Adoption of Anisha , 89 Mass. App. Ct. 822 ( 2016 )

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revision and are superseded by the advance sheets and bound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
15-P-1611 Appeals Court
ADOPTION OF ANISHA.1
No. 15-P-1611.
Suffolk. May 12, 2016. - August 5, 2016.
Present: Kafker, C.J., Cohen, & Green, JJ.
Massachusetts Child Custody Jurisdiction Act. Jurisdiction,
Care and protection of minor, Custody of child, Juvenile
Court. Juvenile Court, Jurisdiction. Parent and Child,
Care and protection of minor, Custody. Minor, Care and
protection, Custody.
Petition filed in the Suffolk County Division of the
Juvenile Court Department on December 18, 2013.
The case was heard by Stephen M. Limon, J.
Sherrie Krasner for the mother.
Ashley M. Green for the child.
Kerry David Strayer, Assistant Attorney General, for
Department of Children and Families.
KAFKER, C.J. The primary issue presented in this appeal is
whether a judge of the Juvenile Court properly exercised
jurisdiction over a care and protection petition regarding an
1
A pseudonym.
2
infant where the mother, who had previously lost custody of six
older children, secreted the child out of the Commonwealth and
then the United States to avoid oversight by the Department of
Children and Families (DCF). We conclude that the judge
properly denied the mother's motion to dismiss for lack of
jurisdiction while he further explored the issue of which State
-- Tennessee or Massachusetts -- had jurisdiction, and that he
correctly exercised jurisdiction pursuant to G. L. c. 209B,
§ 2(a)(4), once Tennessee declined jurisdiction. We also
conclude that there was overwhelming evidence to support the
judge's determination that the mother was unfit to parent the
child, and we therefore affirm the decree terminating the
mother's parental rights.2 See G. L. c. 119, § 26; G. L. c. 210,
§ 3.
1. Background. We recite the procedural history and the
relevant facts as found by the judge, reserving additional facts
for our discussion of the legal issues.
a. Child's birth and DCF's response to G. L. c. 119,
§ 51A, report. The mother was returning to Massachusetts from
her father's funeral in Maine when she went into labor. She
gave birth to the child at a hospital in New Hampshire in
November, 2013. The judge found that the child was the
2
The father stipulated to his unfitness and the termination
of his parental rights, and he is not a party to this appeal.
3
"[m]other's eighth child and . . . none of the older seven
[were] in her care and custody following the untimely death of
one and the removal of the other six older children by [DCF]."
After the child's birth, the mother completed a form with
information from which the child's birth certificate would be
prepared by New Hampshire officials. The mother reported on
that form that her address was in Columbus, Georgia, but she
provided a mailing address of a post office box in the Mattapan
section of Boston. Although the mother asserted that she had
moved to Georgia at the beginning of 2013, the judge rejected
that assertion and found that the mother continued to reside in
Massachusetts until the child was born. The mother and the
child were discharged from the hospital on November 22, 2013.
The mother had scheduled an appointment for the child on
November 22 at Cambridge Health Alliance in Cambridge, but she
did not appear at that appointment.
At birth, the child tested positive for cocaine. A
mandated reporter filed a report with the New Hampshire child
protection agency and another report was filed in Massachusetts
pursuant to G. L. c. 119, § 51A (51A report). Among other
things, the 51A report alleged that the child was neglected,
that she had tested positive for cocaine, and that the mother
planned on staying with the child in Cambridge, with the
maternal aunt, after discharge from the hospital. Based on the
4
51A report, DCF began an investigation pursuant to G. L. c. 119,
§ 51B. DCF attempted to locate the mother and child and planned
to remove the child from the mother's custody on an emergency
basis. DCF failed to locate the mother in Massachusetts but
eventually learned that the Boston police department had a
record of recent interactions with her, including responding to
a violent incident on September 4, 2013, involving the mother
and another woman at the mother's last known Mattapan address.
The judge found that shortly after the child's birth, the
mother "took [the child] with her to Tennessee, perhaps with a
brief stop first in Miami and/or Georgia." The father reported
to DCF that the mother intended to place the child in the
custody of the paternal aunt.
b. Custody proceedings in Tennessee and Massachusetts.
