrors the statute and requires that

any enforcement of "the agreement [be pursued] by commencing a

Despite the dissent's contentions to the contrary, the adoptive

parents are appealing the fact that the judge modified the

agreement without finding a material and substantial change in

circumstances. The new prohibition against the biological

parents referring to themselves as "mom and dad" was never in

the original agreement.

7

civil action for specific performance."9 In addition to the

unequivocal statutory mandate, the general rule for the exercise

of equity jurisdiction is that no adequate and complete remedy

exists at law.10 See Bank of America, N.A. v. Diamond Financial,

LLC, 88 Mass. App. Ct. 564, 567 (2015), quoting from Cadigan v.

Brown, 120 Mass. 493, 494 (1876) ("Our courts . . . have limited

even express grants of equitable authority to situations where

there is no 'plain, adequate and complete remedy at law'").

The prescribed statutory and contractual procedure mandates

that "[i]n an enforcement proceeding, the court may modify the

terms of the agreement if the court finds that there has been a

material and substantial change in circumstances and the

modification is necessary in the best interests of the child"

(emphasis added). G. L. c. 210, § 6D, inserted by St. 1999,

c. 3, § 21. See the similar contract provision in article IV,

§ 3(d) of the agreement. The Juvenile Court judge correctly

stated this standard in her findings and noted that "[t]he court

finds no material and substantial change in circumstances in the

9

The court's order was issued pursuant to a petition in

equity.

10

Specific performance is an equitable remedy, but it is

one that has been fully incorporated into our common law and is

employed when the common-law remedy is insufficient. See

Keeton, An Introduction to Equity 241 (Pitman's Equity Series

6th ed. 1965). Here, the General Court has determined that the

usual common-law remedy (monetary damages) is inadequate and has

provided the statutory remedy of specific performance.

8

present case." The judge, however, then modified the terms of

the agreement by ordering that the biological parents "shall not

intentionally engage the minor children in conversation as to

their status as their Biological Parents."

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. As we have already observed however, the

court's general equitable powers are not available for use in

matters controlled by the provisions of G. L. c. 210, §§ 6C &

6D, or in contradiction of the applicable and specific contract

provisions. Equity cannot be used when there is a prescribed

and adequate remedy at law. See Bank of America, N.A., 88 Mass.

App. Ct. at 567. Instead, the judge must follow the

requirements of the statute and the agreement. As we have

observed, under the statute the judge's ability to modify the

terms of the agreement rests on her finding of a material and

substantial change in circumstances.11 However, the judge made

11

The judge heard the adoptive mother's testimony that she

believed that an oral agreement existed, whereby the biological

parents agreed not to refer to themselves as "mom and dad," and

that such agreement was subsequently breached. Certainly, the

judge could, within her discretion, find that the biological

parents' persistent references to themselves as "mom and dad,"

in breach of an oral agreement not to do so, constituted a

material and substantial change in circumstances, if she

considered the evidence of the agreement and its breach to be

both probative and credible.

9

no such finding here.12 Therefore, the judge's order must be

vacated and the matter remanded to the Juvenile Court. This

will afford the judge the opportunity to comply with the

controlling provisions of the statute and the agreement by

entering the appropriate findings and an order of modification

if "a material and substantial change of circumstances" is

found, and the judge determines that "the modification is

necessary in the best interests of the child[ren]."

2. Discretion to terminate visitation. Under the

agreement, the adoptive parents and the biological parents had

12

The only limitation on the court's power to modify an

agreement is that it cannot "expand, enlarge or increase the

amount of contact between the birth parents and the child or

place new obligations on adoptive parents." G. L. c. 210, § 6D.

See the similar provision in article IV, § 3(d) of the

agreement. There are no other limitations to a modification in

either the statute or the agreement, except that any

modification be determined to be in the child's best interest.

In addition, the adoptive parents' determination that the

biological parents should no longer discuss or refer to

themselves as the children's biological parents could be based

on the provisions of G. L. c. 210, § 6E. Section 6E, inserted

by St. 1999, c. 3, § 21, states:

"Nothing contained in sections 6C and 6D shall be construed

to abrogate the right of an adoptive parent to make

decisions on behalf of his child."

"None of the words of a statute is to be regarded as

superfluous, but each is to be given its ordinary meaning

without overemphasizing its effect upon the other terms

appearing in the statute." Commonwealth v. Woods Hole, Martha's

Vineyard & Nantucket S.S. Authy., 352 Mass. 617, 618 (1967),

quoting from Bolster v. Commissioner of Corps. & Taxn., 319

Mass. 81, 84-85 (1946).

10

agreed that "[the adoptive parents] or their designated agent

(visitation center staff or monitor) retain[] sole discretion to

terminate the visit if it is determined that either one of the

Child(ren) is suffering from undue stress or anxiety either due

to the actions or behavior of the biological parent or due to

the Child[ren]'s special needs emotionally and/or medically."

