Adoption of Kalil.

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-415

ADOPTION OF KALIL.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The father appeals from a decree entered by a judge of the

Juvenile Court terminating his parental rights to his child,

Kalil. He argues that (1) the court lacked subject matter

jurisdiction, because Kalil and his mother allegedly had moved

to North Carolina prior to when he was removed from his mother

in Massachusetts, (2) the termination of his (father's) parental

rights was in error because there was insufficient evidence to

support the judge's determination that he was unfit, and (3) the

judge erred in approving the department's proposed adoption

plan. We affirm.

Background. We summarize the judge's findings of fact,

supplemented with uncontroverted evidence from the record,

1 A pseudonym.
reserving certain details for later discussion. The mother was

born in Massachusetts in 1997, and lived there until the age of

seven, when she and her mother and siblings (family) moved to

Georgia. The mother and her family moved to North Carolina in

2011.

The mother met the father in North Carolina when she was

approximately fourteen, and the father was approximately forty-

five. They began a relationship shortly after meeting and when

the mother became pregnant with Kalil at age seventeen, her

mother sent her to Boston to live with her grandmother. The

mother arrived in Boston, at the latest, in August of 2015. She

lived with her grandmother for several months, and then at a

shelter for teen mothers (shelter).2 Kalil was born in January

2016, in Massachusetts.

In early March 2016, a report was filed pursuant to G. L.

c. 119, § 51A (51A report), alleging that the mother was playing

with Kalil, then only two months old, by throwing him up in the

air, and holding him without proper neck support. The

Department of Children and Families (department) conducted an

investigation pursuant to G. L. c. 119, § 51B (investigation).

2 A report pursuant to G. L. c. 119, § 51A (51A report) was
filed in August 2015, alleging that the mother, then seventeen,
was being neglected by her mother and grandmother. The
department opened a case to provide services to the mother.

2
On March 15, the mother, along with her case manager and the

shelter program coordinator, met with the department's

investigator. The mother stated that she intended to begin

parenting classes as quickly as possible and to make

appointments to address her mental health needs. The mother

also told the investigator that she had attended a Social

Security Disability (SSI) evaluation that day in order to obtain

additional services. The next day, the mother called the

investigator to tell her that she was scheduled to begin

parenting classes on March 21 and had scheduled an appointment

on March 24 for mental health services at Boston Medical Center.3

At the conclusion of the investigation, the allegations of

neglect were supported and a case was opened for services.

On April 11, the shelter program coordinator told the

department that the mother had been given a two-week termination

notice due to multiple infractions, including failure to follow

the program rules and leaving the program overnight without

permission. The mother had been offered an alternative

placement, but did not like the proposed placement, and instead

asked if she could take Kalil to live in North Carolina.

3 On March 28, the shelter's program coordinator confirmed
that the mother had attended her appointment at Boston Medical
Center.

3
At some point between the conclusion of the department's

investigation on March 28, and April 11, the mother called the

father to come pick her up because she was "on the verge of

being kicked out" of the shelter. The mother testified that the

father did so, and she and Kalil went with him to North Carolina

for a weekend. The mother returned to Massachusetts and the

shelter with Kalil "because [she] was still living in the

shelter," and the trip to North Carolina had just been for the

weekend.4 She subsequently told the shelter that she "no longer

needed to stay there" though she "wasn't leaving just then."

On April 12 the department contacted the mother, who

reported that she planned to leave the shelter and move to North

Carolina with Kalil. The mother was unable to articulate a plan

for Kalil's care in North Carolina beyond her intention to rent

a room from her mother's friend. The department removed Kalil

4 The father testified that he picked the mother up from
Massachusetts only after the child was removed by the
department. For purposes of our analysis, we consider the
mother's description of events, which is more favorable to the
father because it involves the child traveling to North Carolina
prior to any court action in Massachusetts. Under the father's
conflicting version, he came to Massachusetts to get the mother
after the department had removed the child.

We also note that the father's appellate brief states that
the reason for the mother's return to Massachusetts was "only to
retrieve her belongings." This contention overlooks the
mother's testimony that she returned to the shelter because she
was still living there.

4
that day and filed a care and protection petition (petition) the

following day, April 13. The mother was present at the initial

custody hearing and waived her right to a temporary custody

hearing. The department was awarded temporary custody of Kalil

and he was placed with kin in Waltham, who subsequently became

Kalil's preadoptive parents.

