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15-P-1611 Appeals Court

ADOPTION OF ANISHA.

1 

No. 15-P-1611.

Suffolk. May 12, 2016. - August 5, 2016.

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

Massachusetts Child Custody Jurisdiction Act. Jurisdiction, 

Care and protection of minor, Custody of child, Juvenile 

Court. Juvenile Court, Jurisdiction. Parent and Child, 

Care and protection of minor, Custody. Minor, Care and 

protection, Custody.

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.

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

 

1 A pseudonym.
2

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 

 

2 The father stipulated to his unfitness and the termination 

of his parental rights, and he is not a party to this appeal.
3

"[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 
4

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
5

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 
6

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 of decision denying the mother's motion to dismiss 

without prejudice, and it was entered on the docket. 

 

3 Section 7(f), inserted by St. 1983, c. 680, § 1, provides 

that "[a] court shall communicate to the court of any other 

relevant jurisdiction any determination or finding made pursuant 

to this section."

4 Such contact was proper pursuant to G. L. c. 209B, § 7(c),

inserted by St. 1983, c. 680, § 1, which 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."

5 The mother's concerns that this communication was not in 

writing are unavailing. The judge and the special magistrate 

were not required to resolve the jurisdictional issue in writing 

and were permitted to decide that issue over the telephone. 

Redding v. Redding, 398 Mass. 102, 105 n.3 (1986) ("[I]n cases 

such as this it seems appropriate to use the telephone as the 

means of communication"). See Custody of Brandon, 407 Mass. 1, 

5 & n.3 (1990); E.N. v. E.S., 67 Mass. App. Ct. 182, 186 n.12 

(2006). 
7

c. Termination of the mother's parental rights. On 

January 24, 2014, the judge held a lobby conference with the 

parties and issued an order directing the mother and father to

take "whatever steps are necessary" to see that the child was 

returned to Massachusetts. On March 11, 2014, the paternal aunt 

brought the child before the Massachusetts court to allow the 

child to be identified. After a custody hearing, the judge 

granted temporary custody of the child to DCF, and she was 

placed in a foster home. 

A home study of the paternal aunt and her husband (uncle)

was requested by DCF and performed by the St. Kitts Office of 

Probation and Child Services. DCF received the favorable home

study results on March 19, 2014. The judge ultimately approved 

placing the child with the paternal aunt and uncle. 

Because the mother had failed to make adequate progress in 

utilizing available services that might have led to her 

reunification with the child, on May 6, 2014, DCF changed its 

plan for the child from reunification to adoption. At a 

pretrial conference on October 17, 2014, the mother decided to 

proceed pro se, and her attorney was allowed to withdraw. The 

mother then filed documents that the judge construed as a 

renewed motion to dismiss for lack of jurisdiction. On October 

20, 2014, the judge denied that motion. The mother subsequently 

reengaged her former attorney, and the case was tried on March 
8

19, 2015. Following trial, the judge terminated the mother's 

parental rights, and the mother filed a timely notice of appeal.

On November 10, 2015, the judge issued his findings of fact

and conclusions of law. The judge found that the "Mother, 

abetted by Father, engaged in a series of actions, inactions, 

deceit, and misdirection, designed to avoid the scrutiny of 

[DCF] in the several months after [the child's] birth by 

secreting [the child] out of Massachusetts and ultimately 

outside of the United States" to stay with the paternal aunt in 

St. Kitts. The judge also found that the paternal aunt and 

uncle were not involved in this attempt to evade DCF. At the 

outset of his findings, the judge stated that "[t]his case in a 

nutshell is about whether Mother, who had lost custody of her 

six older children in previous care and protection cases, due to 

her mental health, substance abuse, and domestic violence 

issues, would be able to engage in and benefit from services 

such that she could overcome those longstanding issues and 

reunify with [the child]." The judge concluded that the mother 

would not benefit from additional services and that the child 

"would be endangered" if placed back in the mother's care. The 

judge applied the statutory factors required by G. L. c. 210, 

§ 3(c), in determining that the best interests of the child 

would be served by termination of the mother's parental rights. 
9

The judge approved DCF's plan for adoption of the child by the 

paternal aunt and uncle.

