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20-P-4 Appeals Court
ADOPTION OF JACOB.1
No. 20-P-4.
Bristol. October 22, 2020. - March 1, 2021.
Present: Massing, Singh, & Grant, JJ.
Adoption, Care and protection, Dispensing with parent's consent, Foster parents, Standing. Parent and Child, Care and protection of minor, Dispensing with parent's consent to adoption, Custody. Minor, Care and protection, Adoption. Grandparent. Department of Children & Families. Practice, Civil, Care and protection proceeding, Adoption, Guardianship proceeding, Sequestration of witness.
Petitions filed in the Bristol County Division of the Juvenile Court Department on June 2, 2017, and September 25, 2018.
The cases were heard by Tracie L. Souza, J.
Cara M. Cheyette for the mother. William A. Comeau for the father. Andrew Don for the grandparents. Charles G. Levin for the child. Brian Pariser for Department of Children and Families.
1 A pseudonym. 2
MASSING, J. This multiparty appeal arises from a petition
for care and protection that was tried in the Juvenile Court
together with a petition for guardianship. The guardianship
petitioners, the child's paternal grandparents (grandparents),
had temporary custody of the child when the trial began. The
judge found the child's mother and father to be unfit and that
the child's best interests would be served by terminating their
parental rights and allowing the Department of Children and
Families (department) to go forward with its plan for adoption
by recruitment, rather than permitting the child to remain with
the grandparents. The primary issues on appeal concern the
judge's consideration of domestic violence in assessing the
mother's fitness, the grandparents' exclusion from portions of
the trial, and the suitability of the department's permanency
plan. We affirm.
Background. Even before the child's birth, the mother and
the father, both individually and as a couple, faced significant
issues that would affect their fitness as parents. The mother
struggled with her mental health, having been diagnosed with
bipolar disorder, attention deficit hyperactivity disorder,
posttraumatic stress disorder resulting from a sexual assault
and robbery, borderline personality disorder, and severe
generalized anxiety disorder. Although she engaged in some
mental health treatment, including counseling, she frequently 3
misused her prescribed medications, and she "self-medicated"
with alcohol and nonprescribed substances, both while she was
pregnant and throughout the pendency of the care and protection
petition.
The father faced similar mental health challenges,
exacerbated by a history of physical injuries from his
participation in extreme sports and numerous motor vehicle
accidents. To treat both his mental and physical conditions,
the father was prescribed medication, including opiates, which
he misused. He also shared medications with the mother. The
record is replete with evidence of the father's manic behavior
and disorganized thinking, suggesting undiagnosed mental health
conditions. Both parents had difficulty complying with the
department's family action plan tasks.
In addition, the couple's relationship was fraught with
conflict. The father abused the mother verbally, emotionally,
and, on a few occasions, physically. The mother made excuses
for the father's conduct and was unwilling or unable to separate
from him. The grandparents, for their part, minimized the
father's abuse of the mother and the extent of his mental health
problems, failing to recognize the danger these issues posed to
the child's safety and well-being.
The child, Jacob, was born in May 2017 with a low
birthweight and tetrahydrocannabinol in his urine. The mother 4
had tested positive for morphine and Klonopin during her
pregnancy.2 Although Jacob was discharged into his parents'
custody, the hospital filed a report pursuant to G. L. c. 119,
§ 51A, citing concerns about Jacob's substance exposure. The
department conducted a home visit one day after Jacob was
discharged from the hospital. Later that same day, the
department sought emergency temporary custody of Jacob after the
parents arrived, apparently intoxicated, over an hour late to an
appointment with Jacob's pediatrician. Jacob, who was seven
days old, was removed from his parents' custody and placed
temporarily in the custody of the department. The grandparents
applied to serve as Jacob's foster parents in June 2017, but
they did not meet eligibility requirements because they kept
unsecured firearms in their home. After Jacob spent six months
in foster care, the judge awarded temporary custody to the
grandparents pursuant to a stipulated third-party conditional
custody agreement. The department soon changed its permanency
goal from reunification with the parents to adoption.
