Adoption of Breck

APPEALS COURT

ADOPTION OF BRECK[1]

Docket:

24-P-450

Dates:

February 11, 2025 – July 9, 2025

Present:

Massing, Hershfang, & Tan, JJ.

County:

Bristol

Keywords:

Adoption, Care and protection, Dispensing with parent's consent, Visitation rights. Minor, Adoption, Care and protection, Visitation rights. Parent and Child, Adoption, Dispensing with parent's consent to adoption, Care and protection of minor. Evidence, Child custody proceeding. Practice, Civil, Care and protection proceeding, Adoption, Findings by judge. Department of Children & Families. Indian Child Welfare Act.

Petition filed in the Bristol County

Division of the Juvenile Court Department on May 11, 2021.

The case was heard by Tracie L. Souza, J.

A motion to stay appellate proceedings and

for leave to file a motion for a new trial was considered in the Appeals Court

by Shin, J.

Lynn M. Isaman for the father.

Alan D. Campbell for the mother.

Claire Gilchrist for Department of

Children and Families.

Richard S. Showkier for the child.

TAN, J.

The mother and the father appeal from decrees entered by a Juvenile

Court judge adjudicating them unfit to parent their son, Breck (child or

Breck), and terminating their parental rights.

The parents contend, among other things, that the Department of Children

and Families (department) failed to establish a nexus between their substance

misuse and their parental unfitness for Breck, that the fitness determination

cannot stand for that reason and others, and that the department failed to make

reasonable efforts to reunify them with the child. They also argue for the first time on appeal

that the decrees should be vacated because, under the Indian Child Welfare Act,

25 U.S.C. §§ 1901 et seq. (ICWA), Breck is newly recognized as an Indian child,

and the judge should have applied the ICWA's heightened protections. The mother further argues that the judge

erred in approving the department's plan of adoption and in declining to order

posttermination and postadoption contact.

Discerning no error or abuse of discretion, we affirm.[2]

1. Background.

We summarize the trial judge's findings of fact, supplemented by

uncontroverted evidence from the record, and reserve certain facts for later

discussion. Both parents have

significant substance misuse disorders and mental health histories that started

long before the child's birth.

a.

The mother. The mother's lifelong

struggle with substance misuse began when she started drinking alcohol at age

eleven and using drugs as a teenager.

She has used Percocet, cocaine, Ecstasy, heroin, Xanax, and

fentanyl. The mother also has a history

of mental illness, for which she has failed to seek consistent treatment. She has been diagnosed with bipolar disorder,

depression, anxiety, and posttraumatic stress disorder (PTSD).

The mother has four older children who

were not the subjects of the care and protection petition in this case. The mother's long history of engagement with

the department as a parent began in 2005 because of concerns about her

substance misuse when she gave birth to her first child. The mother subsequently lost custody of her

four older children because of her untreated substance misuse and mental health

problems. The mother did not have

custody of any of her five children at the time of trial.[3]

b.

The father. The father's long

history of substance misuse began when he was thirteen years old. He has used alcohol, Percocet, cocaine,

benzodiazepines, fentanyl, heroin, amphetamines, and mushrooms. In the months immediately after Breck's

birth, the father tested positive for fentanyl and amphetamines. Approximately two months after the child was

born, the father admitted to using fentanyl every day and amphetamines two to

three times per week. The father also

has a criminal history dating back to 2009, including a history of selling

heroin, fentanyl, and Adderall. He was

also the subject of two restraining orders in the past. At the time of trial, the father was facing

allegations that he had violated the conditions of probation on two of his open

criminal cases.

c.

The subject child. The parents

began dating in 2018 or 2019. In October

2020, they entered substance misuse treatment together, the mother learned she

was twenty-six weeks pregnant, and her counselor urged her to stop using drugs

for the well-being of the baby. About

two weeks later, the mother admitted to using fentanyl daily. Despite the treatment program and the

mother's pregnancy, the parents continued misusing substances together, with

the father often buying drugs for them to use.

