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22-P-1048 Appeals Court
ADOPTION OF URSA (and a companion case1).
No. 22-P-1048.
Suffolk. September 6, 2023. - November 29, 2023.
Present: Massing, Grant, & Brennan, JJ.
Adoption, Dispensing with parent's consent, Visitation rights. Minor, Adoption, Visitation rights. Parent and Child, Dispensing with parent's consent to adoption. Practice, Civil, Adoption. Department of Children & Families. Indian Child Welfare Act. Constitutional Law, Self- incrimination. Evidence, Child custody proceeding. Witness, Self-incrimination.
Petition filed in the Barnstable County/Town of Plymouth Division of the Juvenile Court Department on April 9, 2018.
Following transfer to the Suffolk County Division of the Juvenile Court Department, the case was heard by Maura Hardiman, J.
Natalie K. Hoppel for the mother. Kristin S. Braithwaite for Department of Children and Families. Daniel R. Katz for the children.
1 Adoption of Michael. The children's names are pseudonyms. 2
MASSING, J. In this tragic case, a toddler's death
resulted in the mother being indicted for, and eventually
pleading guilty to, manslaughter and reckless endangerment.
While the criminal case was pending, proceedings for care and
protection of the mother's six other children went forward.
This appeal concerns the Juvenile Court decrees terminating the
mother's parental rights as to her two youngest children, a twin
daughter and son, Ursa and Michael. The mother asks us to
vacate the decrees on the ground that the trial judge did not
adequately investigate whether the twins were subject to the
Indian Child Welfare Act, 25 U.S.C. §§ 1901 et seq. (ICWA). The
mother also argues that the judge abused her discretion by
failing to continue the trial while the criminal case against
her was pending, and that because the Department of Children and
Families (department) acted as an agent of the prosecution, it
was error for the judge to consider the mother's failure to
engage with the department in the determination of the mother's
unfitness. The mother also challenges the judge's sibling
visitation order and the judge's decision not to order
posttermination or postadoption visitation with the mother or
the maternal grandmother. Discerning no error or abuse of
discretion, we affirm.
Background. We summarize the trial judge's findings of
fact, which are not disputed. The subject children, born in 3
2018, are the twins. The mother and the twins' father2 were also
the biological parents of Amy,3 who was born in 2017 and died in
2019. The mother has four older children, born in 2007, 2010,
2013, and 2015, each with a different father. The four older
children were the subjects of a separate care and protection
proceeding, the judge having denied the department's motion to
consolidate. A panel of this court affirmed the decrees
terminating the mother's parental rights with respect to those
children in an unpublished decision pursuant to our Rule 23.0.
See Adoption of Irma, 103 Mass. App. Ct. 1106 (2023).
The mother's extensive history with the department started
in 2007, when the children's maternal grandmother struck the
mother in the presence of the mother's oldest child, who was six
months old at the time. The mother has since been the subject
of approximately thirty reports filed pursuant to G. L. c. 119,
§ 51A (51A reports), alleging neglect of the children based on
domestic violence, mental health problems, behavioral issues,
and criminal activity. About one-half of the 51A reports were
2 The judge also issued decrees terminating the father's parental rights with respect to the twins. The father has not appealed.
3 A pseudonym. 4
supported, screened in, or resulted in the department conducting
investigations under G. L. c. 119, § 51B (51B investigations).4
The mother and father met in 2016, and their relationship
soon turned volatile and violent. Police officers responded to
at least ten domestic violence reports involving the couple in
2016 alone, and at least fifteen the following year. Such
reports included "threats to do harm, larceny, burglary,
violations of active restraining orders, and verbal and physical
abuse." The mother and the father also obtained abuse
prevention orders against each other. The department became
concerned about the children's exposure to the violence, and
police responses that permeated the relationship. The mother's
conflict with the father aligned with her well-documented
antagonism toward neighbors, family members, previous
boyfriends, and department employees. The judge found that the
mother "had a long history of domestic violence as a spectator,
victim and perpetrator of abuse . . . in most of her
relationships, including with [the twins' f]ather and the other
fathers of her children."
