NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-1380
ADOPTION OF DAJON. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The Department of Children and Families (DCF) filed a
petition to terminate the parental rights of the mother to her
child, Dajon. Following a trial, a Juvenile Court judge found
the mother unfit to parent Dajon, terminated her parental
rights, and concluded that adoption by the maternal great aunt
would be in the child's best interests. On appeal, the mother
does not challenge the court's determination of her parental
unfitness or the termination of her parental rights. Rather,
the mother claims that the judge abused her discretion by
failing to adequately consider the mother's proposed plan for
guardianship by the maternal grandmother. We affirm.
1 A pseudonym. Background. We summarize the trial judge's findings of
fact. 2 The child was born in 2014, and she was nine years old at
the time of trial. The child's paternity is unestablished and
not relevant to this appeal. The child's maternal grandmother
(grandmother) and great aunt (aunt) were proposed as guardians
in competing permanency plans, and each has been heavily
involved in the child's upbringing thus far. 3
Throughout the child's life, the mother consistently
struggled with substance use, mental illness, and housing
instability. In 2015, the aunt took custody of the child after
she was removed from her mother's care. Five months later, the
grandmother took custody of the child. The grandmother
maintained legal guardianship and physical custody of the child
for roughly seven years, until April of 2022.
During the grandmother's guardianship, she struggled to
maintain a stable, safe environment for the child. She
experienced a combination of housing instability, substance use
for which she refused treatment, and domestic violence. As a
result, the aunt filed a petition for guardianship of the child.
2The parties are not challenging the judge's findings of fact as erroneous. The findings "demonstrate that close attention has been given the evidence." Custody of Eleanor, 414 Mass. 795, 799 (1993).
3 The grandmother and the great aunt are sisters.
2 In April 2022, following receipt of a report pursuant to
G. L. c. 119, § 51A (51A report), DCF conducted an investigation
that revealed that the grandmother had gone to Dajon's school
and demanded that Dajon be dismissed early "because she could,
because she had custody." The aunt testified that from January
to April 2022, she did not allow the grandmother to live in her
house because of the grandmother's substance abuse.
Consequently, the grandmother had not actually seen the child
for months, despite still having legal guardianship of her.
During this time, the aunt cared for Dajon while the grandmother
struggled to maintain stable housing. DCF filed this care and
protection petition on April 12, 2022, and was granted emergency
temporary custody. The grandmother was removed as the child's
legal guardian in July 2022.
The child has been living with the aunt exclusively since
January 2022. The child is happy, healthy, and thriving under
the aunt's care. She has many friends, plays sports and the
flute, does well in school, and wants to start gymnastics. The
child needed dental surgery to fill six cavities that had been
neglected while she was in the grandmother's care but is now up
to date on her medical visits and dental care. The aunt works
full time as a nurse and is financially stable. The aunt and
the child reside together in a three-bedroom apartment, along
with the aunt's twenty year old son. The child has her own room
3 in the apartment. DCF has approved the aunt as an adoptive
placement for the child, and the child wishes to be adopted by
her aunt.
The grandmother sought to be reinstated as the child's
guardian, and she filed a private petition for guardianship that
was joined and heard with this care and protection petition.
The mother also desired that the grandmother be reappointed as
Dajon's guardian.
At trial, the judge found the mother unfit to parent Dajon
and terminated her parental rights. The judge also found that
DCF's adoption plan -- that Dajon be adopted by the aunt --
served Dajon's best interests. The judge dismissed the
grandmother's private petition for guardianship.
On appeal, the mother does not contest her unfitness or the
termination of her parental rights. Rather, the mother argues
that the trial judge committed clear error by failing to
properly consider the grandmother's petition for guardianship. 4
The grandmother has not appealed the dismissal of her private
guardianship petition or the order striking her from the care
and protection petition and is not a party to this appeal.
4 As explained below, the correct standard of review for this decision is whether the judge abused her discretion.
4 Discussion. 1. Standard of review. After a determination
of parental unfitness and termination of parental rights, the
judge is required to assess all placement plans for the children
and "determine which placement will serve the best interests of
the child." Adoption of Dora, 52 Mass. App. Ct. 472, 474-475
(2001). The judge's assessment of each plan must be "even
handed," regardless of which party offered the plan. See
Adoption of Hugo, 428 Mass. 219, 226 n.8 (1998), cert. denied
sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999). "A judge
should consider the wishes of the child in making custodial
determinations, and those wishes 'are entitled to weight in
custody proceedings.'" Care and Protection of Vick, 89 Mass.
App. Ct. 704, 710 (2016), quoting Care & Protection of
Georgette, 439 Mass. 28, 36 (2003). However, the child's
wishes, while important, are not outcome determinative. See
Adoption of Rhona, 63 Mass. App. Ct. 117, 126 (2005).
"In choosing among placement plans, it falls to the sound
discretion of the trial judge to determine what is in the best
interests of the child, and our review on appeal is one of
'substantial deference.'" Adoption of Bianca, 91 Mass. App. Ct.
