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
24-P-1055
M.N.D. & another1
vs.
DEPARTMENT OF CHILDREN AND FAMILIES.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mothers, M.N.D. and E.N.D., appeal from a Superior
Court judgment that largely affirmed, under G. L. c. 30A,
§ 14 (7) (§ 14 [7]), a decision of a Department of Children and
Families (DCF) hearing officer. As relevant here, the hearing
officer upheld DCF decisions to (1) support, under G. L. c. 119,
§ 51B (§ 51B), an allegation that M.N.D. had neglected her child
Dan (a pseudonym)2; (2) remove two foster children from the
1 E.N.D.
2Although there is some evidence in the record that Dan "sometimes use[s] they/them pronouns," the hearing officer did not expressly determine what pronouns Dan prefers. We therefore avoid the use of pronouns when referring to Dan. mothers' home on an emergency basis; and (3) revoke the mothers'
foster care license. We affirm.
We address at the outset the mothers' confusion regarding
the nature of our review. An appellate court reviewing a
Superior Court judge's ruling under § 14 (7) "is conducting an
analysis of the same agency record, and there is no reason why
the view of the Superior Court should be given any special
weight. Both in the Superior Court and in [the appellate] court
the scope of review is defined by G. L. c. 30A, § 14" (citation
omitted). Southern Worcester County Regional Vocational Sch.
Dist. v. Labor Relations Comm'n, 377 Mass. 897, 903 (1979)
(Southern Worcester). Therefore, the question before us is not
whether the judge's characterizations of DCF's record and legal
conclusions were incorrect, as the mothers' brief suggests, but
instead whether, on our own review of the record, the hearing
officer's decision meets the standards of § 14 (7). We need not
and do not address the mothers' arguments aimed solely at the
judge's decision.
1. Substantial evidence. The mothers contend that the
hearing officer's decisions were not supported by substantial
evidence. Specifically, they challenge the decision that upheld
the § 51B determination to support allegations of both
educational and emotional neglect by M.N.D., as well as DCF's
2 decision revoking the mothers' foster care license. We conclude
that each decision was supported by substantial evidence.
a. Governing standards. The substantial evidence standard
is well settled. See Cobble v. Commissioner of Dep't of Social
Servs., 430 Mass. 385, 390 (1999). We need not repeat it here,
other than to acknowledge the mothers' point that our review
must "take into account whatever in the record fairly detracts
from the supporting evidence's weight." Id. "[A]n agency's
conclusion will fail judicial scrutiny if the evidence points to
no felt or appreciable probability of the conclusion or points
to an overwhelming probability of the contrary" (quotation and
citation omitted). Id. at 390-391. But a court may not
"displace [an agency's] choice between two conflicting views,
even though [the court] might justifiably have made a different
choice had the matter been before [the court] in the first
instance." Southern Worcester, 377 Mass. at 903.
We must also recognize the particular nature of a decision
under § 51B to "support" a report of abuse or neglect under
G. L. c. 119, § 51A (§ 51A).3 At the times of these events, to
3 There is no allegation of abuse here. "Neglect" is defined in pertinent part as "failure by a caretaker, either deliberately or through negligence or inability, to take those actions necessary to provide a child with minimally adequate . . . emotional stability and growth, or other essential care." 110 Code Mass. Regs. § 2.00 (2008).
3 support a § 51A report of neglect, DCF did not need to
definitively determine that neglect occurred, but only that
there was "reasonable cause to believe" that neglect occurred.4
110 Code Mass. Regs. § 4.32(2) (2009). See Cobble, 430 Mass. at
394; Kyle K. v. Department of Children & Families, 103 Mass.
App. Ct. 452, 453, (2023).
In turn, reasonable cause to believe was defined to mean "a
collection of facts, knowledge or observations which tend to
support or are consistent with the allegations, and when viewed
in light of the surrounding circumstances and credibility of
persons providing information, would lead one to conclude that a
child has been . . . neglected." 110 Code Mass. Regs.
§ 4.32(2).5 Then, as now, the hearing officer evaluating whether
there is such reasonable cause to believe must "giv[e] due
weight to the clinical judgments of [DCF] social workers." 110
Code Mass. Regs. § 10.05(c) (2014). See 110 Code Mass. Regs.
