Opinion
21-P-786
04-11-2022
ADOPTION OF KELSEY (and a companion case ).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother appeals from Juvenile Court decrees dated April 6, 2021, terminating her parental rights to her twin daughters. She makes no argument on the merits with respect to fitness or termination, arguing only that the Massachusetts Juvenile Court lacked subject matter jurisdiction over this case, and that the decrees terminating her parental rights must be reversed because the Department of Children and Families (DCF) failed to place the children with kin in New York.
1. Jurisdiction. At the outset, the mother challenges the Juvenile Court's jurisdiction to enter a permanent order concerning the children's welfare, because the children had not resided within the jurisdiction of the Commonwealth for at least six months prior to commencement of the care and protection proceedings. She raises the question of jurisdiction for the first time on appeal.
At the time this action was commenced, the subject children were ten years old. They are now seventeen. Vacatur of the decrees in this action on jurisdictional grounds could be profoundly disruptive to the stability of the children. Nonetheless, subject matter jurisdiction may be raised by a party at any time.
"A Massachusetts court's exercise of jurisdiction over custody determinations must be based solely on" one of the four bases provided by the numbered paragraphs in G. L. c. 209B, § 2 (a ). MacDougall v. Acres, 427 Mass. 363, 366 (1998).
The statute itself describes the subsections of § 2 (a ) as "paragraphs of this subsection," and for clarity we utilize that nomenclature as well.
General Laws c. 209B, § 2 (a ) (1), confers jurisdiction on the courts of the Commonwealth if this is the subject child's "home state," which is "the state in which the child immediately preceding the date of commencement of the custody proceeding resided with ... a parent, ... for at least 6 consecutive months," G. L. c. 209B, § 1, or "had been the child's home state within six months before the date of the commencement of the proceeding and the child is absent from the commonwealth because of his or her removal or retention by a person claiming his or her custody or for other reasons, and a parent or person acting as parent continues to reside in the commonwealth." G. L. c. 209B, § 2 (a ) (1).
The mother and children lived in New York until the summer of 2015 when they moved to Massachusetts, and DCF commenced these proceedings on September 15, 2015, when the children had resided in Massachusetts for less than six months. Accordingly, Massachusetts was neither the children's "home state" nor had it been their home State within six months, and the Juvenile Court did not have jurisdiction under G. L. c. 209B, § 2 (a ) (1).
In order for a Massachusetts court to have jurisdiction under G. L. c. 209B, § 2 (a ) (2), it must "appear[ ] that no other state would have jurisdiction under [ § 2 (a ) ] (1)," which has been applied to mean that no other State would have jurisdiction applying the standards that are articulated for the Commonwealth to have jurisdiction under § 2 (a ) (1). See Custody of Victoria, 473 Mass. 64, 70-72 (2015).
The mother contends that there cannot be jurisdiction under G. L. c. 209B, § 2 (a ) (2), because New York would have had jurisdiction under § 2 (a ) (1). Although the children did not reside there immediately preceding the date of commencement of the proceedings, she argues that it was the children's home State within six months of the commencement of this case, the children had been removed therefrom, and a parent, the children's father, continued to reside there. This appears to be correct.
General Laws c. 209B, § 2 (a ) (3), provides that a court has jurisdiction to make a custody determination if:
"the child is physically present in the commonwealth and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child from abuse or neglect or for other good cause shown, provided that in the event that jurisdictional prerequisites are not established pursuant to any other paragraph of this subsection and a court of another state shall be entitled to assert jurisdiction under any other subparagraph of this paragraph then a court exercising jurisdiction pursuant to this clause of paragraph (3) may do so only by entering such temporary order or orders as it deems necessary unless the court of the other state has declined to exercise jurisdiction, has stayed its proceedings or has otherwise deferred to the jurisdiction of a court of the commonwealth."
A State declines to exercise jurisdiction when a court of competent authority communicates that declination. See MacDougall, 427 Mass. at 369 & n.7 (Louisiana judge wrote to Probate and Family Court, refusing to decline jurisdiction under G. L. c. 209B, § 2 [a ] [4]).
There can be no doubt that the court had emergency jurisdiction under G. L. c. 209B, § 2 (a ) (3). The case began when the mother assaulted her older child and was arrested and charged with two counts of assault and battery. The permanent orders in this case, however, do not fall under § 2 (a ) (3) ’s exception for "temporary orders," and at the time the decrees issued no court of New York had "declined to exercise jurisdiction, ... stayed its proceedings or ... otherwise deferred to the jurisdiction of a court of the commonwealth." The court therefore clearly exercised its jurisdiction under § 2 (a ) (3) in a way that went beyond what the paragraph permits. Consequently, we conclude that the Juvenile Court was without jurisdiction under paragraph 3 to enter any but temporary orders.