The mother filed a petition on December 4, 2013, in Hamilton
County, Tennessee, seeking the appointment of the paternal aunt
as guardian of the child. On December 13, 2013, DCF contacted
MassHealth and learned that the mother maintained MassHealth
insurance for herself but that the child was not named as an
insured. The address the mother used for MassHealth was the
Mattapan one. Still unable to locate the mother or the child,
DCF filed a care and protection petition in the Juvenile Court
on December 18, 2013. See G. L. c. 119, § 24. On December 30,
2013, the judge held a preliminary hearing on the petition. At
5
that hearing, DCF introduced affidavits describing the child's
birth in New Hampshire, the mother's and father's residences and
connections to Massachusetts, and the mother's plans to take the
child out of State and place her in the custody of the paternal
aunt. The mother's counsel made an oral motion to dismiss the
petition, claiming that the court did not have jurisdiction over
the child because she was not born in Massachusetts and there
was no evidence that she was in Massachusetts. The mother's
counsel also represented that the child was in St. Kitts, West
Indies, with the paternal aunt. The judge prepared what he
referred to as a "draft" memorandum of decision on the motion to
dismiss, dated December 31, 2013, setting forth his concerns
regarding the child's safety and noting that his concerns were
"heightened by the lack of clarity relative to jurisdiction."
He reviewed possible jurisdiction in both Massachusetts and
Tennessee and the nuances in the law regarding both given the
child's age -- less than two months old -- and lack of home
State. He concluded:
"[I]ntervention relative to the question of custody of [the
child] remains to be determined. In the meantime the
question of jurisdiction needs to be resolved [footnote
omitted].
"For the above reasons Mother's oral Motion to Dismiss
this petition hereby is denied without prejudice. Further,
in order to begin the process of deciding the jurisdiction
issue, I hereby order the Clerk Magistrate of the Suffolk
County Juvenile Court to forward a copy of this Memorandum
of Decision to Special Magistrate Rachel Brock of the
6
Juvenile Court for Hamilton County, Tennessee. This
communication with the court in another jurisdiction is
expressly permitted under G. L. c. 209B, § 7(f)."3
The judge sent a letter, with the memorandum of decision,
to the special magistrate in Tennessee, requesting that she
review it so that they could "discuss how best to proceed." In
early January, 2014, the judge telephoned the special
magistrate.4 The special magistrate in Tennessee "declined
jurisdiction over the guardianship petition for lack of personal
connection of either Mother or child to Tennessee."5 On January
6, 2014, the trial judge "filed" his December 31, 2013,
memorandum of decision denying the mother's motion to dismiss
without prejudice, and it was entered on the docket.
3
Section 7(f), inserted by St. 1983, c. 680, § 1, provides
that "[a] court shall communicate to the court of any other
relevant jurisdiction any determination or finding made pursuant
to this section."
4
Such contact was proper pursuant to G. L. c. 209B, § 7(c),
inserted by St. 1983, c. 680, § 1, which provides that "[i]n
order to determine whether it is the appropriate forum, a court
of the commonwealth may, in its discretion, at any time during
the pendency of the custody proceeding, communicate and exchange
information with a court or courts of any other relevant
jurisdiction."
5
The mother's concerns that this communication was not in
writing are unavailing. The judge and the special magistrate
were not required to resolve the jurisdictional issue in writing
and were permitted to decide that issue over the telephone.
Redding v. Redding, 398 Mass. 102, 105 n.3 (1986) ("[I]n cases
such as this it seems appropriate to use the telephone as the
means of communication"). See Custody of Brandon, 407 Mass. 1,
5 & n.3 (1990); E.N. v. E.S., 67 Mass. App. Ct. 182, 186 n.12
(2006).
7
c. Termination of the mother's parental rights. On
January 24, 2014, the judge held a lobby conference with the
parties and issued an order directing the mother and father to
take "whatever steps are necessary" to see that the child was
returned to Massachusetts. On March 11, 2014, the paternal aunt
brought the child before the Massachusetts court to allow the
child to be identified. After a custody hearing, the judge
granted temporary custody of the child to DCF, and she was
placed in a foster home.