§ 10.29(2) (2014). And, at the hearing, the appellant has the
4 Now, DCF also may consider whether there is "substantial risk" of neglect occurring. 110 Code Mass. Regs. § 4.32(2)(a)(1) (2023). Under the updated regulation, "support" requires a determination, in pertinent part, that "[t]he action or inactions by the parent(s) or caregiver(s) place the child(ren) in danger or present substantial risk to the child(ren)'s safety or well-being." Id. at (2)(a)(2).
5 The current definition is not materially different. See 110 Code Mass. Regs. § 4.32(3) (2023).
4 burden to show, by a preponderance of the evidence, that DCF
"has not demonstrated there is reasonable cause to believe that
a child was . . . neglected" (emphasis added). 110 Code Mass.
Regs. § 10.23(d) (2014).
The reasonable cause standard serves a "threshold function"
to identify "known or suspected instances of child abuse and
neglect" (emphasis added). Cobble, supra at 386 n.3, quoting
Care & Protection of Robert, 408 Mass. 52, 63 (1990). The
purpose is not to adjudicate whether neglect occurred but only
"to determine whether further action is warranted." Care &
Protection of Robert, supra. See Kyle K., 103 Mass. App. Ct. at
453, 459-460. Nor is any showing of actual harm required. B.K.
v. Department of Children & Families, 79 Mass. App. Ct. 777, 783
(2011). "We thus are not being asked whether [M.N.D. actually
neglected Dan], something on which we express no opinion.
Rather, we must determine only whether there was substantial
evidence before the hearing officer supporting the determination
that there was 'reasonable cause to believe' [M.N.D. neglected
Dan]." Kyle K., supra at 458.
b. Educational neglect. i. State law standards. Because
Dan was homeschooled, we begin by acknowledging the
homeschooling standards provided by Massachusetts law. A child
of school age must attend a public school unless, among other
5 exceptions, the child "is being otherwise instructed in a manner
approved in advance by the superintendent or the school
committee." G. L. c. 76, § 1. In Care & Protection of Charles,
399 Mass. 324 (1987) (Charles), the court ruled that the
overarching standard for approval of a homeschooling plan is the
same as that statutorily provided for approval of a private
school: the local school committee must be "satisfied that the
instruction in all the studies required by law equals in
thoroughness and efficiency, and in the progress made therein,
that in the public schools in the same town." Id. at 331,
quoting G. L. c. 76, § 1. See Care & Protection of Ivan, 48
Mass. App. Ct. 87, 89-91 (1999).
Judges, and we think child welfare officials, may look to
these standards for guidance in determining "whether a child is
'without . . . necessary and proper . . . educational care and
discipline' and whether the 'parents . . . are unwilling . . .
or unavailable to provide any such care, discipline or
attention.'" Charles, 399 Mass. at 329, quoting G. L. c. 119,
§ 24. See Care & Protection of Emily, 58 Mass. App. Ct. 190,
192-193 (2003). "Primary among [the relevant factors] is the
6 proposed curriculum and the number of hours of instruction in
each of the proposed subjects."6 Charles, supra at 338-339.
ii. Hearing officer's findings. We now recount the
hearing officer's pertinent findings regarding educational
neglect, supplemented where appropriate by references to the
underlying evidence. At the time of the § 51A report, Dan was
seven years old, the child of M.N.D. and M.N.D.'s former spouse,
K.D., who uses they/them pronouns. M.N.D. had remarried to
E.N.D., who was regarded as Dan's stepmother. M.N.D. and K.D.
shared physical custody of Dan, but M.N.D. was responsible for
Dan's education; she communicated with K.D. about Dan's
progress. M.N.D. knew of the Charles decision and had obtained
a local school official's approval to homeschool Dan in the
2020-2021 school year.
In August 2021, after Dan's first year of homeschooling,
M.N.D. submitted a progress report and letter of intent to
continue homeschooling. An assistant superintendent later told
DCF that she found the letter "highly unusual and not age level
appropriate." Had she seen the plan when M.N.D. submitted it,
6 For example, reading and arithmetic are required subjects, and a minimum of 180 days of schooling is required. Charles, 399 Mass. at 338-339, citing G. L. c. 71, § 1; 603 Code Mass. Regs. § 27.01 (1980). See 603 Code Mass. Regs. § 27.03 (2020).