The agreement further states, "In the event that a visit with

[the biological parent] causes undue stress or anxiety to the

child[ren], [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."

When a party to a contract is given sole discretionary

power as to the occurrence of a condition, the exercise of such

right is measured by whether the party has acted honestly and in

good faith. See 1A Corbin, Contracts § 165, at 86-87 (1963)

("Even if the promisor is himself to be the judge of the cause

or condition [in a contract], he must use good faith and an

honest judgment"). See also Murach v. Massachusetts Bonding &

Ins. Co., 339 Mass. 184, 187 (1959) (insurer must exercise

discretionary power to settle claims in good faith).

Similar to a contract in which the promisor agrees to

perform on the condition that the promisor is personally

satisfied, the occurrence of the condition present in this case,

11

as to the adoptive parents' ability to modify the children's

visitation with the biological parents, "is dependent on the

. . . individual judgment of [the adoptive parents as] the party

to be satisfied." 2 Corbin, Contracts § 31.8, at 102 (rev. ed.

fall supp. 2016).13 In circumstances where a promise is

conditioned solely on one party's personal satisfaction, the

promisor's determination "even on the witness stand, is not

conclusive." 2 Corbin, Contracts § 5.33, at 187 (rev. ed.

1995). Instead, "the promisor is subject to the requirement of

good faith." Ibid. See 2 Corbin, Contracts § 5.32, at 177 n.5

(rev. ed. 1995), citing California Lettuce Growers v. Union

Sugar Co., 45 Cal. 2d 474 (1955) ("[W]here a contract confers on

one party a discretionary power affecting the rights of the

other, a duty is imposed to exercise that discretion in good

faith and in accordance with fair dealing"); 8 Corbin, Contracts

§ 31.8, at 102 (rev. ed. fall supp. 2016) ("[T]he party's

dissatisfaction cannot be given in bad faith, dishonestly,

insincerely, or fraudulently").

13

Where, as here, parties expressly agree that a condition

is determined solely by one party's personal satisfaction, good

faith measures that party's determination, and "the

reasonableness or justice of the party's dissatisfaction cannot

be questioned." 8 Corbin, Contracts § 31.8, at 102 (rev. ed.

fall supp. 2016). In contrast, when a contract requires that a

condition be determined by one party based on objective

standards, the reasonableness of the determinant's decision is

considered. See 2 Corbin, Contracts § 5.33 (rev. ed. 1995).

12

The agreement provides that the adoptive parents "retain[]

sole discretion to terminate the visit[ation] if it is

determined that either one of the Child(ren) is suffering from

undue stress or anxiety." The adoptive parents have the sole

ability to modify visitation to what they believe is in the

child's best interest and, in making this determination, they

"shall rely upon the input and observations made by the

person(s) supervising the visit." The agreement further

provides that "[the adoptive parents] or their designated agent

. . . retains sole discretion to terminate the visit[ation] if

it is determined that either . . . child[] is suffering from

undue stress or anxiety" (emphasis added). The particular party

supervising the visit is given the sole discretion to make that

determination. But here, where Abby's symptoms manifested

themselves after the actual visits, the adoptive parents

retained the sole discretion to make that determination.

The adoptive parents' sole discretionary power is also

similar to an option to terminate14 that is contractually

provided to a party when "supervening events or new information

makes the original bargain unsatisfactory to the holder of the

14

"The 'option to terminate' is a common method of

producing a result very similar to that produced by making a

promise conditional on personal satisfaction." 2 Corbin,

Contracts § 6.10, at 291 (rev. ed. 1995). "The party having the

power can . . . observ[e] results as performance of the contract

proceeds and terminat[e] the contract if these results are not

found to be satisfactory." Ibid.

13

power." 2 Corbin, Contracts § 6.10, at 291 (rev. ed. 1995).

Here, the adoptive parents have the discretionary right to

modify or terminate, if they so desire, the biological parents'

visitation with the children if such visitation causes the

children undue anxiety or stress.15 See ibid. ("[T]he . . .

'option to terminate' is not generally made conditional upon

dissatisfaction with the results[;] [i]t is a power to terminate

[the contract] if the contractor so wills and desires").

However, a party may not exercise its power to terminate a

contract without exercising such discretion in good faith. See

2 Corbin, Contracts § 6.14 (rev. ed. 1995).

Therefore, the judge's review, upon remand, should be

primarily focused on, and limited to, a determination of whether

the adoptive parents exercised their sole discretion to

terminate the children's visitation with the biological parents

honestly and in good faith.

