In re Adoption of Yvette

• Decision Date: 06 March 2008
• Docket Number: No. 07-P-87.,07-P-87.
• Citation: 71 Mass. App. Ct. 327,881 N.E.2d 1159
• Court: Appeals Court of Massachusetts
• Parties: ADOPTION OF YVETTE (No. 1) (and three companion cases<SMALL><SUP>1</SUP></SMALL>).

881 N.E.2d 1159

71 Mass. App. Ct. 327

ADOPTION OF YVETTE (No. 1) (and three companion cases¹).

No. 07-P-87.

Appeals Court of Massachusetts, Suffolk.

Argued October 9, 2007.

Decided March 6, 2008.

Deborah Sirotkin Butler, Arlington (Michael L. Rich with her) for the great-aunt.

Deborah W. Kirchwey for the grandmother.

Daniel R. Katz for the father.

Matthew H. Beaulieu for the mother.

Brian Pariser for Department of Social Services.

Azizah P. Yasin, Quincy, for the children.

Present: CYPHER, DREBEN, & COHEN, JJ.

COHEN, J.

A judge of the Suffolk County Division of the Juvenile Court Department adjudicated Yvette and Frank to be in need of care and protection, committed them to the custody of the Department of Social Services (department), and dispensed with the need for their parents' consent to adoption. In so doing, the judge also determined, that the children should not be placed in the care of either their paternal grandmother (grandmother) or their paternal great-aunt (aunt), whose dispute over the custody of the children precipitated the department's involvement.²

The mother, the father, the grandmother, and the aunt appeal from the decrees and from other orders of the Juvenile Court.³,⁴ In addition to raising various individualized issues, each of these appellants claims that the decrees must be vacated because, under the Massachusetts Child Custody Jurisdiction Act (MCCJA), G.L. c. 209B, §§ 1-14, and the Federal Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. §1738, the Massachusetts courts should not have exercised jurisdiction over this matter where, at the inception of the case, the children's custody was the subject of outstanding orders in an ongoing child welfare case in the Circuit Court for Baltimore City, Maryland (Baltimore City Court).⁵

We agree that the Juvenile Court exceeded the limited, temporary jurisdiction that was within its authority to exercise. Nevertheless, because the Maryland court terminated its own jurisdiction in favor of Massachusetts nine months after the Juvenile Court became involved, and no party objected to the case going forward in Massachusetts, it is not necessary to vacate the decrees.

1. Backgrounds ⁶ In the summer of 2002, two year old Yvette and her infant brother Frank resided with their unmarried mother and father in Caroline County, Maryland. On July 16, 2002, allegations of parental neglect resulted in the initiation of child in need of assistance (CINA) proceedings in the Circuit Court for Caroline County (Caroline County Court) and the children's placement in emergency care. On August 27, 2002, the Caroline County Court judge found the children's parents "unable to give the [children] proper care and attention without the assistance of this Court." The Caroline County Court judge committed the children to the legal and physical custody of the grandmother, subject to the protective supervision of the Caroline County Department of Social Services (Caroline County DSS), and entered an order requiring that the grandmother facilitate parental visitation, that Caroline County DSS make services available to the parents "toward reunification," and that the case undergo court review within six months. The Caroline County Court judge also expressly ordered that "this matter remain subject to the continuing jurisdiction of this Court."

The CINA case came up for review on December 6, 2002, at which time the Caroline County Court judge ordered that the children "continue to be in the care and custody of [the grandmother]," but changed supervision to the Baltimore City Department of Social Services (Baltimore City DSS), apparently because the grandmother resided in Baltimore. The Caroline County Court judge also ordered that the long-range permanency plan continue to be reunification, that the grandmother continue to facilitate supervised visitation of the children with the parents, that the parents comply with service requirements and keep Caroline County DSS and the Caroline County Court advised of any changes of address, and that the case be transferred to the Baltimore City Court.

