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23-P-664 Appeals Court

ADOPTION OF TWYLA.1 

No. 23-P-664.

Berkshire. March 6, 2024. - July 15, 2024.

Present: Milkey, Sacks, & Smyth, JJ.

Massachusetts Child Custody Jurisdiction Act. Jurisdiction, 

Care and protection of minor, Juvenile Court. Minor, Care 

and protection. Adoption, Care and protection, Dispensing 

with parent's consent. Parent and Child, Care and 

protection of minor, Dispensing with parent's consent to 

adoption. Juvenile Court, Jurisdiction. Practice, Civil, 

Care and protection proceeding, Adoption.

Petition filed in the Berkshire County Division of the 

Juvenile Court Department on November 20, 2018. 

The case was heard by Joan M. McMenemy, J. 

Laura M. Chrismer for the mother.

William Cuttle for Department of Children and Families.

Laura Smith for the child.

MILKEY, J. This is a care and protection action involving 

Twyla, a girl born in upstate New York in 2017. Her parents --

1 A pseudonym.
2

who were not married -- moved with great frequency. As of 

November 2018, they were living in separate homeless shelters in 

Queens, New York. That month, the father traveled to 

Massachusetts with Twyla to visit a friend. Following what a 

Juvenile Court judge termed "a series of unfortunate events," 

the Department of Children and Families (department) initiated a 

care and protection proceeding and obtained temporary custody of 

Twyla.

It is undisputed that Twyla had no substantial ties to 

Massachusetts and that New York was her "home State." 

Nevertheless, various efforts to shift the matter to New York 

foundered, and the Massachusetts care and protection action 

proceeded. After trial, the judge issued decrees that found 

Twyla in need of care and protection, found both parents unfit, 

terminated their parental rights, awarded permanent custody of 

Twyla to the department, and approved a plan that Twyla be 

adopted by her foster mother, who lived in Connecticut. Both 

parents appealed. Twyla also appealed, although she 

subsequently realigned with the department as an appellee.

The father died while his appeal was pending. This 

prompted the mother to file a motion for relief from judgment 

pursuant to Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974),

arguing that because many of the judge's concerns about parental 

fitness involved the father, his death constituted a change in 
3

circumstances that warranted reopening the proceedings. The 

trial judge denied the motion. On appeal, the mother challenges 

both the underlying decree that terminated her rights and the

order denying her rule 60 (b) motion. More fundamentally, she 

contends that the judge lacked subject matter jurisdiction to 

issue permanent custody orders, because New York never declined 

its jurisdiction. We agree.

Background. 1. Twyla's removal. Despite her transient 

lifestyle, the mother presented as a "hard worker [who is] 

consistently employed." The father served as the primary 

caretaker of Twyla, and in the fall of 2018, he lived with her 

in a homeless shelter in Queens. The mother "lived nearby in a 

different shelter, and saw the child frequently."

Just before Thanksgiving of 2018, the father traveled to 

Pittsfield with Twyla to "be with" a female friend of his. 

Twyla was then thirteen months old. According to the judge, the 

mother told a department social worker that the father did not 

leave Twyla "with her, because she was too stressed as she was 

dealing with custody issues as to her two older children." 

Whether the father had planned this as a temporary trip or an 

indefinite move was contested at trial. The judge ultimately 

found, based on "the totality of the evidence, [that the f]ather 

had left New York with the child with plans to stay in 

Massachusetts indefinitely."
4

In any event, after the woman whom the father had come to 

see did not allow him to stay, the father needed a place to 

spend the night. At a local Dollar Store, he met someone 

willing to give him and Twyla a place to stay. That plan was

disrupted, however, when a store employee who had overheard the 

father's conversation with the other customer became concerned 

for Twyla's welfare and contacted the police. The police in 

turn discovered that the father had an outstanding, decade-old

arrest warrant for shoplifting. Because the police arrested the 

father, and the mother could not come to Pittsfield, Twyla was 

in need of a caretaker for the night, and the department took 

emergency custody of her. Although the father cleared the 

warrant the following day, the department refused to return 

Twyla to him. He returned to New York City to stay in a 

homeless shelter in Queens, where the mother subsequently joined 

him.

The mother filed a motion to dismiss the pending care and 

protection case. She argued that the immediate crisis that may 

have necessitated the department's intervention was over, that 

the department had no evidence that she or the father was

abusing or neglecting Twyla, and that the department immediately 

should return Twyla to the father. The department opposed the 

motion and raised concerns about the father's criminal record

and apparent history of substance misuse. The judge denied the 
5

mother's motion, satisfied that there were sufficient care and 

protection concerns to move forward. She awarded temporary 

custody to the department, which placed Twyla in foster care.

2. The jurisdictional problem. From the start, there was

a patent potential jurisdictional infirmity. Twyla had no 

appreciable ties to Massachusetts and -- as all parties agree --

New York unquestionably was her "home State" for purposes of the 

Massachusetts Child Custody Jurisdiction Act (MCCJA), G. L. 

c. 209B. As a result, although the Massachusetts judge had 

jurisdiction to issue an emergency order to solve the immediate 

crisis, see G. L. c. 209B, § 2 (a) (3), her authority to issue 

permanent custody orders lay in significant doubt. The father 

raised these jurisdictional issues in his own motion to dismiss

that he filed in December of 2018.

The judge herself recognized that there were no significant 

ties between the family and Massachusetts and that Massachusetts 

"would be a terribly inconvenient forum for the parents." 

Accordingly, she expressed her willingness to have the care and 

protection concerns addressed in a New York forum. The 

challenge presented, however, was that there was no care and 

protection action pending in New York, nor even an open 

administrative matter. Complicating the matter further was the 

fact that because the parents moved within New York State so 

often, which county presented proper venue was not at all clear. 
6

Indeed, at least four different New York counties were 

implicated.2

Stressing that "[w]hether or not protective services are 

required can be addressed by the appropriate authorities in New 

York," and seeking to move the process along, the mother's

counsel by letter provided the department and the judge relevant 

contact information for the State and municipal agencies and 

courts in the various New York counties potentially implicated. 

The mother's counsel also pointed out to the judge that there 

was one custody-related action then pending in a New York State 

court. That was not a care and protection action, but a private 

action that the father had filed against the mother in 

Schenectady County Family Court. The complaint in that case is 

not in the record, and we know little about the nature of the

action or even when it was filed.3 Nor do we know why the father 

2 Twyla was born in Amsterdam, New York, which is in 

Montgomery County. Thereafter, the family moved to Schenectady, 

which is in Schenectady County, although the father also had 

extended stays in Albany, which is in Albany County. They then 

moved to Queens, which is in Queens County, and after that to 

Brooklyn, which is in Kings County. Subsequently, they moved 

back to Amsterdam.