"[E]very contract in Massachusetts is subject to an implied

covenant of good faith and fair dealing." Robert & Ardis James

Foundation v. Meyers, 474 Mass. 181, 188 (2016). Here, the

judge, as the finder of fact, must make an explicit

15

While the adoptive parents have an option to terminate

merely visitation, and not the agreement, under these

provisions, they also possess the discretionary right to

terminate the agreement upon a separate condition, if the

biological parents fail "to provide [the adoptive parents] with

a current address and working telephone number at all times."

14

determination as to whether the adoptive parents exercised their

discretion in good faith. See Bay Colony R.R. v. Yarmouth, 470

Mass. 515, 524 (2015) (jury reasonably concluded party failed to

act in good faith under contract). See also 2 Corbin, Contracts

§ 5.33, at 187 (rev. ed. 1995) ("[T]he honesty of the promisor's

assertions and testimony [as to his personal satisfaction] is a

matter of fact to be determined by the trier of fact"). In

determining whether a party has breached the implied covenant of

good faith and fair dealing, the judge may "look to the party's

manner of performance." Weiler v. PortfolioScope, Inc., 469

Mass. 75, 82 (2014), quoting from T.W. Nickerson, Inc. v. Fleet

Natl. Bank, 456 Mass. 562, 570 (2010).16 While "[t]here is no

requirement that bad faith be shown . . . [t]he lack of good

faith can be inferred from the totality of the circumstances."

Weiler, supra, quoting from T.W. Nickerson, Inc., supra.

When considering whether the implied covenant of good faith

and fair dealing was violated in the context of one party's

discretion as the sole determinant of a condition, the Supreme

Judicial Court has held that, in the totality of the

circumstances, there was no breach where the party acted in good

faith within its sole discretion as provided by the terms in the

16

"[In Massachusetts,] [t]here is a presumption that all

parties act in good faith, and the plaintiff bears the burden of

presenting evidence of bad faith or an absence of good faith."

T.W. Nickerson, Inc. v. Fleet Natl. Bank, supra at 574, citing

23 Williston, Contracts § 63.22, at 507 (Lord 4th ed. 2002).

15

contract. See Eigerman v. Putnam Invs., Inc., 450 Mass. 281,

287-290 (2007). "[T]he implied covenant of good faith and fair

dealing cannot create rights and duties that are not already

present in the contractual relationship." Id. at 289. See

Merriam v. Demoulas Super Mkts., Inc., 464 Mass. 721, 731

(2013), quoting from Uno Restaurants, Inc. v. Boston Kenmore

Realty Corp., 441 Mass. 376, 386 (2004) (stating that covenant

does not "provide[] a specific form of protection that is not

mentioned in the parties' contract"). Thus, the judge must look

to the duties and terms provided in the agreement when

determining whether the adoptive parents' discretionary action

was within the scope of the covenant of good faith and fair

dealing. See Eigerman, supra ("The covenant concerns the manner

in which existing contractual duties are performed"); 2 Corbin,

Contracts § 6.10, at 295 (rev. ed. 1995) ("The extent of the

reserved power [to terminate a contract] depends upon the

expressions in the agreement and the reasonable implications to

be drawn therefrom").

Further, a party breaches the covenant of good faith and

fair dealing when the party exceeds its contractual discretion

or uses its discretionary power in a pretextual manner. See

Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 473

(1991) (party's use of discretionary right as pretext justified

judge's finding of breach of good faith and fair dealing);

16

Robert & Ardis James Foundation, 474 Mass. at 191 (breaching

party "had taken an extreme and unwarranted view of his rights

under the contract"). The party may also be in breach of the

covenant of good faith and fair dealing as a result of the

party's motivations. See T.W. Nickerson, Inc., 456 Mass. at 574

(looking to whether party's motive was "to affect negatively the

plaintiff's rights" under the contract); Weiler, 469 Mass. at 84

(considering party's desire to enrich another at expense of

plaintiff in determining breach of covenant of good faith and

fair dealing).

In viewing the totality of the circumstances and terms

provided by the adoption agreement, the judge may review not

only the adoptive mother's testimony, but also, to the extent

appropriate, the conclusions of the guardian ad litem (GAL) and

the assigned supervisor's notes in determining whether the

adoptive parents exercised good faith in making their

discretionary determination.17 Paragraph 13 of the agreement

clearly states that the adoptive parents maintain "the sole

ability to modify visitation to conform to what they believe is

in th[e] child's best interest" (emphasis added). In making

this determination they shall rely upon input and observations

17

We note, however, that little, if any of these

conclusions and notes may be probative of the adoptive parents'

good faith because Abby's concerning behavior occurred after the

visits, outside of the GAL and the visit supervisor's

observation.

17

made by the person supervising the visit.18 The judge may

consider, therefore, the GAL's conclusions and the assigned

supervisors' observations only when determining if the adoptive

parents' discretionary decision to terminate the children's

visitation with the biological parents was made in good faith.

