Adoption of Jacob

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20-P-4 Appeals Court

ADOPTION OF JACOB.1

No. 20-P-4.

Bristol. October 22, 2020. - March 1, 2021.

Present: Massing, Singh, & Grant, JJ.

Adoption, Care and protection, Dispensing with parent's consent,
Foster parents, Standing. Parent and Child, Care and
protection of minor, Dispensing with parent's consent to
adoption, Custody. Minor, Care and protection, Adoption.
Grandparent. Department of Children & Families. Practice,
Civil, Care and protection proceeding, Adoption,
Guardianship proceeding, Sequestration of witness.

Petitions filed in the Bristol County Division of the
Juvenile Court Department on June 2, 2017, and September 25,
2018.

The cases were heard by Tracie L. Souza, J.

Cara M. Cheyette for the mother.
William A. Comeau for the father.
Andrew Don for the grandparents.
Charles G. Levin for the child.
Brian Pariser for Department of Children and Families.

1 A pseudonym.
2

MASSING, J. This multiparty appeal arises from a petition

for care and protection that was tried in the Juvenile Court

together with a petition for guardianship. The guardianship

petitioners, the child's paternal grandparents (grandparents),

had temporary custody of the child when the trial began. The

judge found the child's mother and father to be unfit and that

the child's best interests would be served by terminating their

parental rights and allowing the Department of Children and

Families (department) to go forward with its plan for adoption

by recruitment, rather than permitting the child to remain with

the grandparents. The primary issues on appeal concern the

judge's consideration of domestic violence in assessing the

mother's fitness, the grandparents' exclusion from portions of

the trial, and the suitability of the department's permanency

plan. We affirm.

Background. Even before the child's birth, the mother and

the father, both individually and as a couple, faced significant

issues that would affect their fitness as parents. The mother

struggled with her mental health, having been diagnosed with

bipolar disorder, attention deficit hyperactivity disorder,

posttraumatic stress disorder resulting from a sexual assault

and robbery, borderline personality disorder, and severe

generalized anxiety disorder. Although she engaged in some

mental health treatment, including counseling, she frequently
3

misused her prescribed medications, and she "self-medicated"

with alcohol and nonprescribed substances, both while she was

pregnant and throughout the pendency of the care and protection

petition.

The father faced similar mental health challenges,

exacerbated by a history of physical injuries from his

participation in extreme sports and numerous motor vehicle

accidents. To treat both his mental and physical conditions,

the father was prescribed medication, including opiates, which

he misused. He also shared medications with the mother. The

record is replete with evidence of the father's manic behavior

and disorganized thinking, suggesting undiagnosed mental health

conditions. Both parents had difficulty complying with the

department's family action plan tasks.

In addition, the couple's relationship was fraught with

conflict. The father abused the mother verbally, emotionally,

and, on a few occasions, physically. The mother made excuses

for the father's conduct and was unwilling or unable to separate

from him. The grandparents, for their part, minimized the

father's abuse of the mother and the extent of his mental health

problems, failing to recognize the danger these issues posed to

the child's safety and well-being.

The child, Jacob, was born in May 2017 with a low

birthweight and tetrahydrocannabinol in his urine. The mother
4

had tested positive for morphine and Klonopin during her

pregnancy.2 Although Jacob was discharged into his parents'

custody, the hospital filed a report pursuant to G. L. c. 119,

§ 51A, citing concerns about Jacob's substance exposure. The

department conducted a home visit one day after Jacob was

discharged from the hospital. Later that same day, the

department sought emergency temporary custody of Jacob after the

parents arrived, apparently intoxicated, over an hour late to an

appointment with Jacob's pediatrician. Jacob, who was seven

days old, was removed from his parents' custody and placed

temporarily in the custody of the department. The grandparents

applied to serve as Jacob's foster parents in June 2017, but

they did not meet eligibility requirements because they kept

unsecured firearms in their home. After Jacob spent six months

in foster care, the judge awarded temporary custody to the

grandparents pursuant to a stipulated third-party conditional

custody agreement. The department soon changed its permanency

goal from reunification with the parents to adoption.