The older child is not a part of this case.
The text of paragraph 3 states that there is jurisdiction in case of an emergency, but that there is a limitation on the way it may be exercised. It is at least arguable, therefore, that a court that has jurisdiction under paragraph 3 but issues orders beyond the scope of that paragraph does not lack jurisdiction, but has merely violated a mandatory rule about its exercise. Put another way, it may be that the rule requiring another State's court to decline jurisdiction before a court acting under paragraph 3 may exercise its jurisdiction by doing anything more than entering temporary orders is a "mandatory claim-processing rule," not a "jurisdictional rule." "Unlike jurisdictional rules, mandatory claim-processing rules may be forfeited ‘if the party asserting the rule waits too long to raise the point.’ Eberhart v. United States, 546 U. S. 12, 15 (2005) (per curiam) (internal quotation marks omitted)." Manrique v. United States, 137 S. Ct. 1266, 1272 (2017).
If this is in fact a mandatory claim-processing rule, then -- despite the interests both in comity with other States and in protecting the rights of an out-of-State parent –- we might well hold the claim here forfeited. Cf., e.g., Matter of J.W. v. D.S., 53 Cal. App. 5th 347 (Cal. App. 4th Dist. 2020) (taking similar approach). (Here, of course, the out-of-State father protected by the statute has stipulated to unfitness, has not appealed, and has not raised any objection to the Juvenile Court's exercise of jurisdiction.) The mother, who is not the parent in this case protected by the rule that requires the other State to decline jurisdiction, waited over six years to raise this issue, while the children grew from ten to seventeen years old. She failed to raise it at any time in the trial court, even in a motion after the decrees issued, and did so only on appeal. Neither DCF nor the children suggest this reading of the statute, however, and no court has so held.
Finally, G. L. c. 209B, § 2 (a ) (4), provides that there is jurisdiction where
"(i) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraph (1), (2) or (3), or another state has declined to exercise jurisdiction on the ground that the commonwealth is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that a court of the commonwealth assume jurisdiction."
Because New York would have jurisdiction under the standards articulated in paragraph (1), this provision could provide jurisdiction only if New York had "declined to exercise jurisdiction on the ground that the commonwealth is the more appropriate forum to determine the custody of the child," and the Juvenile Court judge concluded that "it is in the best interest of the child that a court of the commonwealth assume jurisdiction." At the time the decrees issued, neither had occurred. The trial judge had made no jurisdictional findings pursuant to § 2 (a ) (3) or (4). But of course no party asked her to do so, or, indeed, raised any question about the Juvenile Court's jurisdiction.
In light of these unusual circumstances, during the pendency of this appeal, and assuming the Juvenile Court lacked jurisdiction to issue the decrees in this case, we issued an order remanding the case to the trial court. We concluded that there was no basis to believe that New York courts are prohibited from assenting to jurisdiction nunc pro tunc. See Matter of Robert C.E. v. Felicia N.F., 197 A.D.3d 100, 104-105 (4th Dept. 2021) (affirming New York Family Court order allowing, nunc pro tunc, petition to relocate). And we requested the trial judge "to determine ... and report back to this court, whether a court of competent jurisdiction in New York declines or asserts jurisdiction in this case." Our statutes and rules do not provide a procedure for communicating with a relevant out-of-State court, but we "note[d] that § 110 of the Uniform Child Custody Jurisdiction and Enforcement Act, the successor to the Uniform Child Custody Jurisdiction Act, pertains to this type of communication between courts. See NY CLS Dom Rel § 75-i ( § 110 of uniform act, as enacted in New York)."
We have now received in response to our order findings of fact and conclusions of law prepared by the trial judge. She contacted the presiding judge of the Bronx County Family Court in the Bronx, New York, the court of competent jurisdiction in New York. She communicated by letter with the presiding judge, and then by telephone in a conversation in which the presiding judge "declined to exercise jurisdiction over the case nunc pro tunc to September 21, 2015, the date the [p]etition was heard" by a judge of the Juvenile Court. The presiding judge memorialized their conversation in a letter, which notes, "There are no pending family court dockets relating to the[ ] children in Bronx County," and then states, "After reviewing the facts, it is clear that New York is a nonconvenient forum and accordingly New York State declines to exercise jurisdiction and cedes jurisdiction to the Worcester County Juvenile Court as it is a more appropriate forum under NYS DRL 76-f. Specifically, the children have resided in Massachusetts since 2015 and all of the evidence is located in the Commonwealth."
New York [Dom. Rel.] Law § 76-f(1) provides:
"A court of this state which has jurisdiction under this article to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the child or the child's attorney, or upon the court's own motion, or request of another court."