Jacob was nearly sixteen months old when the trial on the
care and protection petition began. The grandparents filed a
2 The department later obtained the mother's urine screen results from the period of her pregnancy. Those results were positive for numerous substances, including oxycodone, morphine, amphetamines, and antidepressants; she had prescriptions only for Prozac and Ativan. 5
guardianship petition shortly before the trial. The two matters
were tried together, but not formally consolidated, on sixteen
nonconsecutive days over a four-month period. On the third day
of trial, after concerns were raised about the grandfather's
conduct in the court room, the judge allowed the department's
motion to sequester witnesses, thereby excluding the
grandparents from the care and protection proceedings. They
were to be allowed back into the court room for proceedings on
their guardianship petition.3 Evidence elicited early in the
trial suggested that the grandparents had violated the terms of
the conditional custody agreement by permitting the father and
the mother to have unauthorized contact with Jacob. As a
result, the department moved, midtrial, to revoke the
grandparents' custody. The judge took no action on the motion
at the time of trial but modified the custody order to require
that all visits take place at a visitation center.4
On March 26, 2019, the judge found that both the mother and
the father were unfit, terminated their parental rights,
3 We discuss the grandparents' presence and participation in the trial in detail below.
4 The grandparents did not comply with the judge's revised order, and the judge suggested that a contempt hearing would be necessary. The record does not reflect that a contempt hearing was held, and no judgment of contempt was issued, although the judge did make a finding that the father's and the grandparents' actions "constitute[d] contempt of the [c]ourt's [o]rder." 6
adjudicated Jacob in need of care and protection, and committed
him to the custody of the department. The judge further found
the department's plan of adoption by recruitment to be in
Jacob's best interests, rejecting the competing plans proposed
by the mother, the father, and Jacob, all of which involved
Jacob remaining in the grandparents' care. The judge dismissed
the grandparents' guardianship petition and revoked their
temporary custody of Jacob. These appeals followed.
Discussion. The appellants and arguments in this appeal
are numerous. The mother contends that the judge erred in
finding her unfit and terminating her parental rights based on
evidence of domestic violence, substance use, and mental health
issues. The grandparents, joined by the father, the mother, and
Jacob, appeal from the denial of their guardianship petition,
contending that the judge erred in excluding them from the court
room during portions of the proceedings and that their exclusion
requires a new trial without a showing of prejudice.5 The father
and Jacob argue that the department's proposed plan of adoption
5 We assume without deciding that Jacob has standing to appeal from the denial of the grandparents' guardianship petition. See Guardianship of Tara, 97 Mass. App. Ct. 11, 12 n.4 (2020), citing Matter of Angela, 445 Mass. 55, 62 (2005) ("Although the statute's explicit grant of party status to a child is limited to one at least fourteen years old, G. L. c. 190B, § 5-206 [b] [1], it appears that this right extends to a younger child represented by counsel or a guardian ad litem"). 7
by recruitment was inadequate, and that the judge erred in
rejecting their competing plans of guardianship or adoption by
the grandparents.6
1. Termination of the mother's parental rights.7 Before
terminating parental rights, a judge must find that a parent is
unfit to care for the child and, consequently, that the child is
in need of care and protection. See Adoption of Virgil, 93
Mass. App. Ct. 298, 301 (2018). The judge's fitness
determination must be supported by "specific and detailed"
findings that demonstrate parental unfitness clearly and
convincingly. Custody of Eleanor, 414 Mass. 795, 799 (1993).
"'[P]arental unfitness' means 'grievous shortcomings or
handicaps' that put the child's welfare 'much at hazard.'"
Adoption of Katharine, 42 Mass. App. Ct. 25, 28 (1997), quoting
Petition of the New England Home for Little Wanderers to
Dispense with Consent to Adoption, 367 Mass. 631, 646 (1975).
In ascertaining parental fitness, the judge "may consider past
conduct to predict future ability and performance." Adoption of
Katharine, supra at 32–33.
6 Although the grandparents purport to join the father and Jacob in arguing that the department's adoption plan was inadequate, they were not parties to the care and protection proceedings and, therefore, do not have standing to appeal from that aspect of the decision.
7 The father does not challenge the judge's finding that he was unfit or the termination of his parental rights. 8
a. Domestic violence. Domestic violence may imperil a
child's physical safety and psychological development. See
Custody of Vaughn, 422 Mass. 590, 599 (1996); Adoption of Ramon,
41 Mass. App. Ct. 709, 714 (1996). Accordingly, evidence of
domestic violence is relevant to a judge's determination of
parental fitness. See Care & Protection of Lillith, 61 Mass.
App. Ct. 132, 139 (2004). Where the evidence raises concerns
regarding domestic violence, a judge must "make detailed and
comprehensive findings on domestic violence when making custody
determinations." Id., citing Custody of Vaughn, supra at 599.
The judge found that domestic violence "permeated" the
mother's relationship with the father. The mother asserts that
the father's behavior was not sufficiently severe to factor into
the judge's consideration of her fitness as a parent,
particularly if viewed under the standards that apply to
evidence of domestic violence in private custody disputes.