The mother tested positive for fentanyl and other drugs ten times

between November 2020 and two days before Breck's birth.

In late January 2021, the mother went into

early labor and gave birth to Breck at thirty-six weeks. At birth, Breck tested positive for fentanyl,

and the mother tested positive for fentanyl and methadone. A report pursuant to G. L. c. 119,

§ 51A (51A report), was filed alleging neglect and concerns about a

substance-exposed newborn. The mother

refused to authorize a full release of information held by her substance

dependence disorder treatment provider.

The parents were homeless, and the father had an active arrest warrant.

Three days after Breck's birth, a second

51A report was filed alleging concerns about the mother's substance misuse and

the parents' homelessness. A subsequent

investigation conducted pursuant to G. L. c. 119, § 51B, by the

department supported the neglect allegations.

The parents developed a safety plan with the department and agreed that

the paternal grandmother (grandmother) would obtain guardianship of Breck. The parents agreed to the guardianship

arrangement because they believed the department otherwise would take custody

of Breck. A department social worker

recommended to the grandmother that the parents have only supervised visits

with the child. In February 2021, a

judge of the Probate and Family Court awarded temporary guardianship of Breck

to the grandmother for ninety days.

The parents continued to test positive for

fentanyl and amphetamines after Breck's birth.

The department's concerns about the family escalated on May 10, 2021,

when the department's emergency response workers went to a hotel to investigate

a 51A report alleging neglect of Breck.

The parents had been renting a room there since February 2021 -- approximately

three months prior to the 51A report -- and hotel personnel had seen the child

alone with the parents during this period.

The department workers found the mother, apparently asleep, with Breck

lying in the same hotel bed. The

grandmother was not present. The mother

admitted to co-sleeping with Breck but claimed that he usually slept in the

bassinet, a claim deemed not credible by the judge and contradicted by the fact

that the bassinet was full of items and appeared to be used as storage. Breck appeared hungry. When asked, the mother claimed she last fed

him thirty minutes earlier, even though the workers had been in the hotel room

for an hour and had not seen her feed the child. The mother and the grandmother gave

conflicting and inconsistent statements about whether Breck was staying alone

with the parents, and the judge found that he had been staying with the parents

for extended periods. When a department

social worker reminded the grandmother that she had agreed to prohibit

unsupervised visitation with the parents because of the parents' substance

misuse history, the grandmother responded that she did not believe the parents

were using substances.

The department took emergency custody of

Breck because of concerns about the parents' continued substance misuse and the

grandmother's permitting him to be in the unsupervised care of the

parents. The department filed the

present care and protection petition pursuant to G. L. c. 119, § 24. On June 8, 2021, the parents and the child

waived their rights to a temporary custody hearing.

d.

Postremoval behavior and events.

The parents denied continued substance misuse after the department

removed Breck, but the mother tested positive for amphetamines, cocaine, and

fentanyl three days after the removal.

The father admitted that he was still using illegal substances in May

2021. The department's social worker

created action plans for the parents that focused on the parents'

sobriety. The parents disagreed with the

action plans and consistently refused to sign them. Throughout 2022, the parents tested positive

for drugs, primarily opiates and fentanyl, including at the time of trial.

The parents' housing instability continued

after Breck's birth, and they reported staying with friends and at hotels to

evade the police because of the father's arrest warrants.

Breck has been placed with the preadoptive

family since his removal in May 2021 and has made progress since his placement

with them. He has been diagnosed with

global developmental delays and other medical conditions. At the time of trial, Breck was receiving

early intervention services and was working with an occupational therapist, a

registered nurse, a speech language pathologist, a physical therapist, and a

developmental specialist.

In February 2022, the department changed

Breck's permanency goal from reunification to adoption. The preadoptive parents were willing to

facilitate up to three visits a year with the parents and to provide pictures and

letters.

On May 2, 2023, following a trial, the

judge found by clear and convincing evidence that both parents were

indefinitely unfit and that terminating their parental rights would serve

Breck's best interests, adjudicated him in need of care and protection, and

committed him to the custody of the department.