3 The department has represented that this action was filed 

after the Massachusetts care and protection action, and the 

trial judge so found. However, the mother questions that 

sequence, and we see nothing in the record to support the 

department's contention and the judge's finding. We 

additionally note that the parents already had moved from 

Schenectady to New York City before the father's trip to 
7

filed it when -- despite the sometimes difficult relationship 

between him and the mother -- the couple otherwise appeared to 

be in agreement as to the custody of Twyla. Nevertheless, the 

existence of that case proved significant because it meant that 

there was an identified New York judge with whom the 

Massachusetts judge could communicate, on the record, with 

respect to custody issues related to Twyla. 

3. The jurisdictional hearing. With the father having 

filed his motion to dismiss, the Massachusetts judge held a 

hearing on the jurisdictional issues on December 21, 2018. The 

judge in the pending Schenectady Family Court custody action 

(Schenectady judge) participated in that hearing telephonically. 

The Schenectady judge stated that she had doubts whether the 

father's custody action was properly before her, because it 

appeared that the parties no longer lived in Schenectady County. 

She noted that if the parties indeed had moved, she could 

transfer the father's custody action to the appropriate county. 

With respect to the care and protection concerns raised in 

Massachusetts, the Schenectady judge explained that she could 

not initiate a parallel action in New York; that would have to 

be done by the relevant New York agency, which was the 

Massachusetts (the event that triggered the filing of the care 

and protection action).
8

Department of Social Services (DSS) for the applicable county.4 

According to the Schenectady judge, the most she could do would 

be to issue an order pursuant to N.Y. Family Court Act § 1034, 

requesting the DSS to conduct an investigation into Twyla's 

welfare. The Schenectady judge expressed a willingness to do 

that. In the interim, she requested that the Massachusetts 

judge "hold everything in abeyance until" the initial hearing in 

the father's case, which was scheduled for January 7, 2019. 

According to the Schenectady judge, if the parties appeared at 

that hearing, it could be sorted out how to proceed based on 

where they were living. The Schenectady judge also pointed out 

that any investigation into Twyla's welfare would take time, and 

she requested that the Massachusetts judge "perhaps consider 

continuing in your process until we can actually determine 

whether New York State is going to do anything, if at all." The 

somewhat ambiguous request that the Massachusetts judge 

4 Although the New York State agency with oversight of care 

and protection matters appears to be the New York Office of 

Children and Family Services, the direct provision of services 

is done through the DSS in each "district." See N.Y. Exec. Law 

§§ 500, 501(14); N.Y. Soc. Serv. Law §§ 2, 61, 62, 417(1). With 

the exception of the five counties that make up New York City, 

each county comprises its own "district" that has its own DSS. 

N.Y. Soc. Serv. Law § 61. To further complicate matters, New 

York City appears to have its own child welfare agency known as 

the Administration for Children's Services. See N.Y.C.

Administrative Code §§ 21-190, 21-901. How such municipal 

offices relate to any State or "district" counterparts is not 

immediately clear but unnecessary to resolve in this appeal. 
9

"continu[e] in [her] process" stands in some tension with the 

Schenectady judge's request in the same conversation to "hold 

everything in abeyance" for the moment. However, whether the 

Schenectady judge was suggesting that the Massachusetts judge 

allow a continuance in the care and protection case, or instead 

take some steps to move that case along, it is plain that the 

Schenectady judge did not at that point consider the 

jurisdictional issues as having been resolved. Rather, the 

proposed plan was to table any decision on how to proceed until 

after the scheduled hearing in the Schenectady case. The 

Massachusetts judge was on board with that plan and indicated 

her intent to check in with the Schenectady judge after the 

January 7, 2019 hearing.

Some other aspects of the December 21, 2018 hearing on the 

jurisdictional issues warrant mention. The attorney for the 

department noted that her agency already had inquired whether 

the applicable child welfare office in Brooklyn (Kings County) 

would initiate an investigation into Twyla's welfare. However, 

that office reportedly had questioned whether it was the right 

one to pursue the matter, because Twyla herself never had lived 

in that county. The department attorney went on to suggest that 

instead of seeking to have the applicable DSS initiate an 

administrative investigation, it might be faster to address the 

care and protection concerns by having Massachusetts and New 
10

York enter into an agreement pursuant to the Interstate Compact 

for the Protection of Children (ICPC). See generally Adoption 

of Knox, 102 Mass. App. Ct. 84, 88-93 (2023) (discussing role 

served by ICPC agreements). 

4. Dismissal of the Schenectady case. Notwithstanding 

what was said at the December 21, 2018 hearing, the two judges 

did not communicate again for almost five years. However, in 

March of 2019 -- that is, two months after the initial scheduled 

hearing in the father's Schenectady County custody action -- the 

Massachusetts judge learned from the department's counsel that 

the Schenectady judge had dismissed that action. As the 

Schenectady judge later explained, she dismissed it for failure 

to prosecute (the father never having served the mother or 

appeared at scheduled hearings). At that point, the 

Massachusetts judge and the parties themselves focused on the 

merits of the care and protection case and not whether there was 

a jurisdictional defect. In fact, the judge never ruled on the 

father's motion to dismiss for want of jurisdiction.

5. Developments in Massachusetts case. During 2019, the 

department sought an ICPC agreement with New York. That request 

was denied based on the parents' failure to cooperate. It bears 

noting that at the time, the parents were residing in a homeless 

shelter that did not accept children. Despite living in 

homeless shelters in New York City, the mother found a way to 
11

visit Twyla in Massachusetts and later Connecticut (where Twyla

eventually was placed). To the extent the visits were in 

person, the mother was required to take multiple, long-distance

bus trips to attend them.

A best interests trial was scheduled to commence on January 

22, 2020. By that date, the parents had obtained a subsidized, 

three-bedroom apartment in Amsterdam (the city where Twyla had 

been born), and counsel reported to the judge that they were now 

living back in upstate New York.5 This brightened the prospects 

that they could obtain an ICPC agreement that might lead to 

reunification. With the judge's encouragement, the parties 

agreed to put off a termination trial; instead, the parents 

stipulated that they were currently unfit, but would pursue an 

ICPC agreement and, if necessary, a private home study. A 

permanency hearing was rescheduled for October 2, 2020.

