United States District Court, D. Massachusetts
GERALDINE MCEACHERN as prospective adoptive mother and next friend, Plaintiff,
INTER-COUNTRY ADOPTION BOARD OF THE REPUBLIC OF THE PHILIPPINES, Defendant
For Geraldine McEachern, as prospective adoptive mother and next friend, Plaintiff: Karen K. Greenberg, LEAD ATTORNEY, Konowitz and Greenberg, P.C., Wellesley Hills, MA; Bernard D. Posner, Konowitz & Greenberg, Wellesley Hills, MA.
For Inter-Country Adoption Board of the Republic of the Philippines, Defendant: Mark W. Corner, LEAD ATTORNEY, Riemer & Braunstein LLP, Boston, MA.
MEMORANDUM & ORDER
Nathaniel M. Gorton, United States District Judge.
This case arises out of a child adoption dispute between plaintiff Geraldine McEachern (" McEachern" ) and the Inter-Country Adoption Board of the Republic of Philippines (" ICAB" or " the Agency" ). Plaintiff filed her complaint in Suffolk County Probate and Family Court (" the
Probate Court" ) seeking to enjoin the Agency from removing or causing to be removed Rica Roxas from her pre-adoptive home. The Agency belatedly removed the case to this Court.
Pending before the Court are 1) plaintiff's motion to remand, 2) defendant's motion to dismiss, 3) plaintiff's motion to strike defendant's motion to dismiss and 4) plaintiff's motion for leave to file oppositions, if necessary, to defendant's motion to dismiss and any papers the Court interprets as a request to remove the default currently against the Agency. For the reasons that follow, plaintiff's motion to remand will be allowed. Defendant's motion to dismiss, plaintiff's motion to strike and plaintiff's motion for leave to file oppositions, if necessary, will be denied as moot.
In April, 2012, McEachern traveled to the Philippines for the purpose of adopting both Rica Roxas (" Rica" ), born December 12, 2001, and her half sibling Genevie Roxas (" Genevie" ), born March 14, 1996. Although Rica was excited to be adopted, Genevie remained detached and unwilling to leave the country. Plaintiff expressed her concerns to the Agency representative but still brought both of them back to the United States for prospective adoption.
Approximately six months into the placement, Genevie began acting out and indicated to the plaintiff that she did not want to be adopted. Genevie was allegedly verbally and physically abusive to Rica as well. Plaintiff informed a representative at Pearl S. Buck International, the United States Hague Accredited Agency that facilitated the placement of Rica and Genevie with the plaintiff, that she was uncomfortable going forward with the adoption of Genevie. Genevie was subsequently removed from plaintiff's home and placed in foster care. McEachern alleges that after Genevie left the home, Rica thrived and improved drastically in school. She further alleges that experts concluded that placing Rica in another home with Genevie would be extremely damaging to Rica.
In February, 2013, plaintiff requested that she be allowed to adopt only Rica. The Agency denied that request due to their determination that the siblings be placed together for their best interests. The Agency then informed plaintiff that it had chosen a family in New York to accept the placement of both girls.
On August 29, 2013, plaintiff filed suit in the Probate Court seeking to enjoin the Agency from removing Rica from her home.
On September 12, 2013, the Probate Court issued summonses for the Agency and two of its partner adoption agencies. Plaintiff attempted to serve the Agency through a process server that day at the following address: " Inter-Country Adoption Board c/o Philippine Consulate General ATN: Legal Section 556 5th Avenue, New York, N.Y. 10036-5095." Service was refused.
The following week, the complaint and summons were allegedly served on ICAB via Federal Express to the Philippine Consulate General, Inter-Country Adoption Board, " Legal Section, 556 5th Avenue, New York, N.Y. 10036-5095." An agent signed for the delivery.
In October, 2013 the Probate Court held a hearing on the plaintiff's motion for temporary restraining order and preliminary injunction. The day before the hearing, the Agency had filed a Philippine Consulate Request for Pro Se Appearance of Felipe Carino and Request for Telephonic Access to the hearing. The Court ultimately issued an order restraining the
Agency and their agents from removing or causing to be removed Rica from her pre-adoptive home.
In February, 2014, at the Agency's request, McEachern, her attorney and an Agency representative and his attorney met at the offices of the plaintiff's attorneys. The United States Department of State (" the State Department" ) was represented via conference call. At that meeting, the parties discussed the resolution of the adoption ...