Adoption of Malorie.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-1429

ADOPTION OF MALORIE.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This is an appeal by the mother from a decree of the

Juvenile Court adjudicating her daughter (Malorie) under G. L.

c. 119, § 26, to be in need of care and protection, finding the

mother unfit to care for the child, terminating the mother's

parental rights to the child, awarding permanent custody of the

child to the Department of Children and Families (DCF), and

approving DCF's plan for the child's adoption by her kinship

foster parents.2

Before turning to the mother's merits arguments, we must

address a jurisdictional question. The child was born in

Massachusetts, and the family had some contact with DCF while

1 A pseudonym.

2The trial judge also terminated the rights of the child's
father, who did not appeal.
they lived here, but they subsequently moved to Washington State

in August, 2020.

In January, 2021, the father was charged with pushing the

mother out of a moving car. A Washington court issued a

restraining or stay away order prohibiting the father from

coming into contact with the mother. Later in 2021, the

parents, with the child, went to Oregon, and from there they

traveled to Massachusetts, bringing all of their possessions.

Although it is not material to the jurisdictional question, the

trial judge concluded that they intended permanently to stay in

Massachusetts.

On July 24, 2021, the parents and the child showed up,

without prior notice, at the Massachusetts home of the child's

paternal grandmother. The next day, the paternal grandmother

called the police. The father had refused her request to leave

and was drinking alcohol, and was naked, aggressive, had

urinated inside the home, and had punched a hole in the door.

She obtained a restraining order against the father barring him

from her home.

Shortly after the family left the paternal grandmother's

home, a G. L. c. 119, § 51A, report was filed alleging that the

father went to the emergency room at Berkshire Medical Center

due to cellulitis, and while there, he tested positive for

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opiates, cocaine, and alcohol. The report also alleged that

there was an active restraining order in Washington requiring

the father to stay away from the mother. Despite this, the

parents had been living together in motels in Oregon, then

traveled to Massachusetts together, where they initially stayed

with the paternal grandmother.

Due to concerns about the Washington State restraining

order and the father's drug use, DCF instructed the mother to

contact a nearby provider of domestic violence services and not

to let the father be in the child's presence until the agency

could further assess the safety risks to the child he presented.

The mother agreed and signed a DCF safety plan, but after the

father, against medical advice, left a detoxification center to

which he had been admitted during DCF's investigation, the

mother took the child to join him at a local motel. DCF

personnel went to the motel and spoke with the mother; she

admitted that the father was staying with her and the child and

that she had not followed the safety plan she had signed the

previous day.

Because the mother had not followed the safety plan, DCF

removed the child from the parents' custody at the motel based

on its concerns about the father's substance use, incidents of

domestic violence, and the Washington restraining order. The

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child was placed in a Massachusetts foster home. The underlying

care and protection petition was filed by DCF on July 30, 2021.

By late October 2021, the mother and the father had

returned to Washington. The child remained in Massachusetts,

where she had been placed with a family member of the father.

When the child's maternal aunt heard that the child could not

stay there any longer, she applied to become the child's foster

parent in Washington. After undertaking a home study pursuant

to the Interstate Compact on the Placement of Children (ICPC),

St. 1963, c. 452, § 1, in March, 2022, DCF placed the child with

her aunt and uncle in Washington, pursuant to that statute.

The first question before us is whether, despite the entire

family now living in Washington State, the Massachusetts

Juvenile Court could exercise jurisdiction to hear this case and

order the termination of parental rights. We conclude that it

properly exercised its jurisdiction here.

"A Massachusetts court's exercise of jurisdiction over

custody determinations must be based solely on . . . 'any of the

four subsections of G. L. c. 209B § 2 (a).'" MacDougall v.

Acres, 427 Mass. 363, 366 (1998), quoting Guardianship of Zeke,

422 Mass. 438, 441 (1996). The first basis is contained in

G. L. c. 209B, § 2 (a) (1). It confers jurisdiction on the

courts of the Commonwealth if this is the subject child's "home

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state," which is "the state in which the child immediately

preceding the date of commencement of the custody proceeding

resided with . . . a parent, . . . for at least 6 consecutive

months," G. L. c. 209B, § 1, or "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 a person

acting as a parent continues to reside in the commonwealth."

