Care and Protection of Jasper.

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

25-P-250

CARE AND PROTECTION OF JASPER.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2020, the Department of Children and Families

(department) filed a care and protection petition on behalf of

Jasper and his half-sibling.2 Following a trial, a judge of the

Juvenile Court found the mother and the father unfit to care for

Jasper, but did not terminate their parental rights. In 2024,

the father, who had been deported to Brazil in 2020, and the

department filed motions for review and redetermination.

Following a trial -- during which only the mother contested the

father's fitness to care for Jasper -- the judge concluded that

1 A pseudonym.

2In August 2022, the mother and the unknown or unnamed father stipulated to the termination of their parental rights as to the half-sibling. The mother entered into an open adoption agreement with respect to the half-sibling, who was eventually adopted by the maternal grandparents. the father was indeed fit and granted him permanent custody of

Jasper.

Appealing from this decision and order,3 the mother claims

that the judge did not properly consider the father's "criminal

history" in determining his fitness to care for Jasper, and

furthermore, that the judge erred in concluding that the

father's permanent custody of Jasper was in Jasper's best

interests. Additionally, the mother asserts that Jasper's

counsel provided ineffective assistance of counsel. For the

reasons herein, we affirm.

Background. We summarize the judge's factual findings,

supplemented where needed by undisputed facts in the record.

The father was born in Brazil. At sixteen years old, the father

moved to the United States where he remained for the next

fifteen years. In 2017, the father began his relationship with

Jasper's mother, and in August of 2018, the couple married.

Jasper was born in July of 2019. At birth, Jasper was

identified as a "substance exposed newborn experiencing neonatal

abstinence syndrome," prompting the department's involvement.

As of April 2020, the department's case regarding Jasper had

3 No judgment entered on the docket. The judge's December 12, 2024 decision and order resolved all claims and adjudicated the rights of the parties. We treat that order as a final judgment, as the parties did. See GTE Prods. Corp. v. Stewart, 421 Mass. 22, 24 n.3 (1995).

2 closed. In June of 2020, however, the department resumed

engagement with the family due to concerns regarding the

mother's mental health. Then, on June 11, 2020, following an

alleged altercation between the father and the mother, the

father was arrested and charged with assault and battery on a

family or household member. Stemming from this charge, the

father was deported to Brazil in August of 2020.

In September of 2020, the mother was involuntarily

hospitalized because of mental health concerns while caring for

Jasper and Jasper's half-sibling. Upon the mother's

hospitalization, the department filed the present care and

protection petition and obtained temporary custody of both

children. A temporary custody hearing was held on October 7,

2020, during which the mother waived her right to a hearing and

stipulated to temporary custody of Jasper remaining with the

department. The father did not appear because of his

deportation, and thus, the judge ruled that his rights to

temporary custody were waived subject to reconsideration.

In December of 2020, the father's attorney moved to

withdraw her representation of the father in the assault and

battery matter in the District Court, because of a conflict of

3 interest with the alleged victim, the mother.4 On May 13, 2021,

the father's successor counsel notified the District Court that

she and the prosecutor had agreed that the judge could allow the

father to appear by videoconference for removal of his default

warrant. The District Court judge, however, was unwilling to

permit the father to appear by videoconference. On March 21,

2022, another District Court judge denied the father's motion

for a bench trial by videoconference and ordered the father to

appear in person on August 9, 2022, or have a default judgment

entered. On August 9, 2022, the father appeared by

videoconference for the bench trial, as he was denied reentry

into the United States; a default warrant issued. At the time

of the review and redetermination hearing, the outstanding

warrant remained in place.

1. The father's visits with Jasper and the home study.

Notwithstanding the father's deportation in August of 2020,

he consistently visited with Jasper throughout the pendency of

the case. As of December of 2020, Jasper's maternal

grandparents -- with whom Jasper was placed following the

department's filing of the care and protection petition --

4 The father's successor counsel averred that the conflict of interest arose when the mother recanted her allegations to the attorney.

4 facilitated videoconference visits between the father and Jasper

two to three times per week.

In December of 2021, the department initiated an Interstate

Compact for the Placement of Children that included a home study

of the father's home in Brazil. In June 2023, a second ICPC was

requested. In October of 2023, the department received the

updated home study report wherein the father was found to be,

inter alia: (1) "available, accessible, and calm" in answering

questions; (2) earning income, moving toward financial autonomy,

and self-employed at a snack store where he worked six days per

week; (3) in good health; and (4) showing no aggressive or

violent behaviors. Ultimately, the report concluded that there

were "no apparent impediments" to the father's ability to care

for Jasper in Brazil.