A home study of the paternal aunt and her husband (uncle)
was requested by DCF and performed by the St. Kitts Office of
Probation and Child Services. DCF received the favorable home
study results on March 19, 2014. The judge ultimately approved
placing the child with the paternal aunt and uncle.
Because the mother had failed to make adequate progress in
utilizing available services that might have led to her
reunification with the child, on May 6, 2014, DCF changed its
plan for the child from reunification to adoption. At a
pretrial conference on October 17, 2014, the mother decided to
proceed pro se, and her attorney was allowed to withdraw. The
mother then filed documents that the judge construed as a
renewed motion to dismiss for lack of jurisdiction. On October
20, 2014, the judge denied that motion. The mother subsequently
reengaged her former attorney, and the case was tried on March
8
19, 2015. Following trial, the judge terminated the mother's
parental rights, and the mother filed a timely notice of appeal.
On November 10, 2015, the judge issued his findings of fact
and conclusions of law. The judge found that the "Mother,
abetted by Father, engaged in a series of actions, inactions,
deceit, and misdirection, designed to avoid the scrutiny of
[DCF] in the several months after [the child's] birth by
secreting [the child] out of Massachusetts and ultimately
outside of the United States" to stay with the paternal aunt in
St. Kitts. The judge also found that the paternal aunt and
uncle were not involved in this attempt to evade DCF. At the
outset of his findings, the judge stated that "[t]his case in a
nutshell is about whether Mother, who had lost custody of her
six older children in previous care and protection cases, due to
her mental health, substance abuse, and domestic violence
issues, would be able to engage in and benefit from services
such that she could overcome those longstanding issues and
reunify with [the child]." The judge concluded that the mother
would not benefit from additional services and that the child
"would be endangered" if placed back in the mother's care. The
judge applied the statutory factors required by G. L. c. 210,
§ 3(c), in determining that the best interests of the child
would be served by termination of the mother's parental rights.
9
The judge approved DCF's plan for adoption of the child by the
paternal aunt and uncle.
2. Discussion. a. The judge properly denied the motion
to dismiss for lack of jurisdiction. "In Massachusetts,
jurisdiction over child custody proceedings possibly involving
the jurisdictional claims of other States is determined
according to G. L. c. 209B[, the Massachusetts Child Custody
Jurisdiction Act (MCCJA)]." Custody of Brandon, 407 Mass. 1, 5
(1990). "Under the statute, a court must determine whether it
has the power to exercise jurisdiction in a custody proceeding
and, if so, whether it should exercise that power under the
standards provided in the statute." Ibid. These determinations
were complicated in the instant case by the uncertainties
regarding the child's location, the mother's disappearance from
Massachusetts and movements around the country apparently to
avoid DCF oversight, the filing of the guardianship petition in
Tennessee, and, most importantly, the child safety concerns
raised by the mother's troubled history with her older children
in Massachusetts.
The judge acted well within his statutory and inherent
authority in denying the mother's motion to dismiss while he
further explored the question of which State -- Tennessee or
Massachusetts -- had jurisdiction. Most importantly, no custody
decisions were made until jurisdiction in Massachusetts was
10
established. Rather, the judge simply kept the case open while
the jurisdictional issue between Tennessee and Massachusetts was
analyzed and resolved. "[B]y the time the judge made his
custody determination, [the Tennessee court had declined
jurisdiction and] . . . the conditions of [G. L. c. 209B,]
§ 2(a)(4) had been met." Redding v. Redding, 398 Mass. 102, 106
(1986).
Moreover, the preliminary actions the judge took to explore
and resolve the jurisdictional question were expressly
authorized by the MCCJA.6 The MCCJA "encourage[s] communication,
cooperation, and mutual assistance between courts and seek[s] to
avoid jurisdictional competition and conflict." Redding, supra
at 105. See Custody of Victoria, 473 Mass. 64, 68 (2015)
(purpose of MCCJA, as well as other States' acts governing
6
We also note that courts in the Commonwealth "have both
the power and the obligation to resolve questions of subject
matter jurisdiction whenever they become apparent." Nature
Church v. Assessors of Belchertown, 384 Mass. 811, 812 (1981).