See Uno Restaurants, Inc., 441 Mass. at 385 ("[T]he purpose of

the covenant [of good faith and fair dealing] is to guarantee

that the parties remain faithful to the intended and agreed

expectations of the parties in their performance"); Eigerman,

450 Mass. at 289 (scope of breach of covenant of good faith and

fair dealing is within contract).

3. Contact information requirement. Finally, paragraph 25

of the agreement states that "[f]ailure on the part of [the

biological parents] to provide [the adoptive parents] with a

current address and working telephone number at all times may

result in this agreement becoming null and void at the

discretion of [the adoptive parents]." This language is

sufficient to create an express condition, which means, simply

18

Paragraph 13 of the agreement reads in its entirety:

"In the event that a visit with [the biological parent]

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. In

making this determination, [the adoptive parents] shall

rely upon the input and observations made by the person(s)

supervising the visit."

18

stated, that in the event that the plaintiffs fail to provide a

working telephone number at all times, the adoptive parents, in

their discretion, may terminate the agreement.19

Even if we were to determine that this provision was not an

express condition and that the manner of enforcing the condition

was discretionary (a question we do not decide), the exercise of

the adoptive parents' subjective discretion would have

appropriate limitations in contract law. The covenant of good

faith and fair dealing would be applicable in such a situation.

"Where a party to a contract makes the manner of its performance

a matter of its own discretion, the law does not hesitate to

imply the proviso that such discretion be exercised honestly and

in good faith. See 3A Corbin, Contracts, § 644, pp 78-84."

Burkhardt v. City Natl. Bank of Detroit, 57 Mich. App. 649, 652

(1975). See McAdams v. Massachusetts Mut. Life Ins. Co., 391

F.3d 287, 301-302 (1st Cir. 2004); Restatement (Second) of

Contracts § 205 (1981).

There is no burden upon the adoptive parents to show harm

in order to enforce such a contract provision. In theory, the

adoptive parents were only attempting to exercise the explicit

right that they, and the biological parents, freely bargained

19

See Restatement (Second) of Contracts § 226 comment a, at

170 (1981) ("No particular form of language is necessary to make

an event a condition").

19

for in the contract.20 Having said that, however, the judge

concluded that it was inappropriate, in these circumstances, to

terminate the agreement because the biological parents' failure

to provide a working telephone number was not an intentional

act.21 We agree, but for a different reason. The adoptive

parents had acquiesced in this failure for almost a year while

communicating solely by written correspondence. A contract

condition can be waived by continuing to perform or to receive

performance from the other party if there is knowledge that the

condition has not been performed. 8 Corbin, Contracts § 40.4

(rev. ed. 1999). The judge correctly deemed this provision to

have been waived. See KACT, Inc. v. Rubin, 62 Mass. App. Ct.

689, 695 (2004), quoting from Attorney Gen. v. Industrial Natl.

Bank, 380 Mass. 533, 536 n.4 (1980) ("Waiver may occur by an

express and affirmative act, or may be inferred by a party's

20

The judge found:

"The Open Adoption Agreement was entered into by the

parties freely, voluntarily and with a free understanding

of the consequences. It was a valid contract between the

parties. The Court notes all parties were represented by

counsel at the signing of the contract."

21

The judge credited the biological mother's statement that

it was an accidental oversight on her part to not provide a

current telephone number. But see Restatement (Second) of

Contracts § 225 comment e, at 169 (1981) ("Ignorance immaterial.

The rules stated in this Section apply without regard to whether

a party knows or does not know of the non-occurrence of a

condition of his duty").

20

conduct, where the conduct is 'consistent with and indicative of

an intent to relinquish voluntarily a particular right [such]

that no other reasonable explanation of [the] conduct is

possible'"). The judge, appropriately, drew no negative

inferences against the adoptive parents; nor did she impugn

their motives. The judge, also appropriately, reinstated (or

retained) the agreement's requirement of providing a working

telephone number, including the provision for the potential

negative consequences of failing to do so.

Conclusion. The judge's order is vacated and the matter is

remanded to the Juvenile Court for further proceedings

consistent with this opinion. 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. Finally, the 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.

So ordered.

MILKEY, J. (dissenting). By today's ruling, we are

displacing the Juvenile Court judge's thoughtful resolution of a

challenging controversy with a problematic remand that is almost

certain to please no one. Because I view that disposition as

neither necessary nor appropriate, I respectfully dissent.