In September of 2024, the department arranged for Jasper to

visit the father in Brazil for a week, during which a "child and

adolescent law specialist" (specialist) from Brazil recorded a

chronological account of the visit. Per the specialist's

report, Jasper was affectionate with the father during the

visit, and the father was able to appropriately handle Jasper's

anxiety about being away from his maternal grandparents' home in

Massachusetts. In the specialist's report, she concluded that

the father "has already demonstrated and proven that he is

5 responsible, an excellent father figure and that he will comply

with all legal requirements until the end of this process."

2. Review and redetermination hearing. On January 9,

2024, the father filed a motion for a review and redetermination

hearing, which a judge of the Juvenile Court allowed in March of

2024.5 On November 19, 2024, the judge admitted twenty

uncontested exhibits, including the reports from the updated

home study and the specialist concerning Jasper's visit to

Brazil to see the father. A review and redetermination hearing

took place on December 11, 2024, during which the mother

appeared in person and the father appeared by videoconference

without objection. A settlement agreement between the father,

the department, and Jasper was filed with the court, wherein

Jasper, through counsel, agreed to withdraw his objection to the

award of custody to the father, and the father agreed to a

visitation plan for Jasper, Jasper's half-sibling, and the

maternal grandparents. The department also stipulated that the

father was fit to care for Jasper.

The judge then permitted the mother to present evidence of

the father's unfitness. The mother testified that the father

5 The department subsequently filed a motion for review and redetermination seeking termination of the mother's parental rights, which was also allowed by the judge. The department withdrew that motion at the trial in exchange for the mother's stipulation to her current unavailability to care for Jasper.

6 abused her while she was pregnant with Jasper, and that he had

choked her in Jasper's presence. The mother also testified that

the father bit Jasper when Jasper was three months old. As to

the incident which led to the father's arrest (and subsequent

deportation), the mother testified that she called the police

after the father bit her in their home. Conversely, the

father's recounting of the events stated that, during an

argument, the mother forced him to exit his vehicle, and when he

refused, the mother got angry and called the police.

At the conclusion of the hearing, the judge found that

"there was no evidence presented that [the] [f]ather is

currently unfit to further the welfare and best interest[s] of

[Jasper]" and thus, granted the father permanent custody of

Jasper. The mother now appeals.

Discussion. At a review and redetermination proceeding

under G. L. c. 119, § 26 (c), "the judge is deciding simply

whether to maintain the separation of parent from child." Care

& Protection of Erin, 443 Mass. 567, 571 (2005). "The proper

focus of inquiry on a [G. L. c. 119,] § 26 [(c)] review is on

those facts which have undergone some metamorphosis since the

previous order or are newly developed and, in consequence, alter

the relationship between the biological parent and the child."

Custody of a Minor (No. 2), 22 Mass. App. Ct. 91, 94 (1986).

See Adoption of Darlene, 99 Mass. App. Ct. 696, 703 (2021).

7 Assuming, without deciding, that the mother had standing to

challenge the father's fitness during the review and

redetermination hearing, she was required to show, by clear and

convincing evidence, that "[Jasper] [was] still in need of care

and protection", which in turn required a "showing that the

[father] [was] still unfit and [Jasper's] best interests [were]

served by remaining removed from [the father's] custody." Care

& Protection of Erin, supra at 572.

"We review the judge's findings with substantial deference,

recognizing her discretion to evaluate a witness's credibility

and to weigh the evidence," Adoption of Nancy, 443 Mass. 512,

515 (2005), "and reverse [the judge's decision] only where the

findings of fact are clearly erroneous or where there is a clear

error of law or abuse of discretion." Adoption of Ilona, 459

Mass. 53, 60 (2011).

1. The father's fitness. The mother first asserts the

judge failed to "properly" consider the father's criminal

history -- specifically, the instances of domestic violence she

alleged during the hearing, and the father's subsequent

deportation -- in determining the father's fitness. Having

carefully reviewed the record, "[w]e see no basis for disturbing

the judge's view of the evidence." Adoption of Quentin, 424

Mass. 882, 886 n.3 (1997).

8 To begin, the judge made specific findings addressing each

of the mother's claims of domestic violence. With respect to

these allegations, the judge found that the mother believed the

allegations to be true, but declined to make a finding on the

veracity of the mother's belief. Regarding the alleged

altercation that led to the father's arrest and deportation, the

judge credited the father's version of events; i.e., that the

mother demanded the father exit his car during an argument, and,

when the father refused, the mother called the police. Based on

these findings and credibility determinations, to which we give

substantial deference, the judge acted well within her

discretion in concluding that the mother failed to prove by

clear and convincing evidence that the father was unfit.6 See

Adoption of Quentin, 424 Mass. at 886 & n.3 (no basis for

overturning judge's findings of unfitness where arguments

"amount to no more than dissatisfaction with the judge's

weighing of the evidence and . . . credibility determinations").