2. Discussion. a. The judge properly denied the motion 

to dismiss for lack of jurisdiction. "In Massachusetts, 

jurisdiction over child custody proceedings possibly involving 

the jurisdictional claims of other States is determined 

according to G. L. c. 209B[, the Massachusetts Child Custody 

Jurisdiction Act (MCCJA)]." Custody of Brandon, 407 Mass. 1, 5 

(1990). "Under the statute, a court must determine whether it 

has the power to exercise jurisdiction in a custody proceeding 

and, if so, whether it should exercise that power under the 

standards provided in the statute." Ibid. These determinations 

were complicated in the instant case by the uncertainties 

regarding the child's location, the mother's disappearance from 

Massachusetts and movements around the country apparently to 

avoid DCF oversight, the filing of the guardianship petition in 

Tennessee, and, most importantly, the child safety concerns 

raised by the mother's troubled history with her older children

in Massachusetts. 

The judge acted well within his statutory and inherent 

authority in denying the mother's motion to dismiss while he 

further explored the question of which State -- Tennessee or 

Massachusetts -- had jurisdiction. Most importantly, no custody 

decisions were made until jurisdiction in Massachusetts was 
10

established. Rather, the judge simply kept the case open while 

the jurisdictional issue between Tennessee and Massachusetts was

analyzed and resolved. "[B]y the time the judge made his 

custody determination, [the Tennessee court had declined 

jurisdiction and] . . . the conditions of [G. L. c. 209B,]

§ 2(a)(4) had been met." Redding v. Redding, 398 Mass. 102, 106 

(1986).

Moreover, the preliminary actions the judge took to explore 

and resolve the jurisdictional question were expressly 

authorized by the MCCJA.

6 The MCCJA "encourage[s] communication, 

cooperation, and mutual assistance between courts and seek[s] to 

avoid jurisdictional competition and conflict." Redding, supra

at 105. See Custody of Victoria, 473 Mass. 64, 68 (2015)

(purpose of MCCJA, as well as other States' acts governing 

 

6 We also note that courts in the Commonwealth "have both

the power and the obligation to resolve questions of subject 

matter jurisdiction whenever they become apparent." Nature 

Church v. Assessors of Belchertown, 384 Mass. 811, 812 (1981). 

As the United States Supreme Court has explained, courts "always 

[have] jurisdiction to determine [their] own jurisdiction." 

United States v. Ruiz, 536 U.S. 622, 628 (2002). See 13D 

Wright, Miller, Cooper, & Freer, Federal Practice and Procedure 

§§ 3536-3537 (2008) ("jurisdiction to determine jurisdiction"). 

See also Foley v. Foley, 156 N.C. App. 409, 412 (2003) ("[A]

court has inherent power to inquire into, and determine, whether 

it has jurisdiction and to dismiss an action [sua sponte] when 

subject matter jurisdiction is lacking" [quotation omitted]). 

See generally Restatement (Second) of Judgments § 11 & comment c 

(1982) (discussing court's power to inquire into limits of its 

own jurisdiction); Coombs, Interstate Child Custody: 

Jurisdiction, Recognition, and Enforcement, 66 Minn. L. Rev. 

711, 846 (June, 1982) (discussing court's "jurisdiction to 

determine its own jurisdiction").
11

custody determinations, is to "encourage cooperation and 

avoidance of jurisdictional conflict between courts of different 

States in order to protect a child's welfare when litigating 

custody matters"). To that end, the MCCJA recognizes that in 

some cases, jurisdiction may not be clear and communications 

between courts of different States may be required before the 

question of jurisdiction can be definitively resolved. See 

G. L. c. 209B, §§ 2(d), 7(c), (f); Umina v. Malbica, 27 Mass. 

App. Ct. 351, 353 (1989) (discussing communications pursuant to 

§ 7[c] and [f] between Massachusetts court and Colorado court in 

child custody case); Adoption of Yvette (No. 1), 71 Mass. App. 

Ct. 327, 342 n.18 (2008). As explained previously, the trial 

judge's communications with the special magistrate in Tennessee 

to address and resolve the jurisdiction question were expressly 

authorized by G. L. c. 209B, § 7(c). See note 4, supra.

b. The Massachusetts court had jurisdiction to decide the 

issue of the child's custody. After the special magistrate in 

Tennessee declined jurisdiction over the custody decision, the 

Juvenile Court judge's memorandum of decision denying the 

mother's motion to dismiss was docketed, and at a hearing on 

January 24, 2014, the judge informed the parties that he had 

assumed jurisdiction over the custody proceedings. We review 

this determination of subject matter jurisdiction de novo. See 

Opare's Case, 77 Mass. App. Ct. 539, 541 (2010).
12

"Under Massachusetts law, a court may exercise jurisdiction 

in a custody proceeding only under the provisions of G. L. 

c. 209B." Custody of Victoria, supra at 68. See MacDougall v. 

