Adoption of Twyla

• Court: Massachusetts Appeals Court
• Decided: July 15, 2024
• Docket: AC 23-P-664
• Status: Published

Opinion

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us

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 "well-

documented [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").

10Pursuant 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."

11Although 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").

12As 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

13We 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-the-

fact 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.

14Contrast 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

15A 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.

16The 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

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

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

We recognize the theoretical possibility that concerted 18

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.

We note that a formal ICPC agreement was not statutorily 19

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.

21In 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.