Heard: May 12, 2016.
filed in the Suffolk County Division of the Juvenile Court
Department on December 18, 2013.
case was heard by Stephen M. Limon, J.
Sherrie Krasner for the mother.
M. Green for the child.
David Strayer, Assistant Attorney General, for Department of
Children and Families.
Present: Kafker, C.J., Cohen, & Green, JJ.
primary issue presented in this appeal is whether a judge of
the Juvenile Court properly exercised jurisdiction over a
care and protection petition regarding an infant where the
mother, who had previously lost custody of six older
children, secreted the child out of the Commonwealth and then
the United States to avoid oversight by the Department of
Children and Families (DCF). We conclude that the judge
properly denied the mother's motion to dismiss for lack
of jurisdiction while he further explored the issue of which
State -- Tennessee or Massachusetts -- had jurisdiction, and
that he correctly exercised jurisdiction pursuant to G. L. c.
209B, § 2 (a.) (4), once Tennessee declined
jurisdiction. We also conclude that there was overwhelming
evidence to support the judge's determination that the
mother was unfit to parent the child, and we therefore affirm
the decree terminating the mother's parental
rights. See G. L. c. 119, § 26; G. L.
c. 210, § 3.
recite the procedural history and the relevant facts as found
by the judge, reserving additional facts for our discussion
of the legal issues.
Child's birth and DCF's response to G. L. c. 119,
§ 51A, report.
mother was returning to Massachusetts from her father's
funeral in Maine when she went into labor. She gave birth to
the child at a hospital in New Hampshire in November, 2013.
The judge found that the child was the "[m]other's
eighth child and . . . none of the older seven [were] in her
care and custody following the untimely death of one and the
removal of the other six older children by [DCF]." After
the child's birth, the mother completed a form with
information from which the child's birth certificate
would be prepared by New Hampshire officials. The mother
reported on that form that her address was in Columbus,
Georgia, but she provided a mailing address of a post office
box in the Mattapan section of Boston. Although the mother
asserted that she had moved to Georgia at the beginning of
2013, the judge rejected that assertion and found that the
mother continued to reside in Massachusetts until the child
was born. The mother and the child were discharged from the
hospital on November 22, 2013. The mother had scheduled an
appointment for the child on November 22 at Cambridge Health
Alliance in Cambridge, but she did not appear at that
birth, the child tested positive for cocaine. A mandated
reporter filed a report with the New Hampshire child
protection agency and another report was filed in
Massachusetts pursuant to G. L. c. 119, § 51A (51A
report). Among other things, the 51A report alleged that the
child was neglected, that she had tested positive for
cocaine, and that the mother planned on staying with the
child in Cambridge, with the maternal aunt, after discharge
from the hospital. Based on the 51A report, DCF began an
investigation pursuant to G. L. c. 119, § 51B. DCF
attempted to locate the mother and child and planned to
remove the child from the mother's custody on an
emergency basis. DCF failed to locate the mother in
Massachusetts but eventually learned that the Boston police
department had a record of recent interactions with her,
including responding to a violent incident on September 4,
2013, involving the mother and another woman at the
mother's last known Mattapan address.
judge found that shortly after the child's birth, the
mother "took [the child] with her to Tennessee, perhaps
with a brief stop first in Miami and/or Georgia." The
father reported to DCF that the mother intended to place the
child in the custody of the paternal aunt.
Custody proceedings in Tennessee and Massachusetts.
mother filed a petition on December 4, 2013, in Hamilton
County, Tennessee, seeking the appointment of the paternal
aunt as guardian of the child. On December 13, 2013, DCF
contacted MassHealth and learned that the mother maintained
MassHealth insurance for herself but that the child was not
named as an insured. The address the mother used for
MassHealth was the Mattapan one. Still unable to locate the
mother or the child, DCF filed a care and protection petition
in the Juvenile Court on December 18, 2013. See G. L. c. 119,
§ 24. On December 30, 2013, the judge held a preliminary
hearing on the petition. At that hearing, DCF introduced
affidavits describing the child's birth in New Hampshire,
the mother's and father's residences and connections
to Massachusetts, and the mother's plans to take the
child out of State and place her in the custody of the
paternal aunt. The mother's counsel made an oral motion
to dismiss the petition, claiming that the court did not have
jurisdiction over the child because she was not born in
Massachusetts and there was no evidence that she was in
Massachusetts. The mother's counsel also represented that
the child was in St. Kitts, West Indies, with the paternal
aunt. The judge prepared what he referred to as a
"draft" memorandum of decision on the motion to
dismiss, dated December 31, 2013, setting forth his concerns
regarding the child's safety and noting that his concerns
were "heightened by the lack of clarity relative to
jurisdiction." He reviewed possible jurisdiction in both
Massachusetts and Tennessee and the nuances in the law
regarding both given the child's age -- less than two
months old -- and lack of home State. He concluded:
"[I]ntervention relative to the question of custody of
[the child] remains to be determined. In the meantime the
question of jurisdiction needs to be resolved [footnote
"For the above reasons Mother's oral Motion to
Dismiss this petition hereby is denied without prejudice.
Further, in order to begin the process of deciding the
jurisdiction issue, I hereby order the Clerk Magistrate of
the Suffolk County Juvenile Court to forward a copy of this
Memorandum of Decision to Special Magistrate Rachel Brock of
the Juvenile Court for Hamilton County, Tennessee. This
communication with the court in another jurisdiction is
expressly permitted under G. L. c. 209B, § 7
(f) . "
judge sent a letter, with the memorandum of decision, to the
special magistrate in Tennessee, requesting that she review
it so that they could "discuss how best to
proceed." In early January, 2014, the judge telephoned
the special magistrate. The special magistrate in Tennessee
"declined jurisdiction over the guardianship petition
for lack of personal connection of either Mother or child to
Tennessee." On January 6, 2014, the trial judge
"filed" his December 31, 2013, memorandum ...