Acres, 427 Mass. 363, 366 (1998). General Laws c. 209B, § 2(a),

inserted by St. 1983, c. 680, § 1, provides as follows:

"Any court which is competent to decide child custody 

matters has jurisdiction to make a custody determination by 

initial or modification judgment if:

"(1) the commonwealth (i) is the home state of the 

child on the commencement of the custody proceeding, or 

(ii) 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 person acting 

as parent continues to reside in the commonwealth; or

"(2) it appears that no other state would have 

jurisdiction under paragraph (1) and it is in the best 

interest of the child that a court of the commonwealth 

assume jurisdiction because (i) the child and his or her 

parents, or the child and at least one contestant, have a 

significant connection with the commonwealth, and (ii) 

there is available in the commonwealth substantial evidence 

concerning the child's present or future care, protection, 

training, and personal relationships; or

"(3) 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 or 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 
13

deferred to the jurisdiction of a court of the 

commonwealth; or

"(4) (i) it appears that no other state would have 

jurisdiction under prerequisites substantially in 

accordance with paragraph (1), (2) or (3), or another state 

has declined to exercise jurisdiction on the ground that 

the commonwealth is the more appropriate forum to determine 

the custody of the child, and (ii) it is in the best 

interest of the child that a court of the commonwealth 

assume jurisdiction."

We conclude that the judge properly exercised jurisdiction 

pursuant to G. L. c. 209B, § 2(a)(4).

7

i. Home State jurisdiction. As an initial matter, we 

address the question of home State jurisdiction. See G. L. 

c. 209B, § 2(a)(1); Custody of Victoria, supra at 70. The term 

"home state" is defined in G. L. c. 209B, § 1, inserted by St. 

1983, c. 680, § 1, as 

"the state in which the child immediately preceding the 

date of commencement of the custody proceeding resided with 

his parents, a parent, or a person acting as parent, for at 

least 6 consecutive months, and in the case of a child less 

than 6 months old the state in which the child lived from 

birth with any of the persons mentioned. Periods of 

temporary absence of any of the named persons are counted 

as part of the 6-month or other period."

Here, the judge concluded in his memorandum and order denying 

the mother's motion to dismiss that the child had no home State

under the MCCJA. This conclusion was correct. The child was 

approximately one month old at the time DCF filed the care and 

protection petition, was being moved from State to State, and 

 

7 The judge appears to have relied only on § 2(a)(4) to 

establish jurisdiction. 
14

apparently was living in St. Kitts around that time. Therefore, 

the judge could not have assumed jurisdiction pursuant to G. L. 

c. 209B, § 2(a)(1). 

ii. Appropriate forum jurisdiction. "Massachusetts has 

the authority to exercise jurisdiction over a custody proceeding 

if '(i) it appears that no other state would have jurisdiction 

under prerequisites substantially in accordance with paragraph 

(1), (2) or (3), or another state has declined to exercise 

jurisdiction . . . and (ii) it is in the best interest of the 

child that a court of the commonwealth assume jurisdiction.'" 

MacDougall, supra at 369, quoting from G. L. c. 209B, § 2(a)(4). 

Because the child had no home State, and Tennessee declined 

jurisdiction, and no petitions had been filed in any other 

State, the requirements of the first clause of G. L. c. 209B,

§ 2(a)(4), were unequivocally established. The question then 

becomes whether it was in the best interest of the child that a 

court of the Commonwealth assume jurisdiction. Because G. L. 

c. 209B, § 2(a)(4), does not separately define "the best 

interest of the child," we apply the factors set forth in the 

definition of that phrase in G. L. c. 209B, § 2(a)(2). Redding, 

398 Mass. at 106. "The child and at least one parent must have 

a 'significant connection' with the Commonwealth, and 

'substantial evidence concerning the child's present or future 

care, protection, training, and personal relationships' must be 
15

available here." Ibid., quoting from G. L. c. 209B, § 2(a)(2). 

See Custody of Victoria, 473 Mass. at 71 ("[I]n contrast to the 

definition of 'best interest of the child' generally applied in 

child custody litigation, the phrase as used in this context 

elevates the value of the child's connections to the 

Commonwealth in the jurisdiction calculus").

The judge's detailed findings of fact establish that these 

two best interest requirements have been satisfied. See 

Redding, supra ("The record . . . warrants the judge's implicit 

finding that the assumption of jurisdiction here was in [the 

child's] best interest"). We begin with the judge's findings 

that support the parties' significant connections to the 

Commonwealth. For the parents, this is straightforward. The 

mother's and father's connections to Massachusetts were

significant. There is no dispute that the father was domiciled 

in Massachusetts. The judge described the mother as "a longtime resident of Massachusetts," and he found "that Mother 

remained a Massachusetts resident until [the child] was born." 