The judge found that the department's plan of adoption by the

preadoptive parents served Breck's best interests, rejecting the competing plan

proposed by the parents, which involved placement with the paternal

grandmother. Ruling on the mother's

motion, the judge also determined that the department had made reasonable

efforts and denied the father's abuse of discretion motion, in which he had

alleged that the department's updated action plan was arbitrary and capricious

and violated department policy and regulations.[4]

2.

Discussion. a. Unfitness.

"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). "We give substantial

deference to a judge's decision that termination of a parent's rights is in the

best interest of the child, and reverse only where the findings of fact are

clearly erroneous or where there is a clear error of law or abuse of

discretion." Id. Subsidiary findings must be proven by a fair

preponderance of evidence. See Adoption

of Quentin, 424 Mass. 882, 886 (1997).

The judge found the parents to be unfit,

and the parents challenge this finding.

Even though Breck was only briefly in his parents' care at the time of

his removal, the record is still sufficient to support the judge's conclusion

that he was at risk of neglect and harm because of the parents' ongoing and

long history of substance misuse and untreated mental health issues. See Care & Protection of Bruce, 44 Mass.

App. Ct. 758, 761 (1998) ("The attention of the judge was concentrated not

on what had occurred between mother and child but on what was predictable. Although there was nothing to go on in the

way of past abuse or neglect, the judge was not bound to wait for a disaster to

happen if that seemed close to inevitable"). See also Adoption of Querida, 94 Mass. App.

Ct. 771, 775 (2019) (in making fitness determination, proper for judge to

consider parent's past conduct "to predict future ability and performance

as a parent" [citation omitted]).

When the department removed Breck from the

parents in May 2021, he was placed in his grandmother's temporary guardianship

-- to which the parents had agreed -- that called for them to have supervised

visitation. The social workers found him

hungry and co-sleeping in a hotel room alone with his parents, in violation of

the safety plan. Even though Breck was

not physically injured, "[a] judge [does] not have to wait for further

injury to the child[]" before finding a parent unfit and freeing a child

for adoption. Adoption of Inez, 428

Mass. 717, 721 (1999). We now address

the factors considered by the judge that led to her finding the parents unfit.

i.

Substance misuse. A substance

misuse disorder, without "a showing that a . . . parent has been

neglectful or abusive in the care of that parent's child," does not

"translate[] automatically into legal unfitness to act as a

parent." Adoption of Katharine, 42

Mass. App. Ct. 25, 34 (1997). The

parents, citing Adoption of Katharine, argue that because Breck was not harmed

while in their care, their substance misuse did not place him at risk or

negatively affect their parenting abilities.

This case is distinguishable from Adoption

of Katharine because the evidence established a nexus between the parents'

substance misuse and a risk of harm to Breck and because, as we discuss below,

the judge did not rely solely on the parents' substance misuse disorders to

support the findings of unfitness. The

evidence demonstrated that even before Breck's birth, the mother's substance

misuse had contributed to the removal of all four of her older children and had

been a factor in her never having had any of those children in her care over a

long term. "[A] judge may rely upon

a parent's past conduct with regard to older children to support a finding of

current unfitness as to a different child, so long as that evidence is not the

sole basis for the judge's unfitness determination." Adoption of Luc, 484 Mass. 139 , 145 (2020). See Adoption of Larry, 434 Mass. 456, 469

(2001) ("The judge could properly consider past parental conduct as

relevant to the issue of current parental fitness where that conduct was not

too remote, especially where the evidence supported the continuing vitality of

such conduct").

As the judge found, and the mother concedes,

the mother's substance misuse while pregnant with Breck put the child at risk,

as he was born substance exposed, testing positive for fentanyl at birth. After his birth, the parents continued using

illicit substances, ignoring warnings from the mother's clinician. See Adoption of Anton, 72 Mass. App. Ct. 667,

676 (2008) (evidence of alcohol or drug misuse is "relevant to a parent's

willingness, competence, and availability to provide care").