Although the judge rejected the adoptive parents' argument

that they had present cause to terminate the open adoption

agreement, she agreed with them that it was their right to make

"[t]he decision of when and how this information [regarding the

biological parents' status] is to be conveyed to these children

. . .."1 She therefore enjoined the biological parents from

making such references going forward. In this manner, the judge

thoughtfully sought to forge a solution that directly would

address the adoptive parents' concerns, while still allowing the

biological parents the visitation rights that all parties

contemplated in their agreement. This resolution brought the

parties to a point of stasis. If the biological parents abided

by the injunction so as not to engage in the behavior that the

adoptive parents identified as the source of their daughter's

stress, problem solved. If they did not conform their behavior

1

I follow the majority's lead of referring to the

defendants as "adoptive parents" for ease of reference, while

emphasizing that they now are the children's only legal parents.

It bears noting, however, that at the point in time when they

committed to allow visitation, the defendants were not the

children's parents (adoptive or otherwise).

2

as required, the adoptive parents had multiple remedies

available to them. Notably, the judge achieved this resolution

while deftly sidestepping having to engage in inherently

intrusive inquiries into the adoptive parents' motives.

Two years have now passed with that Solomonic resolution in

place. As the adoptive parents confirmed at oral argument,

because the judge's order was not stayed, the regular visits

between the children and the biological parents have continued

in the interim. Now, we are upending the equilibrium that the

judge achieved. And to make matters worse, we are doing so in a

way that maximizes judicial meddling with the parent-child

relationship.

1. Propriety of the injunctive relief against the

biological parents. The majority remands this case in great

part because of its ruling that the judge erred when she ordered

the biological parents not to refer to their status in front of

the children. According to the majority, the judge could have

granted such relief only through a modification of the adoption

agreement, which could have been done only if the judge had

found a material and substantial change in circumstances. The

judge erred, the theory goes, by effectively modifying the

agreement even though she found no such change in circumstances.2

2

The judge expressly found "no material and substantial

change in circumstances in the present case." It is not clear

3

The majority's conclusion that the judge's remedial options were

limited in this manner, in turn, depends on its legal premise

that the specific legislative parameters of G. L. c. 210, § 6D,

effectively ousted the general equity jurisdiction that Juvenile

Court judges otherwise enjoy pursuant to G. L. c. 218, § 59.

That conclusion is the centerpiece of the majority's opinion.

For the reasons it states, the majority may well be correct

that it would have been more proper for the judge to invoke

§ 6D, the modification provision of c. 210, as the basis for

issuing the injunctive relief against the biological parents.

But see Adoption of Vito, 431 Mass. 550, 560-561 (2000)

(rejecting the argument that by enacting the open adoption

agreement statute, the Legislature intended to prohibit judges

from using their equitable power to order postadoption

visitation where the parties had not entered into such an

agreement). My quarrel is not with the majority's substantive

conclusion on this point of law, but instead with its reaching

the issue at all in the present posture of this case.

The injunctive relief requiring the biological parents to

change their behavior was in the adoptive parents' favor;

indeed, it gave the adoptive parents precisely what they

why the judge felt the need to address this issue where neither

side requested a modification of the agreement. In any event,

it appears that in issuing the injunctive relief against the

biological parents, the judge believed she was exercising

general equitable powers, not adding a term to the agreement.

4

originally had sought. The biological parents have not filed

any cross appeal challenging the propriety of the injunctive

relief entered against them, and the issue therefore, at a

minimum, is not squarely presented. To be sure, the adoptive

parents did touch on the issue in their appellate brief,3 but

neither they nor the biological parents have adequately briefed

it.4 Accordingly, we should not be reaching this issue in the

current appeal. See Phillips v. Youth Dev. Program, Inc., 390

Mass. 652, 660 (1983) (recognizing that important legal

questions "should not be resolved on an argument raised as an

afterthought and not fully briefed on both sides"). See also

Lee v. Mt. Ivy Press, L.P., 63 Mass. App. Ct. 538, 560 (2005),

citing Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975)

(where a party devoted only one paragraph of a sixty-five page

brief to an issue and included no citations, that issue was

waived).

Nor is the resolution of that issue likely to make any

difference in this case. There are ample grounds on which the

3

Although the relevant portion of the adoptive parents'

brief is short and cryptic, they appear to be saying that the

judge herself had a problem with the biological parents' conduct

and resolved that problem only through an improper means.

4

The adoptive parents addressed the propriety of the

injunction against the biological parents only in passing. The

biological parents, who are now representing themselves, did not

file any brief.

5

judge could have found a material and substantial change in

circumstances -- as the majority itself appears to acknowledge

-- and therefore the judge in any event could have ordered the

injunctive relief that she did.5 Once she focuses on that issue

in the remand, I have little doubt that she will follow that

path.

In sum, where the issue has not squarely been raised or

adequately briefed, and it may not ultimately make any

difference, our choosing to expound on it in the current appeal

is improvident at best. Having explained why I would not have

reached the propriety of the injunctive relief issued against

the biological parents, I turn now to my differences with the

other possible justifications for a remand.