5 In her findings, the judge referred to the new apartment, 

where the mother continued to live until at least 2023, as being 

in Schenectady or the "Schenectady area." It appears from 

references in the record that the apartment actually was in 

Amsterdam, which lies about eighteen miles northwest of 

Schenectady in a different county. The outcome of this case 

does not ultimately turn on whether the parents' apartment was 

in Amsterdam or Schenectady, or whether Amsterdam accurately can 

be characterized as being in the Schenectady area. In addition, 

it is understandable that the Massachusetts judge, 

Massachusetts-assigned counsel, and Massachusetts agency likely 

lacked ready familiarity with New York geography. Still, the 

imprecision in the record about where the mother was living is 

emblematic of the problems in this case.
12

During the course of the January 22, 2020 hearing, the 

judge sua sponte made a reference to previous efforts "to sort 

out the jurisdictional issue." She recalled that she had 

"looked at this case from the get-go as the case that should 

have been in New York, given where the parents lived, and given 

the fact that [Twyla] was only supposed to be here for a short 

period of time." Nevertheless, the judge treated the 

jurisdictional issue as having been resolved in favor of 

Massachusetts retaining jurisdiction, noting her recollection 

that the Schenectady judge had declined jurisdiction after 

unsuccessfully trying to get some of her counterparts to take 

the case. As the department now acknowledges, this is not 

supported by the record.6 

In June of 2020, at the department's request, the DSS for 

Montgomery County again tried to conduct an ICPC home study, but 

once more reported that it was unable to contact the parents. 

Three months later, that agency was able to conduct a home 

study, but denied ICPC approval on the merits. Specifically, a

6 The department suggests that the discontinuity between 

what the judge remembered and what is on the record indicates 

that the judge must have had additional communications with the 

Schenectady judge that were not noted on the record. That 

suggestion appears at odds with the Schenectady judge's 

subsequent reconstruction of what occurred. See infra. In 

addition, we note that New York law requires that conversations 

between judges with respect to such jurisdictional issues be put 

on the record. See N.Y. Dom. Rel. Law § 75-i(4).
13

DSS case supervisor concluded that "[d]ue to [the parents'] past 

and current criminal history, recent occurrences of [d]omestic 

[v]iolence, observed drug paraphernalia, and pending drug 

charges, and lack of cooperation in mental health counseling and 

substance abuse treatment, [they] d[id] not recommend placement 

of [Twyla] with [the parents]."

Domestic violence emerged as perhaps the most critical 

issue related to the parents' fitness, especially after a "welldocumented [incident] in June 2020." The police arrested the 

father after the mother reported that he had strangled her to 

the point that she became unconscious. The charges later were 

dropped after the mother apparently declined to cooperate in the 

prosecution.

The mother had suffered domestic violence at the hands of a 

previous partner (the father of her older children). The 

Massachusetts judge found that although the mother had 

participated in domestic abuse education, she had failed to gain 

an "understanding of how harmful domestic abuse is to both 

herself and [Twyla]." The judge identified this and the 

mother's "mental health struggles" as two of "[t]he main 

barriers to returning [Twyla] to her care." After the mother 

moved to the apartment in Amsterdam, she began to engage in the 

services made available to her, including individual therapy. 

While the judge characterized this as "encouraging," she found 
14

that the mother later appeared to be "backsliding in her 

progress." 

Meanwhile, the parents' economic stability also declined, 

especially after the initial subsidy of their Amsterdam 

apartment ran out. By the end of the best interests trial, the 

parents ostensibly had broken up and the father had moved out of 

the apartment, although the judge did not credit that the 

relationship truly had ended. The mother in any event had 

depleted her savings and fallen significantly behind in paying 

the rent. With the unvoiced prospect of eviction in the 

background, the mother expressed an interest in moving to an 

apartment in Brooklyn. The judge found this to be "not a 

realistic plan." 

6. Best interests trial. Trial was delayed for many 

reasons, including substitution of counsel for each parent, 

health problems experienced by the father, and logistical issues 

related to the onset of the COVID-19 pandemic. The trial began 

on November 30, 2021, and continued over four nonconsecutive 

days, concluding on February 2, 2022. The mother testified; the 

father did not, and in the end, he essentially abandoned the 

proceedings (leading the judge to draw negative inferences 

against him).

At trial, Twyla was aligned with her parents in supporting 

reunification. The judge nevertheless found both parents unfit 
15

and terminated their parental rights. The judge explained her 

reasoning as follows: 

"Given the state of the parents' relationship, the 

unresolved issues of domestic violence, the housing 

instability and untenable plan for a move to Brooklyn, and 

Father's presentation (and abandonment of the proceedings) 

at trial, it is clear that [Twyla's] best interest would be 

served by adoption with the current foster mother [with 

whom she had lived in Connecticut since October of 2020]." 

In March of 2022, that is, one month after the trial ended, 

the judge issued a five-page "Summary, Adjudication, and Orders 

for Decrees After Trial," and she later supplemented that 

preliminary order with detailed findings of fact and rulings of 

law. In those findings, the judge addressed the jurisdictional 

issue directly, stating that she had "inquired whether the 

Schenectady Family Court would assume jurisdiction over [Twyla,

and t]he New York Court declined to exercise jurisdiction." 

7. The rule 60 (b) motion. In March of 2023, one month 

after the judge issued her findings and rulings, the father 

died. This prompted the mother to file her rule 60 (b) motion, 

arguing that "the father's death presents an extraordinary 

circumstance that materially changes the circumstances." In an 

affidavit submitted in support of the motion, the mother stated 

that she recently had reconnected with a domestic violence 

support group, which the entity running that group confirmed. 

The mother also submitted an affidavit from the father's mother

(paternal grandmother), who was offering to be a placement 
16

resource for Twyla. The paternal grandmother stated that she 

had been estranged from her son and learned that the parents' 

rights had been terminated only at his funeral.7

The judge denied the mother's motion without an evidentiary 

hearing, concluding that "Father's death is not an 

'extraordinary circumstance' that would warrant a reopening of 

the evidence." According to the judge, an evidentiary hearing 

was unnecessary to explore the mother's current efforts to 

address the domestic violence issues, because "[w]hether or not 

Mother has recently re-engaged in domestic abuse services does 

not alter the Court's findings as to Mother's lack of insight 

and resulting unfitness to safely parent [Twyla]." Similarly, 

the judge stated that "[a]ssuming again that at an evidentiary 

hearing, [the paternal grandmother] would testify as to her 

estrangement with her son, her own illness, her willingness to 

become involved now, this evidence is far from persuasive 

evidence that Mother would have the kind of support she may need 

to successfully meet the needs of a child in her care."