Jacob was nearly sixteen months old when the trial on the

care and protection petition began. The grandparents filed a

2 The department later obtained the mother's urine screen
results from the period of her pregnancy. Those results were
positive for numerous substances, including oxycodone, morphine,
amphetamines, and antidepressants; she had prescriptions only
for Prozac and Ativan.
5

guardianship petition shortly before the trial. The two matters

were tried together, but not formally consolidated, on sixteen

nonconsecutive days over a four-month period. On the third day

of trial, after concerns were raised about the grandfather's

conduct in the court room, the judge allowed the department's

motion to sequester witnesses, thereby excluding the

grandparents from the care and protection proceedings. They

were to be allowed back into the court room for proceedings on

their guardianship petition.3 Evidence elicited early in the

trial suggested that the grandparents had violated the terms of

the conditional custody agreement by permitting the father and

the mother to have unauthorized contact with Jacob. As a

result, the department moved, midtrial, to revoke the

grandparents' custody. The judge took no action on the motion

at the time of trial but modified the custody order to require

that all visits take place at a visitation center.4

On March 26, 2019, the judge found that both the mother and

the father were unfit, terminated their parental rights,

3 We discuss the grandparents' presence and participation in
the trial in detail below.

4 The grandparents did not comply with the judge's revised
order, and the judge suggested that a contempt hearing would be
necessary. The record does not reflect that a contempt hearing
was held, and no judgment of contempt was issued, although the
judge did make a finding that the father's and the grandparents'
actions "constitute[d] contempt of the [c]ourt's [o]rder."
6

adjudicated Jacob in need of care and protection, and committed

him to the custody of the department. The judge further found

the department's plan of adoption by recruitment to be in

Jacob's best interests, rejecting the competing plans proposed

by the mother, the father, and Jacob, all of which involved

Jacob remaining in the grandparents' care. The judge dismissed

the grandparents' guardianship petition and revoked their

temporary custody of Jacob. These appeals followed.

Discussion. The appellants and arguments in this appeal

are numerous. The mother contends that the judge erred in

finding her unfit and terminating her parental rights based on

evidence of domestic violence, substance use, and mental health

issues. The grandparents, joined by the father, the mother, and

Jacob, appeal from the denial of their guardianship petition,

contending that the judge erred in excluding them from the court

room during portions of the proceedings and that their exclusion

requires a new trial without a showing of prejudice.5 The father

and Jacob argue that the department's proposed plan of adoption

5 We assume without deciding that Jacob has standing to
appeal from the denial of the grandparents' guardianship
petition. See Guardianship of Tara, 97 Mass. App. Ct. 11, 12
n.4 (2020), citing Matter of Angela, 445 Mass. 55, 62 (2005)
("Although the statute's explicit grant of party status to a
child is limited to one at least fourteen years old, G. L.
c. 190B, § 5-206 [b] [1], it appears that this right extends to
a younger child represented by counsel or a guardian ad litem").
7

by recruitment was inadequate, and that the judge erred in

rejecting their competing plans of guardianship or adoption by

the grandparents.6

1. Termination of the mother's parental rights.7 Before

terminating parental rights, a judge must find that a parent is

unfit to care for the child and, consequently, that the child is

in need of care and protection. See Adoption of Virgil, 93

Mass. App. Ct. 298, 301 (2018). The judge's fitness

determination must be supported by "specific and detailed"

findings that demonstrate parental unfitness clearly and

convincingly. Custody of Eleanor, 414 Mass. 795, 799 (1993).

"'[P]arental unfitness' means 'grievous shortcomings or

handicaps' that put the child's welfare 'much at hazard.'"

Adoption of Katharine, 42 Mass. App. Ct. 25, 28 (1997), quoting

Petition of the New England Home for Little Wanderers to

Dispense with Consent to Adoption, 367 Mass. 631, 646 (1975).

In ascertaining parental fitness, the judge "may consider past

conduct to predict future ability and performance." Adoption of

Katharine, supra at 32–33.

6 Although the grandparents purport to join the father and
Jacob in arguing that the department's adoption plan was
inadequate, they were not parties to the care and protection
proceedings and, therefore, do not have standing to appeal from
that aspect of the decision.

7 The father does not challenge the judge's finding that he
was unfit or the termination of his parental rights.
8

a. Domestic violence. Domestic violence may imperil a

child's physical safety and psychological development. See

Custody of Vaughn, 422 Mass. 590, 599 (1996); Adoption of Ramon,

41 Mass. App. Ct. 709, 714 (1996). Accordingly, evidence of

domestic violence is relevant to a judge's determination of

parental fitness. See Care & Protection of Lillith, 61 Mass.

App. Ct. 132, 139 (2004). Where the evidence raises concerns

regarding domestic violence, a judge must "make detailed and

comprehensive findings on domestic violence when making custody

determinations." Id., citing Custody of Vaughn, supra at 599.

The judge found that domestic violence "permeated" the

mother's relationship with the father. The mother asserts that

the father's behavior was not sufficiently severe to factor into

the judge's consideration of her fitness as a parent,

particularly if viewed under the standards that apply to

evidence of domestic violence in private custody disputes.