The mother's pattern of substance misuse

continued unabated after Breck's birth, after his removal, and during the

trial. Despite testing positive for

drugs throughout the pendency of the case, the mother continued to deny her

substance misuse. She withheld

information and releases from the department, and once the department obtained

her records, the mother claimed that the screens were inaccurate, that the

clinics tampered with them, and that her marijuana was laced with

fentanyl. At a visit with Breck in

November 2021, the mother smelled like marijuana, and on a different visit, she

appeared to be under the influence. The

department also had concerns that she was under the influence at a supervised

visit in July 2022. The judge did not

credit the parents' denials about their substance misuse and found that they

were not truthful with the department about their substance misuse during the

pendency of the case, concluding that they "continued to lack insight into

the harm caused to [Breck] by the removal and their failure to take

accountability for their actions."

The father's lengthy history of substance

misuse likewise continued unabated throughout the pendency of the case. He also enabled the mother's substance

misuse, buying her illicit drugs knowing she was pregnant with the child and

using those drugs with her. His lengthy

criminal record dates to 2009. Courts

issued numerous warrants for his arrest.

The parents experienced housing instability while evading the police

because of the father's warrants. See

Adoption of Anton, 72 Mass. App. Ct. at 676 (inability to secure "adequate

stable housing" properly considered in determining parent's unfitness

[citation omitted]).

Relying on the parents' decades-long

struggle with substance misuse, the judge's findings established a sufficient

nexus between the parents' substance misuse and their ability to parent

Breck. See Adoption of Katharine, 42

Mass. App. Ct. at 34 .

ii.

Mental health. The mother failed

to seek consistent treatment for her unaddressed mental health conditions. In June 2021, she was admitted to a partial

hospitalization program for depression and anxiety but was discharged days

later because she did not show up for treatment. On discharge, she was diagnosed with major

depressive disorder, severe PTSD, and severe opioid use disorder. She also admitted to using substances to

address her problems. The record

supports the judge's finding that the parents' untreated mental health issues

caused them to engage in verbally aggressive and combative behavior towards

their social worker and the court investigator.

Additionally, the parents engaged in a physical altercation at one of

their treatment clinics, which led to their discharge from the program. The evidence supports the judge's finding

that "[t]he parents' inability to manage their mental health and emotions

makes it unlikely they would be able to support and manage [Breck's] special

needs."

The parents also failed to comply with

their department service plans relating to mental health and substance misuse

treatment. The mother relied on

marijuana and unprescribed Adderall to treat her mental health diagnoses, and

the father failed to follow recommendations to meaningfully engage with a

therapist or seek assistance from a psychiatrist. See Adoption of Luc, 484 Mass. at 147

(parent's unwillingness to adhere to department service plan requiring her to

obtain treatment for mental health challenges and substance misuse disorder

relevant to unfitness determination).

Relying on the mother's aggressive

behavior and untreated diagnoses of major depressive disorder, severe PTSD, and

severe opioid use disorder, the judge properly concluded that the evidence

established a sufficient nexus between the mother's mental health issues and

the child's neglect and abuse. See

Adoption of Saul, 60 Mass. App. Ct. 546, 553-554 (2004).

iii.

Additional evidence of unfitness.

The judge also permissibly relied on the parents' failure to engage with

the services on their action plan. A

"parent's willingness to engage in treatment is an important consideration

in an unfitness determination where the substance dependence inhibits the

parent's ability to provide minimally acceptable care of the child." Adoption of Luc, 484 Mass. at 147. Even if a parent engages in some of the

services offered by the department, "mere participation in the services

does not render a parent fit 'without evidence of appreciable improvement in

[the parent's] ability to meet the needs of the child[ren].'" Adoption of Ulrich, 94 Mass. App. Ct. 668,

677 (2019), quoting Adoption of Terrence, 57 Mass. App. Ct. 832, 835-836

(2003).