G. L. c. 209B, § 2 (a) (1). As the child had been in the

Commonwealth for only a matter of days at the time of the

commencement of this proceeding, Massachusetts was not her home

state.

Under the second basis in G. L. c. 209B, § 2 (a) (2), a

Massachusetts court could have jurisdiction if it "appears that

no other state would have jurisdiction under [§ 2 (a) (1)],"

which has been interpreted to mean that no other State would

have jurisdiction applying the standards that are articulated

for the Commonwealth to have jurisdiction under § 2 (a) (1).

See Custody of Victoria, 473 Mass. 64, 70-72 (2015). Under that

standard, Washington State would have had jurisdiction, so

§ 2 (a) (2) is not a basis upon which the Juvenile Court could

have exercised jurisdiction over this case.

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The third basis is contained in G. L. c. 209B, § 2 (a) (3),

which provides for so-called "emergency jurisdiction"; it allows

the exercise of jurisdiction when

"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 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 deferred to the
jurisdiction of a court of the commonwealth."

The parties agree that the Juvenile Court properly

exercised emergency jurisdiction when it initially removed the

child and placed her with family who lived locally. The mother,

however, contends that Washington State did not "decline to

exercise jurisdiction," G. L. c. 209B, § 2 (a) (3), and so the

Juvenile Court was empowered only to enter temporary orders.

We disagree. A State declines to exercise jurisdiction

when a court of competent authority communicates that

declination. See MacDougall, 427 Mass. at 369 & n.7. The trial

judge properly and repeatedly contacted by Zoom, on the record

and in the presence of counsel, the Commissioner of the Lewis

County Superior Court (Commissioner), the official in charge of

making these jurisdictional determinations under the Uniform

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Child Custody Jurisdiction and Enforcement Act, in the court in

which a case against the parents would lie in Washington State.

The Commissioner expressly "declined to exercise jurisdiction"

early on when the entire family was still in Massachusetts.

Subsequently, after the entire family was in Washington State,

which was a relevant circumstance, she again declined to

exercise jurisdiction despite the strong suggestion by the trial

judge that her court exercising jurisdiction that might be the

more prudent course. The Commissioner said that she could not

accept jurisdiction because there was no case pending in her

court. She explained that in the absence of a current

emergency, the Washington counterpart to DCF would not file a

case equivalent to the care and protection proceeding. She did

suggest that the foster parents could file a guardianship

petition in her court and that she could accept jurisdiction and

hear that case –- but dismissal of this case upon such filing

would have left the child in the parents' legal custody and the

foster parents did not do so. In the absence of a pending case,

the Commissioner explained she could not accept jurisdiction.

We conclude that the Commissioner declined jurisdiction

within the meaning of the statute. Although she said she was

not procedurally "declin[ing] [to exercise] jurisdiction," G. L.

c. 209B, § 2 (a) (3), her determination of the meaning of that

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phrase is not controlling before us. She was repeatedly offered

the opportunity to take jurisdiction of the case and she

declined to do so.

The jurisdiction at issue is "jurisdiction to make a

custody determination by initial or modification judgment."

G. L. c. 209B, § 2 (a). The Commissioner declined to exercise

that jurisdiction. Her reasons for declining –- no pending case

–- are immaterial. Whether her conclusions that she could not

exercise jurisdiction without a pending case and that

Washington's child protective services agency could not bring a

case were correct or incorrect as a matter of Washington law, is

also immaterial. We find it troubling and surprising that where

a care and protection case is already pending in one State,

there appears to be no simple mechanism for transferring the

issues of parental fitness and remedies, including termination

of parental rights, to a State to which the child and parents

have moved, either by initiation of a case or some other method

of exercising jurisdiction. Nonetheless, when offered the

opportunity to exercise jurisdiction, the Commissioner declined.