In private child custody disputes, the rights of the

parents are, "in the absence of misconduct, . . . held to be

equal." G. L. c. 208, § 31. The determination whether to award

shared legal or physical custody, or whether to give one parent

sole legal or physical custody, thus turns entirely on "the

happiness and welfare of the children." Id. There is "no

presumption either in favor of or against shared" custody, id.

-- unless the judge finds by a preponderance of the evidence
9

that one parent has engaged in "a pattern of abuse," or a single

"serious incident of abuse,"8 in which case a rebuttable

presumption against granting custody to the abusive parent

arises. G. L. c. 208, § 31A. See Malachi M. v. Quintina Q.,

483 Mass. 725, 737-738 (2019). Although the Legislature has not

seen fit to superimpose the procedures and presumptions of § 31A

on care and protection or termination of parental rights

proceedings, the mother suggests that this court should do so --

and hold that the evidence of domestic violence in this case was

insufficient to create a presumption against custody under G. L.

c. 208, § 31A. We decline the invitation.

Different standards apply to private custody disputes than

apply to State-involved custody proceedings for good reason.

Resolving a private custody dispute involves comparing the

advantages each parent may offer the child. When the State

intervenes in matters of custody, however, a comparison between

8 "Abuse" is defined as "the occurrence of one or more of
the following acts between a parent and the other parent or
between a parent and child: (a) attempting to cause or causing
bodily injury; or (b) placing another in reasonable fear of
imminent bodily injury." G. L. c. 208, § 31A. A "[s]erious
incident of abuse" is "the occurrence of one or more of the
following acts between a parent and the other parent or between
a parent and child: (a) attempting to cause or causing serious
bodily injury; (b) placing another in reasonable fear of
imminent serious bodily injury; or (c) causing another to engage
involuntarily in sexual relations by force, threat or duress."
Id.
10

the parents, or "comparison of the advantage [a] prospective

custodian may offer to the child with those that may be offered

by the natural parents is inappropriate." Custody of a Minor,

389 Mass. 755, 765 (1983). See Guardianship of Estelle, 70

Mass. App. Ct. 575, 580 (2007) ("we do not transfer a child from

his or her parent to other custodians merely because the latter

may provide a more advantageous environment for the child's

upbringing"). Moreover, in private custody disputes the parents

usually have agreed to separate, whereas in State-involved

proceedings, it is often the case that a parent has not resolved

to leave an abusive relationship, thereby exposing the child to

domestic violence.

Also, unlike private custody disputes, which concentrate

entirely on the interests of the child, care and protection

proceedings begin with a focus on the rights of the parents and

a strong presumption in favor of parental custody. See Santosky

v. Kramer, 455 U.S. 745, 753-754 (1982); Adoption of Frederick,

405 Mass. 1, 4 (1989); C.P. Kindregan, Jr., M. McBrien, & P.A.

Kindregan, Family Law and Practice § 61:1 (4th ed. 2013).

Accordingly, the State must prove parental unfitness by clear

and convincing evidence, and the burden of proof always remains

with the department. See Care & Protection of Erin, 443 Mass.

567, 570-571 (2005); Care & Protection of Laura, 414 Mass. 788,

790-791 (1993).
11

Finally, while evidence of spousal or child abuse may be

dispositive in a private custody dispute under G. L. c. 208,

§ 31A, in care and protection and termination proceedings it is

one of many factors that the judge considers. See G. L. c. 210,

§ 3 (c). Domestic violence "is only one of many 'subsidiary

facts' on which a judge must make findings in deciding the

ultimate question of parental unfitness." Care & Protection of

Laura, 414 Mass. at 794. No one factor is determinative. See

Care & Protection of Yetta, 84 Mass. App. Ct. 691, 695 (2014).

The evidence in this case supported the judge's reliance on

domestic violence as a significant factor in deeming the mother

unfit. The instances of serious physical abuse may have been

few,9 but there was ample evidence of the father's manic,

controlling, threatening, and unpredictable behavior toward the

mother. The father verbally abused her constantly, slapped her,

blocked doors during arguments to prevent her from leaving, and

confiscated her cell phone and other belongings. The mother

testified about the emotional toll the father's behavior had on

9 On one occasion before Jacob was born, the father grabbed
the mother by the arms so hard that the police, responding to
the scene, observed black and blue marks on the mother's upper
arms. The father was arrested for domestic assault and battery,
but the complaint was dismissed when the mother refused to press
charges. In another incident, when the mother was pregnant, the
father, who was intoxicated, locked his arms around her so
tightly that she was in fear and bit him. This incident
resulted in the mother's arrest.
12

her10 and about her fears that Jacob would "be exposed to what

[she] was exposed to."

