Adoption of Ursa

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22-P-1048 Appeals Court

ADOPTION OF URSA (and a companion case1).

No. 22-P-1048.

Suffolk. September 6, 2023. - November 29, 2023.

Present: Massing, Grant, & Brennan, JJ.

Adoption, Dispensing with parent's consent, Visitation rights.
Minor, Adoption, Visitation rights. Parent and Child,
Dispensing with parent's consent to adoption. Practice,
Civil, Adoption. Department of Children & Families.
Indian Child Welfare Act. Constitutional Law, Self-
incrimination. Evidence, Child custody proceeding.
Witness, Self-incrimination.

Petition filed in the Barnstable County/Town of Plymouth
Division of the Juvenile Court Department on April 9, 2018.

Following transfer to the Suffolk County Division of the
Juvenile Court Department, the case was heard by Maura Hardiman,
J.

Natalie K. Hoppel for the mother.
Kristin S. Braithwaite for Department of Children and
Families.
Daniel R. Katz for the children.

1 Adoption of Michael. The children's names are pseudonyms.
2

MASSING, J. In this tragic case, a toddler's death

resulted in the mother being indicted for, and eventually

pleading guilty to, manslaughter and reckless endangerment.

While the criminal case was pending, proceedings for care and

protection of the mother's six other children went forward.

This appeal concerns the Juvenile Court decrees terminating the

mother's parental rights as to her two youngest children, a twin

daughter and son, Ursa and Michael. The mother asks us to

vacate the decrees on the ground that the trial judge did not

adequately investigate whether the twins were subject to the

Indian Child Welfare Act, 25 U.S.C. §§ 1901 et seq. (ICWA). The

mother also argues that the judge abused her discretion by

failing to continue the trial while the criminal case against

her was pending, and that because the Department of Children and

Families (department) acted as an agent of the prosecution, it

was error for the judge to consider the mother's failure to

engage with the department in the determination of the mother's

unfitness. The mother also challenges the judge's sibling

visitation order and the judge's decision not to order

posttermination or postadoption visitation with the mother or

the maternal grandmother. Discerning no error or abuse of

discretion, we affirm.

Background. We summarize the trial judge's findings of

fact, which are not disputed. The subject children, born in
3

2018, are the twins. The mother and the twins' father2 were also

the biological parents of Amy,3 who was born in 2017 and died in

2019. The mother has four older children, born in 2007, 2010,

2013, and 2015, each with a different father. The four older

children were the subjects of a separate care and protection

proceeding, the judge having denied the department's motion to

consolidate. A panel of this court affirmed the decrees

terminating the mother's parental rights with respect to those

children in an unpublished decision pursuant to our Rule 23.0.

See Adoption of Irma, 103 Mass. App. Ct. 1106 (2023).

The mother's extensive history with the department started

in 2007, when the children's maternal grandmother struck the

mother in the presence of the mother's oldest child, who was six

months old at the time. The mother has since been the subject

of approximately thirty reports filed pursuant to G. L. c. 119,

§ 51A (51A reports), alleging neglect of the children based on

domestic violence, mental health problems, behavioral issues,

and criminal activity. About one-half of the 51A reports were

2 The judge also issued decrees terminating the father's
parental rights with respect to the twins. The father has not
appealed.

3 A pseudonym.
4

supported, screened in, or resulted in the department conducting

investigations under G. L. c. 119, § 51B (51B investigations).4

The mother and father met in 2016, and their relationship

soon turned volatile and violent. Police officers responded to

at least ten domestic violence reports involving the couple in

2016 alone, and at least fifteen the following year. Such

reports included "threats to do harm, larceny, burglary,

violations of active restraining orders, and verbal and physical

abuse." The mother and the father also obtained abuse

prevention orders against each other. The department became

concerned about the children's exposure to the violence, and

police responses that permeated the relationship. The mother's

conflict with the father aligned with her well-documented

antagonism toward neighbors, family members, previous

boyfriends, and department employees. The judge found that the

mother "had a long history of domestic violence as a spectator,

victim and perpetrator of abuse . . . in most of her

relationships, including with [the twins' f]ather and the other

fathers of her children."

4 There are limits on the proper evidentiary use that can be
made of the contents of 51A reports and 51B investigation
reports. See Adoption of Luc, 484 Mass. 139, 149-154 (2020);
Mass. G. Evid. § 1115(b)(2) (2023). The mother makes no claim
that the judge considered the reports for improper purposes.
5

In June 2017, in violation of an active abuse prevention

order, the father arrived at the mother's home and demanded to

see Amy, then two months old. Soon after he entered the home,

the father allegedly strangled the mother. The oldest child,

then ten years old, called 911. The department conducted a 51B

investigation with which the mother refused to cooperate. She

denied that the incident occurred, that her daughter called 911,

or that she and the father had any history of domestic violence.

The mother repeatedly threatened violence against department

social workers during the investigation, even threatening to

kill a worker and the worker's child. The department filed a

care and protection petition and obtained custody of the

mother's five children.

In early 2018, while the children remained in the

department's custody, the mother gave birth to Ursa and Michael.