While the judge acknowledged that the

parents engaged in some of the tasks on their action plans, like completing a

parenting class, they failed to participate in many services focused on

addressing their substance misuse and the impact it had on their parenting

capacity. They failed to (1) allow the

department access to their toxicology screens and treatment records, (2) sign

their action plans, (3) consistently attend Alcoholics Anonymous meetings, (4)

obtain a recovery coach and sponsor, and (5) provide a neuropsychological

evaluation. They also did not engage

consistently with the department social worker, missing several meetings in

2022, and ceasing meetings in December 2022.

The parents also displayed a lack of

understanding of Breck's complex medical needs.

Despite Breck's numerous medical diagnoses and developmental delays, the

parents stated in a July 2022 home study that he had no special needs. The judge appropriately found that the parents

possessed a "minimal, surface level understanding" of the child's

special needs.

The evidence in the record amply supported

the judge's findings of parental unfitness, and she did not rely solely on one

factor. In a thoughtful and detailed

decision, the judge appropriately supported her findings of parental unfitness

with evidence of the parents' lengthy and ongoing fentanyl addiction, their

inability to follow the safety plan to which they had agreed, their failure to

consistently engage in substance misuse and mental health treatment, the

mother's unaddressed mental health conditions, and the parents' lack of

capacity to understand and meet Breck's specialized medical needs. The judge properly concluded that the

department proved the parents' unfitness by clear and convincing evidence.[5]

b.

Best interests of the child. The

judge did not err in finding that termination of parental rights was in Breck's

best interests. See Adoption of Ilona,

459 Mass. at 59 ("We give substantial deference to a judge's decision that

termination of a parent's rights is in the best interest of the child, and

reverse only where the findings of fact are clearly erroneous or where there is

a clear error of law or abuse of discretion"). The judge applied the factors set forth in

G. L. c. 210, § 3 (c), and found factors (ii), (iii), (v),

(vi), (viii), and (xii) to be applicable.

The parents' inability to address their long-standing substance misuse

and mental health issues over a long period of time and the importance of establishing

permanency for the young child, who has resided with the same preadoptive

parents since his removal from the parents and has flourished in their care,

support the judge's finding that termination of the parents' rights is in

Breck's best interests. See Adoption of

Thea, 78 Mass. App. Ct. 818, 824 (2011), citing Adoption of Nancy, 443 Mass.

512, 517 (2005) ("The Supreme Judicial Court has emphasized the importance

of achieving stability and permanency in children's lives and in decrees

dispensing with parental rights").

c.

Reasonable efforts. The

department is "required to make reasonable efforts to strengthen and

encourage the integrity of the family" before taking action to terminate

parental rights. Adoption of West, 97

Mass. App. Ct. 238 , 241 (2020), quoting Adoption of Lenore, 55 Mass. App. Ct.

275, 278 (2002). "A judge's

determination that the department made reasonable efforts will not be reversed

unless clearly erroneous." Adoption

of West, supra at 242. Alone, a failure

by the department to make reasonable efforts is not dispositive, as a

"judge must still rule in the child's best interest" even if the

department failed to make reasonable efforts.

Adoption of Ilona, 459 Mass. at 61 .

"[A]t termination proceedings[,] the focus is on the fitness of the

parent to provide parental care and on the child's best interests." Adoption of Lenore, supra.

The parents' challenge to the judge's

reasonable efforts finding focuses on the department's purported failure to

refer them to a specific residential treatment program where Breck could have

been placed with them. "Although

the department is statutorily obliged to make reasonable efforts towards

reunification, 'the means of fulfilling that obligation [are] within the

department's discretion.'" Care

& Protection of Rashida, 488 Mass. 217 , 222 (2021), S.C., 489 Mass. 128

(2022), quoting Care & Protection of Isaac, 419 Mass. 602, 606 (1995). The department possesses the discretion to

make individual service decisions. See

Care & Protection of Rashida, supra.

The parents bear some responsibility for

not receiving the referral they sought.

