CARE AND PROTECTION OF OZLO (And a Companion Case). ( 2024 )

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.
6