The evidence also supported the judge's finding that the

mother exhibited a "dependency and inability to separate from

[the f]ather," and that "despite [her] participation in

counseling and domestic violence services, she [did] not have

the capacity or the desire to end her relationship" with him. A

judge may properly consider a parent's decision to remain in a

relationship with an abusive partner in determining parental

fitness. See Adoption of Willow, 433 Mass. 636, 645 (2001);

Adoption of Lisette, 93 Mass. App. Ct. 284, 293-294 & n.15

(2018). The mother testified variously that she meant to end

her relationship with the father for Jacob's well-being, and

that she hoped to marry the father "if we go to couple's

counseling, in a couple years," because she wanted Jacob "to

have both of his parents." The judge found it telling that the

mother and the father had stayed in a motel together the night

before the last day of trial.

b. Substance use and mental health. The mother asserts

that the judge improperly relied on her substance use and mental

health issues in finding her unfit. "When assessing parental

10The father's conduct made the mother feel "insane": "I
start rocking back and forth and like having a panic attack and
like begging him to stop. . . . [L]ike he triggers my innermost
insecurities."
13

fitness, it is not enough to state that a parent is mentally

impaired, rather there must be a showing that the condition

affects the parent's ability to care for the child." Adoption

of Quentin, 424 Mass. 882, 888 (1997). Thus, a parent's mental

health "is relevant only to the extent that it affects the

parents' capacity to assume parental responsibility, and ability

to deal with a child's special needs." Adoption of Luc, 484

Mass. 139, 146 (2020), quoting Adoption of Frederick, 405 Mass.

at 9. Likewise, a parent's substance use or misuse "clearly is

relevant to a parent's willingness, competence, and availability

to provide care, though not necessarily dispositive of the

issue." Care & Protection of Frank, 409 Mass. 492, 494 (1991).

The record supports the judge's findings that the mother's

failure to address her numerous mental health issues and her

misuse of prescribed and nonprescribed substances interfered

with her ability to assume parental responsibilities. The

mother's difficulties in managing her emotions and stress, as

well as her history with alcohol and nonprescribed substances,

including Xanax prescribed to her grandmother and morphine

prescribed to the father, affected her ability to care for

Jacob. The judge was troubled by evidence that the mother took

extra doses of Xanax and shots of alcohol before two visits with

Jacob, and by her appearance of being under the influence of

alcohol or drugs during trial on a day she had driven herself to
14

court. The judge was particularly concerned by an incident

disclosed for the first time during the trial (which had never

been disclosed to the department) in which the mother,

contemplating suicide, took a gun from her grandparents' home,

went into the woods, and fired it. Although the mother had

taken some steps to comply with the department's family action

plan with respect to her substance use and mental health

treatment, these efforts began only shortly before trial.

c. Best interests determination. The judge's factual

findings and conclusions with respect to the mother's issues of

domestic violence, mental health, and substance use demonstrated

careful attention to the evidence and the law. See Adoption of

Nancy, 443 Mass. 512, 515 (2005). In effect, the mother's

arguments amount to dissatisfaction with the judge's weighing of

the evidence. We, however, afford deference to the judge's

assessment of the weight of the evidence and the credibility of

the witnesses, as well as to the judge's determination of the

child's best interests, reversing only if there is clear error

or abuse of discretion. See Adoption of Larry, 434 Mass. 456,

462 (2001); Adoption of Hugo, 428 Mass. 219, 225 (1998), cert.

denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999);

Adoption of Cadence, 81 Mass. App. Ct. 162, 166 (2012). The

evidence was clear and convincing that the mother was unfit to

parent Jacob and likely to remain so.
15

2. Exclusion of the grandparents from parts of the trial.

The grandparents contend that they were wrongly excluded from

parts of the care and protection proceedings, and that their

exclusion violated their right to a fair trial on their

guardianship petition.11 Having carefully reviewed the parties'

arguments and the voluminous trial transcript, we discern no

abuse of discretion or reversible error in the judge's handling

of the trial.

a. Grandparents' presence and participation. On the first

day of trial, the mother moved to sequester the witnesses,

noting that the grandfather was present in the court room. The

judge denied the request, stating, "[H]e's the placement so I'm

going to allow him to stay." The father was the first witness

to testify. During his testimony, the judge interrupted to

admonish the grandfather for shaking his head "up and down or

side to side" while the father testified.

