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Appeals Court of Massachusetts.



Decided: September 24, 2021

By the Court (Green, C.J., Singh & Hand, JJ.2)


Following a trial, a judge of the Juvenile Court found the mother to be unfit and terminated her parental rights to her son, Varick. The mother appeals, challenging the Juvenile Court's jurisdiction over the proceeding and the admissibility of the evidence underpinning certain of the judge's findings of fact and conclusions of law.3 We affirm.

Background. We summarize the judge's detailed and comprehensive findings of fact. Varick was born in January 2018, while the parents were living in New Hampshire. Soon thereafter, the parents separated, and the father moved to Massachusetts. The mother and Varick remained in New Hampshire, living with the maternal grandmother for two months before moving out, first staying at a motel and then at a friend's apartment. During this time, the New Hampshire Division for Children, Youth and Families (New Hampshire division) had some concern over the mother's care of Varick, initially because the mother had used marijuana during her pregnancy. The New Hampshire division also received reports of domestic violence between the mother and the father, and that the mother was drinking, using illegal drugs, and neglecting Varick. As a result, the New Hampshire division opened three cases regarding the mother and Varick.

In August 2018, the mother moved to Massachusetts. The father reported to the Department of Children and Families (department) that Varick was “always dirty” and that the mother “drinks and use[s] drugs.” A G. L. c. 119, § 51A, report (51A report) was screened in for a nonemergency response. During the department's G. L. c. 119, § 51B, investigation, which resulted in a report (51B report), a department social worker learned the details of the mother's extensive history with the New Hampshire division. The social worker then conducted a visit with the mother in her home in Lowell, and spoke with the mother's psychiatrist and Varick's early intervention and health care providers. The allegations of neglect were supported, which prompted the department, based on the mother's “reported use of crack cocaine and heroin, her mental instability, the frequently dirty appearance of the child, [and her] propensity to leave the child uncared for and crying for extended periods of time,” to file a care and protection petition. Varick was removed from the mother's custody on September 13, 2018.

Although the mother did engage in drug and mental health treatment, as required by her action plan, her participation was sporadic and incomplete. She reported that, in the month following Varick's removal, she had been “speedballing” cocaine and heroin, smoking crack cocaine and marijuana, and drinking alcohol. The mother also refused to sign the releases that would verify her compliance in treatment (or sometimes rescinded her initial permission) and continued to self-report drug use on a number of additional occasions. When not living at a residential drug treatment center, the mother's housing was unstable until the fall of 2019; she was often homeless during that time.

At trial, the mother blamed the department for her substance abuse issues, claiming that she used drugs only in order to qualify for the treatment that the department had tasked her with completing. The mother's behavior during trial was “emotionally unstable, laughing, crying, and growing hostile towards questioning attorneys.” The judge found this presentation to be representative of “the same erratic and volatile behavior that had been documented by the [d]epartment throughout the present case” and concluded that the mother's “conduct and pattern of behavior and decision making ․ would put the child in danger if [he was] returned to her care and custody.”

Discussion. 1. Subject matter jurisdiction. For the first time on appeal, the mother contends that the decree must be vacated for lack of subject matter jurisdiction because, at the commencement of the proceeding, New Hampshire was Varick's “home [S]tate.” The home State of a child is defined as “the [S]tate 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 [six] consecutive months.”4 G. L. c. 209B, § 1.

Contrary to the mother's argument, New Hampshire did not have home State jurisdiction because Varick and both parents lived in Massachusetts when the care and protection petition was filed.5 But because Varick had not lived in Massachusetts for six consecutive months prior to the commencement of the proceeding, Massachusetts could not exercise home State jurisdiction either. See, e.g., Adoption of Anisha, 89 Mass. App. Ct. 822, 829-830 (2016). Nevertheless, jurisdiction was proper because the Juvenile Court had default jurisdiction under G. L. c. 209B, § 2 (a) (2).

A court has default jurisdiction where, as here, no State has home State jurisdiction and “it is in the best interest[s] of the child that a court of the [C]ommonwealth assume jurisdiction.” G. L. c. 209B, § 2 (a) (2). The exercise of default jurisdiction is in the child's best interests if “[t]he child and at least one parent ․ have a ‘significant connection’ with the Commonwealth, and ‘substantial evidence concerning the child's present or future care, protection, training, and personal relationships’ [is] available here.” Adoption of Anisha, 89 Mass. App. Ct. at 830, quoting Redding v. Redding, 398 Mass. 102, 106 (1986). See Adoption of Daphne, 484 Mass. 421, 428 n.17 (2020) (defining best interests standard under § 2 [a] [2]).

That standard is met here. The mother graduated from a Massachusetts high school in 2012 and had a history of employment in Massachusetts. Moreover, when the case was initiated, the mother and Varick had moved back to Massachusetts from New Hampshire. Both were receiving medical care at the community health center in Lowell. Additional evidence relevant to the family's involvement with the department was also available in Massachusetts, including records of the mother's mental health and substance abuse treatment and the services that Varick received through early intervention programs at his preadoptive home. Given these considerations, it was proper for the Juvenile Court to exercise default jurisdiction over the proceeding.