8. Further developments. In her appellate briefs, the 

mother argued that the judge lacked subject matter jurisdiction 

7 The paternal grandmother stated that she could not have 

served as a placement resource in 2018 when Twyla was removed 

because she was suffering from cancer at the time. According to 

her, she has "now been in remission for almost [five] years 

[and] . . . was available and willing to be a resource for 

[Twyla], should that be needed."
17

to issue the decrees, because New York never had declined 

jurisdiction. For their part, the department and Twyla briefed 

the jurisdictional issues as straightforward. Consistent with 

what the judge had said in her findings, they argued that the 

judge had invited the Schenectady judge to take over the matter 

and that the Schenectady judge had declined to do so.

As the original oral argument date approached, however, it 

appears that the department and Twyla realized -- accurately --

that the jurisdictional issues perhaps were not as 

straightforward as they might first appear. In November of 

2023, the department and Twyla together filed a motion seeking 

permission to ask the judge to communicate with the Schenectady 

judge in order to clarify whether New York had declined 

jurisdiction. At that point, the two judges had not 

communicated since the jurisdictional conference in December of 

2018. The motion made it clear that they were seeking to have 

the Schenectady judge confirm that she had declined jurisdiction 

as of a particular date, and that, if so, they were going to 

request the Massachusetts judge to declare that Massachusetts 

had jurisdiction as of that date nunc pro tunc. After the 

mother opposed the motion, a different panel of this court 

allowed it, and oral argument was postponed.

The department proceeded to file the contemplated motion in 

Juvenile Court. This prompted the judge to send a written 
18

inquiry to the Schenectady judge. Specifically, after laying 

out the relevant background in detail, the judge asked the 

Schenectady judge "whether you wish to assert or decline 

jurisdiction, nunc pro tunc, to December 21, 2018 [the date of 

the jurisdictional conference in which the New York judge 

participated]." The Schenectady judge responded by letter dated 

November 27, 2023, without directly answering the specific 

question asked. Instead, she summarized the action she had 

taken in 2019 in the father's custody action as follows: "The 

single custody petition filed by the father in this Court was 

never served on the mother. As such, this Court never obtained 

personal jurisdiction over her. Further the father failed to 

appear at subsequent Court appearances and his petition was 

dismissed." She explained: "Thus, interstate jurisdiction was 

never addressed due to [the father's] failure to prosecute." 

The Schenectady judge then apologized for her unresponsiveness

to the question that the Massachusetts judge had posed to her: 

"Unfortunately, I cannot go back in time to consider an issue 

which was never ripe before this Court. I am sorry I was unable 

to give more assistance."

In response to the November 27, 2023 letter, the 

Massachusetts judge "directed [the] Clerk Magistrate to contact 

[the Schenectady judge's] Clerk Magistrate to see whether we 

could set up an on the record hearing with [the Schenectady 
19

judge], and counsel for all parties here in Massachusetts, to 

further clarify whether the letter of November 27, 2003, was a 

clear declination of jurisdiction." This prompted a follow-up 

letter from the Schenectady judge. In that letter, dated 

December 12, 2023, she reiterated the action she had taken to 

dismiss the father's custody petition. Then, in a one-sentence 

paragraph she added: "Thereafter, I declined to exercise 

jurisdiction over this matter." No further explanation was 

provided.

On December 20, 2023, the Massachusetts judge issued 

"Further Findings of Fact on the Issue of Jurisdiction." 

Characterizing the Schenectady judge's two 2023 letters as 

"declining to exercise jurisdiction over [Twyla]," the judge 

found that in light of those letters, the December 2018 hearing, 

and the Schenectady judge's dismissal of the father's custody 

case, "a court of competent jurisdiction in New York has 

expressed a continued and more clear declination of 

jurisdiction." She further found that her exercising 

jurisdiction was in Twyla's best interests.

After oral argument, we requested supplemental briefing on 

the jurisdictional issues. Collectively, the parties submitted 

eighty-seven additional pages of briefing on these issues.

Discussion. 1. Overall jurisdictional framework. Whether 

the judge had jurisdiction to issue a permanent custody ruling 
20

is governed by the MCCJA, G. L. c. 209B. See MacDougall v. 

Acres, 427 Mass. 363, 366 (1998). See also Guardianship of 

Zeke, 422 Mass. 438, 441 (1996), quoting Redding v. Redding, 398 

Mass. 102, 106 (1986) ("The decision of a Massachusetts court to 

exercise jurisdiction and to make a custody determination must 

be based solely on G. L. c. 209B"). If the judge did not have 

jurisdiction pursuant to the MCCJA, this is considered a defect 

in subject matter jurisdiction that can be raised at any time. 

See MacDougall, supra at 371.

The MCCJA provides four different species of jurisdiction, 

each set forth in a separate subsection of G. L. c. 209B, 

§ 2 (a). Because New York unquestionably was, and had always 

been, Twyla's home State, Massachusetts courts did not have 

"home state jurisdiction" pursuant to G. L. c. 209B, 

§ 2 (a) (1). Similarly, Massachusetts courts could not have 

"default jurisdiction" pursuant to G. L. c. 209B, § 2 (a) (2), 

which applies only where "no other state would have [home state] 

jurisdiction." See MacDougall, 427 Mass. at 368.

Because Twyla was physically present in Massachusetts when 

the father's arrest necessitated the department's intervention, 

the judge plainly had "emergency jurisdiction" to order 

temporary relief pursuant to G. L. c. 209B, § 2 (a) (3). 

However, by the express terms of that subsection, the judge's 

authority is limited to issuing temporary orders "unless the 
21

court of the other state has declined to exercise jurisdiction, 

has stayed its proceedings or has otherwise deferred to the 

jurisdiction of a court of the commonwealth." The principal 

dispute before us is whether that precondition to the judge's 

power to issue permanent custody orders based on emergency 

jurisdiction has been met.

Before turning to that issue, however, we first address 

whether the judge could have had "appropriate forum 

jurisdiction" pursuant to the remaining subsection, G. L. 

c. 209B, § 2 (a) (4). That subsection applies when (i) there is 

no other State with jurisdiction, 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." Id. Neither 

precondition to appropriate forum jurisdiction has been met 

here. First, while it can be debated whether New York "declined 

jurisdiction" -- see discussion infra -- it cannot reasonably be 

maintained that any such declination was "on the ground that the 

commonwealth is the more appropriate forum."