In private child custody disputes, the rights of the
parents are, "in the absence of misconduct, . . . held to be
equal." G. L. c. 208, § 31. The determination whether to award
shared legal or physical custody, or whether to give one parent
sole legal or physical custody, thus turns entirely on "the
happiness and welfare of the children." Id. There is "no
presumption either in favor of or against shared" custody, id.
-- unless the judge finds by a preponderance of the evidence 9
that one parent has engaged in "a pattern of abuse," or a single
"serious incident of abuse,"8 in which case a rebuttable
presumption against granting custody to the abusive parent
arises. G. L. c. 208, § 31A. See Malachi M. v. Quintina Q.,
483 Mass. 725, 737-738 (2019). Although the Legislature has not
seen fit to superimpose the procedures and presumptions of § 31A
on care and protection or termination of parental rights
proceedings, the mother suggests that this court should do so --
and hold that the evidence of domestic violence in this case was
insufficient to create a presumption against custody under G. L.
c. 208, § 31A. We decline the invitation.
Different standards apply to private custody disputes than
apply to State-involved custody proceedings for good reason.
Resolving a private custody dispute involves comparing the
advantages each parent may offer the child. When the State
intervenes in matters of custody, however, a comparison between
8 "Abuse" is defined as "the occurrence of one or more of the following acts between a parent and the other parent or between a parent and child: (a) attempting to cause or causing bodily injury; or (b) placing another in reasonable fear of imminent bodily injury." G. L. c. 208, § 31A. A "[s]erious incident of abuse" is "the occurrence of one or more of the following acts between a parent and the other parent or between a parent and child: (a) attempting to cause or causing serious bodily injury; (b) placing another in reasonable fear of imminent serious bodily injury; or (c) causing another to engage involuntarily in sexual relations by force, threat or duress." Id. 10
the parents, or "comparison of the advantage [a] prospective
custodian may offer to the child with those that may be offered
by the natural parents is inappropriate." Custody of a Minor,
389 Mass. 755, 765 (1983). See Guardianship of Estelle, 70
Mass. App. Ct. 575, 580 (2007) ("we do not transfer a child from
his or her parent to other custodians merely because the latter
may provide a more advantageous environment for the child's
upbringing"). Moreover, in private custody disputes the parents
usually have agreed to separate, whereas in State-involved
proceedings, it is often the case that a parent has not resolved
to leave an abusive relationship, thereby exposing the child to
domestic violence.
Also, unlike private custody disputes, which concentrate
entirely on the interests of the child, care and protection
proceedings begin with a focus on the rights of the parents and
a strong presumption in favor of parental custody. See Santosky
v. Kramer, 455 U.S. 745, 753-754 (1982); Adoption of Frederick,
405 Mass. 1, 4 (1989); C.P. Kindregan, Jr., M. McBrien, & P.A.
Kindregan, Family Law and Practice § 61:1 (4th ed. 2013).
Accordingly, the State must prove parental unfitness by clear
and convincing evidence, and the burden of proof always remains
with the department. See Care & Protection of Erin, 443 Mass.
567, 570-571 (2005); Care & Protection of Laura, 414 Mass. 788,
790-791 (1993). 11
Finally, while evidence of spousal or child abuse may be
dispositive in a private custody dispute under G. L. c. 208,
§ 31A, in care and protection and termination proceedings it is
one of many factors that the judge considers. See G. L. c. 210,
§ 3 (c). Domestic violence "is only one of many 'subsidiary
facts' on which a judge must make findings in deciding the
ultimate question of parental unfitness." Care & Protection of
Laura, 414 Mass. at 794. No one factor is determinative. See
Care & Protection of Yetta, 84 Mass. App. Ct. 691, 695 (2014).
The evidence in this case supported the judge's reliance on
domestic violence as a significant factor in deeming the mother
unfit. The instances of serious physical abuse may have been
few,9 but there was ample evidence of the father's manic,
controlling, threatening, and unpredictable behavior toward the
mother. The father verbally abused her constantly, slapped her,
blocked doors during arguments to prevent her from leaving, and
confiscated her cell phone and other belongings. The mother
testified about the emotional toll the father's behavior had on
9 On one occasion before Jacob was born, the father grabbed the mother by the arms so hard that the police, responding to the scene, observed black and blue marks on the mother's upper arms. The father was arrested for domestic assault and battery, but the complaint was dismissed when the mother refused to press charges. In another incident, when the mother was pregnant, the father, who was intoxicated, locked his arms around her so tightly that she was in fear and bit him. This incident resulted in the mother's arrest. 12
her10 and about her fears that Jacob would "be exposed to what
[she] was exposed to."