7 she would not have approved it, as it was "extremely
concerning."7
In October 2021, in response to an e-mail message from
E.N.D., Dan's therapist e-mailed the mothers and K.D. to
recommend that Dan obtain an individualized education program
(IEP) evaluation to address lack of reading skills and attention
issues. Two days later, M.N.D. and E.N.D. informed the
therapist that they were terminating her services, and they took
exception to the therapist's having included K.D. on the e-mail
message. K.D. informed M.N.D. that K.D. disagreed with the
termination decision and believed an educational evaluation was
appropriate. At about this time, the terminated therapist (a
mandated reporter) filed a § 51A report alleging educational
neglect. The therapist cited concerns about M.N.D.'s failure to
provide proof to K.D. that Dan received proper education and
lesson planning, and M.N.D.'s termination of Dan's therapy after
the therapist recommended an IEP evaluation.
7 The plan and accompanying progress report covered an extraordinarily large number and wide range of topics, some of them quite advanced. Setting aside whether particular topics were age-appropriate -- an issue on which we express no view -- the plan would cause a reasonable person to question whether Dan would do sufficient in-depth work on core subjects and essential skills for a seven year old during the hours devoted to Dan's schooling.
8 A DCF response worker interviewed K.D., along with M.N.D.'s
mother and grandmother; the three of them expressed concerns
that M.N.D. was misrepresenting Dan's academic capacity,
progress, and achievements. The response worker also
interviewed Dan, who was engaging and talkative but struggled to
stay focused. Dan "denied knowing the days of the week and
months of the year and did not participate in/with the
[r]esponse [w]orker's recitation" of them. Notably, M.N.D.'s
progress report to the local school system had declared that Dan
made "phenomenal academic progress in all subjects," including
that Dan had "worked on mastering numbers 0-100." But when the
response worker asked Dan how high Dan could count, Dan could
not count past twenty-nine. This was consistent with what the
worker had learned from K.D.
Dan further told the worker that Dan was "unschooled,"
meaning Dan was allowed to decide what happened in school each
day and what to learn; this included being allowed to "pick
'nothing.'" Dan qualified this by saying Dan "usually picks
'books,'" but Dan was not able to describe what Dan did each day
for education. Dan "struggled" to read a book to the worker,
stating that Dan "does not like to read." Yet M.N.D.'s report
to the school system had stated that Dan had "made significant
progress learning to read," had been reading many books
9 "including the Magic Tree House series in its entirety as well
as all the accompanying non-fiction books, [and] loves that they
can explore the world through books."
The response worker also interviewed M.N.D., who had
determined on her own that Dan had attention deficit
hyperactivity disorder (ADHD) and autism, although neither had
been formally diagnosed. M.N.D. nevertheless denied the need
for an educational evaluation and cited her capacity as the
educator to appropriately modify Dan's curriculum based on her
"two informal diagnoses" of Dan. M.N.D. also obtained a
homeschool program evaluation. The evaluator's review relied on
information provided by M.N.D., including recordings of Dan
reading, to conclude that Dan had a sufficient curriculum, had
appropriate growth during the 2020-2021 school year, and was
learning to read.
DCF supported the report that M.N.D. had neglected Dan's
educational needs, and the hearing officer's decision found
"reasonable cause to believe" that such neglect had occurred.
Among the principal grounds were that M.N.D. had overstated
Dan's competencies in reading and math, that M.N.D.'s curriculum
was focused on political issues that were developmentally beyond
Dan's understanding, and that M.N.D. had terminated the
10 relationship with the therapist who had recommended an IEP
evaluation.
iii. Mothers' claims on appeal. We now address the
mothers' various claims that the decision to support the report
for educational neglect was itself unsupported by substantial
evidence. We are unpersuaded.
The mothers first argue that the record "refutes that
[M.N.D.] had terminated services with the therapist because of
the proposed IEP." Although the hearing officer did not
expressly find such a causal relationship, the record would
support a finding that the recommendation for an IEP evaluation
at least contributed to M.N.D.'s termination decision.
Moreover, M.N.D.'s decision diminished the likelihood that Dan
would in fact obtain the recommended evaluation. M.N.D. had
assured K.D. via text message that M.N.D. would follow up with
the therapist to learn more about that recommendation. Yet,
less than an hour later, M.N.D. notified the therapist of the
termination decision, without engaging in the promised follow-
up.
The mothers also assert that the DCF response worker's
interview with Dan was not substantial evidence of Dan's lack of
knowledge of the names of days and months and Dan's inability to
count past twenty-nine. The mothers now suggest, without
11 citation to authority, that the response worker lacked the
"expertise and specialized training" necessary to make these
observations. They did not raise this issue at the hearing,
however, other than to ask about the response worker's
qualifications. She testified that she was a social worker and
investigator with twenty-three years of DCF experience,
including training in investigations and forensic interviewing.