4 There are limits on the proper evidentiary use that can be made of the contents of 51A reports and 51B investigation reports. See Adoption of Luc, 484 Mass. 139, 149-154 (2020); Mass. G. Evid. § 1115(b)(2) (2023). The mother makes no claim that the judge considered the reports for improper purposes. 5
In June 2017, in violation of an active abuse prevention
order, the father arrived at the mother's home and demanded to
see Amy, then two months old. Soon after he entered the home,
the father allegedly strangled the mother. The oldest child,
then ten years old, called 911. The department conducted a 51B
investigation with which the mother refused to cooperate. She
denied that the incident occurred, that her daughter called 911,
or that she and the father had any history of domestic violence.
The mother repeatedly threatened violence against department
social workers during the investigation, even threatening to
kill a worker and the worker's child. The department filed a
care and protection petition and obtained custody of the
mother's five children.
In early 2018, while the children remained in the
department's custody, the mother gave birth to Ursa and Michael.
They were born prematurely at thirty-two weeks gestation and
admitted to the neonatal intensive care unit of the hospital
with numerous concerning conditions. The father was present at
the hospital for their birth, although he did not establish
paternity for another two years. On discovering the mother's
history of department involvement and of incidents of domestic
violence involving the father, hospital staff filed a 51A
report. In the subsequent investigation, the mother and father
both denied that the father had been at the hospital during or 6
after the twins' birth, and the mother denied having had any
contact with the father since the June 2017 assault. Hospital
records showed, to the contrary, that both parents wore parent
identification bands, the father identified himself to the
doctor and medical staff as "the father of the children," and
the father visited the hospital at least twice after the twins
were born as they received ongoing medical care. The judge
found that the mother and the father "maintained contact
throughout 2017 and 2018 and continued to engage in domestic
violence." The department filed a care and protection petition
for Ursa and Michael about three weeks after they were born,
obtained emergency custody before they were discharged from the
hospital, and placed them in short-term foster care. The
following month, the department placed them in a long-term
foster home, where they developed a strong bond with their
foster family.
The mother began to engage with department services and to
exhibit positive behaviors in early 2019. The department
changed the children's goals from adoption to reunification with
the mother following a permanency planning conference in May
2019. The mother participated in a biweekly parent aide service
provided by the department that helped the mother develop
fundamental parenting skills, provided some of the children with
in-home therapy, and supplied the department with weekly updates 7
about the family. The department reunited Ursa and Michael with
the mother in September 2019 in light of her cooperation and
progress on her action plan. By late December 2019, the mother
had regained custody of all seven children.
Reunification lasted little more than a week. Between
December 20 and 27, 2019, the mother contacted the department
several times to express concerns about Amy, then age two,
exhibiting "unusual" behavior. On December 26, the mother
reported that Amy was "head banging, scratching herself, wide
eyes staring off, replying 'yes' to everything and having
accidents on the furniture." The next day, after the mother
reported that Amy was scratching herself more and had become
more reserved, a department social worker strongly advised the
mother to seek medical attention for Amy and to speak to a
family therapist. The mother agreed, but when Amy exhibited
symptoms of distress around 11:50 P.M. that night, the mother
sent a text message to the social worker instead of calling 911.
The mother finally called 911 around midnight or early in
the morning on December 28 and reported that Amy was
unresponsive and could not be heard breathing. The 911
operators instructed the mother to rub Amy's chest while
awaiting the ambulance. By the time an ambulance arrived, Amy
was not breathing and had no heartbeat. Police arrived to find
Amy wrapped in a blanket and propped up on the couch, which 8
indicated that the mother had not followed the 911 operators'
instructions. The other children watched as emergency
responders restarted Amy's heart. Amy remained unconscious as
the first responders rushed her to the local hospital, where she
arrived in critical condition with visible bruises on her neck,
ribs, and the back of her head. A computed axial tomography
(CAT) scan suggested she had suffered nonaccidental trauma. Amy
was then airlifted to Boston Children's Hospital (BCH) at about
2:45 A.M., where she was placed on life support and diagnosed
with nonaccidental abusive head trauma. The mother became
emotional as she said goodbye to Amy just before the airlift.
She expressed concern about Amy's condition and was cooperative
with medical staff. The department placed the other children in
foster care so the mother could stay with Amy in the hospital.
The treating physicians at BCH observed that Amy "had a
subdural hematoma, increased cerebral edema, scattered retinal
hemorrhage in the right eye from non-accidental, abusive head
trauma and hypoxia." Dr. Celeste Wilson, a member of BCH's
child protection team who evaluated Amy for signs of abuse,
testified that Amy's head-banging behavior could not account for
either her ultimately fatal subdural hematoma or for her retinal
hemorrhaging. After being declared brain dead, Amy remained on
a ventilator to allow time for her family to say goodbye. She 9
was removed from the ventilator and pronounced dead at 3 P.M. on
December 31.
