ADOPTION OF UNA v. << (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother and the child appeal from a decree terminating the mother's parental rights.³ We vacate the decree and remand for consideration of whether a guardianship or adoption by the kinship resource is in the best interests of the child.

Discussion. Neither the mother nor the child challenges the finding that the mother was unfit. Instead, they argue on appeal that the Department of Children and Families (DCF) had a conflict of interest and should have referred the matter to a third-party agency and that the judge should have ordered a guardianship rather than the termination of the mother's parental rights.

1. Conflict of interest. It is undisputed that when the mother was a child, she herself was in the custody of DCF and was sexually assaulted by an employee at one of her placements and was otherwise abused. The mother argues that given this horrendous experience, the judge erred in not ordering a transfer of this case to a third-party agency. While the mother's experience is appalling, the argument fails.

As an initial matter, the mother and child make this argument for the first time on appeal. After the first trial, the judge found the mother unfit but allowed her additional time to address her shortcomings. See Adoption of Carlos, 413 Mass. 339, 350 (1992). The judge also recommended that DCF “consider contracting this case to a third party agency.” DCF acknowledges that it can contract a matter to a third-party agency but did not do so here. The mother did not object before the second trial that DCF did not transfer the matter. The argument is waived. See Adoption of Willow, 433 Mass. 636, 651 (2001). This argument also fails on the merits. The mother had in her power the ability to potentially cause a transfer when she claimed to have moved to Rhode Island. However, the judge found that the mother's testimony was not credible and the lack of documentation precluded the opportunity to initiate the Interstate Compact for the Placement of Children process. In addition, it is undisputed that the mother did not successfully complete services with an independent third-party provider a domestic violence program. On this record, it was not an abuse of discretion to conclude that DCF made reasonable efforts to reunite the mother and the child.⁴ See Adoption of Hugo, 428 Mass. 219, 225 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999).

2. Guardianship or adoption. After an initial determination of parental unfitness, the trial judge must then determine whether it is in the best interests of the child to permanently terminate the parent-child relationship. See Adoption of Ramona, 61 Mass. App. Ct. 260, 262-263 (2004). When the rights of both parents are terminated, then the judge is required to assess all placements for the child, including the DCF plan and the plans presented by any other party. See Adoption of Dora, 52 Mass. App. Ct. 472, 474-475 (2001). See also G. L. c. 119, § 26; G. L. c. 210, § 3 (c).

At the first trial, DCF's proposed plan named a maternal great aunt as the preadoptive parent despite noting the great aunt's hesitancy to commit to the adoption. Indeed, the plan stated that the great aunt preferred a guardianship instead of adoption. The trial judge found the adoption plan ambiguous, but he did not explore the choice between guardianship and adoption further.

At the time of the second trial, the child was placed with the great aunt. However, the required home study for adoption was not yet in process because the aunt was “hesitant to complete” it “because the process has taken so long ․ she's worried that the [child] is not going to end up staying with her.” The judge also acknowledged that due to family relationships, sometimes a guardianship is preferred. Nevertheless, the trial judge noted that the issue of guardianship versus adoption was explored in the adoption social worker's testimony and that she credibly testified that in her opinion, the great aunt was committed to the adoption. The ramifications of a guardianship versus an adoption are different and were not evaluated in the findings. See G. L. c. 210, § 3 (c). See also Adoption of Carlos, 413 Mass. 339, 350 (“In determining whether that extreme step [of terminating parental rights] should be taken, consideration of the future is a necessity”). We conclude that a remand is necessary to determine whether a guardianship or adoption is in the child's best interests.

Conclusion. The decree is vacated, and the case is remanded for further proceedings consistent with this memorandum and order.

So ordered.

vacated and remanded

FOOTNOTES

3.   At the time of the trials to terminate the parents’ rights, the child supported termination. Now, the child joins the mother in appealing the termination of the mother's rights. The father's rights were also terminated. He does not join in this appeal.

4.   DCF acknowledges that the trial judge had the authority to determine that in not transferring a matter to a third-party provider, DCF did not make reasonable efforts to reunify the mother and the child, although on this record, the judge did not so find. Given this concession and our disposition, we need not reach DCF's argument that the trial judge does not have the authority to order DCF to transfer a case to an independent third-party provider.