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 Jacques, 82 Mass. App. Ct. 601, 606 (2012). We “will reverse only ‘where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion.’ ” Adoption of Luc, 484 Mass. 139, 144 (2020), quoting Adoption of Ilona, 459 Mass. 53, 59 (2011).

The mother's claim that certain findings of fact are clearly erroneous because they are based on improperly admitted evidence from the 51A and 51B reports is unavailing. “51A reports are admissible to ‘set the stage’ to explain how the department became involved with the family.” Adoption of Querida, 94 Mass. App. Ct. 771, 778 (2019), quoting Custody of Michel, 28 Mass. App. Ct. 260, 267 (1990). First- and second-level hearsay within 51B reports “is admissible for statements of primary fact, so long as the hearsay source is specifically identified in the document and is available for cross-examination” (footnotes omitted). Adoption of Luc, 484 Mass. at 153. Here, the majority of the challenged findings are numbered sequentially, thus forming an approximate timeline of the first eight months of Varick's life as recorded by various social workers responding to the family's needs. And although the findings that reference the family's involvement with the New Hampshire division were drawn from the 51B report, and thus admissible in accordance with the criteria clarified in Adoption of Luc, the distinction is inconsequential where they were used only to contextualize the bringing of the care and protection petition.6 See Custody of Michel, supra (describing both statutory reports as “part of the paper trail which explains the bringing of the petition”). It is unremarkable that the mother's history with the New Hampshire division appears in the 51B report; the department learned the details of this history only after beginning their investigation into the allegation of neglect.

Arguably, the challenged findings and conclusions that state that the mother moved between Massachusetts and New Hampshire “frequently” in order to “evade open cases” constitute a substantive use of the 51A report. Even assuming error, however, there was no resulting prejudice. The findings of fact that the mother challenges on appeal simply do not factor significantly into the judge's ultimate conclusions of law. Accordingly, the remaining conclusions of law, which are supported by more than one hundred unchallenged findings of fact, provide a substantial basis for the judge's decision that the mother was unfit, and that termination of the mother's parental rights was in the best interests of Varick.7 See Adoption of Luc, 484 Mass. at 148.

“The mother's unfitness resulted from a ‘constellation of factors.’ ” Adoption of Oren, 96 Mass. App. Ct. 842, 845 (2020), quoting Adoption of Greta, 431 Mass. 577, 588 (2000). Paramount among the evidence of unfitness was the mother's persistent inability to address her “chronic homelessness, mental health, and substance abuse.” The judge did not clearly err or abuse her discretion in finding that these shortcomings rendered the mother unfit. The record reflects that the mother overdosed during the pendency of this case, that her drug use and mental health issues prevented her from maintaining employment, and that her housing instability resulted, in large part, from her propensity for aggressive and volatile interpersonal relationships. See Adoption of Mary, 414 Mass. 705, 711 (1993) (“Parental unfitness must be determined by taking into consideration a parent's character, temperament, conduct, and capacity to provide for the child”). Although the judge noted that “[d]espite parental shortcomings, it is clear that [the m]other loves her child and that [the mother] and the child appear to be attached to one another,” this evidence does not negate the serious deficiencies that the mother was unable to overcome during the pendency of this case. Rather than a “moral judgment,” the judge's determination of unfitness was properly focused on the mother's inability to protect Varick from “risk of peril from abuse, neglect, or other activity harmful to the child” (citation omitted). Adoption of Bianca, 91 Mass. App. Ct. 428, 432 n.8 (2017). We are satisfied that the judge's determination that termination of the mother's parental rights was in Varick's best interests was supported by clear and convincing evidence that the mother lacked the “ability, capacity, and readiness” to parent Varick. Adoption of Elena, 446 Mass. 24, 31 (2006), quoting G. L. c. 210, § 3 (c).

Decree affirmed.


3.   At trial, the father did not seek custody of Varick. The judge terminated the father's parental rights, and he is not a party to this appeal.

4.   Under the Federal Parental Kidnapping Prevention Act, the definition of the home State of a child is substantially the same as under Massachusetts law. See 28 U.S.C. § 1738A(b)(4).

5.   At oral argument, the mother conceded that all parties were in Massachusetts at the initiation of the case.

6.   The judge's misattribution of these findings to the 51A report is of no consequence.

7.   The mother also argues that she was “denied her ․ right to a fair trial” because the judge prevented her from obtaining case records from the New Hampshire division. We see no merit to this argument. After both the department and the mother were unsuccessful in obtaining the records, the judge indicated that she was amenable to issuing an order to the New Hampshire division -- despite her belief it would be unenforceable -- and directed the mother to submit a proposed order. Neither the transcript nor the docket reflects that the mother did so.

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