On the third day of trial, during the mother's testimony,

counsel for the department and counsel for the mother alerted

11The father, the mother, and Jacob all join in this
argument in their briefs, although at trial the mother and Jacob
agreed with the judge that the grandparents should not be
present during the care and protection proceedings. We reject
Jacob's further argument that the grandparents' exclusion
violated his due process rights. Jacob was represented by
counsel, who advocated ably on his behalf, with undivided
loyalty, throughout the proceedings. Contrast Adoption of
Flora, 60 Mass. App. Ct. 334, 339-340 (2004).
16

the judge that the grandfather had been taking "voluminous"

notes throughout the closed proceedings.12 They also argued that

his presence during the testimony of the mother and the

anticipated testimony of the mother's aunt (aunt) -- another

potential guardian -- might affect the witnesses' candor on the

stand and jeopardize subsequent relations among the parties.

The department moved to sequester the witnesses. With only

counsel for the father objecting, the judge allowed the motion

and asked the grandfather to leave the court room and surrender

his notes. At the end of the day, the grandfather was invited

back into the court room to discuss scheduling of the

proceedings on the guardianship petition. The grandfather asked

for and received assurances that the guardianship petition would

not be heard until after the termination proceedings had

concluded.

The grandparents were not present for the fourth or fifth

days of trial, when the mother's testimony continued and the

aunt's testimony began. On the sixth day of trial, an attorney

appeared on behalf of the grandparents. The judge told the

attorney that he could be present for any testimony concerning

proposed guardians, including the continued testimony of the

12Care and protection matters are closed to the public.
See G. L. c. 119, § 38.
17

aunt at the next trial date; the attorney stated that he was

available to attend.13

Nonetheless, the grandparents' attorney was not present for

the seventh, eight, or ninth trial dates, during which the

mother, the aunt, and a department case worker testified. On

the tenth day of trial, the department called its adoption

social worker, who would testify about the department's position

with respect to the grandparents' proposed guardianship.

Because the grandparents' attorney was not available, the judge

permitted the grandmother to remain in the court room for this

testimony.14 From that point on, at least one grandparent, their

attorney, or both were present, and the attorney, when present,

was permitted to cross-examine witnesses.

b. Grandparents' rights. As an initial matter, the judge

properly heard the care and protection and the guardianship

13When the grandparents' attorney first made his
appearance, the judge explained to him that the trial was "still
in the fitness stage," but because "the evidence does
intertwine," she would permit him to be present when "we start
talking about who's going to be proposed as guardians." She
then advised the attorney, "[U]nless I hear otherwise, you are
not going to be participating in the care and protection trial,
nor are you going to have access to any of the records of the
parents." The attorney said he understood and did not object.

14On the ninth day of trial, counsel for the father
informed the judge (erroneously) that the grandparents' attorney
planned to withdraw. The judge responded that she would "allow
the grandparents to sit in on" the department's testimony
concerning its position on the grandparents' guardianship
petition.
18

petitions concurrently. See Guardianship of Phelan, 76 Mass.

App. Ct. 742, 749 (2010). Nonetheless, the petitions retained

their separate character. See id., citing A.M. Karp, Child

Welfare Practice in Massachusetts § 19.4.1 (Mass. Cont. Legal

Educ. 2006 & Supp. 2009) (even where guardianship and care and

protection petitions are heard together, guardianship petition

is separate action with its own docket number). As the

department was not proposing guardianship as its goal, it was

not necessary to formally consolidate the matters. See Care &

Petition of Thomasina, 75 Mass. App. Ct. 563, 574 n.19 (2009).

Analogizing to cases in which parents were deprived of

their right to participate in child welfare proceedings,

directly or through appointed counsel, the grandparents argue

that the judge's handling of the proceedings violated their

fundamental rights. The analogy is flawed. "Parents have a

fundamental liberty interest in maintaining custody of their

children, which is protected by the due process clause of the

Fourteenth Amendment to the United States Constitution." Care &

Protection of Erin, 443 Mass. at 570. Although the grandparents

love and provided care for Jacob, they have no constitutionally

protected interest in their relationship with him, whether as

grandparents, temporary custodians, or guardianship petitioners.

See Guardianship of K.N., 476 Mass. 762, 765 (2017) (grandmother

with de facto parent-guardian status had no protected liberty
19

interest giving rise to due process right to appointed counsel

in removal proceeding); Care & Protection of Jamison, 467 Mass.

269, 283 (2014) (guardianships "are solely creatures of statute"

and "neither the equivalent of nor coextensive with

parenthood").