See also Adoption of Posy, 94 Mass. App. Ct. at 753-754 (single,

6 In addition to her argument that the father is unfit based on the allegations of domestic violence, the mother contends that the judge erred in her conclusion because the father (1) "has no idea" what grades his other children (from another relationship) are in and (2) does not pay child support for these children. We disagree. Given the judge's findings that the father was sufficiently capable of supporting Jasper's social, emotional, and financial needs, we discern no abuse of discretion regarding the judge's conclusion that the father is a fit parent for Jasper.

9 unadjudicated charge of misdemeanor assault and battery

insufficient to support finding of "serious issue with criminal

activity").

We are also unpersuaded by the mother's argument that the

judge failed to give the father's deportation, and its attendant

consequences, adequate weight in determining his fitness. The

judge made several findings pertaining to the father's success

in "establish[ing] a safe and stable life for [Jasper] in

Brazil," as evidenced by the home study and specialist's reports

documenting the father's home and work life in Brazil and

Jasper's visit. In light of these facts, the father's

deportation was insufficient to support a finding of unfitness,

let alone clear and convincing evidence of such. See Adoption

of Posy, 94 Mass. App. Ct. at 754.

2. Best interests of Jasper. Next, the mother contends

that the judge's grant of permanent custody to the father was

not in Jasper's best interests. The mother's arguments as to

why Jasper's placement with the father in Brazil is not in the

child's best interests relate primarily to her claims regarding

the father's unfitness, most of which we disposed above. In

addition to these arguments, the mother contends that the judge

failed to adequately evaluate how the father's permanent custody

would affect the bond Jasper had developed with his relatives in

the United States, including his maternal grandparents, half-

10 sibling, and the mother. This contention amounts to little more

than a disagreement with the judge's weighing of evidence. See

Adoption of Quentin, 424 Mass. at 886 n.3; Adoption of Lisette,

93 Mass. App. Ct. 284, 295 (2018) ("The judge is not required to

view the evidence from the parent's perspective"). Here, the

judge considered the father's intent to support the continued

connection between Jasper and the maternal grandparents and his

half-sibling, as outlined in the settlement agreement. The

father agreed for Jasper to visit the maternal grandparents and

half-sibling twice per year, and to facilitate video calls

between Jasper and the maternal family once per week. The judge

also noted that, "[w]hile [Jasper] may face difficulties during

the transitionary period as he moves to Brazil, the Court finds

that [the] [f]ather can adequately support [the child] through

this transition." Based on these findings, we discern no abuse

of discretion or clear error of law in the judge's determination

that permanent custody with the father was in Jasper's best

interests.

3. Ineffective assistance of counsel. Lastly, the mother

asserts that Jasper's counsel provided ineffective assistance of

counsel to Jasper by failing to represent Jasper's position that

he wanted to stay in the United States. As an initial matter,

it is doubtful that the mother has standing to claim ineffective

assistance of counsel on behalf of Jasper. See Adoption of

11 Mary, 414 Mass. 705, 713 (1993) (concluding that parent had "no

standing to challenge the trial strategy of the children's

counsel").

In any event, the mother's argument fails on its merits as

she has failed to demonstrate that Jasper's counsel's behavior

fell "measurably below that which might be expected from an

ordinary fallible lawyer," and, if so, that Jasper's counsel's

conduct caused Jasper prejudice. Care & Protection of

Georgette, 439 Mass. 28, 33 & n.7 (2003), quoting Commonwealth

v. Saferian, 366 Mass. 89, 96 (1974). Here, where the father

was not found to be unfit, there could be no prejudice from

Jasper's counsel's failure to advocate for the child to remain

in the United States, as such a placement was unfeasible, given

the father's residence in Brazil. See Guardianship of Estelle,

70 Mass. App. Ct. 575, 579 (2007) ("if, as the judge decided

here, the evidence is insufficient to establish [parental

unfitness], a parent's right to the custody of his child must be

acknowledged"). Jasper's counsel cannot be faulted for failing

to pursue a strategy at trial that was unlikely to prevail. See

Adoption of Knox, 102 Mass. App. Ct. 84, 93 (2023) (failure to

pursue litigation strategy that was unlikely to succeed cannot

12 amount to ineffective assistance of counsel).

Conclusion. For the reasons stated herein, we affirm the

decision and order of the judge dated December 12, 2024, as

amended by her order dated January 10, 2025.

So ordered.

By the Court (Singh, Grant & Tan, JJ.7),

Clerk

Entered: July 17, 2026.

7 The panelists are listed in order of seniority.