Ursa and Michael experienced Amy's medical emergency, the
police and emergency medical response, removal and separation
from the mother and their siblings, and Amy's death. They lived
in a local foster placement as the department searched for
relatives willing or able to adopt them. The department
returned Ursa and Michael to their previous foster family in
late February 2020; they appeared to thrive on their return,
although Ursa exhibited some behavioral issues and attended a
program at Boston Medical Center for children who witness
violence.5
The mother was charged with and later indicted for
manslaughter and reckless endangerment of a child. Her bail was
revoked in September 2020 after she cut off her global
positioning system device and threatened a neighbor. As to the
care and protection case involving the twins, the mother ceased
all participation with department services; her interactions
with department staff once again became hostile and
confrontational. The judge also found that the mother "was not
5 The judge determined that the department's plan for the twins to be adopted was in their best interests, but not necessarily by the foster family, as evolving circumstances at the time of trial suggested that adoption by the paternal grandmother might be a viable and preferable option. 10
engaged in services [available in jail] while incarcerated,
including mental health or domestic violence services." The
mother had no contact with the twins after Amy's death, in part
because of court orders in the criminal case, and in part
because the department made the decision not to support any
contact between the mother and any of the children. At trial in
the care and protection matter, the mother invoked her privilege
under the Fifth Amendment to the United States Constitution and
declined to testify, which led the judge to draw a number of
negative inferences about her lack of engagement in services and
responsibility for Amy's death.
We take judicial notice that on May 31, 2023, the mother
pleaded guilty in Superior Court to manslaughter and reckless
endangerment of Amy. See Jarosz v. Palmer, 436 Mass. 526, 530
(2002). She was sentenced to a State prison term of three to
four years, with 654 days of jail-time credit, followed by a
five-year term of probation.
Discussion. 1. The ICWA. The mother claims that the
trial judge erred by ignoring evidence of the twins' status as
Indian6 children and failing to conduct her own ICWA inquiry in
addition to the department's. The ICWA, when applicable,
6 We use the term "Indian" for consistency with the ICWA, mindful that the terms "Native American" and "Indigenous" are preferred by many. 11
triggers a heightened evidentiary standard and burden of proof
for termination of parental rights. See Haaland v. Brackeen,
143 S. Ct. 1609, 1632 (2023); id. at 1646 (Gorsuch, J.,
concurring); Adoption of Leonard, 103 Mass. App. Ct. 419, 422
(2023).
The mother did not raise her ICWA claim at trial. She
asserts that Federal law allows an Indian parent or tribe at any
time to "petition any court of competent jurisdiction to
invalidate [any action for termination of parental rights] upon
a showing that such action violated any provision of sections
1911, 1912, and 1913" of the ICWA. 25 U.S.C. § 1914.
Acknowledging the ICWA's important policy objectives, as well as
the importance of finality in child custody proceedings, we
assume without deciding that the mother's challenge is properly
before us. In light of the scant evidence that the ICWA might
apply and the overwhelming evidence that it did not, we discern
no error.
Congress enacted the ICWA in 1978 "out of concern that 'an
alarmingly high percentage of Indian families are broken up by
the removal, often unwarranted, of their children from them by
nontribal public and private agencies.'" Haaland, 143 S. Ct. at
1623, quoting 25 U.S.C. § 1901(4). "The cultural biases leading
to unwarranted terminations of parental rights, when coupled
with the failure to recognize the crucial interest that tribes 12
have in the placement of Indian children within their tribes,
threatened continuing tribal viability. The ICWA was the
legislative response." Adoption of Arnold, 50 Mass. App. Ct.
743, 748 (2001).
A child subject to adoption or parental termination
proceedings may qualify as an "Indian child" under 25 U.S.C.
§ 1903(4) by being "a member of an Indian tribe," § 1903(4)(a),
or being both "eligible for membership in an Indian tribe and
. . . the biological child of a member of an Indian tribe,"
§ 1903(4)(b). See 81 Fed. Reg. 38,778, 38,804 (June 14, 2016)
("Indian child" inquiry "is focused on only two circumstances:
[1] Whether the child is a citizen of a Tribe; or [2] whether
the child's parent is a citizen of the Tribe and the child is
also eligible for citizenship"). "[W]here the court knows or
has reason to know that an Indian child is involved, the party
seeking the foster placement of, or termination of parental
rights to, an Indian child shall notify the parent or Indian
custodian and the Indian child's tribe . . . of the pending
proceedings and their right of intervention." 25 U.S.C.