Second, although the judge purported to find that it was in 

Twyla's "best interest" that Massachusetts assert jurisdiction 

to resolve the permanent custody issues, that finding is at odds 

with the special meaning of that term that applies in this 
22

context. "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)." Adoption of Anisha, 89 Mass. App. Ct. 

822, 830 (2016) (Kafker, C.J.), quoting Redding v. Redding 398 

Mass. 102, 106 (1986). It follows that in this context, the 

best interest requirement means that "(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." Adoption of Anisha, supra at 829, 

quoting G. L. c. 209B, § 2 (a) (2). See Custody of Victoria, 

473 Mass. 64, 71 (2015) ("in 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"). Even putting aside that New York was 

the locus of almost all the evidence regarding whether the 

parents were fit to serve Twyla's needs with or without public 

supports, Twyla had no "significant connection with the 

commonwealth." Therefore, the best interest prerequisite to 

"appropriate forum jurisdiction" simply could not be satisfied

here. No one -- least of all the judge -- ever maintained that 
23

a Massachusetts court was the more appropriate forum to have the 

permanent custody issues resolved.

2. What it means to decline jurisdiction. It follows then 

that the only potential source of jurisdiction that the judge 

had was emergency jurisdiction pursuant to G. L. c. 209B, 

§ 2 (a) (3). Under the express terms of that subsection, 

whether this allowed the judge to resolve the permanent custody 

of Twyla in turn hinged on whether "the court of the other state 

ha[d] declined to exercise jurisdiction, ha[d] stayed its 

proceedings or ha[d] otherwise deferred to the jurisdiction of a 

court of the commonwealth." Short of this, "it was not 

permissible for the Juvenile Court to proceed unilaterally and 

indefinitely with the care and protection case." Adoption of 

Yvette (No. 1), 71 Mass. App. Ct. 327, 342 (2008). "A temporary 

order was all that the Juvenile Court had authority to enter,

unless [the home state] expressly declined jurisdiction." Id.

at 343, citing Orchard v. Orchard, 43 Mass. App. Ct. 775, 780 

(1997).8

8 Adoption of Yvette (No. 1), 71 Mass. App. Ct. at 328,

involved dueling custody cases in Maryland, the child's home 

State, and Massachusetts. We held that the Juvenile Court judge 

erred by proceeding with the care and protection action based 

only on emergency jurisdiction, but that this jurisdictional 

defect ultimately was cured by the Maryland judge's dismissing 

the parallel Maryland action, which –- under the circumstances -

- amounted to an express "declination of jurisdiction in favor 

of Massachusetts." Id. at 346. Because we concluded that there 

was an express declination of jurisdiction in that case, we did 
24

The statutory scheme appears to presuppose that there is a 

pending action in the child's home State, and that the 

respective judges in the two actions together will determine 

which forum is more appropriate. To facilitate such decision

making, the MCCJA expressly authorizes Massachusetts judges to 

communicate with their out-of-State counterparts to resolve such 

issues. See G. L. c. 209B, § 7 (c). Other States, all of which 

have adopted the Uniform Child Custody Jurisdiction and 

Enforcement Act (UCCJEA), have similar provisions.9 See, e.g., 

N.Y. Dom. Rel. Law § 75-i.

not consider whether the home State "ha[d] stayed its 

proceedings or ha[d] otherwise deferred to the jurisdiction of a 

court of the commonwealth." G. L. c. 209B, § 2 (a) (3). We 

also did not address that statutory language in Orchard. See 43 

Mass. App. Ct. at 780.

9 The UCCJEA is a model code that was drafted by the 

National Conference of Commissioners on Uniform State Laws in 

1997. See Pilkington v. Pilkington, 230 Md. App. 561, 577

(2016). It was issued in part because States had adopted 

different versions of an earlier model code known as the Uniform 

Child Custody Jurisdiction Act, which created a need "to resolve 

the consequent thirty years of conflicting case law." Id., 

quoting Friedetzky v. Hsia, 223 Md. App. 723, 734 (2015). Every 

State except Massachusetts has adopted the UCCJEA. See In re 

J.W., 53 Cal. App. 5th 347, 355 (2020). The MCCJA is loosely 

based on the earlier model code. See Umina v. Malbica, 27 Mass. 

App. Ct. 351, 354 (1989) (observing that "the MCCJA is far from 

a carbon copy of the Uniform Child Custody Jurisdiction Act"). 

While the UCCJEA and the MCCJA generally have similar 

provisions, they differ in some potentially important 

particulars. In light of the critical need for interstate 

coordination on child custody issues, the Legislature might want 

to consider adopting the UCCJEA. Cf. People ex rel S.A.G. v. 

B.A.G., 487 P.3d 677, 688 (Colo. 2021) (noting ability of States 
25

Whether a judge in a pending custody matter should decline 

jurisdiction in favor of another State is governed by the UCCJEA 

in the forty-nine States that have adopted it. As reflected in 

the applicable New York statute, the UCCJEA provides that a 

court with "jurisdiction . . . to make a child custody 

determination may decline to exercise its jurisdiction at any 

time if it determines that it is an inconvenient forum under the 

circumstances and that a court of another state is a more 

appropriate forum." N.Y. Dom. Rel. Law § 76-f(1). Before 

deciding to decline jurisdiction in this manner, New York courts 

are required to consider a number of specific factors designed 

to ensure that the custody matter is heard in an appropriate 

venue.10 A request to decline jurisdiction can be raised in a 

that have adopted UCCJEA to make certain direct requests for 

action by judges in other States "anywhere but Massachusetts").

10 Pursuant to N.Y. Dom. Rel. Law § 76-f(2), the judge is 

required to 

"consider all relevant factors, including:

"(a) whether domestic violence or mistreatment or abuse of 

a child or sibling has occurred and is likely to continue 

in the future and which state could best protect the 

parties and the child;

"(b) the length of time the child has resided outside this 

state;

"(c) the distance between the court in this state and the 

court in the state that would assume jurisdiction;

"(d) the relative financial circumstances of the parties;
26

variety of ways: "motion of a party, the child or the child's 

attorney, or upon the court's own motion, or request of another 

court."11 Id.