The department considered making the referral, but the parents did not

comply with the department's requests for toxicology screens needed to assess

the parents' eligibility for the program.[6]

See Adoption of Daisy, 77 Mass. App. Ct. 768, 782 (2010), S.C., 460

Mass. 72 (2011) (department required to make reasonable efforts to strengthen

family but obligation to work with parent was contingent upon parent's

obligation to fulfill parental responsibilities). The judge's finding that the department made

reasonable efforts was not clearly erroneous.

d.

The permanency plan. The mother

contends that the judge abused her discretion by concluding that it was in

Breck's best interests to approve the department's goal of adoption by the

preadoptive parents rather than approving the parents' proposed plan of

placement with the grandmother. We

disagree.

"Where the department files a

petition to dispense with a parent's consent to adoption, it must 'concurrently

identify, recruit, process and approve a qualified family for adoption.'"

Adoption of

Willow, 433 Mass. 636, 652 (2001), quoting G. L. c. 210 § 3

(b). The judge must also "consider

parental nominations of caretakers and then determine which placement will

serve the best interests of the child."

Adoption of Dora, 52 Mass. App. Ct. 472, 474-475 (2001). "In cases where the parents have offered

a competing plan, the judge must assess the alternatives and, if both pass

muster, choose which plan is in the child's best interests, however difficult

that choice may be." Id. at

475 . We review the judge's decision for

abuse of discretion. See Adoption of

Hugo, 428 Mass. 219, 225 (1998), cert. denied sub nom. Hugo P. v. George P.,

526 U.S. 1034 (1999).

After obtaining temporary guardianship of

Breck in February 2021, the grandmother allowed the parents unsupervised

contact and told the department she did not believe that they were using

substances.[7] She told a social worker

she believed that the parents were "sober, suitable and that [Breck]

should be in their care." The

record supports the judge's findings that, while the grandmother loves Breck,

her lack of insight regarding the parents' substance misuse disorder

"negatively impacts her ability to meet [the] child's needs and provide

the safe and stable home that he requires, which is of significant

concern," and that she "is neither capable or willing to maintain

safe boundaries with the parents to protect [Breck] from future abuse and

neglect."

Further, the grandmother did not have

adequate housing for Breck. She lived

with her brothers, slept on a couch, and did not have her own bed. A social worker hired by the father visited

the grandmother's home and concluded that it was not an appropriate long-term

placement for Breck due to inadequate space.

The grandmother saw Breck only five times

after his removal in May 2021, did not know about his specialized medical

needs, stated that she would rather have someone with her when visiting Breck

than be alone with him, and testified that she would rely on the parents if she

needed anything, revealing her lack of understanding and her inability to set

boundaries with the parents that the judge appropriately considered.

In contrast, Breck appeared happy in the

preadoptive parents' home, where he has his own bedroom. Breck had significant developmental delays

when he was initially removed from the parents' care, but he has made significant

progress since living with the preadoptive parents, who have provided for all

his needs and have ensured that he receives services to address his specialized

needs. The judge appropriately found

that the preadoptive parents "have been vigilant and responsive

caretakers" for him.

The judge's extensive fact finding

regarding the viability of placement with the grandmother illustrates the

"meaningful evaluation" required when the parents offer a competing

adoption plan. Adoption of Dora, 52

Mass. App. Ct. at 476 . There was no abuse

of discretion.

e.

Posttermination and postadoption visitation. An order for posttermination and postadoption

visits is "grounded in the over-all best interests of the child, based on

emotional bonding and other circumstances of the actual personal relationship

of the child and the biological parent, not in the rights of the biological

parent nor the legal consequences of their natural relation." Adoption of Vito, 431 Mass. 550, 562 (2000). After finding parental unfitness, a judge

"has broad discretion to determine what is in a child's best interests

with respect to custody and visitation with biological family members

thereafter." Adoption of Ursa, 103

Mass. App. Ct. 558 , 571 (2023), quoting Adoption of Rico, 453 Mass. 749, 756

(2009). In deciding whether to order

visitation, a judge should consider whether the child has "a significant,

existing bond with the biological parent[s]" whose rights have been

terminated. Adoption of Ilona, 459 Mass.

at 63-64 , quoting Adoption of Vito, supra at 563 .