In her findings of fact and conclusions of law, the trial judge also concluded, "As a result of [the presiding judge's] decision to decline jurisdiction over the children, this Court finds, pursuant to G. L. c. 209B, § 2 (a ) (4), that it is in the best interests of the children that a court of the Commonwealth assume jurisdiction." She then "assume[d] jurisdiction over the children."
The trial judge appended all of the written correspondence to her findings of fact and conclusions of law. We are grateful to her for her prompt compliance with our remand order and her thorough work in communicating with the court in New York and determining whether it declined or asserted jurisdiction in this case.
We note that, notwithstanding the contents of the telephone call with the trial judge, in her written communication the presiding judge did not state that her declination of jurisdiction was nunc pro tunc, and one of her reasons, that the children have resided in the Commonwealth for seven years, was not true at the time the petition was filed. Out of caution, therefore, we will treat the presiding judge's letter as a declination of jurisdiction only as of the date of the letter, March 21, 2022.
Regardless, New York's declination of jurisdiction coupled with the subsequent findings and action of the trial judge means that the Juvenile Court now "has jurisdiction to make a custody determination by initial or modification judgment" under G. L. c. 209B, § 2 (a ) (4), even if it previously had jurisdiction only to enter temporary orders. New York's "declination of jurisdiction in favor of Massachusetts had the effect of conforming the case to the requirements of" our statute. Adoption of Yvette (No. 1), 71 Mass. App. Ct. 327, 346 (2008). And, as in Adoption of Yvette (No. 1), we think "[t]he order was curative and obviates any need to vacate the decrees on jurisdictional grounds." Id. at 346-347. To be sure, in Adoption of Yvette (No. 1), the curative action of the other State's court took place prior to the decrees terminating parental rights. But, even if it might otherwise have been necessary, we think it would be an empty formality to vacate the decrees at issue in this case and remand the case for their reentry because, in her order, after assuming jurisdiction, the trial judge asked that we "reinstate the decree[s] entered on April 6, 2021."
This case should serve as a cautionary tale. The failure of the parties to raise the jurisdictional question in the trial court at the outset of these proceedings has created substantial uncertainty in the lives of the children, and families, affected by this case. The Supreme Judicial Court long ago held that "[u]nder the statute, a court must determine whether it has the power to exercise jurisdiction in a custody proceeding and, if so, whether it should exercise that power under the standards provided in the statute. A court may not undertake a custody hearing until both of these determinations have been made." Custody of Brandon, 407 Mass. 1, 5-6 (1990). Courts of course must be attentive to this, particularly in cases where children have recently moved to, or may simply be visiting, Massachusetts. But the parties, and particularly DCF, which appears constantly in these cases and can be expected to have intimate familiarity with the statute governing jurisdiction, should draw the trial court's attention to jurisdictional concerns where they have not explicitly been addressed.
2. Kinship placement. In 2016, DCF ordered a home study to be completed for the children's paternal grandmother in New York in accordance with the Interstate Compact on the Placement of Children (ICPC). This placement was approved by New York child protective services (CPS) in compliance with the ICPC process. DCF, however, did not place the children with the paternal grandmother. The mother's second argument is that DCF's refusal to place the children with family in New York violated its statutory and regulatory mandates, and had serious consequences for the possibility of successful reunification of the family, which DCF has a statutory obligation to make reasonable efforts to support.
The judge found that the DCF social worker "had several concerns about the completed ICPC. First, she was concerned that Father was not a part of the investigation, as he was residing in the home." Of course, the instant care and protection proceeding against him was open. The social worker was also "concerned that the paternal grandmother worked one job from 7 A.M. to 3 P.M. , and another from 3 P.M. to 11 P.M. It was not clear from the ICPC who would be caring for the children during this time." Before any resolution of these issues, the children began to express misgivings about living with the paternal grandmother. When DCF refused the family placement, the mother brought an abuse of discretion motion, which was denied.
We see no error in that denial. The concerns expressed by the social worker were reasonable. Although it may be true, as the mother argues, that "[t]he girls’ father was not a part of the allegations leading to removal and the girls stated to the guardian ad litem that their relationship with their father was never violent," he was one of their parents during the time of those allegations and did not protect their safety, and this case was brought against him as well as the mother. In any event, the mother points to no authority for the proposition that DCF is required to accept another State's completed home study as sufficient, and it is not unreasonable to want to ensure that a home study includes an examination both of all residents of the home to which the children might be sent, and of how the children are to be cared for if they are placed there.
To the extent the mother argues that "it was arbitrary and capricious for DCF to refuse to defer to CPS's evaluation of the appropriateness" of placement with the maternal grandmother, something apparently approved by CPS in a second ICPC in 2019, we disagree as the home that was studied was, in fact, the mother's own residence.
Decrees affirmed.