As relatives and the custodians of Jacob at the time of

trial, the grandparents did have a statutory right of access to

the care and protection proceedings. See G. L. c. 119, § 29D

(requiring department to give notice of care and protection and

certain other proceedings "to a foster parent, pre-adoptive

parent or relative providing care for the child" and to inform

same of "right to attend the hearing and to be heard").

However, this right does not confer party status nor the right

to cross-examine witnesses in the care and protection

proceedings. See id. ("Nothing in this provision shall be

construed to provide that such foster parent, pre-adoptive

parent or relative shall be made a party to the proceeding").

The reason current custodians are given the right to be heard --

"and need not suffer in silence if the parties choose not to

call them" -- is to "ensur[e] that judges have all the relevant

information about the child at their disposal." Adoption of

Sherry, 435 Mass. 331, 338 (2001). The "best procedure" for

exercise of this limited right in any given case is left to the

discretion of the trial judge. Id. at 338 n.6.
20

Similarly, the judge possessed the discretion to sequester

witnesses during the trial. "Sequestration of witnesses lies in

the discretion of the trial judge." Zambarano v. Massachusetts

Turnpike Auth., 350 Mass. 485, 487 (1966). See Custody of a

Minor (No. 2), 392 Mass. 719, 726 (1984) (within judge's

discretion to exclude testimony of nonparty grandmother where

judge had ordered sequestration of witnesses but grandmother

remained in court room throughout trial). Here, the grandfather

appeared to be coaching the father during his testimony, and the

judge could reasonably conclude that the grandparents' presence

during the testimony of the mother and the aunt might interfere

with their ability to testify fully and frankly. Nonetheless,

the grandparents or their attorney were present, or permitted to

be present, for substantial portions of the proceedings

concerning parental fitness, and they were afforded ample

opportunity to be heard.

The grandparents did have the right to participate as

parties in the guardianship proceedings, including the right to

cross-examine witnesses.15 The judge consistently recognized

these rights and made every effort to protect them. Thus, the

15These are not constitutional rights; they are procedural
rights incident to party status in a civil case. See Covell v.
Department of Social Servs., 439 Mass. 766, 787–788 (2003);
Frizado v. Frizado, 420 Mass. 592, 596–597 & n.3 (1995); Gilmore
v. Gilmore, 369 Mass. 598, 603 (1976).
21

judge ensured that the grandparents or their attorney was

present for the testimony of any witnesses concerning whether

the grandparents' continued custody would be in Jacob's best

interests, as well as for testimony concerning competing custody

arrangements. Unlike Guardianship of Phelan, 76 Mass. App. Ct.

at 754, this is not a case in which the grandparents "never in

fact had the opportunity to litigate."16

For the first time on appeal, the grandparents object to

their partial exclusion; indeed, they contend that it

constituted structural error, mandating reversal without a

showing of prejudice, because the care and protection

proceedings were "inextricably intermingled" with the

guardianship proceedings. The doctrine of structural error,

however, "does not control civil issues." Adoption of Gabe, 84

Mass. App. Ct. 286, 293 (2013). Although it may provide a

"useful analogy" where constitutional rights are at issue, id.,

the grandparents had no constitutional rights at stake in the

proceedings.

16Although we have commented favorably on the action of a
judge presiding over a concurrent termination and guardianship
case to give the guardianship petitioner "full access to the
proceedings and the evidence" in the termination case, see
Guardianship of Phelan, 72 Mass. App. Ct. at 749, quoting
Adoption of Yvette (No. 1), 71 Mass. App. Ct. 327, 333-334
(2008), these allusions to the discretionary decision of a
single trial judge do not amount to a rule that all guardianship
petitioners are entitled "full access" to care and protection or
termination cases involving the same child.
22

In addition to claiming structural error, the grandparents

argue that they were prejudiced by their partial exclusion

because the judge, in denying their guardianship petition,

relied in part on testimony given on days when they were not

present and did not have an opportunity to cross-examine

witnesses. See Adoption of a Minor, 22 Mass. App. Ct. 468, 469

n.1 (1986), citing Gilmore v. Gilmore, 369 Mass. 598, 603 (1976)

("any decision on the merits which did not give persons having

standing the right to cross-examine the [witness] would have

been inappropriate"). Indeed, some testimony relevant to the

grandparents' ability to care for Jacob was elicited during

their absence, and in hindsight, the judge could have taken a

broader view in determining which portions of the care and

protection proceedings had potential relevance to the

guardianship petition.

Nonetheless, we decline to disturb the adjudication of the

guardianship petition, in large measure because of the

grandparents' failure to object to the conduct of the

proceedings. "Ordinarily, a party is not entitled to present an

argument on appeal on an issue not presented in the court

below." Atlas Tack Corp. v. DiMasi, 37 Mass. App. Ct. 66, 70

(1994). See Adoption of Bea, 97 Mass. App. Ct. 416, 430 (2020).