As the United States Supreme Court has explained, courts "always
[have] jurisdiction to determine [their] own jurisdiction."
United States v. Ruiz, 536 U.S. 622, 628 (2002). See 13D
Wright, Miller, Cooper, & Freer, Federal Practice and Procedure
§§ 3536-3537 (2008) ("jurisdiction to determine jurisdiction").
See also Foley v. Foley, 156 N.C. App. 409, 412 (2003) ("[A]
court has inherent power to inquire into, and determine, whether
it has jurisdiction and to dismiss an action [sua sponte] when
subject matter jurisdiction is lacking" [quotation omitted]).
See generally Restatement (Second) of Judgments § 11 & comment c
(1982) (discussing court's power to inquire into limits of its
own jurisdiction); Coombs, Interstate Child Custody:
Jurisdiction, Recognition, and Enforcement, 66 Minn. L. Rev.
711, 846 (June, 1982) (discussing court's "jurisdiction to
determine its own jurisdiction").
11
custody determinations, is to "encourage cooperation and
avoidance of jurisdictional conflict between courts of different
States in order to protect a child's welfare when litigating
custody matters"). To that end, the MCCJA recognizes that in
some cases, jurisdiction may not be clear and communications
between courts of different States may be required before the
question of jurisdiction can be definitively resolved. See
G. L. c. 209B, §§ 2(d), 7(c), (f); Umina v. Malbica, 27 Mass.
App. Ct. 351, 353 (1989) (discussing communications pursuant to
§ 7[c] and [f] between Massachusetts court and Colorado court in
child custody case); Adoption of Yvette (No. 1), 71 Mass. App.
Ct. 327, 342 n.18 (2008). As explained previously, the trial
judge's communications with the special magistrate in Tennessee
to address and resolve the jurisdiction question were expressly
authorized by G. L. c. 209B, § 7(c). See note 4, supra.
b. The Massachusetts court had jurisdiction to decide the
issue of the child's custody. After the special magistrate in
Tennessee declined jurisdiction over the custody decision, the
Juvenile Court judge's memorandum of decision denying the
mother's motion to dismiss was docketed, and at a hearing on
January 24, 2014, the judge informed the parties that he had
assumed jurisdiction over the custody proceedings. We review
this determination of subject matter jurisdiction de novo. See
Opare's Case, 77 Mass. App. Ct. 539, 541 (2010).
12
"Under Massachusetts law, a court may exercise jurisdiction
in a custody proceeding only under the provisions of G. L.
c. 209B." Custody of Victoria, supra at 68. See MacDougall v.
Acres, 427 Mass. 363, 366 (1998). General Laws c. 209B, § 2(a),
inserted by St. 1983, c. 680, § 1, provides as follows:
"Any court which is competent to decide child custody
matters has jurisdiction to make a custody determination by
initial or modification judgment if:
"(1) the commonwealth (i) is the home state of the
child on the commencement of the custody proceeding, or
(ii) had been the child's home state within six months
before the date of the commencement of the proceeding and
the child is absent from the commonwealth because of his or
her removal or retention by a person claiming his or her
custody or for other reasons, and a parent or person acting
as parent continues to reside in the commonwealth; or
"(2) it appears that no other state would have
jurisdiction under paragraph (1) and it is in the best
interest of the child that a court of the commonwealth
assume jurisdiction because (i) the child and his or her
parents, or the child and at least one contestant, have a
significant connection with the commonwealth, and (ii)
there is available in the commonwealth substantial evidence
concerning the child's present or future care, protection,
training, and personal relationships; or
"(3) the child is physically present in the
commonwealth and (i) the child has been abandoned or (ii)
it is necessary in an emergency to protect the child from
abuse or neglect or for other good cause shown, provided
that in the event that jurisdictional prerequisites are not
established pursuant to any other paragraph of this
subsection and a court of another state shall be entitled
to assert jurisdiction under any other subparagraph of this
paragraph then a court exercising jurisdiction pursuant to
this clause of paragraph (3) may do so only by entering
such temporary order or orders as it deems necessary unless
the court of the other state has declined to exercise
jurisdiction, has stayed its proceedings or has otherwise
13
deferred to the jurisdiction of a court of the
commonwealth; or
"(4) (i) it appears that no other state would have
jurisdiction under prerequisites substantially in
accordance with paragraph (1), (2) or (3), or another state
has declined to exercise jurisdiction on the ground that
the commonwealth is the more appropriate forum to determine
the custody of the child, and (ii) it is in the best
interest of the child that a court of the commonwealth
assume jurisdiction."