Thus, a home State's declining jurisdiction in favor of 

another State is a formal act governed by substantive standards

established by statute. To be sure, the express language of the 

"(e) any agreement of the parties as to which state should 

assume jurisdiction;

"(f) the nature and location of the evidence required to 

resolve the pending litigation, including testimony of the 

child;

"(g) the ability of the court of each state to decide the 

issue expeditiously and the procedures necessary to present 

the evidence; and

"(h) the familiarity of the court of each state with the 

facts and issues in the pending litigation."

11 Although Massachusetts was the State here asserting 

jurisdiction, not declining it, it bears noting that 

Massachusetts has a similar provision that authorizes judges 

with jurisdiction to decline it if there is a more appropriate 

forum for the custody matter to be resolved. See Custody of 

Brandon, 407 Mass. 1, 11-12 (1990), citing G. L. c. 209B, § 7. 

Thus, Massachusetts judges called upon to adjudicate child 

custody matters are to complete "a two-step analysis: first, 

whether § 2 of the MCCJA confers jurisdiction upon the 

Massachusetts court at all; and, second, after weighing the 

criteria in § 7 of the MCCJA (the inconvenient forum provision), 

the court should exercise jurisdiction." Umina, 27 Mass. App. 

Ct. at 355. In the case before us, no party asked the judge to 

decline jurisdiction pursuant to § 7, and neither the judge 

herself nor any New York judge raised the issue. Whether the 

judge would have abused her discretion by denying such a request 

is therefore not before us. The issue instead is whether the 

judge had jurisdiction in the first place.
27

MCCJA allows for jurisdiction in Massachusetts not only when the 

judge in the other State formally has declined jurisdiction, but 

also where that judge "otherwise deferred" to Massachusetts.12

G. L. c. 209B, § 2 (a) (3). While such language may provide 

jurisdiction in some circumstances where there has not been a 

formal order declining jurisdiction, the use of the verb 

"deferred" still connotes an active, conscious act, not mere 

inaction. See Webster Third New International Dictionary 591

(2002) (defining "defer" as "proffer, offer, tender . . . to 

submit or yield through authority, respect, force, awe, 

propriety"). In fact, Massachusetts case law already 

establishes that in circumstances where the child's home State 

is elsewhere, a Massachusetts judge cannot acquire jurisdiction 

simply by providing a home State judge notice of the 

Massachusetts proceeding and an opportunity to take over the 

matter. See Adoption of Yvette (No. 1), 71 Mass. App. Ct. at 

342-343 ("the Juvenile Court could not exceed the limited scope 

of emergency jurisdiction simply because the courts in [the home 

State of the child] did not object").

12 As noted, see note 8, supra, neither Adoption of Yvette

(No. 1), 71 Mass. App. Ct. at 346, nor Orchard, 43 Mass. App. 

Ct. at 780, addressed such language. Accordingly, to the extent 

they suggest that jurisdiction to address permanent custody 

pursuant to G. L. c. 209B, § 2 (a) (3), could exist only when 

there has been an express declination by the home State, both 

cases are underinclusive.
28

3. Whether New York declined jurisdiction. With this 

background in mind, we turn to examining the various actions 

taken by the Schenectady judge in order to evaluate whether she 

thereby declined jurisdiction or otherwise deferred to 

Massachusetts. As noted, at the jurisdictional conference held 

on December 21, 2018, the Schenectady judge expressed skepticism 

about whether her court was the proper forum to resolve the 

custody issues in light of the fact that the parents apparently 

had moved to New York City. The Schenectady judge explained, 

however, that if the parties came before her at the hearing 

scheduled two weeks later on January 7, 2019, she could play two 

potential roles in moving the matter forward. First, she could 

transfer the father's custody case against the mother to a 

different venue within New York, and second, she could issue a 

§ 1034 petition to require the relevant New York DSS to initiate 

an investigation into Twyla's welfare.

Because it was not clear yet what action, if any, New York 

would take with respect to Twyla's welfare, the Schenectady 

judge indicated that the Massachusetts judge should not dismiss 

the pending care and protection action. But she also asked the 

Massachusetts judge to "hold everything in abeyance" for the 

time being. Even if the Schenectady judge's statement that the 

Massachusetts judge should consider "continuing [her] process" 

was intended to suggest that preliminary actions could be taken 
29

to move the Massachusetts case forward, the Schenectady judge 

did not during the December 2018 hearing give the Massachusetts 

judge the go-ahead to resolve permanent custody issues. Simply 

put, all parties and the two judges appeared to agree that it 

made sense to wait to see what occurred at the imminent January 

7, 2019 hearing before evaluating how to proceed.

As noted, the Schenectady judge dismissed the father's 

custody action against the mother after the father failed to 

serve her and did not appear at scheduled hearings. Nothing in 

the record suggests that at the time the Schenectady judge 

dismissed that case, she had come to the conclusion that 

Massachusetts was a more appropriate jurisdiction to try custody 

issues involving Twyla, or that -- purporting to act on behalf 

of New York -- she had decided to decline jurisdiction in favor 

of Massachusetts. In fact, by succinctly stating that 

"interstate jurisdiction was never addressed due to [the 

father's] failure to prosecute," the Schenectady judge made it 

clear in her November 27, 2023 letter that she had not taken on 

the jurisdictional issue when she dismissed the father's case. 

Thus, far from confirming that she had declined jurisdiction in 

favor of Massachusetts, the Schenectady judge's November 27, 

2023 letter affirmatively disavowed having done so.

In addition, that letter rejected the idea of playing such 

a role after-the-fact: "I cannot go back in time to consider an 
30

issue which was never ripe before this Court." Thus, at least 

up until the Schenectady judge's December 12, 2023 letter, it 

cannot fairly be said that the Schenectady judge had declined 

jurisdiction in favor of Massachusetts or otherwise was 

deferring to Massachusetts as the more appropriate forum.