The analysis of the child's connections to Massachusetts is 

more difficult. The child was about one month old at the time 

the care and protection petition was filed, thereby limiting the 

child's connections to any State. Nevertheless, the record on 

appeal and representations to this court sufficiently establish 

that the child also had a significant connection to the 
16

Commonwealth. The judge concluded that the "Mother and [child] 

came to Massachusetts from New Hampshire when [the child] was 

born," before traveling thereafter to States in the South. In 

her appellate brief, the mother confirms that she came to 

Massachusetts just after the child was born, but she attempts to 

minimize her presence in Massachusetts "as a transit stop from 

New Hampshire to points south." The mother, however, concedes 

in her statement of facts that "[s]he [had] indicated that, upon 

discharge from the hospital [in New Hampshire], she would travel 

to Cambridge, Massachusetts to stay with her sister" (emphasis 

added). In support of this fact, the mother in her brief cites 

to information on the 51A intake report; that form includes the 

name of the mother's sister in Cambridge that she was going "to 

stay with." Based on the information on the intake form 

(including the sister's name, her relationship to the mother, 

and her city of residence), the sister identified on the form is 

clearly the same sister whom the mother subsequently brought to 

the attention of DCF and the judge between March 11, 2014, and 

March 28, 2014, as a potential temporary caregiver for the 

child. In addition to planning to travel to Cambridge to stay 

with her sister, the mother had also scheduled an appointment 

with the pediatric department of Cambridge Health Alliance for 

November 22, 2013, the same day as the mother and the child were 

discharged from the New Hampshire hospital. Although the mother 
17

never appeared with the child at that appointment, the fact that 

the mother chose to schedule a pediatric follow-up visit in the 

Commonwealth, when taken together with the aforementioned facts, 

supports our conclusion that the mother and the child had a 

significant connection to the Commonwealth. See G. L. c. 209B, 

§ 2(a)(4). See generally Custody of Victoria, 473 Mass. at 75 

(discussing importance of location of child's health care in 

determining whether there is significant connection to 

jurisdiction).

All the evidence that DCF had gathered in its investigation 

of the 51A report in this case was located in the Commonwealth. 

Further, DCF had important, relevant records, gathered in prior 

care and protection proceedings, documenting the mother's 

troubled history of neglect of her other children. This 

constituted "substantial evidence concerning the child's present 

or future care" that the child was likely to receive if the 

child remained in the custody of the mother. Because, as the 

judge noted in his findings, the special magistrate in Tennessee 

had "declined jurisdiction over the guardianship petition for 

lack of personal connection of either Mother or the child to 

Tennessee," Massachusetts was "the more appropriate forum to 

determine the custody of the child, and . . . it [was] in the 

best interest of the child that a court of the commonwealth 

assume[d] jurisdiction." G. L. c. 209B, § 2(a)(4). Where all 
18

of the prerequisites of G. L. c. 209B, § 2(a)(4), were met, the 

court had subject matter jurisdiction in the instant case.

8 

c. The filing of the Tennessee petition did not bar the 

judge from ruling on the mother's fitness. The mother's final 

claim on appeal is that "there was no basis for the state to 

adjudicate Mother unfit and to terminate her parental rights." 

The mother does not challenge as clearly erroneous the judge's 

numerous findings concerning her, nor does she contend that the 

judge's determination of unfitness was not supported by clear 

and convincing evidence. Therefore, we need not reach those 

issues.9 Instead, the mother's argument is essentially that 

 

8 As we conclude that the court had jurisdiction pursuant to

G. L. c. 209B, § 2(a)(4), we need not resolve whether the court 

had default jurisdiction pursuant to § 2(a)(2) or emergency 

jurisdiction pursuant to § 2(a)(3). Neither DCF nor the child 

argued that the requirements of § 2(a)(2) were met. As for 

§ 2(a)(3), we note that the judge did not find that the "child 

[was] physically present in the commonwealth" at the time these 

proceedings were commenced, which is a requirement set out in 

the plain text of G. L. c. 209B, § 2(a)(3). We recognize that 

the judge once referred in his findings to his having exercised 

"emergency" jurisdiction, but we do not interpret this to be an 

express reference to or reliance on G. L. c. 209B, § 2(a)(3), 

which the judge did not discuss. Rather, it appears to be a 

colloquial description of the child custody emergency he was 

confronting and the jurisdictional analysis he was undertaking.

