In re Twyla

240 N.E.3d 233

ADOPTION OF TWYLA.¹

No. 23-P-664

Appeals Court of Massachusetts, Berkshire.

Argued March 6, 2024

Decided July 15, 2024

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, Boston, for Department of Children and Families.

Laura Smith, for the child.

Present: Milkey, Sacks, & Smyth, JJ.

MILKEY, J.

This is a care and protection action involving Twyla, a girl born in upstate New York in 2017. Her parents -- 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 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 fa- ther 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."

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 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. Indeed, at least four different New York counties were implicated.²

Stressing that "[w]hether or not protective services are required can be ad- dressed 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 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 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 in- vestigation 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 "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...