That leaves the Schenectady judge's December 12, 2023 

letter. To be sure, that letter adopted a markedly different 

approach. This time, the Schenectady judge offered that after 

she had dismissed the father's custody action for failure to 

prosecute, she "declined to exercise jurisdiction over this 

matter." Although this statement superficially provided the 

Massachusetts judge the affirmative answer she was seeking, we 

do not consider the Schenectady judge's statement legally 

sufficient to supply the missing jurisdiction. With the 

Schenectady judge's already having dismissed the only case that 

had been pending in her court, it is not at all clear how the 

decision whether to decline jurisdiction was even properly 

before her, especially where neither parent had any apparent 

continuing ties to Schenectady County. And even assuming that 

the Schenectady judge had the power to decline jurisdiction 

after the father's custody case had been dismissed, it does not 

appear possible that she could have made such a declination 

consistent with governing law, which, as discussed above, 

required the judge to consider a host of factors, all of which 
31

pointed to New York as the appropriate jurisdiction. See note 

10, supra, listing the factors included in N.Y. Dom. Rel. Law

§ 76-f(2). After all, Massachusetts plainly was not the more 

appropriate forum to resolve whether the mother should retain 

custody of Twyla. Without a basis in applicable law, the 

Schenectady judge's bare statement that she "thereafter declined

to exercise jurisdiction over this matter" appears to be nothing 

more than a courtesy offered to an out-of-State colleague who 

was struggling to locate jurisdiction in a case that already had 

been tried.13

To be clear, we emphasize that we are not saying that 

jurisdiction pursuant to the MCCJA can never be confirmed nunc 

pro tunc by an after-the-fact declination of jurisdiction by a 

child's home State. Despite the fact that subject matter 

jurisdiction is often spoken of in absolute terms, at least one 

case has held that subject matter jurisdiction can be supplied 

nunc pro tunc in appropriate circumstances. See St. Joseph's 

Polish Nat'l Catholic Church v. Lawn Care Assocs., Inc., 414 

13 We do not mean to suggest that if a judge in another 

State has, in the ordinary course, made an express decision to 

decline jurisdiction in favor of Massachusetts, a Massachusetts 

judge has an affirmative obligation to scrutinize that order to 

see if it comports with that State's laws. In the case before 

us, however, there were conspicuous reasons to question this, 

particularly once the Schenectady judge had made it clear that 

she had not purported to address the jurisdictional issue at the 

time she dismissed the father's case.
32

Mass. 1003, 1004 (1993) (although Housing Court lacked subject 

matter jurisdiction over dispute, problem was cured by 

postjudgment order from Chief Administrative Justice of Trial 

Court designating Housing Court judge as Superior Court judge).14 

It may well be that there are circumstances where an after-thefact declination of jurisdiction by the home State is 

appropriate to confirm MCCJA jurisdiction nunc pro tunc. This 

is not one of them.

We further recognize that when judges are called upon to 

address emergency custody matters that come before them, yet 

permanent custody issues remain, it may at times be difficult to 

resolve whether a court in the child's home State is declining 

jurisdiction. This problem is especially acute when there no

custody action pending in that State (or country). See People 

ex rel. S.A.G. v. B.A.G., 487 P.3d 677, 687 (Colo. 2021)

(S.A.G.) (discussing problem). Given the importance of not 

leaving a child in limbo, it may become a practical necessity 

for courts to resolve permanent custody issues even in the 

absence of an overt declination by the home State. An 

illustrative example of such a situation is In re M.M., 240 Cal. 

14 Contrast Davis v. New York, 22 A.D.2d 733, 733 (1964) 

("Where, as here, the subject matter is jurisdictional, the 

error cannot be corrected by an order nunc pro tunc"). Given 

how we rule here, we need not decide whether Massachusetts or 

New York law governs the nunc pro tunc issue.
33

App. 4th 703 (2015). In that case, the child's home "State" 

under the UCCJEA was Japan, even though there was "ample 

evidence in the record to support the finding that California 

and not Japan [was] the more appropriate forum to exercise 

permanent jurisdiction in this child custody proceeding."15 Id. 

at 717 n.6. Whether California had jurisdiction under the 

UCCJEA turned on whether Japan had declined jurisdiction. Id. 

at 717. The judge made detailed, extensive efforts to 

communicate with the relevant court in Japan, all to no avail. 

Id. at 710-714. In fact, Japanese judicial officials made it 

plain that it would be inappropriate even to communicate about 

such issues. Id.16 Deeming such efforts exhausted, the 

California judge concluded that the home State effectively had 

15 A California child welfare agency took custody of a child 

of an American serviceman stationed in San Diego after the 

father committed an act of domestic violence against the mother 

in California in the child's presence. See In re M.M., 240 Cal. 

App. 4th at 707, 711. Both parents and the child all lived in 

California, and they intended to remain there upon 

reunification. Id. at 711.

16 The California judge made extensive multiple attempts, 

orally and in writing, to discuss jurisdiction with the local

Japanese family court (apparently in the locality where the 

family had resided). In re M.M., 240 Cal. App. 4th at 709-710. 

The local Japanese court eventually contacted the Supreme Court 

of Japan, but the net result was that "edicts came down, strong 

and firm and decisive, that that's not appropriate and that 'we 

can't talk to you through email; we can't talk to you on the 

phone and we're not going to do that.'" Id. at 710. Undaunted, 

the California judge made multiple further efforts, but "was met 

with polite but solid resistance." Id. 
34

declined jurisdiction and proceeded to entertain the permanent 

custody issues before him. Id. The intermediate appellate 

court affirmed, despite the fact that there was no overt 

declination from a court in Japan. Id. at 717. Along the way, 

the court held that:

"a home state declines jurisdiction in any manner that 

conveys its intent not to exercise jurisdiction over a 

child in connection with a child custody proceeding, 

including inaction or, as in the instant case, by refusing 

to even discuss the issue of jurisdiction despite myriad 

good faith attempts to do so by the juvenile court, that 

such inaction or refusal is tantamount to a declination of 

jurisdiction by the home state on the grounds California is 

the more appropriate forum under [the relevant subdivision 

of the applicable jurisdictional provision]." 

Id. See S.A.G., supra at 687-688 (adopting same standard); 

Interest of T.B., 497 S.W.3d 640, 652 (Tex. Ct. App. 2016) 

(failure by Florida court to respond to multiple requests to 

decline jurisdiction "constitute[d] an implied determination by 

the Florida court to decline to exercise its home-state 

jurisdiction and an implied determination by the Florida court 

that Texas is a more convenient forum").17

In this manner, some courts have held that in appropriate 

circumstances, jurisdiction over a child custody matter can 

constructively be declined by a home State. We need not decide 

17 Interest of T.B. was a private custody dispute between 

the parents. There was a pending custody case in Florida, the 

child's home state, so there was an identified court that could 

decline jurisdiction. See Interest of T.B., 497 S.W.3d at 643.
35

whether to follow such precedent here, because doing so would do 

little to assist the department's position. This is not a case, 

like In re M.M., where the State asserting jurisdiction was in 

any event the more appropriate forum, and the judge asserting 

jurisdiction had made exhaustive efforts to get the home State 

to decline jurisdiction. Granted, the department and the judge 

faced daunting challenges in trying to navigate the New York 

child welfare system, especially with respect to parents who led 

such transient lives. However, the current record does not 

establish that such problems were insurmountable.