9 We do note, however, that the judge made ample findings of 

the mother's shortcomings that led to the determination of

unfitness, not the least of which was the event that triggered 

DCF's initial investigation: the mother used cocaine and the 

child tested positive for cocaine at birth. The mother concedes 

in her brief "that the trial court previously had adjudicated 

her unfit to care for other children." She also explicitly 

chose not to contest certain of the trial judge's findings that
19

because she raced out of Massachusetts to deliver the child to 

the paternal aunt, who was subsequently determined to be a 

suitable caretaker, and because the mother attempted to do this 

prior to DCF's filing of the care and protection petition, the 

mother is thereby legally insulated from being found unfit and 

having her parental rights terminated by the judge. The cases 

cited by the mother do not support this proposition.

 

the judge included to "to demonstrate Mother's long-term issues 

and patterns of behavior relative to her parenting." These 

findings include the following determinations, among many 

others: (1) the mother left some of her older children in the 

care of others without offering to assist in providing care or 

financial support for them, and in one case without even 

notifying the relative how long she intended to absent herself 

from the children; (2) the mother has had "violent toxic 

relationships with the men in her life"; (3) four restraining 

orders had been issued against the mother, including one 

obtained by the maternal grandmother in 1993; (4) one of the 

mother's children had died in 2007 of a heart-related malady 

after the mother "had failed to inform [that child's new

physician] of [his] cardiac condition"; (5) the mother had, at 

times, failed to provide for the medical needs of some of her 

other children; and (6) the mother has a history of cocaine use, 

and at least one of her other children also tested positive for 

cocaine at birth. 

The judge also made numerous findings specifically relevant 

to the mother's unfitness to care for the child. The judge

found that the mother has a "pattern of not taking personal 

responsibility for her actions or inactions," and that the 

"[m]other had made little if any progress in utilizing services 

towards the goal of reunification" with child. For example, the 

mother was granted Skype visits with the child while the child 

was with the paternal aunt and uncle, but the mother was 

frequently late to these visits or missed them altogether. The 

mother did not begin to fully comply with some of her DCF 

service plan tasks until approximately one and one-half months 

prior to the beginning of the trial. The mother also failed to 

submit to drug screenings that met the parameters of the 

screenings required in her service tasks. 
20

For example, the mother relies on Freeman v. Chaplic, 388 

Mass. 398, 407 (1983), for the proposition that "in certain 

circumstances a parent may . . . nominate a relative or friend 

to care for [a] child. In the absence of unfitness of such 

nominees the State's interest to justify intervention on behalf 

of the child is de minimis" (quotation omitted). The court, 

however, qualified that language by further stating that "[a]s a 

general matter, granting custody to a party opposed by the 

parents where neither the parents nor the parents' nominee is 

unfit or unsuitable, would not measurably advance any interest 

of the State and would raise serious constitutional 

difficulties." Ibid. In the instant case, the judge found that 

the child "was endangered while in Mother's care" and then 

determined pursuant to G. L. c. 119, § 26, that the child was in 

need of care and protection. The judge further determined that 

the mother was unfit. Moreover, the mother had secreted the 

child out of the country to caretakers who had not yet been 

evaluated by any court or agency. In such circumstances, the 

Commonwealth's interest in who was granted custody over the 

child was substantial, not de minimis. Compare Freeman, supra.

Additionally, the judge did not "grant[] custody to a party 

opposed by the parents." See ibid. The child was ultimately 

placed with the paternal aunt and uncle after a favorable home 

study. The father entered into an open adoption agreement with
21

the paternal aunt and uncle; he also stipulated to judgment and 

to termination of his parental rights. Prior to the filing of 

the care and protection petition, the mother had been in the 

process of placing the child in a guardianship with the paternal 

aunt, and the judge did not credit the mother's claim that she 

only intended that the guardianship be temporary. If anything, 

the parents had jointly agreed to allow the paternal aunt to 

assume custody of the child.10

The mother's claim that this case was a "[p]recipitate 

attempt[] to force adoption over parental objection" is 

similarly without merit. See Petition of the New England Home 

for Little Wanderers to Dispense with Consent to Adoption, 367 

Mass. 631, 646 (1975). The record on appeal reflects the 

mother's long and troubled history of unfitness as a parent, and 

she was provided with "ample opportunity to demonstrate an 

ability to provide proper care for" the child, but failed to do 

so. Ibid. DCF's actions here were hardly precipitate; they 

were entirely foreseeable and well-considered. "Other points, 

relied on by [the mother] but not discussed in this opinion, 

have not been overlooked. We find nothing in them that requires 

 

10 It is noteworthy that, at the mother's request, DCF also 

attempted to conduct a home study of the maternal aunt as a 

potential caretaker for the child, but the maternal aunt failed 

to sufficiently cooperate with DCF to complete the home study. 
22

discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).

Decree affirmed.