The rationale behind the waiver rule is that a timely objection

affords the trial judge an opportunity to correct any possible
23

errors in the proceedings. See Abraham v. Woburn, 383 Mass.

724, 726 n.1 (1981); Commonwealth v. Lenane, 80 Mass. App. Ct.

14, 19 (2011). Had the grandparents or their attorney argued

that testimony to be given in their absence might be relevant to

their ability to act as guardians, the judge may well have

granted greater access.

This case does not present a clear injustice or implicate

broad public policy concerns that might compel us to overlook a

clear waiver. Contrast Rivas v. Chelsea Hous. Auth., 464 Mass.

329, 336-337 (2013); White v. White, 40 Mass. App. Ct. 132, 133–

134 (1996). Much of the testimony taken outside of the

grandparents' presence was cumulative of testimony offered while

they were in the court room or their attorney was present. In

addition, all of the parties present, except the department,

were advocating for the grandparents' custody. Cf. Care &

Protection of Zelda, 26 Mass. App. Ct. 869, 872-873 (1989)

(judge did not abuse discretion in denying foster parents'

motion to intervene in care and protection proceedings where

their interests were adequately represented by existing

parties).17 Finally, "[t]he best interests of the child are the

overarching concern" -- not the rights of other parties.

17But see Guardianship of B.V.G., 474 Mass. 315, 326 (2016)
(even where interests of subject of guardianship petition are
adequately represented, "interested person" within meaning of
G. L. c. 190B, § 5-306 [c], has right to intervene).
24

Adoption of Rico, 453 Mass. 749, 754 (2009). The judge took

great care and carefully weighed the evidence of the

grandparents' ability to provide for Jacob's best interests.

Any error or abuse of discretion in the judge's handling of this

complex case does not warrant reversal of her well-reasoned

decision to dismiss the grandparents' guardianship petition.

3. Competing permanency plans. In determining that

termination of the mother's and the father's parental rights

served Jacob's best interests, the judge considered the

competing plans proposed by the department, the parents, and

Jacob, as well as the grandparents' guardianship petition. The

judge determined that the department's plan of adoption by

recruitment was in Jacob's best interests. The appellants argue

that the department's plan was not sufficiently developed to

warrant approval.

"In determining the best interests of the child, the judge

must consider, among other things, 'the plan proposed by the

department.'" Adoption of Varik, 95 Mass. App. Ct. 762, 770

(2019), quoting G. L. c. 210, § 3 (c). The judge must also

consider plans proposed by the parents or the child. See

Adoption of Dora, 52 Mass. App. Ct. 472, 474-475 (2001). Where

there are competing plans, "the judge must assess the

alternatives and, if both pass muster, choose which plan is in

the child's best interests, however difficult the choice may
25

be." Id. at 475. "The judge's obligation to consider a plan

involves much more than simply examining it. The judge must

perform a careful evaluation of the suitability of the plan and

must meaningfully . . . evaluate what is proposed to be done for

the child" (quotations and citation omitted). Adoption of

Helga, 97 Mass. App. Ct. 521, 528 (2020). Regardless of the

party offering the plan, "[a] judge should provide an 'even

handed' assessment of all the facts surrounding both the

department's plan and any competing custody or adoption plan."

Adoption of Hugo, 428 Mass. at 226 n.8. The judge may even

reject all the plans offered and "order an alternative

disposition, provided it is consistent with the best interests

of the child." Adoption of Cadence, 81 Mass. App. Ct. at 171,

citing G. L. c. 119, § 26 (b); G. L. c. 210, § 3.

Whether remaining in the grandparents' custody "was in

[Jacob's] best interests presents 'a classic example of a

discretionary decision' to which we accord substantial

deference." Adoption of Peggy, 436 Mass. 690, 705 (2002), cert.