We conclude that the judge properly exercised jurisdiction
pursuant to G. L. c. 209B, § 2(a)(4).7
i. Home State jurisdiction. As an initial matter, we
address the question of home State jurisdiction. See G. L.
c. 209B, § 2(a)(1); Custody of Victoria, supra at 70. The term
"home state" is defined in G. L. c. 209B, § 1, inserted by St.
1983, c. 680, § 1, as
"the state in which the child immediately preceding the
date of commencement of the custody proceeding resided with
his parents, a parent, or a person acting as parent, for at
least 6 consecutive months, and in the case of a child less
than 6 months old the state in which the child lived from
birth with any of the persons mentioned. Periods of
temporary absence of any of the named persons are counted
as part of the 6-month or other period."
Here, the judge concluded in his memorandum and order denying
the mother's motion to dismiss that the child had no home State
under the MCCJA. This conclusion was correct. The child was
approximately one month old at the time DCF filed the care and
protection petition, was being moved from State to State, and
7
The judge appears to have relied only on § 2(a)(4) to
establish jurisdiction.
14
apparently was living in St. Kitts around that time. Therefore,
the judge could not have assumed jurisdiction pursuant to G. L.
c. 209B, § 2(a)(1).
ii. Appropriate forum jurisdiction. "Massachusetts has
the authority to exercise jurisdiction over a custody proceeding
if '(i) it appears that no other state would have jurisdiction
under prerequisites substantially in accordance with paragraph
(1), (2) or (3), or another state has declined to exercise
jurisdiction . . . and (ii) it is in the best interest of the
child that a court of the commonwealth assume jurisdiction.'"
MacDougall, supra at 369, quoting from G. L. c. 209B, § 2(a)(4).
Because the child had no home State, and Tennessee declined
jurisdiction, and no petitions had been filed in any other
State, the requirements of the first clause of G. L. c. 209B,
§ 2(a)(4), were unequivocally established. The question then
becomes whether it was in the best interest of the child that a
court of the Commonwealth assume jurisdiction. Because G. L.
c. 209B, § 2(a)(4), does not separately define "the best
interest of the child," we apply the factors set forth in the
definition of that phrase in G. L. c. 209B, § 2(a)(2). Redding,
398 Mass. at 106. "The child and at least one parent must have
a 'significant connection' with the Commonwealth, and
'substantial evidence concerning the child's present or future
care, protection, training, and personal relationships' must be
15
available here." Ibid., quoting from G. L. c. 209B, § 2(a)(2).
See Custody of Victoria, 473 Mass. at 71 ("[I]n contrast to the
definition of 'best interest of the child' generally applied in
child custody litigation, the phrase as used in this context
elevates the value of the child's connections to the
Commonwealth in the jurisdiction calculus").
The judge's detailed findings of fact establish that these
two best interest requirements have been satisfied. See
Redding, supra ("The record . . . warrants the judge's implicit
finding that the assumption of jurisdiction here was in [the
child's] best interest"). We begin with the judge's findings
that support the parties' significant connections to the
Commonwealth. For the parents, this is straightforward. The
mother's and father's connections to Massachusetts were
significant. There is no dispute that the father was domiciled
in Massachusetts. The judge described the mother as "a long-
time resident of Massachusetts," and he found "that Mother
remained a Massachusetts resident until [the child] was born."