Nor did the mothers argue that expert testimony was needed to
establish that seven year old Dan's inability to count past
twenty-nine created some cause for concern. See Albert v.
Municipal Court of Boston, 388 Mass. 491, 493–494 (1983) (party
may not raise arguments on appeal that could have been but were
not raised in agency proceeding).
The worker reported her observations of Dan in writing, and
at the hearing she testified to many of the same facts. The
mothers' counsel did not cross-examine the worker on the
accuracy of her observations, other than to elicit that the
interview with Dan had occurred late in the day, implying that
Dan may have been tired at the time.
Considering all of the above, nothing barred the hearing
officer from crediting the worker's statements. "[I]t is for
the agency, not the reviewing court, to weigh the credibility of
witnesses." Cobble, 430 Mass. at 393 n.8. This is not a case
12 where the testimony at issue was so "indefinite" and "overly
speculative" that it "cannot reasonably form the basis of
impartial, reasoned judgment." Id.
Next, the mothers criticize as "speculative hearsay" the
assistant school superintendent's opinion that M.N.D.'s written
2021-2022 homeschooling plan was "highly unusual and not age
level appropriate." The mothers do not dispute, however, that
this was the opinion the assistant superintendent expressed, and
the hearing officer made no finding as to whether the opinion
was valid. For all the record shows, it was considered merely
as the view of an educational professional about a document in
the record. It could properly be considered as an
"observation[] which tend[s] to support or [is] consistent with"
the report of educational neglect, "and when viewed in light of
the surrounding circumstances and credibility of [the] person[]
providing information," could help provide "reasonable cause to
believe" that Dan's education had been neglected, 110 Code Mass.
Regs. § 4.32(2), the threshold for considering "whether further
action is warranted." Care & Protection of Robert, 408 Mass. at
63.
The mothers further complain that the assistant
superintendent did not testify at the hearing, but they do not
explain why they did not subpoena her, just as the transcript
13 shows they subpoenaed K.D. There was evidence that M.N.D. had
discussed the plan with the assistant superintendent, who had
told M.N.D. that the plan was "very unusual" and, inferably, not
age appropriate. Yet M.N.D., in her hearing testimony, did not
address the assistant superintendent's opinion or their
discussion about the plan. In light of all the above, we see no
error or abuse of discretion in the hearing officer's
consideration of the opinion.
Continuing, the mothers attack K.D.'s statements of concern
about Dan's education. They claim the statements were self-
serving and contradicted by other evidence, including that K.D.
had some responsibility for education, had expressed support for
M.N.D.'s original homeschooling plan more than a year before the
events at issue here, and had previously told M.N.D. that K.D.
was proud of something Dan had written. But none of that
evidence contradicts K.D.'s statements from around the time the
§ 51A report was filed that K.D. was concerned about Dan's
education and favored the IEP evaluation that M.N.D. apparently
opposed. And the hearing officer expressly declined to credit
the mothers' claims that K.D.'s statements were untrustworthy.
Nor was the hearing officer bound to credit the homeschool
program evaluation obtained by M.N.D., after the § 51A report
was filed, concluding that Dan was making acceptable educational
14 progress. That evaluation may "detract[] from the . . . weight"
of the evidence of educational neglect, but it does not show
there is "no felt or appreciable probability" of educational
neglect or that there is "an overwhelming probability of the
contrary" (citation omitted). Cobble, 430 Mass. at 390-391.
Rather, this is a case where we "may not . . . displace the
[hearing officer's] choice between two conflicting views."
Southern Worcester. 377 Mass. at 903.
c. Emotional neglect. In communicating with the therapist
and others during the § 51B investigation of educational
neglect, DCF became concerned about how M.N.D.'s conduct
affected Dan's emotional well-being. DCF ultimately supported
the allegation of neglect for the additional reason that M.N.D.
had failed to provide minimally adequate emotional stability for
Dan. Among the principal grounds were that M.N.D. had
terminated Dan's relationship with the therapist, inferably at
least in part because the therapist had recommended an IEP
evaluation, and despite the therapist's and K.D.'s views that
Dan was progressing; that M.N.D.'s mental health issues,
including her "need for control, unstable relationships, and the
ability to distort information and be untruthful," were
negatively affecting Dan; and that the mothers were pushing Dan
to adopt gender expressions that made Dan uncomfortable.
