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Appeals Court of Massachusetts.



Decided: February 26, 2021

By the Court (Blake, Desmond & Hand, JJ.2)


After a six-day trial in 2018, a judge of the Juvenile Court found the mother permanently unfit to parent her son (child) and terminated the mother's parental rights. On appeal, the mother challenges the Juvenile Court's subject matter jurisdiction over the case, the judge's determination of her unfitness, and the judge's finding that termination of her parental rights would be in the child's best interests. We affirm.

Discussion. 1. Subject matter jurisdiction. On appeal, the mother challenges the Juvenile Court's jurisdiction over this case under the Massachusetts Child Custody Jurisdiction Act, G. L. c. 209B, § 2 (a) (MCCJA).

To put the mother's challenge in context, we briefly recite the relevant facts as the judge found them, supplementing as necessary from the record.3 At the time of her pregnancy with the child at issue in this case, the mother had two other children. Both were in the custody of the Department of Children and Families (department) and the case involving those children was open.4 The mother, who is a life-long resident of Massachusetts, left Massachusetts to give birth to this child in order to prevent the department from becoming involved with the newborn; she delivered the child in Rhode Island in February 2017. Alerted to the child's birth by the Rhode Island Department of Children, Youth and Families, the department took custody of the child on the day after his birth, and when he was discharged from the hospital in which he was born, brought him to Massachusetts. The department filed the instant case and obtained temporary custody of the child. He has remained in the department's custody since that time.

“A Massachusetts court's exercise of jurisdiction over custody determinations must be based solely on the [MCCJA], G. L. c. 209B.” Guardianship of Minor Children, 97 Mass. App. Ct. 316, 319 (2020), quoting MacDougall v. Acres, 427 Mass. 363, 366 (1998). The MCCJA confers jurisdiction over child custody matters to a competent Massachusetts court if, as relevant here, “(1) the commonwealth ․ is the home state of the child on the commencement of the custody proceeding, or ․ (4) (i) it appears that no other state would have jurisdiction under [this section] ․ and (ii) it is in the best interest of the child that a court of the commonwealth assume jurisdiction.” G. L. c. 209B, § 2 (a). Our review is de novo. See Adoption of Anisha, 89 Mass. App. Ct. 822, 828 (2016).

We conclude that the judge properly exercised jurisdiction pursuant to G. L. c. 209B, § 2 (a) (4). Here, as in Adoption of Anisha, 89 Mass. App. Ct. at 830, the child had no “home state” at the time this litigation began. See G. L. c. 209B, § 1 (defining “home state” to include “the state in which the child immediately preceding the date of commencement of the custody proceeding resided with ․ a parent, ․ and in the case of a child less than 6 months old the state in which the child lived from birth with [a parent]”). Solely as a result of the mother's efforts to remain out of the department's view and beyond its reach, the child had been born in Rhode Island and had remained there with the mother for the few days of his life preceding the department's removal of him to Massachusetts. We conclude that in the circumstances of this case, the child did not “live” in Rhode Island while waiting to be discharged from the hospital in which he was born, meaning that Rhode Island was not his “home state”; as no other portion of § 1 applied, the child had no “home state” at the time of his removal to Massachusetts.

We are also satisfied that it was in the child's best interests that the Juvenile Court in Massachusetts assume jurisdiction. See G. L. c. 209B, § 2 (a) (4). “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 available here.” Adoption of Anisha, 89 Mass. App. Ct. at 830, quoting Redding v. Redding, 398 Mass. 102, 106 (1986). Here, both the mother and the putative father 5 (father) were life-long residents of Massachusetts, had homes in the Commonwealth at the time of the child's birth, were educated here, and had family connections here. See Adoption of Anisha, supra at 831 (noting “parties’ significant connections to the Commonwealth”). As the child's mother was domiciled in Massachusetts when this case was initiated, and she had not yet been divested of custody of the child, the child's domicile was also here. See Adoption of Daphne, 484 Mass. 421, 426-427 (2020), quoting Gil v. Servizio, 375 Mass. 186, 189 (1978) (child's domicile “ ‘the same as the domicile of their parent who has lawful custody of them’ ․ Because the child's birth mother is domiciled in [a Massachusetts city], the child's domicile at birth was also [that same city]”). In our view, those facts established both the parents’ and the child's significant connections to the Commonwealth. See Adoption of Anisha, supra. Additionally, the evidence of the child's family's ongoing involvement with the department was located in Massachusetts, along with evidence relating to the mother's and the father's fitness, including records of their education, involvement with the criminal justice system, medical and mental health concerns, and information about the mother's living arrangements. See id. at 831-832 (finding child's best interests served in jurisdiction where family's department and court records were located). The Massachusetts Juvenile Court properly exercised subject matter jurisdiction in this case.