The evidence also supported the judge's finding that the
mother exhibited a "dependency and inability to separate from
[the f]ather," and that "despite [her] participation in
counseling and domestic violence services, she [did] not have
the capacity or the desire to end her relationship" with him. A
judge may properly consider a parent's decision to remain in a
relationship with an abusive partner in determining parental
fitness. See Adoption of Willow, 433 Mass. 636, 645 (2001);
Adoption of Lisette, 93 Mass. App. Ct. 284, 293-294 & n.15
(2018). The mother testified variously that she meant to end
her relationship with the father for Jacob's well-being, and
that she hoped to marry the father "if we go to couple's
counseling, in a couple years," because she wanted Jacob "to
have both of his parents." The judge found it telling that the
mother and the father had stayed in a motel together the night
before the last day of trial.
b. Substance use and mental health. The mother asserts
that the judge improperly relied on her substance use and mental
health issues in finding her unfit. "When assessing parental
10The father's conduct made the mother feel "insane": "I start rocking back and forth and like having a panic attack and like begging him to stop. . . . [L]ike he triggers my innermost insecurities." 13
fitness, it is not enough to state that a parent is mentally
impaired, rather there must be a showing that the condition
affects the parent's ability to care for the child." Adoption
of Quentin, 424 Mass. 882, 888 (1997). Thus, a parent's mental
health "is relevant only to the extent that it affects the
parents' capacity to assume parental responsibility, and ability
to deal with a child's special needs." Adoption of Luc, 484
Mass. 139, 146 (2020), quoting Adoption of Frederick, 405 Mass.
at 9. Likewise, a parent's substance use or misuse "clearly is
relevant to a parent's willingness, competence, and availability
to provide care, though not necessarily dispositive of the
issue." Care & Protection of Frank, 409 Mass. 492, 494 (1991).
The record supports the judge's findings that the mother's
failure to address her numerous mental health issues and her
misuse of prescribed and nonprescribed substances interfered
with her ability to assume parental responsibilities. The
mother's difficulties in managing her emotions and stress, as
well as her history with alcohol and nonprescribed substances,
including Xanax prescribed to her grandmother and morphine
prescribed to the father, affected her ability to care for
Jacob. The judge was troubled by evidence that the mother took
extra doses of Xanax and shots of alcohol before two visits with
Jacob, and by her appearance of being under the influence of
alcohol or drugs during trial on a day she had driven herself to 14
court. The judge was particularly concerned by an incident
disclosed for the first time during the trial (which had never
been disclosed to the department) in which the mother,
contemplating suicide, took a gun from her grandparents' home,
went into the woods, and fired it. Although the mother had
taken some steps to comply with the department's family action
plan with respect to her substance use and mental health
treatment, these efforts began only shortly before trial.
c. Best interests determination. The judge's factual
findings and conclusions with respect to the mother's issues of
domestic violence, mental health, and substance use demonstrated
careful attention to the evidence and the law. See Adoption of
Nancy, 443 Mass. 512, 515 (2005). In effect, the mother's
arguments amount to dissatisfaction with the judge's weighing of
the evidence. We, however, afford deference to the judge's
assessment of the weight of the evidence and the credibility of
the witnesses, as well as to the judge's determination of the
child's best interests, reversing only if there is clear error
or abuse of discretion. See Adoption of Larry, 434 Mass. 456,
462 (2001); Adoption of Hugo, 428 Mass. 219, 225 (1998), cert.
denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999);
Adoption of Cadence, 81 Mass. App. Ct. 162, 166 (2012). The
evidence was clear and convincing that the mother was unfit to
parent Jacob and likely to remain so. 15
2. Exclusion of the grandparents from parts of the trial.
The grandparents contend that they were wrongly excluded from
parts of the care and protection proceedings, and that their
exclusion violated their right to a fair trial on their
guardianship petition.11 Having carefully reviewed the parties'
arguments and the voluminous trial transcript, we discern no
abuse of discretion or reversible error in the judge's handling
of the trial.
a. Grandparents' presence and participation. On the first
day of trial, the mother moved to sequester the witnesses,
noting that the grandfather was present in the court room. The
judge denied the request, stating, "[H]e's the placement so I'm
going to allow him to stay." The father was the first witness
to testify. During his testimony, the judge interrupted to
admonish the grandfather for shaking his head "up and down or
side to side" while the father testified.