15 We now address the mothers' claims that the hearing
officer's decision to support the report for emotional neglect
was itself unsupported by substantial evidence. As with the
decision regarding educational neglect, many of the mothers'
arguments reflect, at best, their disagreement with how the
hearing officer chose to resolve two fairly conflicting views of
the evidence. We therefore address, for illustrative purposes,
only three of the mothers' arguments. Those that we do not
address suffer from similar flaws.
First, the mothers argue that Dan's participation in
therapy until just prior to the § 51A report shows that M.N.D.
provided Dan with emotional stability. But the therapist stated
that M.N.D. was inconsistent in bringing Dan to therapy, doing
so only three times in five months, in contrast to K.D., who
brought Dan regularly. The therapist viewed M.N.D.'s
inconsistency as slowing Dan's progress. In a similar vein, the
mothers claim that M.N.D. "encouraged" K.D. to continue bringing
Dan to therapy, but the record shows that M.N.D. told the
therapist that Dan's continuing with the therapist was "against
[her] wishes," and the therapist informed M.N.D. that unless
M.N.D. as well as K.D. (i.e., both parents) supported Dan's
being in therapy, the therapist could not ethically continue
treating Dan.
16 Second, the mothers assert that DCF's concern about
emotional stability arose from unfounded and uncorroborated
allegations, by K.D. and M.N.D.'s estranged family, about
M.N.D.'s own mental health. But the record includes extensive
and detailed accounts by K.D. and M.N.D.'s mother and
grandmother about M.N.D.'s history of erratic, manipulative, and
emotionally abusive behavior. Although, as noted above, the
mothers claimed that K.D.'s statements were untrustworthy, the
hearing officer rejected that claim. Dan's therapist was also
concerned about M.N.D.'s mental health and about potential
manipulation and emotional abuse in the home. That the mothers
disagreed with these assessments did not require the hearing
officer to credit the mothers' version of events.
Third, the mothers insist that they were not forcing gender
identity issues onto Dan but merely reacting to issues Dan
raised. Dan had told the DCF response worker that the mothers
were "trying to convince me to be a girl, but I have a penis, I
am freaking out and don't know what to do." Although Dan
referred to Dan's use of they/them pronouns as a matter "decided
with [M.N.D.]," Dan simultaneously said that "[M.N.D.] makes all
the decisions for me, like I am part of her," and that M.N.D.
makes Dan feel that "I can't think for myself." Dan's
therapist, who had training in gender identity issues, had seen
17 "zero evidence" that Dan had any such issues and believed that
"many thoughts and statements" were coming from the mothers
rather than Dan. K.D., who identified as a person with gender
identity issues, expressed similar views. To be sure, the
mothers denied that they "placed any gender identity issue on"
Dan. But the hearing officer was not required to credit that
denial.
In sum, even after considering the evidence that detracts
from the hearing officer's decision that there was reasonable
cause to believe emotional neglect was occurring, we conclude
that there was substantial evidence to support that decision.
d. Foster care license revocation. The hearing officer
upheld the revocation of the mothers' foster care license on at
least two grounds.8 First, the mothers exceeded the bounds of
their roles by promising the two foster children, soon after
their placement in the home, that the mothers would adopt them,
as well as their younger sibling. This was contrary to a basic
tenet of the mothers' written agreement with DCF: that foster
care is a "temporary arrangement which envisions the eventual
These same two grounds were the basis for DCF's emergency 8
removal of the foster children from the home, which we discuss infra. It is not immediately clear whether DCF or the hearing officer also relied on the decision to support the § 51A report as a ground for revoking the foster care license. We need not resolve the point, as we would uphold the revocation decision in either event.
18 reunification" of children with their birth families, which goal
foster and preadoptive parents are responsible for supporting.
110 Code Mass. Regs. § 7.111 (2009). Second, during the § 51B
investigation, DCF learned of "concerning omission[s] of
information" by the mothers during DCF's earlier study of their
suitability for licensing. This included information about
M.N.D.'s mental health history that "would likely have precluded
approval of the [mothers'] foster care license" if DCF had known
of it during the licensing study.
The mothers' limited arguments directed at the hearing
officer's decision also are unpersuasive.