For example, we see no reason why -- at least once the 

parents had moved back to Amsterdam in 2019 -- the department 

could not have requested the Montgomery County DSS to initiate 

an investigation into Twyla's welfare in order to decide whether 

to file a "child protective proceeding" (the New York 

counterpart to what is known as a care and protection proceeding 

in Massachusetts). See N.Y. Fam. Ct. Act, Art. 10. Indeed, 

that very entity in fact became involved in examining Twyla's 

welfare, albeit in the specific context of processing the 

department's ICPC request. If the DSS had decided to file a 

child protective proceeding, this would have provided a case to 

which the Massachusetts judge could have deferred (as she long 

had recognized was the appropriate result). Of course, it is 

possible that the DSS might have decided that a child protective 
36

proceeding was not warranted, but that the agency instead should 

provide the family supports in an effort to keep it intact. In 

that event, the judge could have ordered the department to work

with the DSS to ensure Twyla's safe return.18 See Adoption of 

Yvette, 71 Mass. App. Ct. at 341 (recognizing that Massachusetts 

judge could have ordered department to work with Maryland 

counterpart to return child safely there).19

Although our decision on jurisdiction obviates the need for 

us to reach the mother's argument regarding the merits, we 

acknowledge that there is at least some force to the mother's 

contention that the jurisdictional problem directly affected her 

ability to defend this action. For example, it may well be true 

that having Twyla placed in custody far from the mother's home 

hampered the mother's ability to maintain a relationship with 

her. It also stands to reason that the local DSS would have 

been in a superior position to assess what public resources 

might be brought to bear to support reunification of the family

in Amsterdam, a location that the assigned department social

18 We recognize the theoretical possibility that concerted 

efforts to get New York officials to engage still could fail. 

In that event, the department could seek to make its case that 

Massachusetts has exhausted its efforts to get New York to take 

over the matter, and that home State jurisdiction constructively 

has been declined. That did not occur here. 

19 We note that a formal ICPC agreement was not statutorily 

required to return Twyla to her parents. See Adoption of Knox,

102 Mass. App. Ct. at 89-92. 
37

worker never visited in person during the years that the mother 

lived there.

We do not mean to suggest that the precise path the judge 

should have taken here was obvious. To the contrary, even 

putting aside the crush of Juvenile Court caseloads, we are 

sympathetic to the immense practical challenges that the judge 

faced in trying to resolve the jurisdictional issues presented 

here, all while trying to protect Twyla from abuse and neglect. 

At the heart of those challenges is the conundrum created by a 

statutory scheme in which subject matter jurisdiction turns on 

whether a court in the home State has accepted or declined 

jurisdiction, even where there is no existing appropriate case 

in the home State for such a decision to be made. Although the 

pathway to solving that problem may not be obvious, some lessons 

can be drawn. Where a patent jurisdictional defect is presented 

in a care and protection action and another State plainly 

presents a more appropriate forum, it is incumbent on the judge 

to press whatever levers are available to force the issue to 

resolution. These prominently include issuing orders to the 

department to work with its counterparts in the appropriate 

jurisdiction to advance the proceedings there. Going forward to 

resolve permanent custody issues in Massachusetts should occur 

only where reasonable efforts to defer to the more appropriate 

jurisdiction have been exhausted.
38

The question remains what remedy is appropriate here.20 

Because the judge lacked subject matter jurisdiction to resolve 

the permanent custody issues, the decree must be vacated. In 

addition, as the mother points out in her supplemental brief, 

the order dated January 22, 2020, granting the department 

permanent custody must also be vacated. This does not negate 

the judge's emergency jurisdiction to address temporary custody 

issues while the jurisdictional issues are resolved on remand. 

See Adoption of Anisha, 89 Mass. App. Ct. at 827 (during period 

between assertion of emergency jurisdiction and home State's 

eventual declination of jurisdiction, no error in Massachusetts 

judge's keeping care and custody case open while jurisdictional 

issues were resolved). More importantly, it does not erase the 

care and protection concerns that underlay the judge's decree. 

Finally, as the mother herself laudably recognizes, even were 

her current fitness unquestioned, a transitional process would 

20 The mother has requested that we implement a number of 

institutional measures designed to ensure that the problems that 

occurred here do not happen in other cases, either by requiring 

them directly, or ordering the Juvenile Court to do so. For 

example, she has requested that, going forward, we require that 

the department to specify the basis of the Juvenile Court's 

"jurisdiction in all pleadings including temporary custody 

hearing, hearing on the merits, and termination of parental 

rights." The mother has even proposed a court form that could 

be used for this purpose in the Juvenile Court. Whatever the 

merits of the mother's proposed prophylactic measures, we 

decline to adopt them as we are neither the administrators of 

the Juvenile Court nor an appellate court with general 

superintendence powers.
39

need to be established for Twyla to be placed back with her. 

The fact that Twyla enjoys love from both her mother and her 

long-term foster mother provides hope for Twyla's future however 

the permanent custody issues are resolved.

We vacate the decree terminating the mother's parental

rights, as well as the order dated January 22, 2020, granting 

permanent custody of Twyla to the department. We remand this 

action for the judge to formulate an order directing the 

department to work with the applicable New York State, county, 

or municipal agencies to initiate an investigation into Twyla's 

welfare, and for other proceedings consistent with this 

opinion.21

So ordered.

21 In her supplemental brief, the mother has suggested that

the judge, or perhaps the Chief Justice of the Trial Court, 

somehow directly could transfer this matter to the appropriate 

court in New York State. We are unaware of a means to 

accomplish that. To the extent that the mother points to 

provisions in the UCCJEA that provide judges some reciprocal 

rights to effect action in another State's custody litigation, 

those provisions do not appear to provide the sort of remedy the 

mother is seeking, even if they applied to a State that had not 

adopted the UCCJEA. In addition, we have no reason to question 

the Schenectady judge's assessment that, under New York law, a 

child protective case needs to begin with an agency 

investigation by the appropriate DSS. However, to be clear, we 

note that by focusing on the option of ordering the department 

to work with its counterparts in New York State to lay the 

groundwork for the judge to defer jurisdiction to a New York

court, we do not mean to prohibit the judge from pursuing other 

options should they emerge during the remand proceedings.