2. Termination of parental rights. “To terminate parental rights to a child and to dispense with parental consent to adoption, a judge must find by clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of evidence, that the parent is unfit to care for the child and that termination is in the child's best interests.” Adoption of Oren, 96 Mass. App. Ct. 842, 844 (2020), quoting Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012). See G. L. c. 210, § 3; Adoption of Nancy, 443 Mass. 512, 515 (2005). “In determining whether the best interests of a child are served by termination of parental rights, the judge ‘shall consider the ability, capacity, and readiness of the child's parents ․ to assume parental responsibility’ (emphasis omitted),” Adoption of Xarina, 93 Mass. App. Ct. 800, 802 (2018), quoting Adoption of Elena, 446 Mass. 24, 31 (2006), and must also take into account “the parent's character, temperament, capacity and conduct in relation to the particular child's needs, age, affections and environment.” Adoption of Carlos, 413 Mass. 339, 348 (1992). In doing so, the judge considers the evidence as a whole; “no one factor is determinative.” Petitions of the Dep't of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 290 (1987). We review the judge's findings for clear error or abuse of discretion. See Adoption of Ilona, 459 Mass. 53, 59 (2011). In the absence of clear error, we will not disturb the judge's factual findings. See Adoption of Jacques, supra at 606-607.

a. Mother's unfitness.6 At trial, the department produced evidence of the mother's ongoing relationship with the child's father despite the father's history of violent crime,7 abuse of the mother, gang membership, and drug involvement. Although the mother's family action plan tasked her with avoiding contact with the father, the judge found that the mother remained in a long-term and ongoing relationship with him as of the time of trial. See Care & Protection of Vick, 89 Mass. App. Ct. 704, 707-708 (2016), quoting Adoption of Rhona, 63 Mass. App. Ct. 117, 126 (2005) (“failure to maintain service plans ․ is relevant to the determination of unfitness”). Although some of the evidence of the relationship was distant in time, it was not impermissibly stale; rather, it demonstrated the ongoing nature of the relationship.8 See Adoption of Larry, 434 Mass. 456, 469 (2001) (past parental conduct relevant to parental fitness “where the evidence supported the continuing vitality of such conduct”).

In a similar vein, the judge found that the mother had been the victim of threats and abuse by the father, including physical abuse,9 but had failed to recognize the father's conduct as a threat to the child's safety. While the department did not contend that the father harmed the child, or abused the mother in the child's presence, it is well-settled that a parent's involvement with domestic violence is a relevant factor in determining whether a parent is fit.10 See Adoption of Ramon, 41 Mass. App. Ct. 709, 717 (1996) (documented history of domestic violence is relevant factor in determining parental unfitness). The judge was not required “to wait for inevitable disaster to happen” before concluding that the mother was unfit. Adoption of Katharine, 42 Mass. App. Ct. 25, 32 (1997).

We discern no error in the judge's determination that the mother's own inconsistently-treated mental health issues (conditions she failed to recognize at trial) and her abuse of marijuana adversely affected her ability to parent the child. The mother conceded her mental health diagnosis; it is undisputed that satisfactory completion of mental health treatment was a requirement of the mother's family action plan. Nonetheless, the mother testified that she sought mental health treatment only “when she was in the mood to do so.” The judge did not err in finding that the mother failed to comply with the family action plan despite her awareness that failure to follow it would be detrimental to her efforts to regain custody of the child. See Adoption of Elena, 446 Mass. at 32-33 (refusal of treatment relevant to determination of unfitness); Adoption of Rhona, 63 Mass. App. Ct. at 126 (same, failure to comply with department service plans).

Similarly, the judge credited the department's evidence that the mother was unable or unwilling to discontinue her daily use of marijuana, even where doing so was a condition of her probation on criminal charges for drug possession. As the judge found, this behavior put the mother at risk of incarceration for violation of her probation, and therefore at risk of becoming unavailable to the child.11 See Adoption of Serge, 52 Mass. App. Ct. 1, 8 (2001) (“Physical unavailability of the parent to provide day to day care for the child, including for reasons of incarceration, was relevant evidence of unfitness”). Additionally, on one occasion, the mother's use of marijuana led to the cancellation of a scheduled visit with the child. See Adoption of Leland, 65 Mass. App. Ct. 580, 585 (2006) (“failure to follow service plan tasks and visitation schedules may be relevant to determining parental unfitness”); Adoption of Serge, supra.

The judge's consideration of evidence of the mother's criminal activity was also proper. That the mother had been charged with crimes including breaking and entering, possession with intent to distribute cocaine, and conspiracy to distribute cocaine, but had not been convicted of the offenses, did not preclude the judge from taking into account evidence indicating that she had participated in them.12 See Care & Protection of Frank, 409 Mass. 492, 494-495 (1991) (parent's criminal record properly considered when determining unfitness); Care & Protection of Quinn, 54 Mass. App. Ct. 117, 125 (2002) (same).