After finding the parents unfit and

terminating their parental rights, the judge concluded that the evidence did

not establish that a visitation order was required to serve the child's best

interests. She declined to order

posttermination or postadoption visitation between the parents and Breck and

left posttermination visits to the department's discretion and postadoption

visits to the preadoptive parents' discretion.

In doing so, the judge concluded that the evidence failed to demonstrate

that Breck had "developed a strong attachment or bond" with either

parent despite having weekly visits. She

also considered other factors such as the preadoptive family's willingness to

facilitate contact with the biological parents, the child's age, and

"anticipated changes in [Breck]'s future needs" in deciding that any

postadoption contact should be left to the discretion of the adoptive parents,

as they would "be in the best position to determine the best interests of

the child's future needs as he grows."

See Adoption of Ilona, 459 Mass. at 66 .

The judge acted within her discretion in declining to order visitation.

f.

The ICWA. The parents assert for

the first time on appeal[8] that the judge erred in finding that the ICWA did

not apply to the case. "The ICWA,

when applicable, triggers a heightened evidentiary standard and burden of proof

for termination of parental rights."

Adoption of Ursa, 103 Mass. App. Ct. at 564. See Haaland v. Brackeen, 599 U.S. 255, 281

(2023). "A child subject to

adoption or parental termination proceedings may qualify as an 'Indian child'

under 25 U.S.C. § 1903 (4) by being 'a member of an Indian tribe'

. . . or being both 'eligible for membership in an Indian tribe and

. . . the biological child of a member of an Indian

tribe.'" Adoption of Ursa, supra,

quoting 25 U.S.C. § 1903 (4).

The judge must affirmatively inquire

whether the child is an Indian child.

See Adoption of Ursa, 103 Mass. App. Ct. at 565, citing 81 Fed. Reg.

38,778 , 38,805 (June 14, 2016). "The

inquiry should be made 'at the commencement of the proceeding and all responses

should be on the record.'" Adoption

of Ursa, supra, quoting 25 C.F.R. § 23.107 (a) (2016). "[W]here the court knows or has reason

to know that an Indian child is involved, the party seeking the foster

placement of, or termination of parental rights to, an Indian child shall

notify the parent or Indian custodian and the Indian child's tribe

. . . of the pending proceedings and their right of

intervention." Adoption of Ursa,

supra, quoting 25 U.S.C. § 1912 (a).

Here, the judge made the appropriate ICWA

inquiry at the outset of the case. The

father claimed to be a member of the Sault Ste. Marie Tribe of Chippewa

Indians. The grandmother's mother and

brothers were registered members of the tribe, but at the time of trial, the

grandmother was not a registered member.

The department sent the proper notice, pursuant to 25 U.S.C.

§ 1912 (a), by registered mail to the Bureau of Indian Affairs on May 21,

2021. In September 2021, the department

filed proof of notice to the tribe with the court. In letters to the department's ICWA

coordinator dated June 20, 2022, the tribe confirmed that the father and the

child were neither members nor eligible to enroll. The father was not a registered member of the

tribe at the time of trial, and the judge accordingly found that the ICWA did

not apply.

The parents contend that the decrees

should be vacated because Breck is now enrolled in the tribe.[9] They argue that notice should (again) be

given to the tribe and that the heightened substantive statutory requirements

of the ICWA should apply. We find the

argument unavailing. At the time of

trial, the father and the child were not members of the tribe and were

ineligible to enroll, and thus the child did not meet the ICWA definition of an

"Indian child." 25 U.S.C.