The mother moved to North Carolina after the department's

removal and petition. She initially lived with the Father in

Raleigh and then in an apartment on her own, also in Raleigh.

In May 2018, Kalil was reunified with the mother in North

Carolina pursuant to the Interstate Compact on the Placement of

Children (ICPC). Two months later, in July, the mother moved to

Georgia to live with her mother. The department removed Kalil

from the mother in Georgia in September 2018, following a 51A

report alleging abuse and neglect of one of Kalil's siblings.

Kalil was then returned to Massachusetts and placed initially

with a maternal aunt, and then back with kin in Waltham.

Discussion. 1. Subject matter jurisdiction. The father's

first argument is that Massachusetts lacked jurisdiction over

Kalil because (allegedly) the mother had moved with Kalil to

North Carolina before the department had initiated custody

proceedings in Massachusetts. "In Massachusetts, jurisdiction

over child custody proceedings possibly involving the

5
jurisdictional claims of other States is determined according to

G. L. c. 209B," the Massachusetts Child Custody Jurisdiction Act

(MCCJA). Custody of Brandon, 407 Mass. 1, 5 (1990). The MCCJA

provides four bases by which a Massachusetts court can exercise

jurisdiction over a child custody case, G. L. c. 209B, § 2(a),

which have been referred to as "(1) Home State jurisdiction, (2)

default jurisdiction, (3) emergency jurisdiction, and (4)

appropriate forum jurisdiction." Guardianship of Minor

Children, 97 Mass. App. Ct. 316, 320 (2020). The determination

of subject matter jurisdiction is reviewed de novo. See

Adoption of Anisha, 89 Mass. App. Ct. 822, 828 (2016). We

conclude that the judge properly exercised jurisdiction pursuant

to G. L. c. 209B, § 2 (a) (1), home state jurisdiction.

a. Home state jurisdiction. General Laws c. 209B confers

jurisdiction to a competent Massachusetts court if Massachusetts

is "the home state of the child on the commencement of the

custody proceeding." G. L. c. 209B, § 2 (a) (1). For children

less than six months of age, "home state" is defined as "the

state in which the child lived from birth" with "his parents, a

parent, or a person acting as a parent." G. L. c. 209B, § 1.

Considering the facts outlined above, specifically that at

the time of the filing of the petition, the mother had resided

in Massachusetts for well over six months and Kalil was born in

6
Massachusetts and had lived here his entire life, Massachusetts

was the child's home state. We are unpersuaded by the father's

attempt to characterize the mother's weekend trip to North

Carolina as her moving to that State. This issue was not raised

in the trial court, so there are no specific findings on the

issue, but the father's assertion is not borne out by the

record. The mother did not move to North Carolina; she went

there briefly and then returned, with Kalil. And in any event,

under the facts here Massachusetts squarely fits the definition

as Kalil's "home state." The judge properly exercised

jurisdiction pursuant to G. L. c. 209B, §§ 1 and 2 (a) (1).5

b. Declination of jurisdiction. The father next argues

that, assuming Massachusetts could rightfully exercise

jurisdiction, it should have declined to do so, because

Massachusetts was an inconvenient forum. As both Kalil and the

department note in their briefs, the decision whether to decline

jurisdiction pursuant to G. L. c. 209B, § 7 (a), is a

discretionary one. We address this argument, assuming without

5 Because we conclude that Massachusetts was and is Kalil's
home state, we need not address the other bases by which a
Massachusetts court can claim jurisdiction under the MCCJA
(default, emergency, or appropriate forum). Nor do we address
the father's contention that Massachusetts may have lost home
state jurisdiction, as he offers no basis for this suggestion.

7
deciding that the father's arguments on this issue were properly

preserved.

Though a Massachusetts court has jurisdiction pursuant to

G. L. c. 209B, § 2 (a), that court may decline jurisdiction

where Massachusetts constitutes an inconvenient forum and

another state would constitute a more convenient forum. See

G. L. c. 209B, § 7 (a); Guardianship of a Minor, 98 Mass. App.

Ct. 133, 138 (2020) (even if court has power to exercise

jurisdiction, it may still decline to do so pursuant to G. L.

c. 209B, § 7 [a]). The relevant factors a court may consider in

determining whether to decline jurisdiction in favor of a more

appropriate forum include

"(1) whether another state is or recently was the child's
home state; (2) whether another state has a closer
connection with the child and his family or with the child
and one or more of the contestants; [and] (3) whether more
substantial evidence concerning the child's present or
future care, protection, training, and personal
relationships is available or whether such evidence is more
readily available in another state."

