CARE AND PROTECTION OF OZLO (And a Companion Case).

• Court: Massachusetts Appeals Court
• Decided: October 18, 2024
• Docket: 23-P-1179
• Status: Unpublished

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

23-P-1179

CARE AND PROTECTION OF OZLO (and a companion case1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This is an appeal from a finding of unfitness made in a

review and redetermination proceeding held pursuant to G. L.

c. 119, § 26 (c). It involves two of the mother's children, an

older son (son) and a younger daughter (daughter).

During the pendency of this appeal, the son reached his

eighteenth birthday. As to him, the appeal is therefore moot.

We therefore dismiss so much of the appeal as relates to the

son, and vacate the judgment below to the extent it was entered

in his care and protection proceeding. See American Dog Owners

Ass'n v. Lynn, 404 Mass. 73 (1989).

On February 12, 2020, the mother stipulated to her

unfitness and the placement of the children in the permanent

1Care and Protection of Jill. The children's names are pseudonyms. custody of the Department of Children and Families (department).2

On December 14, 2022, the mother made an oral motion for review

and redetermination, which was allowed.

Following the review and redetermination hearing, a judge

of the Juvenile Court found the mother unfit, and again

committed the children to the permanent custody of the

department. This appeal by the mother followed. The parties

are well aware of the facts of this case, none of which is

challenged by the mother as clearly erroneous. They are

detailed comprehensively in the judge's thorough decision and

will not be repeated here.

The mother raises two arguments before us. The first is

that the department has failed to make the required "reasonable

efforts" to promote family reunification. See Adoption of

Lenore, 55 Mass. App. Ct. 275, 278 (2002). The issue of the

adequacy of the services provided by the department was not

raised by the mother in a timely manner so that the department

or the judge could have addressed the issue prior to the

redetermination hearing. "[A] parent must raise a claim of

inadequate services in a timely manner so that reasonable

accommodations may be made." Adoption of Gregory 434 Mass. 117,

2 The father also stipulated to his unfitness and to placement of the children in the department's permanent custody. He is not a party to this appeal.

2 124 (2001). Such a claim cannot be raised for the first time on

appeal.

In any event, even if we assume without deciding that

reasonable efforts were not made by the department, it would not

result in a reversal of the finding of unfitness. The

determination of unfitness below does not depend on the judge's

finding that the department made reasonable efforts toward

reunification. "The term ['unfitness'] is a standard by which

we measure the circumstances within the family as they affect

the child's welfare." Petition of the Dep't of Pub. Welfare to

Dispense with Consent to Adoption, 383 Mass. 573, 589 (1981).

Regardless whether reasonable efforts were made by the

department, the judge must make their assessment of fitness

based on the current circumstances. See Adoption of Ilona, 459

Mass. 53, 61-62 (2011).

Significantly, in this case the department retained custody

of the children, and the mother's parental rights to these

children were not terminated. As the department acknowledged at

oral argument, the department's obligation to use reasonable

efforts toward reunification is ongoing even after the issuance

of the redetermination decision. Therefore, the department has

been (and remains) under a continuing obligation to make such

efforts.

3 The mother's second argument is that the judge equated the

mother's fitness with the children's preferences for their

custody. That is, that the decision was based solely on those

preferences. Of course, the teenaged children's wishes must be

paid serious attention and may be weighed in the judge's

analysis. See Care & Protection of Georgette, 439 Mass. 28, 36

(2003). The mother is correct that those preferences may not,

however, be determinative. See id. Cf. Guardianship of Raya,

103 Mass. App. Ct. 531, 535 (2023) (although judge must

carefully consider that preference, "a teenager cannot render

her parent unfit by the simple expedient of refusing to engage

with that parent").

But a reading of the judge's decision makes quite clear

that in this case the judge did not give undue weight to those

preferences in her determination that mother was unfit. The

judge detailed the facts -- again, none of which the mother

alleges is clearly erroneous -- that rendered the mother unfit

and her home an unsafe and unhealthy placement for either child.

Those facts provide clear and convincing evidence in support of

the judge's conclusion that the mother was unfit, and that her

unfitness would continue indefinitely into the future.

This serves to resolve the case. However, during the

pendency of this appeal, the daughter through counsel filed a

motion seeking to withdraw her appellee's brief and to join the

4 brief of the mother, the appellant. The motion acknowledges that

that at the time of trial and for some time thereafter the

daughter did not wish to be reunited with mother,3 but

represents that the daughter has since changed her preference:

"Child contends that she has matured and that Mother has been

more responsive to her needs. Child speaks by telephone with

Mother and Child's adult sister . . ., who lives with Mother,

several times a week. Child now wishes to be reunited with

Mother."

We allowed the daughter's motion. To be clear, we are

satisfied that the judge's decision was correct at the time it

was issued -- that is the narrow legal question before this

court. Nonetheless, given that the judge gave great weight to

the daughter's preferences in her decision, a change in position

by the daughter, particularly one like this that is asserted to

be at least in part a result of changes in the mother's behavior

toward her, is significant, and suggests a strong possibility

the mother, the child, or both, may seek a review and

redetermination of the existing order, based on the child’s

changed position, see G. L. c. 119, § 26 (c).

3 Indeed, the daughter's position at trial and at the time the brief on her behalf was filed supported the judge's decision to leave her in the permanent custody of the department.

5 The daughter turns sixteen within two weeks of oral

argument in this case, so there is a limited period of time

during which any further proceedings relating to a possible

change of custody may be of benefit to her. Each party is of

course allowed to bring a motion for review and redetermination

"once every 6 months," G. L. c. 119, § 26 (c), and more than six

months have passed since the mother's motion for review and

redetermination. In order to allow any party that wishes to do

so to put before the Juvenile Court the daughter's change in

position as quickly as possible, the rescript will issue

forthwith.

To the extent it relates to fitness and custody with

respect to Ozlo, the appeal is dismissed as moot, and, to that

same extent, the judgment is vacated as moot. The judgment is

otherwise affirmed.

So ordered.

By the Court (Rubin, Hand & Brennan, JJ.4),

Clerk

Entered: October 18, 2024.

4 The panelists are listed in order of seniority.