2. Undue stress. Abby6 long has suffered from profound

anxiety. The adoptive parents' concern over that issue and

their efforts to address it are highly laudable, and a testament

to the love they have for their daughter. Moreover, I certainly

agree that if the adoptive parents had demonstrated that the

biological parents' actions during the visits was the cause of

5

Thus, the Juvenile Court plainly had jurisdiction to issue

its order; the only question is whether it had to do so as a

modification of the adoption agreement. Accordingly, our

reaching an issue not properly presented cannot be justified on

the theory that it goes to the trial court's subject matter

jurisdiction.

6

A pseudonym.

6

Abby's behavior, as the adoptive mother testified, they would be

within their rights to take action, including through

termination of the visitation.7 However, nothing in the language

of the adoption agreement relieves the adoptive parents of the

obligation to demonstrate objectively a threshold connection

between the anxious behaviors that Abby exhibited and the

actions of the biological parents. Rather, the agreement states

that "[i]n the event that" a visit is causing undue stress, the

adoptive parents have the "sole ability" to modify visitation as

they see fit to remedy that stress. Contrary to what the

majority states, the agreement does not by its terms grant the

adoptive parents the "sole ability" to determine the threshold

question whether the visits are causing such stress. Nor does

7

The agreement expressly provides that if a visit is

causing either child "undue stress," 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." Strictly speaking, these provisions

speak in terms of the adoptive parents' ability to terminate

individual visits, not in terms of terminating the agreement.

However, mindful that we are to interpret the rights provided to

biological parents by open adoption agreements narrowly in favor

of upholding the rights of the children's legal parents, see

G. L. c. 210, § 6E, I agree with the adoptive parents that -- in

appropriate circumstances -- they could rely on the undue stress

provisions as a basis for terminating all visitation with the

affected child going forward. It does not follow, as the

adoptive parents appear to assume, that if visitation is fully

terminated to address the particular sensitivities of one child,

then they automatically can terminate any visitation with

respect to the other child. Given how she ruled, the judge had

no occasion to consider how the relevant language of the

agreement would apply with respect to that issue.

7

anything in the agreement imply that the adoptive parents have

unreviewable discretion to determine whether visitation is

causing the children undue stress. In fact, to the contrary,

other provisions in the agreement demonstrate that the adoptive

parents do not have unfettered discretion to terminate

visitation based on unsupported allegations that the visits are

causing stress.8

In addition, it is important to keep in mind the over-all

context in which the question before us arises. Before the

adoptions here were finalized (that is, at a time when the

adoptive parents had no legal relationship with the children),

the adoptive parents legally committed to allowing quarterly

visits to go forward so long as the visits were not causing the

children undue stress (and the biological parents otherwise were

complying with the agreement's terms). In this context, it is

not reasonable to conclude that the biological parents agreed --

in the absence of express language to that effect -- that their

bargained-for rights to visit the children could be terminated

8

For example, to the extent that the asserted stress is

grounded in behaviors that the children exhibit during the

visits, the agreement expressly provides that in determining

what remedial measures should be taken, the adoptive parents

"shall rely upon the input and observations made by the

person(s) supervising the visit." Although this provision is

not implicated here (since, by all third party reports, the

visits themselves went remarkably well), its existence undercuts

the adoptive parents' assertion that they had unreviewable

discretion.

8

permanently based on a mere assertion by the adoptive parents

that the visits were causing the children undue stress. See

Downer & Co., LLC v. STI Holding, Inc., 76 Mass. App. Ct. 786,

797 (2010) (contracts are to be interpreted to fulfil "the

reasonable expectation of the parties when they entered into the

contract"). It follows that the adoptive parents' contention

that the biological parents' behavior was causing the skin

picking was not insulated from judicial review.

As the plaintiffs in a specific performance action, the

biological parents had the burden of proving the existence of

the agreement and the adoptive parents' refusal to comply with

its nominal terms. However, whether the agreement properly had

been terminated was an affirmative defense on which the adoptive

parents bore the burden of proof. See generally Patriot Power,

LLC v. New Rounder, LLC, 91 Mass. App. Ct. 175, 179-180 (2017).

The judge's findings directly address whether they met their

burden of proof regarding undue stress. As she found, and the

adoptive parents do not contest, "[t]here have been no reports

made by the children to a licensed clinical social worker or

other professional relative to stress or anxiety as a result of

visits with the Biological Parents." In fact, the hearing

documented that while the visits between the children and the

9

biological parents went extremely well,9 Abby gave no indication

that she saw the biological parents as anything more than

occasional playmates or that she was confused about who her

parents were.10 As to the adoptive parents' claims that the

visits were causing Abby's skin picking, the judge stated: "At

the present time, this Court does not find a sufficient nexus

between [Abby's] behaviors and statements attributed to [the

biological mother]." Thus, the judge expressly found that the

adoptive parents had not met their burden to provide sufficient

proof that it was the biological parents' behavior during the

visits that was causing Abby undue stress.