§ 1912(a).
The judge must affirmatively inquire whether a child is an
Indian child. See 81 Fed. Reg. 38,778, 38,805. The inquiry
should be made "at the commencement of the proceeding and all
responses should be on the record." 25 C.F.R. § 23.107(a). An 13
early ICWA inquiry "avoids the problems and inefficiencies
generated by late identification that ICWA is applicable to a
particular case." 81 Fed. Reg. 38,778, 38,804.
Here, the first judge assigned to the twins' care and
protection proceeding promptly dispatched her duty to ascertain
the twins' ICWA status. Docket entries in the care and
protection proceeding dated April 30, 2018 -- twenty-one days
after the department filed its petition -- document the mother's
presence in court and the judge's ICWA inquiry: "Court inquired
as to whether the parties know or have reason to know that the
child is an Indian child subject to ICWA. . . . Parties respond
no as to knowing or having reason to know that the child is an
Indian child subject to ICWA." "Docket entries import
incontrovertible verity and stand as final unless corrected by
the court" (quotation and citation omitted). Commonwealth v.
Denehy, 466 Mass. 723, 727 (2014). A judge's determination of
an issue on the docket is conclusive "absent a showing that the
court has intentionally falsified the record." Zabin v.
Picciotto, 73 Mass. App. Ct. 141, 172 (2008), quoting Burda v.
Spencer, 28 Mass. App. Ct. 685, 689 (1990). The mother provides
no reason, and we see no reason, to question these docket
entries.
The mother correctly notes that the trial judge, who was
assigned to the case after the intradepartmental transfer of the 14
case from Plymouth to Suffolk County, did not include a second
ICWA inquiry. As the transfer order called for the case to
"proceed in the [Suffolk County] court as if originally
commenced therein," the first judge's ICWA colloquy remained in
full force and effect. Without additional "reason to know" that
the twins might be Indian children, further inquiry was
unnecessary.
The mother argues that the record presented evidence of an
Indian affiliation that gave the trial judge "reason to know"
and a corresponding duty to conduct further inquiry. We have
previously construed the scope of the "reason to know"
requirement by looking to persuasive precedent from other
jurisdictions. For example, we looked to Oregon case law to
hold that there was no reason to know that the children were
Indian children where they and the mother were initially
designated as Caucasian, and the father as Hispanic. See
Adoption of Arnold, 50 Mass. App. Ct. at 749-750, discussing
State ex rel. Juvenile Dep't v. Tucker, 76 Or. App. 673 (1985).
In this case, we likewise look to other State court decisions
for guidance.
Given the ICWA's history and policy objectives, courts
construe the statute liberally in favor of tribal membership.
Accordingly, a "specific claim of Native ancestry" may alone
qualify as a reason to know. See Jimmy E. v. State, 529 P.3d 15
504, 516 (Alaska 2023), citing Matter of Z.J.G., 196 Wash. 2d
152, 175-176 (2020). A reason to know can be as minimal as a
parent's "asserted belief that [he or] she may be eligible for
enrollment in" a tribe. Matter of S.R., 394 Mont. 362, 377
(2019). Construing "reason to know" broadly facilitates notice
to the tribes and upholds their plenary authority over tribal
membership. See Matter of Z.J.G., supra.
However, a "reason to know" must be specific enough to
suggest that the parent or child is likely enrolled or eligible
to be enrolled in a particular tribe; it "requires something
more than a bare, vague, or equivocal assertion of possible
Indian ancestry without reference to any identified Indian
ancestors with a reasonably suspected tribal connection."
Matter of S.R., 394 Mont. at 377. See Matter of Jeremiah G.,
172 Cal. App. 4th 1514, 1520 (2009). For example, a judge has
"reason to know" that a child is an Indian child if a party or
an Indian tribe or organization informs the judge that the child
is in fact an Indian child; if information indicating that the
child is an Indian child is discovered; if the child, a parent,
or an Indian custodian lives on a Native American reservation or
Alaska Native village; if the child is or has been a ward of a
tribal court; or if either parent or the child has an
identification card indicating tribal membership. See 25 C.F.R.
