# Adoption of Anisha

> Massachusetts Appeals Court · August 5, 2016 · 89 Mass. App. Ct. 822

URL: https://www.frixlaw.com/law-library/cases/4022221

## Case

- **Full name:** Adoption of Anisha
- **Court:** Massachusetts Appeals Court
- **Decided:** August 5, 2016
- **Citations:** 89 Mass. App. Ct. 822; 55 N.E.3d 986
- **Precedential status:** Published
- **Opinion:** Opinion by Kafker
- **Judges:** Kafker, Cohen, Green
- **Cited by:** 6 later opinions in the Frix Law Library

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## Opinion text

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revision and are superseded by the advance sheets and bound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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4022221. Public record. Not legal advice.