§ 1903 (4) (defining "Indian child" as unmarried person under age

eighteen who "is either [a] a member of an Indian tribe or [b] is

eligible for membership in an Indian tribe and is the biological child of a

member of an Indian tribe"). See

Haaland, 599 U.S. at 265 . "A tribal

determination of a child's eligibility for tribal membership is conclusive as a

matter of law." Adoption of Ursa,

103 Mass. App. Ct. at 567. Because at

the time of trial, neither the child nor the father was enrolled in a tribe

recognized under the ICWA, the judge correctly found that the ICWA did not

apply. See Nielson v. Ketchum, 640 F.3d

1117, 1123-1124 (10th Cir. 2011), cert. denied, 566 U.S. 1009 (2012). See also Matter of M.H.C., 381 P.3d 710, 714

(Okla. 2016) (ICWA became applicable when mother gained tribal membership, but

did not retroactively apply to invalidate prior court orders). Thus, the parents have not demonstrated that

they are entitled to the invalidation of the decrees based on a violation of

the ICWA. See Matter of Johanson, 156

Mich. App. 608, 613-614 (1986) (no abuse of discretion in denial of mother's

motion for rehearing when she and child became registered tribe members after

order terminating her parental rights).

3.

Conclusion. We affirm the decrees

adjudicating the parents unfit and terminating their parental rights to the

child and affirm the single justice's denial of the parents' joint motion for a

stay of their appeals.

So ordered.

footnotes

[1] A pseudonym.

[2] The parents

filed a joint motion to stay their appeals and for leave to file a motion for a

new trial in the trial court pursuant to Mass. R. Civ. P.

60 (b), 365 Mass. 828 (1974), on the ground that ICWA was violated. A single justice of this court denied the

motion, concluding that the parents failed to demonstrate that the motion for a

new trial has "a sufficiently strong likelihood of success on the merits

to justify the resulting delay in completion of appellate review." Adoption of Ulrich, 94 Mass. App. Ct. 668,

675 (2019). The parents each appealed

the single justice's order, and those appeals were consolidated with their

underlying appeals of the decrees, but the parents did not raise any separate

argument with respect to the order in their briefs or at oral argument. Accordingly, we need not address the

propriety of the order. See Abate v.

Fremont Inv. & Loan, 470 Mass. 821, 833 (2015) (challenge to ruling waived

where appellant failed to make any argument about it on appeal).

[3] The father is

the biological father of only Breck.

[4] The motions

were heard together with the trial by agreement of the parties.

[5] The father

also argues that the judge erred in admitting out-of-court statements of his

nephew alleging sexual abuse by the father and considering the statements in

her decision finding him unfit. Because

the father did not object to the evidence at trial, the argument is

waived. See Adoption of Kimberly, 414

Mass. 526, 534-535 (1993).

[6] Because the

parents could not enter the program if they were in a state of detoxification

or at risk of withdrawal, these screens were necessary.

[7] The parents

argue that the judge erred by finding that the paternal grandmother did not

have authority, as Breck's temporary guardian, to allow the parents to care for

him, and that the erroneous finding contributed to the judge's decision. Even if the finding was erroneous, we

consider it harmless, considering the overwhelming evidence supporting the

judge's ultimate conclusion of unfitness.

See Adoption of Peggy, 436 Mass. 690, 702 , cert. denied sub nom. S.T. v.

Massachusetts Dep't of Social Servs., 537 U.S. 1020 (2002). In any event, the judge could have reasonably

determined that the paternal grandmother's decision to leave Breck in the

parents' unsupervised care was a severe lapse of judgment demonstrating the

paternal grandmother's unsuitability as a guardian.

[8] The parents

sought a stay of this appeal to enable them to file a motion for a new trial

raising the ICWA issue. A single justice

denied the motion. See note 2,

supra. Assuming without deciding that

the issue may be raised at any time under 25 U.S.C. § 1914 , and because

the issue has been fully briefed, we exercise our discretion to address it.

[9] In his brief,

the child argues that the father lacked the authority to enroll Breck in the

tribe after the termination of his parental rights. The question is not addressed by the other

parties, and we decline to address the issue as the determination of that

question would not affect the outcome in the case.