§ 23.107(c). 16
The earliest reference to the ICWA in the record of this
case appears in a 51B investigation report from June 2017,
before the twins were born, but after the birth of Amy, who had
the same mother and father: "Mother denied that she or the
children have any [I]ndian or tribal affiliation." Because Amy
and the twins had the same biological parents and were too young
to develop any tribal affiliation on their own, the twins'
tribal affiliation, if any, would be the same as Amy's.
The 51A intake report prepared just after the twins' birth
provides no information about the twins' ICWA status, and lists
their race as "Unable to Determine," but with respect to each of
Amy, the four older children, and the mother, includes the
notations "ICWA . . . No" and "Race . . . Black." A November
2020 family assessment states, "The family is Black and they
speak English. [The mother and the twins' father] deny Native
American affiliation." For some reason not apparent on the
record, however, the same family assessment notes a Cherokee
tribal affiliation and states that the department sent an ICWA
notice or notices on behalf of all seven children in October
2018. In response, the tribes "report[ed] family ineligible for
enrollment. ICWA does not apply." A tribal determination of a
child's eligibility for tribal membership is conclusive as a 17
matter of law. See Matter of S.R., 394 Mont. at 375, citing 25
C.F.R. § 23.108(b).7
Moreover, no information presented at trial suggested that
the twins' family identified as an Indian family or had Native
American ancestry. When presented with opportunities to discuss
their racial identities at trial, both the mother and father
affirmatively identified as Black and did not hint at any Native
American roots. During a verbal outburst on the first day of
trial, the mother testified, "I'm an innocent Black woman,
okay?" The father testified that he was "African-American" and
expressed concern about the twins not being raised by a Black
family.
7 The department should have filed or included in the trial record of the twins' care and protection case an original or a copy of the notice or notices sent to each tribe, together with proof of service, as well as the tribes' responses. See Adoption of Uday, 91 Mass. App. Ct. 51, 52-53 (2017); 25 C.F.R. § 23.111(a)(2). We take judicial notice, based on the docket entries of the Juvenile Court and of this court, that such documentation was filed in the related case concerning the mother's four older children, which was tried almost simultaneously with the twins' case and by the same judge. See Jarosz, 436 Mass. at 530 ("a judge may take judicial notice of the court's records in a related action"). However, judges are not permitted to take judicial notice of evidence introduced in a different case, even if closely related. See Care & Protection of Zita, 455 Mass. 272, 283 (2009); Mass. G. Evid. § 201(b) note (2023). The department's failure to file the notices and responses concerning the twins in their case was error, but the mother does not raise this error in her brief, nor do we find it fatal to the adjudication of the mother's ICWA claim. 18
The mother's ICWA claim rests on three exhibits, copies of
51A intake reports all dated December 28, 2019, that include the
notation "ICWA . . . Yes" with respect to the twins, Amy, and
three of the four older siblings. The mother never brought this
information to the trial judge's attention, and the trial judge
cannot be faulted for failing to search through every page of
the voluminous record to find a needle in the haystack.
However, even if the judge had been made aware of these
notations, in light of the record as a whole, this type of bare
assertion does not rise to the level of "reason to know" within
the meaning of the ICWA.
In addition, the mother argues, relying on the Federal
regulations and O'Coin's, Inc. v. Treasurer of the County of
Worcester, 362 Mass. 507, 510 (1972), that the trial judge
breached an affirmative duty to order the court investigator to
research the twins' Indian status. We discern no such duty.
The applicable Federal regulations require judges merely "to ask
participants in the proceeding if they know or have reason to
know that the child is an 'Indian child,'" 81 Fed. Reg. 38778,
38805 (2016), as was done here. Any further investigation is
within the court's discretion. "States or courts may choose to
require additional investigation . . . and may choose to explain
the importance of answering questions regarding whether the
child is an Indian child." Id. While the judge could have 19
independently ordered further ICWA investigation, the judge did
not abuse her discretion by failing to do so.
2. Issues arising from mother's criminal prosecution. The
mother argues the judge abused her discretion by denying the
mother's motion to continue the care and protection trial while
criminal proceedings against her were ongoing. The mother
relatedly maintains, for the first time on appeal, that the
department was acting as an agent of the prosecution and that
she was unable to engage with the department's action plan or
present evidence in defense of her parental fitness without
incriminating herself.