The mothers suggest that because the evidence showed DCF
had learned of E.N.D.'s mental health history during the
licensing study and yet had issued the license, M.N.D.'s mental
health history likewise would not have precluded licensure had
it been timely disclosed. What this overlooks is that M.N.D.'s
history was both more concerning than E.N.D.'s and had not been
timely disclosed to DCF. Contrary to the mothers' assertions,
that history and the conduct associated with it could reasonably
be, and "in the judgment of [DCF]" was, determined to "impair
[M.N.D.'s] ability to assume and carry out the responsibilities
of a foster/pre-adoptive parent." 110 Code Mass. Regs.
§ 7.104(2) (2009).
19 That M.N.D. may have signed releases for her medical
records during the licensing study does not demonstrate that she
disclosed her mental health history to DCF. She points to
nothing in any medical records made available to DCF that
details that mental health history, nor does she challenge the
accuracy of what DCF learned about her history during the § 51B
investigation. Further, that other DCF social workers had
commented favorably on M.N.D.'s performance as a foster parent
before the investigation did not preclude DCF from developing
serious concerns based on information learned during the
investigation. Finally, that M.N.D.'s own therapist testified
to having no concerns about M.N.D.'s mental health as a parent
did not require DCF or the hearing officer to reach the same
conclusion. In sum, even considering what the mothers point to
as detracting from the hearing officer's decision, there was
substantial evidence to support the revocation of the foster
care license.
2. Examination of K.D. The mothers argue that the hearing
officer abused her discretion and violated their due process
rights by "terminating the cross-examination of" K.D., thereby
"den[ying] [the mothers] the opportunity to develop a complete
record." This is simply false. The hearing transcript shows
that the mothers' counsel called K.D. as a witness and conducted
20 direct examination of K.D. at some length. Counsel sought to
question K.D. about statements made by or attributed to K.D. in
certain documents, or that the mothers believed were
contradicted by other documents. When a dispute arose about the
relevance of some of those questions, the hearing officer asked
if there was "a way for us to streamline questioning." After
some discussion, counsel stated, "I can present those documents
as evidence to rebut what's in [K.D.'s] testimony and stop
[K.D.'s] testimony at this point in time." The hearing officer
accepted this suggestion, and counsel voiced no reservation.
Having agreed to forego further examination of K.D., the mothers
cannot now reverse course and claim that the hearing officer
abused her discretion or violated their due process rights.
3. Procedural violations. The mothers argue that the
hearing officer abused her discretion in concluding that various
procedural violations by DCF did not prejudice the mothers'
substantial rights. See G. L. c. 30A, § 14 (7) (reviewing court
may grant relief "if it determines that the substantial rights
of any party may have been prejudiced" by agency error). We are
not persuaded.
First, the mothers challenge the hearing officer's
conclusion that it was harmless error for DCF to delay notifying
them of the § 51A report until ten days after it was filed.
21 They argue that this lapse of time "delayed them from securing
appropriate counsel" in a related Probate and Family Court
proceeding wherein K.D. filed a complaint for modification to
obtain custody of Dan. Assuming for the sake of argument that
prejudice in a separate, nonagency proceeding could constitute
prejudice under § 14 (7), the problem nevertheless remains that
the mothers cite nothing in the record to support their claim of
prejudice. We take judicial notice that an attorney
representing the mothers filed a notice of appearance in the
Probate and Family Court proceeding on November 10, 2021,
fourteen days after K.D. filed the modification complaint. See
Jarosz v. Palmer, 436 Mass. 526, 530 (2002) (court may take
judicial notice of court records in related case). The mothers
do not explain why that attorney was not "appropriate counsel"
or how his inability to appear earlier caused them any
prejudice. We recognize that, on the day K.D. filed the
modification complaint, K.D. also obtained an ex parte custody
order, but the mothers do not explain, nor do we see, how they
could have prevented that result had they been given earlier
notice of the § 51A report.
Second, the mothers' brief asserts in a single sentence
that "because of DCF's procedural violations, DCF did not have
the opportunity to meet with [Dan] while in [M.N.D.'s] care or
22 see them interacting." We understand this as an assertion that,
had DCF given them notice of the § 51A report before K.D.
obtained an ex parte custody order, DCF could have observed Dan
interacting with M.N.D., and that this would have put M.N.D. in
a better position in the § 51B investigation. Assuming for the
sake of argument that this claim was made to the hearing officer
(which the record does not show), the mothers point to nothing
in the record suggesting that DCF would otherwise have engaged
in such observation of parent-child interactions here, or that
DCF ordinarily did so during a § 51B investigation.9 Thus the
mothers have shown no prejudice from the delay in notification.