On the third day of trial, during the mother's testimony,
counsel for the department and counsel for the mother alerted
11The father, the mother, and Jacob all join in this argument in their briefs, although at trial the mother and Jacob agreed with the judge that the grandparents should not be present during the care and protection proceedings. We reject Jacob's further argument that the grandparents' exclusion violated his due process rights. Jacob was represented by counsel, who advocated ably on his behalf, with undivided loyalty, throughout the proceedings. Contrast Adoption of Flora, 60 Mass. App. Ct. 334, 339-340 (2004). 16
the judge that the grandfather had been taking "voluminous"
notes throughout the closed proceedings.12 They also argued that
his presence during the testimony of the mother and the
anticipated testimony of the mother's aunt (aunt) -- another
potential guardian -- might affect the witnesses' candor on the
stand and jeopardize subsequent relations among the parties.
The department moved to sequester the witnesses. With only
counsel for the father objecting, the judge allowed the motion
and asked the grandfather to leave the court room and surrender
his notes. At the end of the day, the grandfather was invited
back into the court room to discuss scheduling of the
proceedings on the guardianship petition. The grandfather asked
for and received assurances that the guardianship petition would
not be heard until after the termination proceedings had
concluded.
The grandparents were not present for the fourth or fifth
days of trial, when the mother's testimony continued and the
aunt's testimony began. On the sixth day of trial, an attorney
appeared on behalf of the grandparents. The judge told the
attorney that he could be present for any testimony concerning
proposed guardians, including the continued testimony of the
12Care and protection matters are closed to the public. See G. L. c. 119, § 38. 17
aunt at the next trial date; the attorney stated that he was
available to attend.13
Nonetheless, the grandparents' attorney was not present for
the seventh, eight, or ninth trial dates, during which the
mother, the aunt, and a department case worker testified. On
the tenth day of trial, the department called its adoption
social worker, who would testify about the department's position
with respect to the grandparents' proposed guardianship.
Because the grandparents' attorney was not available, the judge
permitted the grandmother to remain in the court room for this
testimony.14 From that point on, at least one grandparent, their
attorney, or both were present, and the attorney, when present,
was permitted to cross-examine witnesses.
b. Grandparents' rights. As an initial matter, the judge
properly heard the care and protection and the guardianship
13When the grandparents' attorney first made his appearance, the judge explained to him that the trial was "still in the fitness stage," but because "the evidence does intertwine," she would permit him to be present when "we start talking about who's going to be proposed as guardians." She then advised the attorney, "[U]nless I hear otherwise, you are not going to be participating in the care and protection trial, nor are you going to have access to any of the records of the parents." The attorney said he understood and did not object.
14On the ninth day of trial, counsel for the father informed the judge (erroneously) that the grandparents' attorney planned to withdraw. The judge responded that she would "allow the grandparents to sit in on" the department's testimony concerning its position on the grandparents' guardianship petition. 18
petitions concurrently. See Guardianship of Phelan, 76 Mass.
App. Ct. 742, 749 (2010). Nonetheless, the petitions retained
their separate character. See id., citing A.M. Karp, Child
Welfare Practice in Massachusetts § 19.4.1 (Mass. Cont. Legal
Educ. 2006 & Supp. 2009) (even where guardianship and care and
protection petitions are heard together, guardianship petition
is separate action with its own docket number). As the
department was not proposing guardianship as its goal, it was
not necessary to formally consolidate the matters. See Care &
Petition of Thomasina, 75 Mass. App. Ct. 563, 574 n.19 (2009).
Analogizing to cases in which parents were deprived of
their right to participate in child welfare proceedings,
directly or through appointed counsel, the grandparents argue
that the judge's handling of the proceedings violated their
fundamental rights. The analogy is flawed. "Parents have a
fundamental liberty interest in maintaining custody of their
children, which is protected by the due process clause of the
Fourteenth Amendment to the United States Constitution." Care &
Protection of Erin, 443 Mass. at 570. Although the grandparents
love and provided care for Jacob, they have no constitutionally
protected interest in their relationship with him, whether as
grandparents, temporary custodians, or guardianship petitioners.
See Guardianship of K.N., 476 Mass. 762, 765 (2017) (grandmother
with de facto parent-guardian status had no protected liberty 19
interest giving rise to due process right to appointed counsel
in removal proceeding); Care & Protection of Jamison, 467 Mass.
269, 283 (2014) (guardianships "are solely creatures of statute"
and "neither the equivalent of nor coextensive with
parenthood").