denied sub nom. S.T. v. Massachusetts Dep't of Social Services,

537 U.S. 1020 (2002), quoting Adoption of Hugo, supra at 225.

In this regard, we discern no abuse of discretion in the judge's

determination that any plans involving the grandparents did not

advance Jacob's best interests. The judge concluded that the

mother and the father were unfit and likely to remain so. The
26

father required daily support from one or both of the

grandparents and would continue to need their support if they

were appointed Jacob's guardians. The grandfather, however,

refused to believe that the father's problems were related to

mental health issues, minimizing them as difficulties with time

management and organization. Similarly, the grandmother denied

that the father was abusive of the mother and explained away his

conduct. The judge reached the well-founded conclusion that the

grandparents were "enmeshed" with the father, and that their

inability to place boundaries on the father would be harmful to

Jacob.18

Nor did the judge abuse her discretion in approving the

department's plan. "The adoption plan need not be fully

developed to support a termination order; it need only provide

sufficient information about the prospective adoptive placement

'so that the judge may properly evaluate the suitability of the

department's proposal.'" Adoption of Willow, 433 Mass. at 652-

18The judge concluded, "It is clear that [the grandparents]
love Jacob and they have taken good physical care of him.
However, . . . [the grandparents] have continued to prioritize
[the f]ather's needs throughout this case above providing
stability for Jacob. They have gone to great lengths to cover,
intentionally lie and defraud the [c]ourt and/or minimize his
deficiencies, and have allowed him access to Jacob outside of
authorized visits, in violation of the temporary custody order.
This [c]ourt finds that [the grandparents] are neither capable
nor willing to maintain safe boundaries with [the f]ather in
order to protect Jacob from future abuse and/or neglect."
27

653, quoting Adoption of Vito, 431 Mass. 550, 568 n.28 (2000).

A suitable plan does not need to identify "prospective adoptive

parents." Care & Protection of Three Minors, 392 Mass. 704, 717

(1984). See Adoption of Scott, 59 Mass. App. Ct. 274, 278

(2003).

The department planned to register Jacob with an adoption

agency, which would "search for a family that would be able to

meet Jacob's educational and emotional needs." The plan

outlined Jacob's family's history with the department and

included personal histories of Jacob, the mother, and the

father, as well as Jacob's medical and developmental history.

The department's adoption social worker testified about the

concrete recruitment steps the department and the adoption

agency would take to identify an appropriate adoptive family.

Relying on Adoption of Varik, 95 Mass. App. Ct. at 771, the

appellants argue that the department's plan "failed to specify

the type of adoptive parents and the characteristics of the home

environment best suited to meet [Jacob's] specific needs." Such

detail was necessary in Adoption of Varik because, as a result

of being physically abused by his father, the child had

exhibited "troubling behavior" in his foster home, "including

lying, a series of thefts, and hoarding food," and was

"disruptive" at school. Id. at 764. Accordingly, "information

describing the kind of home environment and adoptive family
28

makeup that ideally would best meet Varik's particular needs"

was essential. Id. at 771. See Adoption of Dora, 52 Mass. App.

Ct. at 476-477 (where department's plan included two potential

options, and "there was no singular definition of what was

contemplated for" child, judge erred by approving plan and

leaving "choice of adoptive placement to the discretion of"

department).

Although Jacob had specialized medical needs shortly after

he was born, he received treatment resolving those needs.19 The

judge found that Jacob was "a happy well adjusted twenty month

old child," "had no special or specific needs," and "would not

have any difficulty transitioning to a new home or bonding to a

subsequent care giver." As Jacob did not require any particular

type of adoptive parents or home environment, any effort by the

department to provide more detail may have been

counterproductive, narrowing the field of potential adoptive

homes. The department's plan for Jacob had "content and

substance enough to permit the court meaningfully to evaluate

and consider . . . what [the department] propose[d] to do for

19Several months after he was born, Jacob was evaluated by
a neurologist for plagiocephaly ("flat head syndrome"). He wore
a helmet from November 2017 until April 2018, at which point
that treatment was no longer necessary. He was discharged from
the neurologist's care in August 2018. Jacob was also diagnosed
with asthma, but his condition improved and he no longer needed
treatment as of June 2018.
29

the child by way of adoption." Adoption of Lars, 46 Mass. App.

Ct. 30, 31 (1998), quoting Adoption of Stuart, 39 Mass. App. Ct.

380, 393 (1995).

Moreover, the judge took extra steps to oversee the

department's recruitment efforts. Rather than wait twelve

months for the mandatory review of the department's permanency

plan required by G. L. c. 119, § 29B, the judge retained

jurisdiction and ordered the department to report to her every

thirty days to enable her to "closely monitor and assess the

Department's efforts and progress in identifying a pre-adoptive

home." The judge did not "merely . . . issue a broad

dispositional order committing the child to the department's

custody." Adoption of Cadence, 81 Mass. App. Ct. at 170-171.

In these circumstances, the judge did not abuse her discretion

in approving the department's plan of adoption by recruitment.

Conclusion. The decrees terminating the mother's and the

father's parental rights and approving the department's adoption

plan are affirmed. The order dismissing the grandparents'

guardianship petition is affirmed.

So ordered.