There things stood until the spring of 2003, when the children came to be present in Massachusetts. On April 9, 2003, the grandmother brought Yvette, then thirty-three months old, and Frank, then eighteen months old, to Boston, where the aunt resided. The grandmother soon returned to Maryland, leaving the children with the aunt. Approximately two months later, the grandmother came back to Boston and attempted to retrieve the children. The aunt refused to relinquish them, and, on June 16, 2003, filed a petition in the Suffolk. Division of the Probate and Family Court seeking to be appointed the children's guardian. In her petition, the aunt alleged that when the grandmother brought the children to Boston, she stated that she no longer wished to care for them and that the aunt should become their guardian.

On July 25, 2003, the grandmother again traveled to Boston in an effort to retrieve the children. She filed a report with the Boston police, stating that she was the children's custodian, that she had brought them to Boston for a two-month visit with the aunt, and that the aunt now refused to return them. Three days later, on July 28, 2003, the grandmother filed a report with the department, pursuant to G.L. c. 119, § 51A, alleging that the children were suffering from neglect because of unsanitary conditions in the aunt's home and that Yvette, who had been observed with a black eye by another family member, had been physically abused while in the aunt's care.

Although the department screened the report as a "non-emergency," it promptly investigated the situation. A department worker visited the aunt's home the following day, July 29, 2003, and found unclean and overcrowded conditions due to the presence of numerous animals (ferrets, cats, birds, dogs, and a turtle), as well as inappropriate sleeping arrangements for the children. The worker also learned that the aunt had not brought Frank to the doctor since his arrival in Boston, despite his having a history of medical needs, and that, in May, Yvette had received a black eye, which, according to the aunt, was administered by Frank when the children were fighting with each other. During the worker's visit, the aunt reported that she had witnessed the grandmother verbally and physically abusing Yvette. She also reiterated that the grandmother had left the children in Boston with no intention of resuming custody. The § 51A report was supported in part. See note 16, infra. G.L. c. 119, § 51B.

On July 31, 2003, the department filed a care and protection petition in the Boston Juvenile Court. On that same day, the judge held an initial hearing to determine if the immediate removal of the children was warranted. G.L. c. 119, § 24. The aunt was present, as were attorneys representing the department, the children, and the children's mother, father, and grandmother. Although the transcript of the initial hearing reflects that the judge and the parties knew of Maryland's pending involvement with the children and their family, and that the judge had read the December 6, 2002, Caroline County Court order in the CINA case, there was no discussion of jurisdiction or the desirability of contacting the Caroline County or Baltimore City Courts. The judge proceeded to award custody to the department until such time as a temporary custody hearing could be held, which, by agreement of counsel, was not until August 12, 2003. When that date came, however, the hearing was continued until September 5, 2003, due to a variety of scheduling difficulties involving the parties, counsel, and the court. Meanwhile, the children remained in emergency foster care in Massachusetts.

At the September 5, 2003, temporary custody hearing, the judge heard considerable testimony from five different witnesses relating to the dispute between the aunt and the grandmother over the children and the condition and suitability of their respective homes. Only after these subjects were explored were there two brief references to the subject of jurisdiction. The grandmother's attorney pointed out that the grandmother had the benefit of a custody order from a similar court in a different State, and counsel for the father emphasized that "these children have not been out of [Maryland] for six months," apparently referring to the six-month residency requirement for "home state" jurisdiction in Massachusetts under the MCCJA,

In the end, however, the judge and the parties went forward on the assumption that the only issue to be decided was whether it was safe to return the children to the custody of the grandmother.... It was not suggested or considered that the interests of Maryland in its ongoing case could be effectuated in any other way— such as arranging for the children to be turned over to the Maryland child welfare authorities who, by order of the Caroline County Court, retained supervision over the children's custody. When, at the conclusion of the temporary hearing, the judge found that Yvette and Frank would be at risk of abuse and neglect if returned to the grandmother, the judge placed them in the custody of the department pending a full hearing on the merits in Massachusetts.

Thereafter the department established service plans for the mother, the father, the grandmother, and the aunt, the latter two being viewed as potential placements for the children. A status conference was held on November 3, 2003, at which the judge stated that she could not return custody to the grandmother now that there was an open case in Massachusetts, without a home study under the Interstate Compact on the Placement of Children, St.1963, c. 452, § 1. The grandmother's attorney noted the difficulty that the grandmother was having making herself available to the department and spoke of her financial problems getting back and forth to Massachusetts forte visitation. He also...