"Whether to continue any judicial proceeding is a matter
entrusted to the sound discretion of the judge, and [the]
decision will be upheld absent an abuse of that discretion."
Care & Protection of Quinn, 54 Mass. App. Ct. 117, 120 (2002).
In ruling on a motion to continue, "the judge should 'balance
any prejudice to the other civil litigants which might result
from granting a stay, against the potential harm to the party
claiming the privilege if he is compelled to choose between
defending the civil action and protecting himself from criminal
prosecution.'" Id. at 122, quoting United States Trust Co. of
N.Y. v. Herriott, 10 Mass. App. Ct. 313, 317 (1980).
The mother filed her motion to continue approximately two
weeks before the trial began. On the first day of trial, June 20
22, 2021, the mother's counsel argued that the pending criminal
trial, then scheduled for mid-January 2022, prevented the mother
from testifying during the care and protection trial without
incriminating herself, as the mother's responsibility for Amy's
death would be at issue. Although the judge denied the motion
without explanation, the record permits us to conclude that
judge did not abuse her discretion. The care and protection
petition had been pending for more than three years, and
resolution of the mother's criminal case would take at least
another six months. The judge could not be certain that the
criminal trial would conclude within a reasonable time. See
Care & Protection of Quinn, 54 Mass. App. Ct. at 122. In fact,
it was not resolved for another two years. "No cases of any
kind have a greater claim for expedition at all stages than
those involving care and custody of children." Custody of a
Minor, 389 Mass. 755, 764 n.2 (1983). See Care & Protection of
Quinn, supra. The judge could properly consider that the harm
of delays in such proceedings "is unfortunately suffered
principally by the children." Adoption of Don, 435 Mass. 158,
170 (2001). The judge did not abuse her discretion in
determining that the interests of the children in permanency
outweighed the mother's desire to resolve the criminal case
before the care and protection proceeding. 21
Nor has the mother identified any prejudice flowing from
the denial of the continuance. Had the mother chosen to testify
in the care and protection proceedings, her testimony could not
have been used against her in the subsequent criminal case. See
Care & Protection of M.C., 479 Mass. 246, 249 (2018), S.C., 483
Mass. 444 (2019) ("a parent's decision to present evidence at a
care and protection proceeding does not result in a waiver of
the constitutional privilege against self-incrimination at other
proceedings . . . [and] a parent's prior testimony at a care and
protection trial is not admissible in a subsequent criminal
proceeding"). As the mother made the decision, with advice of
counsel, not to testify on the grounds of self-incrimination, it
was proper for the judge to draw an adverse inference from her
silence. See Custody of Two Minors, 396 Mass. 610, 616 (1986);
Care & Protection of Quinn, 54 Mass. App. Ct. at 123.
For the first time on appeal, the mother raises a related
claim arising from her criminal prosecution. She argues that
the department was acting as an agent of the prosecution, that
its action plan for her was designed to elicit incriminating
information, and that the judge accordingly erred by considering
the mother's refusal to engage with the department as evidence
of her unfitness. Because these claims were not raised at
trial, they are waived. See Adoption of Mary, 414 Mass. 705,
712 (1993); Palmer v. Murphy, 42 Mass. App. Ct. 334, 338 (1997). 22
Even if these claims were properly before us, the record
does not support them. It is true that the department is
required to notify the district attorney and local law
enforcement officials "if, after investigation, it has
reasonable cause to believe that a child has suffered certain
conditions as a result of abuse or neglect." Commonwealth v.
Adkinson, 442 Mass. 410, 419 (2004), citing G. L. c. 119, § 51A,
§ 51B (4); 110 Code Mass. Regs. §§ 4.50-4.53 (1996). In such
circumstances, the department establishes a multidisciplinary
service team that includes a representative of the district
attorney's office, to review and monitor the department's family
action plan. See Adkinson, supra; 110 Code Mass. Regs. § 4.54
(2009).8 In this case, an "area of focus" identified in the
action plan called for the mother to "gain insight into how her
lack of appropriate knowledge and understanding of childhood
growth and development may have contributed to her inability to
recognize that [Amy] needed immediate medical attention and how
her failure to secure same likely contributed to [Amy's] death."