G. L. c. 209B, § 7 (d) (1)-(3).

Here, no other state is or recently was the child's home

state.6 And, although North Carolina may claim a "closer

6 We note that neither Kalil's two-month stay in North
Carolina or three-month stay in Georgia was of sufficient
duration to establish either of those states as his home state.
Both States require a six-month residency duration within the
State to be considered the home state. See N.C. Gen. Stat.
§ 50A-102(7); Ga. Code. Ann. § 19-9-41(7).

8
connection" with Kalil's parents, there is no such connection to

Kalil. Massachusetts, moreover, claims a connection to both

Kalil and a contestant.7 In terms of the location of evidence,

there are records and witnesses relating to Kalil's present

care, present and future protection, and relationship with his

preadoptive family that are present in Massachusetts. Thus,

while it is true that certain evidence, particularly as to the

parents, is available in North Carolina, there is substantial

evidence in Massachusetts. We therefore do not think it can be

said that substantial evidence is more readily available in

North Carolina. We conclude that there was no abuse of

discretion or other error of law in the judge continuing to

exercise jurisdiction.

2. Sufficiency of the evidence. The father next argues,

rather summarily, that the judge's finding of unfitness is

unsupported by clear and convincing evidence of grievous

shortcomings. Contrary to the father's assertion, the record is

replete with such evidence. The father is fifty-seven years

old, and has nineteen children with eleven different women.

Fourteen of those children are older than Kalil. The evidence

7 The department is a contestant as defined by G. L. c.
209B, § 1, as the department is a Massachusetts agency assigned
custody of the child. See Custody of Victoria, 473 Mass. 64,
74-75 (2015).

9
showed that the father has been involved with child protective

services in five States; has a significant history of domestic

violence and physical discipline of his children; has pointed a

loaded gun at one of his older children; fails to appreciate the

nature and severity of the mother's mental illness; and lacks

understanding of Kalil's needs and his [the father's] ability to

provide for those needs.8 Further, there is nothing in the

record to indicate that the father spent any substantial time

parenting Kalil, or indeed, any of his children.9 The

uncontested record before us clearly and convincingly supports

the judge's determination that the father is unfit, and that his

unfitness is likely to continue into the future to a near

certitude.

3. Permanency plan. Lastly, the father argues that the

judge failed to address certain troublesome facts relative to

the department's proposed permanency plan. Specifically, the

8 We note that the father does not challenge any of the
judge's subsidiary findings as clearly erroneous. See Adoption
of Greta, 431 Mass. 577, 587 (2000) (judge's findings of fact
will not be set aside unless clearly erroneous).

9 Rather, the record shows that the father sent one of the
parents' younger children away to live with the father's ex-
girlfriend for two years; at most, Kalil had lived with the
father for only two months; and that it was the mother who was
the primary caretaker for their children, and when she was
overwhelmed with their care, rather than turn to the father for
help, she moved to Georgia to seek assistance from her mother.

10
father argues that the judge did not carefully evaluate the

suitability of the department's proposed adoption plan because

the judge's findings do not address allegations of sexual abuse

and inappropriate conduct by Kalil's preadoptive parents. Those

allegations were the subject of a 51A report, which the

department investigated, and which were unsupported at the

conclusion of the investigation.

The father's argument on this point amounts to no more than

dissatisfaction with the judge's weighing of the evidence,

which, along with the judge's assessment of "the credibility of

the witnesses[,] is entitled to deference." Custody of Eleanor,

414 Mass. 795, 799 (1993). Here, the judge made specific

findings relative to Kalil and his preadoptive parents,

particularly noting that the department did not have any

concerns with Kalil's care or the preadoptive parents' ability

11
to provide "a loving and nurturing home and the consistent care"

he needs. There was no error or abuse of discretion.

Decrees affirmed.

By the Court (Massing,
Englander &
D'Angelo, JJ.10),

Clerk

Entered: August 5, 2025.

10 The panelists are listed in order of seniority.

12