Adoption of Nora. ( 2023 )

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-92
ADOPTION OF NORA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On appeal from a decree of the Juvenile Court terminating
her parental rights, the mother argues, inter alia, that the
decree issued without the expert evidentiary support required by
the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901et seq.
After briefing in this appeal concluded, this court decided
Adoption of Leonard, 103 Mass. App. Ct. 419 (2023). At oral
argument, counsel for the mother asserted, and counsel for the
Department of Children and Families (DCF) agreed, that the
present appeal is controlled by Adoption of Leonard. 1
1 Counsel for the child did not join DCF in conceding the
controlling effect of Adoption of Leonard, contending, inter
alia, that evidence at trial presented by sources other than the
expert's testimony sufficiently established the elements
required by ICWA. However, as Adoption of Leonard explained,
ICWA specifically requires, as a prerequisite to termination of
parental rights, that testimony of a qualified expert establish
that the continued custody of the child by the parent is likely
to result in "serious emotional or physical damage to the child"
(quotation and citation omitted). Adoption of Leonard, 103
We agree that the present case is controlled in material
respects by Adoption of Leonard. 2 Accordingly, "[w]e vacate the
decree and remand the matter for further proceedings consistent
with this [decision]. On remand the judge may in [their]
discretion take additional evidence on the issues of the
mother's current unfitness and the best interests of the child."
Id. at 429-430. 3
So ordered.
By the Court (Green, C.J.,
Milkey & Grant, JJ. 4),
Clerk
Entered: October 11, 2023.
Mass. App. Ct. at 426. The expert in the present case was not
qualified to provide such testimony.
2 We take judicial notice of the fact that the expert witness in
Adoption of Leonard was the same person presented by DCF in the
present case.
3 We further note that considerable time elapsed from the
initiation of the proceedings in the Juvenile Court and the
entry of the decree we vacate by this decision, and that the
subject child is now fifteen years old, and placed in a
preadoptive family where she is thriving. We urge the Juvenile
Court judge to conduct the necessary proceedings on remand as
expeditiously as possible.
4 The panelists are listed in order of seniority.
2