From these facts, the mother asks us to infer that the action
plan was intentionally designed by the department, working in
8 The department's regional director and the district attorney may agree to waive establishment of the multidisciplinary service team. See 110 Code Mass. Regs. § 4.54(1). Perhaps because the mother did not raise this claim at trial, there is no record evidence whether a multidisciplinary team was ever convened. 23
tandem with the district attorney's office, to elicit
incriminating evidence, and that anything the mother said to a
department social worker would be used against her in the
criminal case.
The record in this case, however, is devoid of evidence, as
in Commonwealth v. Howard, 446 Mass. 563, 566-569 (2006), that
the department participated in obtaining incriminating
information outside the presence of counsel otherwise violated
the mother's rights in her criminal case. Absent such evidence,
we must presume that "[t]he relationship between the department
and the district attorney is not an agency relationship, but a
cooperative effort intended to support the best interest of the
child, not the prosecution of criminal cases." Adkinson, 442
Mass. at 420. The statutes and regulations that require the
department to cooperate with law enforcement "[do] not create
for the department an interest in the criminal prosecution, [nor
do they] give the prosecutor any control over the department."
Id. at 419. Cf. Care & Protection of M.C., 479 Mass. at 248-
249, 252-256 (records of care and protection proceedings in
Juvenile Court are impounded, maintained as confidential, and
not to be disclosed or released for use in criminal case absent
showing of good cause).
Rather, the department's efforts were appropriately
directed toward "evaluating [the mother's] fitness, while at the 24
same time ensuring the safety of the child[ren]." Adoption of
Yalena, 100 Mass. App. Ct. 542, 549-550 (2021). The mother's
ability to gain insight into the circumstances of Amy's death,
particularly her failure to seek timely medical attention for
Amy, bore on her ability to safely care for the twins, and was
therefore relevant to the evaluation of her fitness.
3. Posttermination and postadoption visitation. After
finding the mother and father unfit and terminating their
parental rights, the judge declined to order postermination or
postadoption visition between the mother and the twins, but did
order quarterly visitation among the twins and their four
surviving older siblings. The mother contends that the judge
abused her discretion by declining to order visitation between
the mother and the twins and that the sibling visitation order
was vague and unenforceable.
A "judge who finds parental unfitness to be established has
broad discretion to determine what is in a child's best
interests with respect to custody and visitation with biological
family members thereafter." Adoption of Rico, 453 Mass. 749,
756 (2009). The purpose of posttermination and postadoption
contact is not to strengthen the bonds between children and
their biological parents, but rather to assist children "as
[they] negotiate[], often at a very young age, the tortuous path 25
from one family to another." Adoption of Vito, 431 Mass. 550,
565 (2000).
In declining to order visitation with the mother, the judge
considered that the twins were exposed to significant trauma
while in the mother's care; that they had not had contact with
the mother since Amy's death; that the mother was unable to
control her anger and behavior in the community or at trial; and
that the twins, who had spent most of their lives in foster
care, required stable home environments. The judge found that
the twins "do not have a strong bond" with the mother and a
visitation order "would be detrimental to [their] best
interests." We discern no abuse of discretion.
The mother argues that the sibling visitation ruling is
phrased as a mere suggestion, not an enforceable order. The
ruling reads in relevant part: "In the event that the children
are separated in foster, preadoptive or adoptive homes, this
Court orders the children to have visitation once a quarter.
This visitation should include their maternal siblings," whom
the judge listed by name. The mother contends that the word
"should," rather than "must" or "shall," renders the ruling
unenforceable and that the order is vague in specifying which
children are entitled to visition. We disagree. The order
makes it clear that the twins are to have quarterly visitation
with each other if they are separated, and that, in any event, 26
they are to have quarterly visitation with their older siblings.
We are confident that the order, as written, provides the
department and future adoptive parents with sufficient guidance
and direction to implement sibling visitation, as required by
the judge, in the twins' best interests.
Finally, the mother maintains that the judge erred by
declining to order posttermination contact between the twins and
their maternal grandmother. The mother's argument that the
judge was required to order grandparent visitation under G. L.
c. 119, § 26B (a), misconstrues that statute, which is
predicated upon a request from the grandparent and a
determination whether grandparent visitation is in the child's
best interest. On the record before us, neither the mother nor
the maternal grandmother requested visitation between the
grandmother and the twins, and as the issue was not before her,
the judge made no findings whatsoever. In any event, nothing in
the evidence suggests a bond between the twins and the maternal
grandmother such that visitation with her would facilitate their
transition to adoption.
Decrees affirmed.