ADOPTION OF SILAS v. << (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother appeals from a decree issued by a judge of the Juvenile Court finding her unfit and terminating her parental rights to her child, Silas, as well as an order denying mother's motion for relief from the judgment. On appeal, the mother argues that Massachusetts did not have jurisdiction over the child under the Massachusetts Child Custody Jurisdiction Act (MCCJA), G. L. c. 209B, and that she was denied due process. We affirm.²

Background. We summarize the judge's factual findings, supplemented where needed by undisputed facts in the record or concessions of the parties.

The child was born in Ohio in 2017. He experienced at least eight interstate moves between five States and additional intrastate moves in the three and one-half years between his birth and his removal. The mother rightly concedes that the judge correctly found that the child had no statutory home state under the MCCJA.

In “roughly” 2021, the mother was with the child in New York, and then they relocated to South Carolina. In February 2021, the mother's stepmother (stepmother) picked them up and took them to New Hampshire. After a few nights in a hotel, the mother and the child moved into a transitional shelter in New Hampshire on February 17, 2021. The shelter offered a range of supports. While in New Hampshire, the mother had not established pediatric care for the child.

Sometime between February 17 and March 10, 2021, the mother called the stepmother, who lived in Massachusetts, and said she “couldn't do this anymore” and asked the stepmother to take the child. The stepmother was away on vacation and unable to assist at that time.

On Tuesday, March 9, 2021, or the weekend before, the mother was feeling suicidal and called a former girlfriend in Massachusetts; that girlfriend picked up the mother and the child and brought them to Massachusetts. The reunion was not positive, and on March 10, 2021, the mother attempted to end her life by taking Percocet while in Massachusetts. The mother was revived and transported to a Massachusetts hospital. While in the hospital, the mother told a Department of Children and Families (department) social worker that she “would like to move to Massachusetts.”

The former girlfriend cared for the child until the stepmother picked him up. However, the department removed him that day because the stepmother was involved with the department regarding her own children within the past year. By March 31, 2021, the child was placed in the foster home in Massachusetts at which he was residing at the time of trial.

By March 25, 2021, the mother had been discharged from the hospital. Her diagnoses included bipolar I disorder, borderline personality disorder, polysubstance use disorder and dependence, a history of posttraumatic stress disorder, impulsive behaviors, opiate overdose, and rib fractures. By March 29, 2021, she had returned to the shelter in New Hampshire.

No child custody matter involving the child was pending in another State when this action was filed or afterward. When the department took steps to reunite the mother and the child in New Hampshire, the child moved to stop the transition.

The judge identified jurisdiction as a question in her decision and concluded that Massachusetts had jurisdiction under § 2 (a) (4) of the MCCJA. The mother did not raise the question of jurisdiction until a posttrial motion for relief from judgment submitted over two months after the judge's findings were filed. The judge denied the motion, concluding again that jurisdiction was proper in Massachusetts.

Discussion. “[M]indful that subject matter jurisdiction may be raised at any time including on appeal, we consider the mother's argument” that Massachusetts did not have jurisdiction over Silas. Guardianship of Finley, 107 Mass. App. Ct. 11, 16 (2026).

A Massachusetts court's jurisdiction over child custody proceedings is governed by the MCCJA, G. L. c. 209B. Id. Under the MCCJA, a court must first determine whether it has the power to exercise jurisdiction over the custody proceeding. See Guardianship of a Minor, 98 Mass. App. Ct. 133, 138 (2020). The MCCJA limits the jurisdiction of Massachusetts courts to cases in which

“(1) the commonwealth ․ is the home state of the child on the commencement of the custody proceeding ․; 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 ․; 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.”

G. L. c. 209B, § 2 (a). These four subsections of G. L. c. 209B, § 2 (a), are referred to “simply as (1) home State jurisdiction, (2) default jurisdiction, (3) emergency jurisdiction, and (4) appropriate forum jurisdiction.” Guardianship of Minor Children, 97 Mass. App. Ct. 316, 320 (2020). “We review [a] determination of subject matter jurisdiction de novo.” Adoption of Anisha, 89 Mass. App. Ct. 822, 828 (2016).

As an initial matter, we assume, without deciding, that the question of jurisdiction under the MCCJA should be determined at the time the petition is filed. See Care & Protection of Faraj, 496 Mass. 426, 435 (2025) (Massachusetts Juvenile Court lacked authority to make custody orders where child's home state under MCCJA was Connecticut); Guardianship of a Minor, 98 Mass. App. Ct. 133, 138 (2020) (“Under the MCCJA, a court must first determine whether it has the power to exercise jurisdiction of the custody proceeding; if it has that power, the court may still decline jurisdiction based on one of the grounds specified in G. L. c. 209B, § 7 [a]”). Because, as explained below, exercising jurisdiction was proper at the outset of this case, we need not reach the mother's argument that the judge erred in relying on facts that arose thereafter. That said, we urge judges and lawyers in care and protection proceedings that could implicate more than one State to raise and consider jurisdiction at the outset of the matter.

