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Adoption of Anisha

Appeals Court of Massachusetts, Suffolk

August 5, 2016


          Heard: May 12, 2016.

         Petition filed in the Suffolk County Division of the Juvenile Court Department on December 18, 2013.

         The case was heard by Stephen M. Limon, J.

          Sherrie Krasner for the mother.

          Ashley M. Green for the child.

          Kerry David Strayer, Assistant Attorney General, for Department of Children and Families.

          Present: Kafker, C.J., Cohen, & Green, JJ.

          KAFKER, C.J.

         The 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.[2] See G. L. c. 119, § 26; G. L. c. 210, § 3.

         1. Background.

         We recite the procedural history and the relevant facts as found by the judge, reserving additional facts for our discussion of the legal issues.

         a. Child's birth and DCF's response to G. L. c. 119, § 51A, report.

         The 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 appointment.

         At 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.

         The 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.

         b. Custody proceedings in Tennessee and Massachusetts.

         The 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 omitted].
"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) . "[3]

         The 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.[4] The special magistrate in Tennessee "declined jurisdiction over the guardianship petition for lack of personal connection of either Mother or child to Tennessee."[5] On January 6, 2014, the trial judge "filed" his December 31, 2013, memorandum ...

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