As relatives and the custodians of Jacob at the time of
trial, the grandparents did have a statutory right of access to
the care and protection proceedings. See G. L. c. 119, § 29D
(requiring department to give notice of care and protection and
certain other proceedings "to a foster parent, pre-adoptive
parent or relative providing care for the child" and to inform
same of "right to attend the hearing and to be heard").
However, this right does not confer party status nor the right
to cross-examine witnesses in the care and protection
proceedings. See id. ("Nothing in this provision shall be
construed to provide that such foster parent, pre-adoptive
parent or relative shall be made a party to the proceeding").
The reason current custodians are given the right to be heard --
"and need not suffer in silence if the parties choose not to
call them" -- is to "ensur[e] that judges have all the relevant
information about the child at their disposal." Adoption of
Sherry, 435 Mass. 331, 338 (2001). The "best procedure" for
exercise of this limited right in any given case is left to the
discretion of the trial judge. Id. at 338 n.6. 20
Similarly, the judge possessed the discretion to sequester
witnesses during the trial. "Sequestration of witnesses lies in
the discretion of the trial judge." Zambarano v. Massachusetts
Turnpike Auth., 350 Mass. 485, 487 (1966). See Custody of a
Minor (No. 2), 392 Mass. 719, 726 (1984) (within judge's
discretion to exclude testimony of nonparty grandmother where
judge had ordered sequestration of witnesses but grandmother
remained in court room throughout trial). Here, the grandfather
appeared to be coaching the father during his testimony, and the
judge could reasonably conclude that the grandparents' presence
during the testimony of the mother and the aunt might interfere
with their ability to testify fully and frankly. Nonetheless,
the grandparents or their attorney were present, or permitted to
be present, for substantial portions of the proceedings
concerning parental fitness, and they were afforded ample
opportunity to be heard.
The grandparents did have the right to participate as
parties in the guardianship proceedings, including the right to
cross-examine witnesses.15 The judge consistently recognized
these rights and made every effort to protect them. Thus, the
15These are not constitutional rights; they are procedural rights incident to party status in a civil case. See Covell v. Department of Social Servs., 439 Mass. 766, 787–788 (2003); Frizado v. Frizado, 420 Mass. 592, 596–597 & n.3 (1995); Gilmore v. Gilmore, 369 Mass. 598, 603 (1976). 21
judge ensured that the grandparents or their attorney was
present for the testimony of any witnesses concerning whether
the grandparents' continued custody would be in Jacob's best
interests, as well as for testimony concerning competing custody
arrangements. Unlike Guardianship of Phelan, 76 Mass. App. Ct.
at 754, this is not a case in which the grandparents "never in
fact had the opportunity to litigate."16
For the first time on appeal, the grandparents object to
their partial exclusion; indeed, they contend that it
constituted structural error, mandating reversal without a
showing of prejudice, because the care and protection
proceedings were "inextricably intermingled" with the
guardianship proceedings. The doctrine of structural error,
however, "does not control civil issues." Adoption of Gabe, 84
Mass. App. Ct. 286, 293 (2013). Although it may provide a
"useful analogy" where constitutional rights are at issue, id.,
the grandparents had no constitutional rights at stake in the
proceedings.
16Although we have commented favorably on the action of a judge presiding over a concurrent termination and guardianship case to give the guardianship petitioner "full access to the proceedings and the evidence" in the termination case, see Guardianship of Phelan, 72 Mass. App. Ct. at 749, quoting Adoption of Yvette (No. 1), 71 Mass. App. Ct. 327, 333-334 (2008), these allusions to the discretionary decision of a single trial judge do not amount to a rule that all guardianship petitioners are entitled "full access" to care and protection or termination cases involving the same child. 22
In addition to claiming structural error, the grandparents
argue that they were prejudiced by their partial exclusion
because the judge, in denying their guardianship petition,
relied in part on testimony given on days when they were not
present and did not have an opportunity to cross-examine
witnesses. See Adoption of a Minor, 22 Mass. App. Ct. 468, 469
n.1 (1986), citing Gilmore v. Gilmore, 369 Mass. 598, 603 (1976)
("any decision on the merits which did not give persons having
standing the right to cross-examine the [witness] would have
been inappropriate"). Indeed, some testimony relevant to the
grandparents' ability to care for Jacob was elicited during
their absence, and in hindsight, the judge could have taken a
broader view in determining which portions of the care and
protection proceedings had potential relevance to the
guardianship petition.
Nonetheless, we decline to disturb the adjudication of the
guardianship petition, in large measure because of the
grandparents' failure to object to the conduct of the
proceedings. "Ordinarily, a party is not entitled to present an
argument on appeal on an issue not presented in the court
below." Atlas Tack Corp. v. DiMasi, 37 Mass. App. Ct. 66, 70
(1994). See Adoption of Bea, 97 Mass. App. Ct. 416, 430 (2020).