9

For example, the court-appointed guardian ad litem (GAL) -

- whose conclusions the judge expressly credited -- reported

that the visit she observed between the children and the

biological parents was "one of the best visits [she had] ever

seen" in her thirty-eight-year career, and she emphatically

concluded that continued visitation remained in the children's

best interests. The adoptive parents appear to fault the GAL

for failing to look into whether Abby was exhibiting stress

related to the visits outside of the visits themselves.

However, the GAL was not asked to examine that issue, something

that is hardly surprising given that the adoptive mother raised

it for the first time at the evidentiary hearing before the

judge.

10

The adoptive mother herself testified that Abby

"understands that I'm her mother and [the adoptive father] is

her father," and that the biological mother was merely "a friend

that she plays with." In addition, the GAL testified that six

year olds such as Abby "know the people who take care of them

every day as mommy and daddy," and that Abby had "never

indicated . . . that she had any type of familial relationship

with the [biological parents]," but instead knew them only as

people who "were fun and she played with them and she had seen

them periodically."

10

In fact, a close examination of the proof that the adoptive

parents put forward demonstrates just how thin it was. The

adoptive mother laid out the basis for her belief that the

visits were causing Abby undue stress for the first time at the

hearing. Specifically, she testified that "several days" after

the visits, Abby would resume her old habit of picking the skin

off her fingers and toes, and that this behavior would resolve

prior to the next quarterly visit. Based on this timing, the

adoptive mother attributed Abby's behavior to the visits causing

her undue stress. Her specific concern was that the biological

parents' references to themselves as "mom and dad" were causing

such stress.11

Thus, the adoptive parents' proof of a causal nexus was

based exclusively on observations that Abby resumed her skin

picking several days after the visits and stopped it at some

unspecified time before the next quarterly visit. Our case law

recognizes the difficulties incumbent in trying to use gross

temporal associations to prove what may be causing emotional

distress in a child. See Guardianship of Yushiko, 50 Mass. App.

11

The adoptive mother admitted in her testimony that, prior

to the hearing, she never had raised the skin picking behavior

as a reason for her concern about the visits. The biological

mother addressed the fact that she was unaware of the skin

picking concerns in her pro se closing argument. Although she

denied that any actions she took had caused Abby to exhibit such

behavior, she indicated that had she been made aware of it,

"[w]e would have [taken] precautions."

11

Ct. 157, 159 (2000). In Yushiko, we rejected a trial court

finding that the child in question "experienced stuttering

problems and physical manifestations of emotional upset upon her

return from visitation with her father and that those episodes

occurred more frequently prior to the [child's] move to Florida

[with her guardians]." As we explained,

"[T]here is nothing in the evidence to suggest that the

emotional distress experienced by the child after visits

with her father was caused by those visits rather than the

child's anxiety over the move to Florida. Nor was there

evidence that the return to her father would cause the

child severe emotional trauma."

Ibid.12 Here, the judge was well within the bounds of her

authority to conclude that the adoptive parents' proof was not

sufficient to meet their burden. Because her findings are not

clearly erroneous, we are bound by them, and we should be

affirming her ruling on that ground.

None of this is to say that I take issue with the

majority's point that the judge could have rejected the adoptive

parents' claims if she found they were put forward in bad faith.

I certainly agree with that proposition. However, an inquiry

into whether a parent is acting in good faith should be a last

resort given the extent to which this mode of inquiry meddles

12

It bears noting that in other contexts, proof of medical

causation "generally must be established by expert testimony."

Harlow v. Chin, 405 Mass. 697, 702 (1989) (medical malpractice).

I do not think expert proof is necessarily required in the

context of the case before us, but more proof than what the

adoptive parents offered is.

12

with the parent-child relationship. See Adoption of Vito, 431

Mass. at 565 (cautioning judges against "meddling in the child's

and adoptive family's life"). In fact, I cannot imagine

anything more intrusive to the parent-child relationship than a

searching inquiry into such questions as whether the adoptive

parents sought to terminate visitation here not because it was

going badly, but because it was going so well. In my view, the

judge appropriately resolved the dispute before her without

questioning the adoptive parents' honesty and good faith. She

recognized that regardless of whether the adoptive mother

honestly believed that the biological mother's references led

Abby to pick her skin, this does not mean that such a belief

actually was founded. Simply put, the judge understood that a

good faith belief that a causal link exists does not equate to

adequate proof of it.