In addition, as the child points out, if this were not a

declination of jurisdiction, the Commissioner certainly

"otherwise deferred to the jurisdiction of a court of the

commonwealth." G. L. c. 209B, § 2 (a) (3). The exercise of

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jurisdiction to finally decide the matter by the Juvenile Court

was therefore appropriate under G. L. c. 209B, § 2 (a) (3).3

The mother next argues that the court should have declined

jurisdiction under G. L. c. 209B, § 7 (a). In relevant part,

that provision reads, "[a] court which has jurisdiction pursuant

to section two may decline to exercise its jurisdiction at any

time prior to making a custody determination upon finding that

its assumption of jurisdiction . . . would constitute an

inconvenient forum and that a court of another state would

constitute a more convenient forum." G. L. c. 209B, § 7 (a).

This provision says that a court "may" decline to exercise

jurisdiction, not that it "shall" decide not to exercise

jurisdiction, in certain circumstances but, even if the statute

were mandatory, the mother would not have been entitled to

declination. Even if Massachusetts were "an inconvenient forum"

in this case, because no court of any other State had a

mechanism for hearing the case, no "court of another state would

constitute a more convenient forum."4 G. L. c. 209B, § 7 (a).

3 Therefore, we need not address the mother's argument that
jurisdiction was improper under G. L. c. 209B, § 2 (a) (4).

4 Indeed, among the things a court may do upon a finding
that a court of another jurisdiction may be a more appropriate
forum is "stay the proceeding upon condition that a custody
proceeding be initiated or prosecuted in another state in a
timely manner or upon any other condition that the court might
deem just." G. L. c. 209B, § 7 (e) (3). Section 7 (c) also

9
Having been told by the Commissioner of the Washington

court that local Washington child protective services

authorities could not initiate prosecution of a case seeking to

terminate the parental rights of the parents, there was no abuse

of discretion or other error of law in the judge's refusal to

decline jurisdiction under § 7.

Turning then to the merits, the mother argues first that

DCF failed to make reasonable efforts to reunite the family.

Her primary objections are that DCF did not provide supervision

so that supervised, in-person visits could take place, did not

identify service providers in Washington State who would provide

services to the parents, and did not arrange for a social worker

in Washington State for the mother. These are all services that

DCF can and does provide in Massachusetts.

What is reasonable of course depends on all the facts and

circumstances. The question is whether, given the fact that the

family lived in Washington State because the parents moved back

to Washington after DCF removed the child and DCF eventually

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."

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placed the child with a kinship placement in Washington State,

the actions taken by DCF were reasonable.

In the end, we think they were. The social worker provided

a mechanism for Zoom visits between the parents and the child

that was utilized rarely by the parents. She provided the name

and contact information for a service provider in the city in

which the parents were living. Although she did not contact the

service provider herself, the parents told the social worker

they did not need this service provider. To be sure, the DCF

social worker did not directly ask DCF's counterpart department

in Washington State for help identifying services for the

parents or if they would do a courtesy visit to either the

mother or the father, although the mother has not put in any

evidence that that agency could have done so. That Washington

agency, however, did, pursuant to the ICPC, provide a social

worker to visit the foster parents' household. Nonetheless, we

think the efforts taken by DCF in the circumstances were

reasonable.

As to the lower court's decree, the mother does not contest

that the facts as found by the trial judge would suffice to

support, by clear and convincing evidence, the judge's

determination of unfitness likely to continue indefinitely into

the future, and the judge's conclusion that the best interests

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of the child required termination of parental rights. Rather,

the mother argues that a number of the lower court's findings

were clearly erroneous, and conclusions of law were in error.

We address them seriatim.

Most of the claimed errors about findings do not address

findings of fact, but legal conclusions -- for example, the

judge's conclusion that the "lack of a specific referral in the

State of Washington [for] domestic abuse services is not fatal

to a finding of reasonable efforts." These claims, with respect

to reasonable efforts, are all subsumed within our conclusion

that there was no abuse of discretion or error in the judge's

ruling that DCF had made reasonable efforts to reunify the

family. The mother also argues that it is incorrect that the

Washington court declined to exercise jurisdiction. Again, our

prior discussion of G. L. c. 209B, § 2, covers that legal issue.