The rationale behind the waiver rule is that a timely objection
affords the trial judge an opportunity to correct any possible 23
errors in the proceedings. See Abraham v. Woburn, 383 Mass.
724, 726 n.1 (1981); Commonwealth v. Lenane, 80 Mass. App. Ct.
14, 19 (2011). Had the grandparents or their attorney argued
that testimony to be given in their absence might be relevant to
their ability to act as guardians, the judge may well have
granted greater access.
This case does not present a clear injustice or implicate
broad public policy concerns that might compel us to overlook a
clear waiver. Contrast Rivas v. Chelsea Hous. Auth., 464 Mass.
329, 336-337 (2013); White v. White, 40 Mass. App. Ct. 132, 133–
134 (1996). Much of the testimony taken outside of the
grandparents' presence was cumulative of testimony offered while
they were in the court room or their attorney was present. In
addition, all of the parties present, except the department,
were advocating for the grandparents' custody. Cf. Care &
Protection of Zelda, 26 Mass. App. Ct. 869, 872-873 (1989)
(judge did not abuse discretion in denying foster parents'
motion to intervene in care and protection proceedings where
their interests were adequately represented by existing
parties).17 Finally, "[t]he best interests of the child are the
overarching concern" -- not the rights of other parties.
17But see Guardianship of B.V.G., 474 Mass. 315, 326 (2016) (even where interests of subject of guardianship petition are adequately represented, "interested person" within meaning of G. L. c. 190B, § 5-306 [c], has right to intervene). 24
Adoption of Rico, 453 Mass. 749, 754 (2009). The judge took
great care and carefully weighed the evidence of the
grandparents' ability to provide for Jacob's best interests.
Any error or abuse of discretion in the judge's handling of this
complex case does not warrant reversal of her well-reasoned
decision to dismiss the grandparents' guardianship petition.
3. Competing permanency plans. In determining that
termination of the mother's and the father's parental rights
served Jacob's best interests, the judge considered the
competing plans proposed by the department, the parents, and
Jacob, as well as the grandparents' guardianship petition. The
judge determined that the department's plan of adoption by
recruitment was in Jacob's best interests. The appellants argue
that the department's plan was not sufficiently developed to
warrant approval.
"In determining the best interests of the child, the judge
must consider, among other things, 'the plan proposed by the
department.'" Adoption of Varik, 95 Mass. App. Ct. 762, 770
(2019), quoting G. L. c. 210, § 3 (c). The judge must also
consider plans proposed by the parents or the child. See
Adoption of Dora, 52 Mass. App. Ct. 472, 474-475 (2001). Where
there are competing plans, "the judge must assess the
alternatives and, if both pass muster, choose which plan is in
the child's best interests, however difficult the choice may 25
be." Id. at 475. "The judge's obligation to consider a plan
involves much more than simply examining it. The judge must
perform a careful evaluation of the suitability of the plan and
must meaningfully . . . evaluate what is proposed to be done for
the child" (quotations and citation omitted). Adoption of
Helga, 97 Mass. App. Ct. 521, 528 (2020). Regardless of the
party offering the plan, "[a] judge should provide an 'even
handed' assessment of all the facts surrounding both the
department's plan and any competing custody or adoption plan."
Adoption of Hugo, 428 Mass. at 226 n.8. The judge may even
reject all the plans offered and "order an alternative
disposition, provided it is consistent with the best interests
of the child." Adoption of Cadence, 81 Mass. App. Ct. at 171,
citing G. L. c. 119, § 26 (b); G. L. c. 210, § 3.
Whether remaining in the grandparents' custody "was in
[Jacob's] best interests presents 'a classic example of a
discretionary decision' to which we accord substantial
deference." Adoption of Peggy, 436 Mass. 690, 705 (2002), cert.