The analysis of the child's connections to Massachusetts is
more difficult. The child was about one month old at the time
the care and protection petition was filed, thereby limiting the
child's connections to any State. Nevertheless, the record on
appeal and representations to this court sufficiently establish
that the child also had a significant connection to the
16
Commonwealth. The judge concluded that the "Mother and [child]
came to Massachusetts from New Hampshire when [the child] was
born," before traveling thereafter to States in the South. In
her appellate brief, the mother confirms that she came to
Massachusetts just after the child was born, but she attempts to
minimize her presence in Massachusetts "as a transit stop from
New Hampshire to points south." The mother, however, concedes
in her statement of facts that "[s]he [had] indicated that, upon
discharge from the hospital [in New Hampshire], she would travel
to Cambridge, Massachusetts to stay with her sister" (emphasis
added). In support of this fact, the mother in her brief cites
to information on the 51A intake report; that form includes the
name of the mother's sister in Cambridge that she was going "to
stay with." Based on the information on the intake form
(including the sister's name, her relationship to the mother,
and her city of residence), the sister identified on the form is
clearly the same sister whom the mother subsequently brought to
the attention of DCF and the judge between March 11, 2014, and
March 28, 2014, as a potential temporary caregiver for the
child. In addition to planning to travel to Cambridge to stay
with her sister, the mother had also scheduled an appointment
with the pediatric department of Cambridge Health Alliance for
November 22, 2013, the same day as the mother and the child were
discharged from the New Hampshire hospital. Although the mother
17
never appeared with the child at that appointment, the fact that
the mother chose to schedule a pediatric follow-up visit in the
Commonwealth, when taken together with the aforementioned facts,
supports our conclusion that the mother and the child had a
significant connection to the Commonwealth. See G. L. c. 209B,
§ 2(a)(4). See generally Custody of Victoria, 473 Mass. at 75
(discussing importance of location of child's health care in
determining whether there is significant connection to
jurisdiction).
All the evidence that DCF had gathered in its investigation
of the 51A report in this case was located in the Commonwealth.
Further, DCF had important, relevant records, gathered in prior
care and protection proceedings, documenting the mother's
troubled history of neglect of her other children. This
constituted "substantial evidence concerning the child's present
or future care" that the child was likely to receive if the
child remained in the custody of the mother. Because, as the
judge noted in his findings, the special magistrate in Tennessee
had "declined jurisdiction over the guardianship petition for
lack of personal connection of either Mother or the child to
Tennessee," Massachusetts was "the more appropriate forum to
determine the custody of the child, and . . . it [was] in the
best interest of the child that a court of the commonwealth
assume[d] jurisdiction." G. L. c. 209B, § 2(a)(4). Where all
18
of the prerequisites of G. L. c. 209B, § 2(a)(4), were met, the
court had subject matter jurisdiction in the instant case.8
c. The filing of the Tennessee petition did not bar the
judge from ruling on the mother's fitness. The mother's final
claim on appeal is that "there was no basis for the state to
adjudicate Mother unfit and to terminate her parental rights."
The mother does not challenge as clearly erroneous the judge's
numerous findings concerning her, nor does she contend that the
judge's determination of unfitness was not supported by clear
and convincing evidence. Therefore, we need not reach those
issues.9 Instead, the mother's argument is essentially that
8
As we conclude that the court had jurisdiction pursuant to
G. L. c. 209B, § 2(a)(4), we need not resolve whether the court
had default jurisdiction pursuant to § 2(a)(2) or emergency
jurisdiction pursuant to § 2(a)(3). Neither DCF nor the child
argued that the requirements of § 2(a)(2) were met. As for
§ 2(a)(3), we note that the judge did not find that the "child
[was] physically present in the commonwealth" at the time these
proceedings were commenced, which is a requirement set out in
the plain text of G. L. c. 209B, § 2(a)(3). We recognize that
the judge once referred in his findings to his having exercised
"emergency" jurisdiction, but we do not interpret this to be an
express reference to or reliance on G. L. c. 209B, § 2(a)(3),
which the judge did not discuss. Rather, it appears to be a
colloquial description of the child custody emergency he was
confronting and the jurisdictional analysis he was undertaking.