Where the mother testified to her recognition that her housing at the time of trial was unsuitable for the child, the judge did not err in making that finding. This is particularly true given the mother's testimony that her brother, who was one of five other adults living in the home, was a gang member, involved in criminal activity, and a friend of the abusive father (and thus, a potential additional draw bringing the father into the child's life). Although the mother testified to the availability of resources to assist her in finding her own housing, there was no evidence that she had more than vague plans for finding alternative housing if she were reunited with the child. See Care & Protection of Three Minors, 392 Mass. 704, 712 (1984) (parent's inability to maintain “a stable home environment” consideration in determining parent's fitness).

Lastly, the mother's challenge to the judge's finding that the child would suffer harm if removed from his preadoptive home is unpersuasive. The child has lived with his preadoptive parents since he was one month old; it is the only home he has ever known. There was evidence that the child was bonded to his preadoptive parents and sibling, and they to him. On this evidence, there was no error. See Adoption of Daniel, 58 Mass. App. Ct. 195, 203 (2003) (“If there has been bonding, separation cannot be without some impact”).

b. Best interests analysis. We are satisfied that the judge properly considered the relevant factors in determining that termination of the mother's parental rights was in the best interests of the child. See G. L. c. 210, § 3 (c) (in determining best interests, “the court shall consider the ability, capacity, fitness and readiness of the child's parents ․ to assume parental responsibility[,]” with child's health and safety as “paramount ․ concern”); Adoption of Nancy, 443 Mass. at 514-515. The evidence of the mother's longstanding pattern of denying her ongoing relationship with the father, failing to maintain consistent treatment for her mental health issues and marijuana use, and inability to transition to suitable housing support the judge's determination that her unfitness was not temporary. See Adoption of Luc, 484 Mass. 139, 147 (2020) (“the mother's unwillingness to adhere to [the] service plan, which required her to obtain treatment for her mental health challenges and substance use disorder, is ‘relevant to the determination of unfitness’ ” [citation omitted]). See also Adoption of Ilona, 459 Mass. at 60 (parental unfitness “not temporary if it is reasonably likely to continue for a prolonged or indeterminate period”); Adoption of Elena, 446 Mass. at 31 (substance abuse not temporary condition); Care & Protection of Three Minors, 392 Mass. at 712 (“stable home environment” consideration in determining parental fitness).

Although, as the mother contends, there was evidence that she had participated in some of the services offered to her, including a domestic violence group and parenting classes, the record supported the judge's thoughtful and detailed findings that on the whole, the mother either failed to take advantage of such programming or failed to benefit from it. See Adoption of Ilona, 459 Mass. at 63. We discern no abuse of discretion or other error in the judge's determination that the mother's unfitness was not temporary, and that the child was entitled to the degree of certainty and stability that termination of the mother's rights, and the child's subsequent adoption, would provide. See Adoption of Nancy, 443 Mass. at 519 (termination protects child from uncertainty of repeated litigation and destructive parental behavior); Adoption of Willow, 433 Mass. 636, 647 (2001) (recognizing importance of stability in child's life, and that termination of parental rights may “[ease] [child's] path to a stable placement”).

Decree affirmed.


3.   The mother does not challenge any of these jurisdictional facts as erroneous.

4.   The case involving the older children has been resolved and they are not involved in these proceedings.

5.   The putative father did not appear or participate in the trial, and is not part of this appeal. His paternity was never established. The judge terminated the parental rights of the child's father, name unknown.

6.   As part of her challenge to the sufficiency of the department's evidence of her unfitness, the mother argues for the first time that the department failed to comply with certain procedures and time limits set forth in G. L. c. 119, § 51B. Because the argument was not raised before the judge, it is waived. See Adoption of Larry, 434 Mass. 456, 470 (2001).

7.   Although she did not raise the issue in the trial court, on appeal, the mother argues that the judge erred in considering the father's lengthy and disturbing history of violence, which began while the father was a juvenile, and included charges of indecent assault and battery on his three year old sister and sodomizing a homeless man with a broom handle. Even if the issue were not waived, as we conclude that it was, see Adoption of Larry, 434 Mass. 456, 470 (2001), the mother's argument that G. L. c. 119, § 60, precluded the judge from admitting or considering information about the father's juvenile criminal history would be unavailing. The evidence was not “received in evidence or used against [the father]” who, as we note, was not a party to the case. G. L. c. 119, § 60. Rather, the judge properly considered those facts as evidence of the mother's failure to appreciate the risk that the father posed to the safety of the child.

8.   Additionally, we note that the mother does not challenge the judge's finding that the mother admitted to having had contact with the father as recently as four months before the trial date.

9.   The father was charged with assault and battery on the mother by way of a dangerous weapon, his car.

10.   Although the judge found that the mother had completed a domestic violence group, the mother admitted afterward that she was still seeing the father; the judge's findings show that he concluded that the mother had not benefited from those services. See Adoption of Ulrich, 94 Mass. App. Ct. 668, 677 (2019) (parent's failure to benefit from services relevant to determination of unfitness).

11.   The risk was not theoretical; as the mother admitted and the judge found, the mother was terminated from a court-ordered program for her refusal to comply with the abstinence directive.

12.   We note that the mother admitted to sufficient facts for a finding of guilty of the offenses listed here.

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