3. Absent telephone number. I turn now to the remaining

claim that the adoptive parents raised, namely the biological

parents' temporary failure to provide a working telephone

number. It is undisputed that the agreement required the

biological parents to provide such a number and that the

biological parents had not complied with this provision at the

point that the adoptive parents purported to terminate all

visitation. However, the judge found -- and the adoptive

parents do not contest -- that the parties, historically, had

13

always communicated by mail without incident. It is undisputed

that the adoptive parents never asked for the missing telephone

number, and the judge found that the biological parents promptly

would have cured their omission had the adoptive parents called

it to their attention. Indeed, other than pointing out that

they had to confirm the visits directly with the visitation

center and not with the biological parents, the adoptive parents

were unable to articulate -- either at the hearing in the court

below or in the argument before us -- how the missing telephone

number caused them or their children any problem whatsoever.

Citing to the Restatement (Second) of Contracts, the judge

ruled that the biological parents' failure to provide a working

telephone number was an "oversight" that was too inconsequential

to preclude them from seeking specific performance of the

agreement.13 To the extent that the majority concludes that the

judge's analysis skirts over the fact that the agreement

expressly grants them discretion to determine the agreement

"null and void" based on the biological parents' failure to

supply contact information, I agree.

The majority concludes that the judge's rejection of this

ground should nevertheless be affirmed based on acquiescence.

13

The judge cited the Restatement (Second) of Contracts for

the five "significan[t]" factors that determine whether a given

breach is material. See Restatement (Second) of Contracts

§ 241, at 237 (1981): "Circumstances Significant in Determining

Whether a Failure is Material."

14

See generally KACT, Inc. v. Rubin, 62 Mass. App. Ct. 689, 695

(2004). Passing over whether such analysis necessarily is

correct, I add that we could uphold what the judge did with

respect to the telephone number issue on a separate ground. The

adoptive parents acknowledge that their effort to declare the

agreement null and void is not immune from all judicial review.14

See Computer Sys. of America, Inc. v. Western Reserve Life

Assur. Co., 19 Mass. App. Ct. 430, 437 & n.11 (1985), citing

Chandler, Gardener & Williams, Inc. v. Reynolds, 250 Mass. 309,

314 (1924) (although a contract for the lease of certain

equipment expressly entitled one party to terminate the

agreement if it determined, in its "sole judgment," that the

equipment had become obsolete, that provision still "must be

exercised . . . in a reasonable and honest fashion"). See also

Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 473

(1991) (party's "use of a discretionary right under the

agreements as a pretext justifies the judge's ruling that [it]

breached the covenant of good faith and fair dealing").

The judge recognized that the adoptive parents purported to

deprive the biological parents of their bargained-for visitation

rights based on the missing telephone number even though the

14

The adoptive parents suggest that their decision could be

reviewed either for bad faith or for "an abuse of discretion."

As to the latter, it would not be appropriate to graft that

administrative law standard of review onto an action involving

the exercise of discretion under a private contract.

15

biological parents' lapse in this regard had no material

consequence for them. Because the judge believed that the

telephone number issue could be resolved in the biological

parents' favor on other grounds, she did not directly address

whether the adoptive parents' purporting to declare the

agreement null and void on this ground was pretextual.

Nevertheless, that conclusion flows from the findings that the

judge did make: if someone is unable to offer any justification

for taking an action on a particular ground, then she must have

pursued that action for a different reason. I emphasize that I

accept that the adoptive parents honestly believed that

termination of visitation was in their children's best

interests, and I am not suggesting that they acted in bad faith

in that sense. However, on the facts of this case, it is

inescapable that the missing telephone number issue was not the

real reason they were seeking to terminate the agreement. A

remand is unnecessary to resolve that issue (regardless of

whether acquiescence by itself suffices).15

Conclusion. I close with the following observations. When

circumstances permit, an adopted child potentially can benefit

15

Moreover, our decisions recognize that remands can be

avoided in cases involving the welfare of children where "the

evidence before us on appeal 'convincingly establishes' that [a]

result is correct." Prenaveau v. Prenaveau, 75 Mass. App. Ct.

131, 143 (2009), quoting from Rosenthal v. Maney, 51 Mass. App.

Ct. 257, 272 (2001) (Duffly, J.).

16

from supportive relationships with her biological family. Too

much love, by itself, is seldom a problem.

All that said, relationships between adoptive families and

biological families can be challenging even in the best of

circumstances. Open adoption agreements present one means of

assisting parties in navigating such relationships. See

Adoption of Ilona, 459 Mass. 53, 65 n.15 (2011) (endorsing

judges' encouraging biological parents and prospective adoptive

parents to enter into open adoption agreements, presumably

because their doing so minimizes the need for judicial

intervention in familial relationships). Here, the judge issued

an order that thoughtfully sought to honor the agreement the

parties freely reached, while still supporting the adoptive

parents' judgment as to how the biological parents should

conform their conduct in order to serve the best interests of

the children. For the reasons detailed above, we should be

affirming that decision.