9
We do note, however, that the judge made ample findings of
the mother's shortcomings that led to the determination of
unfitness, not the least of which was the event that triggered
DCF's initial investigation: the mother used cocaine and the
child tested positive for cocaine at birth. The mother concedes
in her brief "that the trial court previously had adjudicated
her unfit to care for other children." She also explicitly
chose not to contest certain of the trial judge's findings that
19
because she raced out of Massachusetts to deliver the child to
the paternal aunt, who was subsequently determined to be a
suitable caretaker, and because the mother attempted to do this
prior to DCF's filing of the care and protection petition, the
mother is thereby legally insulated from being found unfit and
having her parental rights terminated by the judge. The cases
cited by the mother do not support this proposition.
the judge included to "to demonstrate Mother's long-term issues
and patterns of behavior relative to her parenting." These
findings include the following determinations, among many
others: (1) the mother left some of her older children in the
care of others without offering to assist in providing care or
financial support for them, and in one case without even
notifying the relative how long she intended to absent herself
from the children; (2) the mother has had "violent toxic
relationships with the men in her life"; (3) four restraining
orders had been issued against the mother, including one
obtained by the maternal grandmother in 1993; (4) one of the
mother's children had died in 2007 of a heart-related malady
after the mother "had failed to inform [that child's new
physician] of [his] cardiac condition"; (5) the mother had, at
times, failed to provide for the medical needs of some of her
other children; and (6) the mother has a history of cocaine use,
and at least one of her other children also tested positive for
cocaine at birth.
The judge also made numerous findings specifically relevant
to the mother's unfitness to care for the child. The judge
found that the mother has a "pattern of not taking personal
responsibility for her actions or inactions," and that the
"[m]other had made little if any progress in utilizing services
towards the goal of reunification" with child. For example, the
mother was granted Skype visits with the child while the child
was with the paternal aunt and uncle, but the mother was
frequently late to these visits or missed them altogether. The
mother did not begin to fully comply with some of her DCF
service plan tasks until approximately one and one-half months
prior to the beginning of the trial. The mother also failed to
submit to drug screenings that met the parameters of the
screenings required in her service tasks.
20
For example, the mother relies on Freeman v. Chaplic, 388
Mass. 398, 407 (1983), for the proposition that "in certain
circumstances a parent may . . . nominate a relative or friend
to care for [a] child. In the absence of unfitness of such
nominees the State's interest to justify intervention on behalf
of the child is de minimis" (quotation omitted). The court,
however, qualified that language by further stating that "[a]s a
general matter, granting custody to a party opposed by the
parents where neither the parents nor the parents' nominee is
unfit or unsuitable, would not measurably advance any interest
of the State and would raise serious constitutional
difficulties." Ibid. In the instant case, the judge found that
the child "was endangered while in Mother's care" and then
determined pursuant to G. L. c. 119, § 26, that the child was in
need of care and protection. The judge further determined that
the mother was unfit. Moreover, the mother had secreted the
child out of the country to caretakers who had not yet been
evaluated by any court or agency. In such circumstances, the
Commonwealth's interest in who was granted custody over the
child was substantial, not de minimis. Compare Freeman, supra.Additionally, the judge did not "grant[] custody to a party
opposed by the parents." See ibid. The child was ultimately
placed with the paternal aunt and uncle after a favorable home
study. The father entered into an open adoption agreement with
21
the paternal aunt and uncle; he also stipulated to judgment and
to termination of his parental rights. Prior to the filing of
the care and protection petition, the mother had been in the
process of placing the child in a guardianship with the paternal
aunt, and the judge did not credit the mother's claim that she
only intended that the guardianship be temporary. If anything,
the parents had jointly agreed to allow the paternal aunt to
assume custody of the child.10
The mother's claim that this case was a "[p]recipitate
attempt[] to force adoption over parental objection" is
similarly without merit. See Petition of the New England Home
for Little Wanderers to Dispense with Consent to Adoption, 367
Mass. 631, 646 (1975). The record on appeal reflects the
mother's long and troubled history of unfitness as a parent, and
she was provided with "ample opportunity to demonstrate an
ability to provide proper care for" the child, but failed to do
so. Ibid. DCF's actions here were hardly precipitate; they
were entirely foreseeable and well-considered. "Other points,
relied on by [the mother] but not discussed in this opinion,
have not been overlooked. We find nothing in them that requires
10
It is noteworthy that, at the mother's request, DCF also
attempted to conduct a home study of the maternal aunt as a
potential caretaker for the child, but the maternal aunt failed
to sufficiently cooperate with DCF to complete the home study.
22
discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Decree affirmed.