Here, as already stated, the parties agree that the child did not have a “home state” under c. 209B. For a child who is at least six months old, a child's “home state” is “the state in which the child immediately preceding the date of commencement of the custody proceeding resided with his parents [or] a parent ․ for at least 6 consecutive months.” G. L. c. 209B, § 1. The child here had no such state. In the six months preceding the filing of the petition, the child had been in Massachusetts for a few days, in New Hampshire for approximately one month, and multiple other States prior to that.

In these circumstances, and where no State would have home state jurisdiction, we conclude that the judge properly exercised jurisdiction pursuant to G. L. c. 209B, §§ 2 (a) (2) and (4). Default jurisdiction under § 2 (a) (2) exists when, as here, the child has no home state and the child's best interest is served by having a Massachusetts court determine the child's custody. Appropriate forum jurisdiction under § 2 (a) (4) exists where “(i) it appears that no other state would have jurisdiction” under paragraphs (1)-(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.”³ G. L. c. 209B, § 2 (a) (4). See Care & Protection of Faraj, 496 Mass. at 435; Adoption of Anisha, 89 Mass. App. Ct. at 830. To determine “the best interest of the child,” we apply the factors set forth in § 2 (a) (2). Adoption of Anisha, supra. Under that provision, the child and at least one parent or the child and at least one contestant must have “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. G. L. c. 209B, § 2 (a) (2). See Care & Protection of Faraj, supra at 432 n.5.

While the mother and the child had been in a shelter in New Hampshire, the mother had not established significant ties to New Hampshire. She had been in the New Hampshire transitional shelter for at most twenty days and in that State about one month. She had not enrolled the child with a pediatrician. The mother had moved repeatedly since the child's birth over three years earlier and had never stayed in a State for more than a few months at a time.

Regarding the mother's ties to Massachusetts, the mother asked her stepmother, who lived in Massachusetts, to take the child, though the stepmother was not immediately available. The mother also brought the child to Massachusetts, where the mother attempted suicide, essentially abandoning the child. The mother left the child in the care of her former girlfriend and that person's family in Massachusetts. While in the hospital, the mother told the department social worker that she hoped to move to Massachusetts. The evidence of what happened when the mother and the child came to Massachusetts and the child entered foster care was all located in Massachusetts. Adoption of Anisha, 89 Mass. App. Ct. at 831-832 (Juvenile Court had appropriate forum jurisdiction where mother had significant ties to Commonwealth and was planning to stay with her sister in Commonwealth, one month old child had been born in New Hampshire but had pediatric appointment in Commonwealth, and evidence department gathered was located in Commonwealth). Contrast Guardianship of Finley, 107 Mass. App. Ct. at 18 (“A parent ‘cannot confer home state jurisdiction on a state where she does not actually live by declaring an intention to begin living there prospectively’ ” [citation omitted]). Moreover, under the MCCJA, the department can be a contestant. See Custody of Vale, 106 Mass. App. Ct. 381, 393 (2025). Finally, no other State has asserted jurisdiction. Under these unusual circumstances, it was not error to conclude that jurisdiction rested in Massachusetts.

The mother argues that at most the Juvenile Court could have exercised emergency jurisdiction under § 2 (a) (3). Certainly Massachusetts had emergency jurisdiction under the MCCJA. Contrary to the mother's suggestion, however, the Juvenile Court's authority was not limited to issuing temporary orders because there is no indication that “a court of another state [was] entitled to assert jurisdiction” and jurisdiction in Massachusetts was “established under ․ other paragraphs of” § 2 (a), as explained above. G. L. c. 209B, § 2 (a) (3).

We reject the mother's argument that she was not afforded due process because the judge did not hold a hearing on jurisdiction. The mother was represented by counsel, had notice of the proceedings, and testified at trial. Adoption of Patty, 489 Mass. 630, 639 (2022) (“due process requires that parents be provided with ‘an opportunity to be heard at a meaningful time and in a meaningful manner,’ ” parent generally must be represented by counsel, and the Commonwealth must prove unfitness by clear and convincing evidence [citation omitted]). As mentioned, the mother did not raise the issue or ask for a hearing on jurisdiction before trial, raising the issue for the first time in a posttrial motion for relief from judgment. Furthermore, the mother fails to explain how a hearing would have made a difference to the outcome of the case. See Adoption of Don, 435 Mass. 158, 170 (2001) (showing of prejudice required to obtain reversal on due process grounds).⁴

On the merits, the mother concedes that “clear and convincing evidence of [the mother's] unfitness supported the termination judgment.” Based on the record, we agree.

Decree affirmed.

Order denying the mother's motion for relief from judgment affirmed.

FOOTNOTES

2.   The father filed a stipulation for judgment agreeing to a finding of parental unfitness and termination of his parental rights. He is not a party to this appeal.

3.   This is not a situation where another State has declined to exercise jurisdiction.

4.   While we acknowledge that the child's foster care placement in Massachusetts, and in the city where he was placed, combined with the mother's decision to return to the shelter in New Hampshire while the case proceeded in Massachusetts made visitation difficult, we note that the mother could have asked the Juvenile Court to exercise its discretion to decline jurisdiction pursuant to G. L. c. 209B, § 7, but did not.