denied sub nom. S.T. v. Massachusetts Dep't of Social Services,
537 U.S. 1020 (2002), quoting Adoption of Hugo, supra at 225.
In this regard, we discern no abuse of discretion in the judge's
determination that any plans involving the grandparents did not
advance Jacob's best interests. The judge concluded that the
mother and the father were unfit and likely to remain so. The 26
father required daily support from one or both of the
grandparents and would continue to need their support if they
were appointed Jacob's guardians. The grandfather, however,
refused to believe that the father's problems were related to
mental health issues, minimizing them as difficulties with time
management and organization. Similarly, the grandmother denied
that the father was abusive of the mother and explained away his
conduct. The judge reached the well-founded conclusion that the
grandparents were "enmeshed" with the father, and that their
inability to place boundaries on the father would be harmful to
Jacob.18
Nor did the judge abuse her discretion in approving the
department's plan. "The adoption plan need not be fully
developed to support a termination order; it need only provide
sufficient information about the prospective adoptive placement
'so that the judge may properly evaluate the suitability of the
department's proposal.'" Adoption of Willow, 433 Mass. at 652-
18The judge concluded, "It is clear that [the grandparents] love Jacob and they have taken good physical care of him. However, . . . [the grandparents] have continued to prioritize [the f]ather's needs throughout this case above providing stability for Jacob. They have gone to great lengths to cover, intentionally lie and defraud the [c]ourt and/or minimize his deficiencies, and have allowed him access to Jacob outside of authorized visits, in violation of the temporary custody order. This [c]ourt finds that [the grandparents] are neither capable nor willing to maintain safe boundaries with [the f]ather in order to protect Jacob from future abuse and/or neglect." 27
653, quoting Adoption of Vito, 431 Mass. 550, 568 n.28 (2000).
A suitable plan does not need to identify "prospective adoptive
parents." Care & Protection of Three Minors, 392 Mass. 704, 717
(1984). See Adoption of Scott, 59 Mass. App. Ct. 274, 278
(2003).
The department planned to register Jacob with an adoption
agency, which would "search for a family that would be able to
meet Jacob's educational and emotional needs." The plan
outlined Jacob's family's history with the department and
included personal histories of Jacob, the mother, and the
father, as well as Jacob's medical and developmental history.
The department's adoption social worker testified about the
concrete recruitment steps the department and the adoption
agency would take to identify an appropriate adoptive family.
Relying on Adoption of Varik, 95 Mass. App. Ct. at 771, the
appellants argue that the department's plan "failed to specify
the type of adoptive parents and the characteristics of the home
environment best suited to meet [Jacob's] specific needs." Such
detail was necessary in Adoption of Varik because, as a result
of being physically abused by his father, the child had
exhibited "troubling behavior" in his foster home, "including
lying, a series of thefts, and hoarding food," and was
"disruptive" at school. Id. at 764. Accordingly, "information
describing the kind of home environment and adoptive family 28
makeup that ideally would best meet Varik's particular needs"
was essential. Id. at 771. See Adoption of Dora, 52 Mass. App.
Ct. at 476-477 (where department's plan included two potential
options, and "there was no singular definition of what was
contemplated for" child, judge erred by approving plan and
leaving "choice of adoptive placement to the discretion of"
department).
Although Jacob had specialized medical needs shortly after
he was born, he received treatment resolving those needs.19 The
judge found that Jacob was "a happy well adjusted twenty month
old child," "had no special or specific needs," and "would not
have any difficulty transitioning to a new home or bonding to a
subsequent care giver." As Jacob did not require any particular
type of adoptive parents or home environment, any effort by the
department to provide more detail may have been
counterproductive, narrowing the field of potential adoptive
homes. The department's plan for Jacob had "content and
substance enough to permit the court meaningfully to evaluate
and consider . . . what [the department] propose[d] to do for
19Several months after he was born, Jacob was evaluated by a neurologist for plagiocephaly ("flat head syndrome"). He wore a helmet from November 2017 until April 2018, at which point that treatment was no longer necessary. He was discharged from the neurologist's care in August 2018. Jacob was also diagnosed with asthma, but his condition improved and he no longer needed treatment as of June 2018. 29
the child by way of adoption." Adoption of Lars, 46 Mass. App.
Ct. 30, 31 (1998), quoting Adoption of Stuart, 39 Mass. App. Ct.
380, 393 (1995).
Moreover, the judge took extra steps to oversee the
department's recruitment efforts. Rather than wait twelve
months for the mandatory review of the department's permanency
plan required by G. L. c. 119, § 29B, the judge retained
jurisdiction and ordered the department to report to her every
thirty days to enable her to "closely monitor and assess the
Department's efforts and progress in identifying a pre-adoptive
home." The judge did not "merely . . . issue a broad
dispositional order committing the child to the department's
custody." Adoption of Cadence, 81 Mass. App. Ct. at 170-171.
In these circumstances, the judge did not abuse her discretion
in approving the department's plan of adoption by recruitment.
Conclusion. The decrees terminating the mother's and the
father's parental rights and approving the department's adoption
plan are affirmed. The order dismissing the grandparents'
guardianship petition is affirmed.
So ordered.