The mother argues that it was error for the judge to state

that the social worker from DCF identified providers local to

the parents when all she did was find an agency on the Internet,

to which she referred the parents, without contacting it. But

that finding of fact is not clearly erroneous. She argues that

the judge incorrectly concluded that 7:00 A.M. virtual visits

are not inappropriate because they would not be held in

Massachusetts at that time because the social worker does not

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arrive at work until 9:00 A.M. Eastern Time. But the fact that

the social worker would not schedule 7:00 A.M. visits in

Massachusetts because of her work hours does not demonstrate

that where, due to the time difference with Washington State,

she is able to do so, such visits by Zoom at that hour are

inappropriate.

Finally, the mother argues that attending only six of

twenty-five virtual visits should not be treated as evidence of

the mother's neglect. First, she argues the visits were held at

7:00 A.M. But there was no evidence that the time of day

affected the mother's attendance.

Second, she argues that some of the documentation

concerning the social worker opening a Zoom meeting, and leaving

it open for fifteen minutes during which time the parents did

not arrive for the meeting, indicated that she may not have

waited the full fifteen minutes before closing the meeting. But

in the absence of any claim or evidence that either parent tried

to get on a Zoom meeting but it was closed, that argument has no

merit.

Third, she says that visits continued on Fridays for many

weeks after the mother indicated that that day of the week would

not work for her because of her work, with the social worker

failing during that time to respond to her request that it be

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changed. First of course, the judge did not have to credit

anything in the mother's testimony, see Custody of Eleanor, 414

Mass. 795, 799 (1993), but even if the allegation is true, we

would find that any error was not prejudicial.

The trial judge, in fact, did not credit the mother's

testimony that she never heard back from the social worker, and

found, instead, that the social worker called the mother after

learning that Fridays would not work for her, and the mother did

not answer her phone. We may assume without deciding that the

social worker should have tried to reach the mother again to

discuss this scheduling issue. But even if the mother had been

able to and did attend the visits after she told the social

worker the scheduled time conflicted with her work schedule, it

would not be sufficient to overcome the grievous shortcomings

due to unaddressed opioid addiction and mental health issues,

that support the judge's ultimate conclusion that termination of

the mother's parental rights was in the child's best interests.

See Adoption of Yalena, 100 Mass. App. Ct. 542, 553 (2021).

Finally, the mother challenges the court's conclusions as

to several of the fourteen factors set forth in G. L. c. 210,

§ 3 (c), particularly factors (ii), (v), (vi) and (viii). She

argues that they do not apply as they depend on the parent

having been offered services. As described above, the services

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offered by DCF, while limited, largely due to the fact that the

parents and the child were all in Washington State, were

sufficient not only to constitute reasonable efforts to reunify

the family, but to meet the requirements for the offering or

provision of services identified in factor (ii). Even when the

parents were receiving services throughout the case, purportedly

to address their opioid addictions and other drug and alcohol

abuse, they failed to provide releases allowing DCF to determine

whether they had made progress or whether "a substantial danger

of abuse or neglect continue[d] to exist." G. L. c. 210,

§ 3 (c) (ii).

As to factor (v), the parents did receive some services,

but they were unable to utilize them on a regular and consistent

basis, including because they were evicted from the sober house

they were in, apparently due to suspected drug use and theft.

Those same services, and the inability to utilize them on a

regular and consistent basis, are the prerequisite for the

application of factor (vi). Factor (viii) refers only to "a

lack of effort by a parent . . . to remedy conditions which

create a risk of harm due to abuse or neglect of the child[,]"

and that was clearly demonstrated in the judge's findings.

G. L. c. 210, § 3 (c) (viii).

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Lastly, the mother challenges the application of factor

(iii), which addresses parents who "have not maintained

significant and meaningful contact with the child during the

previous six months." G. L. c. 210, § 3 (c) (iii). The mother

points to the Friday visits, which she said she could not attend

due to a change in her work schedule three months before the

trial. But her history of inconsistent visitation with the

child stretches back to the beginning of this case. She

attended only one in-person visit while she and the child were

both in Massachusetts, despite the social worker's efforts to

schedule more visits, and after the parents and the child were

in Washington, she failed regularly to attend virtual visits.

Application of that factor therefore was not in error.

Decree affirmed.

By the Court (Rubin,
Desmond & Singh, JJ.5),

Clerk

Entered: December 23, 2024.

5 The panelists are listed in order of seniority.

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