4. Mootness of removal issue. The mothers next argue that
the judge erred in ruling that their challenge to DCF's decision
to remove the foster children from their home was moot. The
ruling was correct. We are upholding the revocation of the
mothers' foster care license, without which they cannot lawfully
provide such care.10 "[L]itigation is considered moot when the
9 Under regulations then in effect, a § 51B investigation "shall include a viewing of the child who is the subject of the report." 110 Code Mass. Regs. § 4.27(1) (2009). Nothing in that regulation suggested that the purpose of such viewing was to observe parent-child interactions, rather than to ascertain the child's safety. The mothers' brief does not discuss the regulation or its purpose.
10It is at least strongly implicit in the extensive licensing provisions of 110 Code Mass. Regs. §§ 7.100 - 7.114
23 party who claimed to be aggrieved ceases to have a personal
stake in its outcome, [such as] where a court can order no
further effective relief" (quotations and citations omitted).
Lynn v. Murrell, 489 Mass. 579, 582 (2022). Even if we
concluded that DCF's removal of the foster children from the
mothers' home was contrary to law, we could not order DCF to
place the foster children back in the mothers' care, now that
the mothers are unlicensed. Because effective relief is
unavailable, their challenge to the removal decision is moot.
The mothers suggest that their challenge is "of public
importance, capable of repetition, yet evading review" (citation
omitted). Seney v. Morhy, 467 Mass. 58, 61 (2014). But they
identify no specific issue raised by this case that meets those
criteria. Whether this particular removal decision was
unsupported by substantial evidence or infected by other error
is a factual question that, while understandably important to
the mothers, is neither of public importance nor likely to
recur. The mothers also suggest that the removal decision casts
a stigma on them, giving them a continuing interest in the case
and saving it from mootness. But any such stigma is subsumed
within whatever stigma results from the revocation of their
(2009), that an unlicensed person may not provide foster care for a child in DCF custody. See G. L. c. 119, §§ 22-23, 23C.
24 foster care license, which we are upholding in any event. The
mothers do not explain how reversing the removal decision, while
leaving the license revocation decision undisturbed, would save
them from any meaningful increment of stigma.
Finally, even if the removal decision were not moot, the
mothers have shown no error in it. The relevant section of
their brief merely cites the judge's conclusion that DCF failed
to observe "certain procedural safeguards" before removing the
foster children. The judge, in turn, cited DCF regulations
requiring that, in many circumstances, removal cannot be based
on a § 51A report unless and until the report is supported under
§ 51B. See 110 Code Mass. Regs. § 7.116 (2009) (§ 7.116). But
the removal notice in the record here informed the mothers that
this was an "[e]mergency removal during 51B investigation."
Section 7.116 does not purport to govern such emergency
removals; its sole reference to emergencies occurs in a subpart
governing removals for reasons other than a threat of neglect of
a foster child. 110 Code Mass. Regs. § 7.116(2)(a). The
hearing officer apparently cited § 7.116 only to demonstrate
that DCF has discretion to remove foster children from a home
where their well-being is endangered.11
11To whatever extent the hearing officer relied on § 7.116 as providing affirmative authority for emergency removals, that reliance appears to be harmless error.
25 As legal authority for the removal, the hearing officer
cited DCF's Family Resource Policy #2006-01, at 29 (rev. May 18,
2021). That policy authorizes "[e]mergency removal of a child
who is in [DCF] care or custody from the care of a foster/pre-
adoptive family," but "only when [DCF] has determined that the
child is not safe in her/his current setting and is at immediate
risk." Id. The child's supervisor and the area program manager
must approve the emergency approval. Id. The hearing officer
found that DCF's "clinical managers and [a]rea [d]irector met to
discuss the information obtained [in the § 51B investigation]
and utilized clinical expertise to conclude [that the foster
children's] emotional well-being was endangered by leaving them
in the foster home." The record states that this decision was
made at a "[t]eam meeting with all DCF parties." We see nothing
in the hearing transcript or elsewhere in the record to suggest
that the mothers contested whether the area program manager gave
26 approval. Accordingly, that is not a reason to overturn the
removal decision.
Judgment affirmed.
By the Court (Desmond, Sacks & Brennan, JJ.12),
Clerk
Entered: May 23, 2025.
12 The panelists are listed in order of seniority.