428, 434 (2017), quoting Adoption of Hugo, 428 Mass. at 225. We
determine whether "the trial judge abused [her] discretion."
Adoption of Hugo, supra. "[A] judge's discretionary decision
constitutes an abuse of discretion where we conclude the judge
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-1380
ADOPTION OF DAJON. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The Department of Children and Families (DCF) filed a
petition to terminate the parental rights of the mother to her
child, Dajon. Following a trial, a Juvenile Court judge found
the mother unfit to parent Dajon, terminated her parental
rights, and concluded that adoption by the maternal great aunt
would be in the child's best interests. On appeal, the mother
does not challenge the court's determination of her parental
unfitness or the termination of her parental rights. Rather,
the mother claims that the judge abused her discretion by
failing to adequately consider the mother's proposed plan for
guardianship by the maternal grandmother. We affirm.
1 A pseudonym. Background. We summarize the trial judge's findings of
fact. 2 The child was born in 2014, and she was nine years old at
the time of trial. The child's paternity is unestablished and
not relevant to this appeal. The child's maternal grandmother
(grandmother) and great aunt (aunt) were proposed as guardians
in competing permanency plans, and each has been heavily
involved in the child's upbringing thus far. 3
Throughout the child's life, the mother consistently
struggled with substance use, mental illness, and housing
instability. In 2015, the aunt took custody of the child after
she was removed from her mother's care. Five months later, the
grandmother took custody of the child. The grandmother
maintained legal guardianship and physical custody of the child
for roughly seven years, until April of 2022.
During the grandmother's guardianship, she struggled to
maintain a stable, safe environment for the child. She
experienced a combination of housing instability, substance use
for which she refused treatment, and domestic violence. As a
result, the aunt filed a petition for guardianship of the child.
2The parties are not challenging the judge's findings of fact as erroneous. The findings "demonstrate that close attention has been given the evidence." Custody of Eleanor, 414 Mass. 795, 799 (1993).
3 The grandmother and the great aunt are sisters.
2 In April 2022, following receipt of a report pursuant to
G. L. c. 119, § 51A (51A report), DCF conducted an investigation
that revealed that the grandmother had gone to Dajon's school
and demanded that Dajon be dismissed early "because she could,
because she had custody." The aunt testified that from January
to April 2022, she did not allow the grandmother to live in her
house because of the grandmother's substance abuse.
Consequently, the grandmother had not actually seen the child
for months, despite still having legal guardianship of her.
During this time, the aunt cared for Dajon while the grandmother
struggled to maintain stable housing. DCF filed this care and
protection petition on April 12, 2022, and was granted emergency
temporary custody. The grandmother was removed as the child's
legal guardian in July 2022.
The child has been living with the aunt exclusively since
January 2022. The child is happy, healthy, and thriving under
the aunt's care. She has many friends, plays sports and the
flute, does well in school, and wants to start gymnastics. The
child needed dental surgery to fill six cavities that had been
neglected while she was in the grandmother's care but is now up
to date on her medical visits and dental care. The aunt works
full time as a nurse and is financially stable. The aunt and
the child reside together in a three-bedroom apartment, along
with the aunt's twenty year old son. The child has her own room
3 in the apartment. DCF has approved the aunt as an adoptive
placement for the child, and the child wishes to be adopted by
her aunt.
The grandmother sought to be reinstated as the child's
guardian, and she filed a private petition for guardianship that
was joined and heard with this care and protection petition.
The mother also desired that the grandmother be reappointed as
Dajon's guardian.
At trial, the judge found the mother unfit to parent Dajon
and terminated her parental rights. The judge also found that
DCF's adoption plan -- that Dajon be adopted by the aunt --
served Dajon's best interests. The judge dismissed the
grandmother's private petition for guardianship.
On appeal, the mother does not contest her unfitness or the
termination of her parental rights. Rather, the mother argues
that the trial judge committed clear error by failing to
properly consider the grandmother's petition for guardianship. 4
The grandmother has not appealed the dismissal of her private
guardianship petition or the order striking her from the care
and protection petition and is not a party to this appeal.
4 As explained below, the correct standard of review for this decision is whether the judge abused her discretion.
4 Discussion. 1. Standard of review. After a determination
of parental unfitness and termination of parental rights, the
judge is required to assess all placement plans for the children
and "determine which placement will serve the best interests of
the child." Adoption of Dora, 52 Mass. App. Ct. 472, 474-475
(2001). The judge's assessment of each plan must be "even
handed," regardless of which party offered the plan. See
Adoption of Hugo, 428 Mass. 219, 226 n.8 (1998), cert. denied
sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999). "A judge
should consider the wishes of the child in making custodial
determinations, and those wishes 'are entitled to weight in
custody proceedings.'" Care and Protection of Vick, 89 Mass.
App. Ct. 704, 710 (2016), quoting Care & Protection of
Georgette, 439 Mass. 28, 36 (2003). However, the child's
wishes, while important, are not outcome determinative. See
Adoption of Rhona, 63 Mass. App. Ct. 117, 126 (2005).
"In choosing among placement plans, it falls to the sound
discretion of the trial judge to determine what is in the best
interests of the child, and our review on appeal is one of
'substantial deference.'" Adoption of Bianca, 91 Mass. App. Ct.
428, 434 (2017), quoting Adoption of Hugo, 428 Mass. at 225. We
determine whether "the trial judge abused [her] discretion."
Adoption of Hugo, supra. "[A] judge's discretionary decision
constitutes an abuse of discretion where we conclude the judge
5 made 'a clear error of judgment in weighing' the factors
relevant to the decision such that the decision falls outside
the range of reasonable alternatives" (citation omitted). L.L.
v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
2. Placement plans. The mother argues that the trial
judge failed to adequately evaluate her preferred placement plan
for the child. She takes issue with the evidentiary support for
the judge's findings and specifically argues that the judge
erroneously found that the child would suffer psychological harm
if removed from the aunt's care. She also claims that the judge
failed to make adequate findings to support the choice she made.
DCF counters that the judge properly considered both placement
plans, made sufficient findings on relevant factors that were
supported by the evidence, and appropriately chose adoption by
the aunt because that was, in fact, in the child's best
interests. The child's position is substantially similar to
DCF's. 5
5 Dajon also argues that the grandmother is an indispensable party to the mother's appeal, and, therefore, because the grandmother has not appealed the dismissal of her guardianship petition or joined the mother's appeal, the mother's appeal should be dismissed. See Guardianship of Wilson, 496 Mass. 60, 61 (2025). This issue does not appear to be jurisdictional. See Guardianship of Tara, 97 Mass. App. Ct. 11, 13-14 (2020) (recognizing there are circumstances in which Appeals Court has reached issues in which court can order no effective relief). In any event, because we find that the judge's ruling was sufficiently supported by the evidence, we decline to address the mother's standing to appeal under Guardianship of Wilson.
6 We conclude that the trial judge did not abuse her
discretion by choosing the placement plan advanced by DCF and
the child. She gave the mother's plan adequate consideration.
Most significant, the judge found "that awarding guardianship of
[the child] to Maternal Grandmother is [not] in [the child's]
best interests. Maternal Grandmother lacks stability in her
home life and her sobriety that render her an unsuitable
guardian for [the child]." As described below, the factual
conclusions in the second quoted sentence are adequately
supported. Given the judge's supported conclusion about the
maternal grandmother's suitability, no further evaluation of the
plan for her guardianship was required.
Beyond that, the grandmother filed a guardianship petition
but did not propose a guardianship plan or outline how she
planned to care for the child. Thus, the only information the
judge could consider in connection with that petition was
testimony from the mother, the aunt, and the grandmother, and
evidence of the grandmother's past conduct. During trial, the
grandmother testified that she intended to rent the child a
separate room in the multi-bedroom home she was living in with a
man she had met through work. The grandmother did not offer any
evidence regarding how her housing situation might affect the
child's school placement or any plans for childcare during the
summers and weekends. DCF's plan, on the other hand, was
7 detailed, clear, and supported by the fact that the child had
thrived during the years she lived with the aunt. The judge
properly evaluated the plans based on the information she had in
front of her. See Adoption of Helga, 97 Mass. App. Ct. 521, 529
(2020).
Second, the judge's ultimate determination was sufficiently
supported by the evidence and the judge's findings. The judge
properly considered the grandmother's history of housing
instability, substance use for which she refused treatment, and
domestic violence, in determining the best interests of the
child. The judge also considered the fact that the aunt had
been Dajon's caretaker for the previous two years, that Dajon
had thrived in her care, and that Dajon had expressed a desire
to be adopted by her aunt. The judge's findings of fact and
conclusions of law were consistent with the record evidence.
Her finding that the child would suffer psychological harm if
separated from the aunt was supported by the fact that the aunt
has been the child's most stable parental figure. The judge was
not required to describe the specific nature of the bond between
the child and the aunt or explain why serious harm would flow
from the severance of that bond where it was not the decisive
factor in the judge's decision. See Adoption of Katharine, 42
Mass. App. Ct. 25, 30-31 (1997) (holding that in termination
case, judge is only required to make specific findings about
8 cause and nature of psychological harm that will flow from
child's removal from substitute caretaker when it is decisive
factor in court's decision [emphasis added]).
We find no "clear error of judgment" in the judge's
weighing of the relevant factors here, and her determination
that the DCF adoption plan was in [Dajon's] best interests was
not "outside the range of reasonable alternatives." See L.L.,
470 Mass. at 185 n.27. Because we discern no abuse of
discretion and conclude that the judge's evaluation of the
competing plan was adequate and that the judge's decision is
supported by the evidence, we affirm.
Decree affirmed.
By the Court (Rubin, Brennan & Wood, JJ. 6),
Clerk
Entered: December 29, 2025.
6 The panelists are listed in order of seniority.