They were born prematurely at thirty-two weeks gestation and

admitted to the neonatal intensive care unit of the hospital

with numerous concerning conditions. The father was present at

the hospital for their birth, although he did not establish

paternity for another two years. On discovering the mother's

history of department involvement and of incidents of domestic

violence involving the father, hospital staff filed a 51A

report. In the subsequent investigation, the mother and father

both denied that the father had been at the hospital during or
6

after the twins' birth, and the mother denied having had any

contact with the father since the June 2017 assault. Hospital

records showed, to the contrary, that both parents wore parent

identification bands, the father identified himself to the

doctor and medical staff as "the father of the children," and

the father visited the hospital at least twice after the twins

were born as they received ongoing medical care. The judge

found that the mother and the father "maintained contact

throughout 2017 and 2018 and continued to engage in domestic

violence." The department filed a care and protection petition

for Ursa and Michael about three weeks after they were born,

obtained emergency custody before they were discharged from the

hospital, and placed them in short-term foster care. The

following month, the department placed them in a long-term

foster home, where they developed a strong bond with their

foster family.

The mother began to engage with department services and to

exhibit positive behaviors in early 2019. The department

changed the children's goals from adoption to reunification with

the mother following a permanency planning conference in May

2019. The mother participated in a biweekly parent aide service

provided by the department that helped the mother develop

fundamental parenting skills, provided some of the children with

in-home therapy, and supplied the department with weekly updates
7

about the family. The department reunited Ursa and Michael with

the mother in September 2019 in light of her cooperation and

progress on her action plan. By late December 2019, the mother

had regained custody of all seven children.

Reunification lasted little more than a week. Between

December 20 and 27, 2019, the mother contacted the department

several times to express concerns about Amy, then age two,

exhibiting "unusual" behavior. On December 26, the mother

reported that Amy was "head banging, scratching herself, wide

eyes staring off, replying 'yes' to everything and having

accidents on the furniture." The next day, after the mother

reported that Amy was scratching herself more and had become

more reserved, a department social worker strongly advised the

mother to seek medical attention for Amy and to speak to a

family therapist. The mother agreed, but when Amy exhibited

symptoms of distress around 11:50 P.M. that night, the mother

sent a text message to the social worker instead of calling 911.

The mother finally called 911 around midnight or early in

the morning on December 28 and reported that Amy was

unresponsive and could not be heard breathing. The 911

operators instructed the mother to rub Amy's chest while

awaiting the ambulance. By the time an ambulance arrived, Amy

was not breathing and had no heartbeat. Police arrived to find

Amy wrapped in a blanket and propped up on the couch, which
8

indicated that the mother had not followed the 911 operators'

instructions. The other children watched as emergency

responders restarted Amy's heart. Amy remained unconscious as

the first responders rushed her to the local hospital, where she

arrived in critical condition with visible bruises on her neck,

ribs, and the back of her head. A computed axial tomography

(CAT) scan suggested she had suffered nonaccidental trauma. Amy

was then airlifted to Boston Children's Hospital (BCH) at about

2:45 A.M., where she was placed on life support and diagnosed

with nonaccidental abusive head trauma. The mother became

emotional as she said goodbye to Amy just before the airlift.

She expressed concern about Amy's condition and was cooperative

with medical staff. The department placed the other children in

foster care so the mother could stay with Amy in the hospital.

The treating physicians at BCH observed that Amy "had a

subdural hematoma, increased cerebral edema, scattered retinal

hemorrhage in the right eye from non-accidental, abusive head

trauma and hypoxia." Dr. Celeste Wilson, a member of BCH's

child protection team who evaluated Amy for signs of abuse,

testified that Amy's head-banging behavior could not account for

either her ultimately fatal subdural hematoma or for her retinal

hemorrhaging. After being declared brain dead, Amy remained on

a ventilator to allow time for her family to say goodbye. She
9

was removed from the ventilator and pronounced dead at 3 P.M. on

December 31.

Ursa and Michael experienced Amy's medical emergency, the

police and emergency medical response, removal and separation

from the mother and their siblings, and Amy's death. They lived

in a local foster placement as the department searched for

relatives willing or able to adopt them. The department

returned Ursa and Michael to their previous foster family in

late February 2020; they appeared to thrive on their return,

although Ursa exhibited some behavioral issues and attended a

program at Boston Medical Center for children who witness

violence.5

The mother was charged with and later indicted for

manslaughter and reckless endangerment of a child. Her bail was

revoked in September 2020 after she cut off her global

positioning system device and threatened a neighbor. As to the

care and protection case involving the twins, the mother ceased

all participation with department services; her interactions

with department staff once again became hostile and

confrontational. The judge also found that the mother "was not

5 The judge determined that the department's plan for the
twins to be adopted was in their best interests, but not
necessarily by the foster family, as evolving circumstances at
the time of trial suggested that adoption by the paternal
grandmother might be a viable and preferable option.
10

engaged in services [available in jail] while incarcerated,

including mental health or domestic violence services." The

mother had no contact with the twins after Amy's death, in part

because of court orders in the criminal case, and in part

because the department made the decision not to support any

contact between the mother and any of the children. At trial in

the care and protection matter, the mother invoked her privilege

under the Fifth Amendment to the United States Constitution and

declined to testify, which led the judge to draw a number of

negative inferences about her lack of engagement in services and

responsibility for Amy's death.

We take judicial notice that on May 31, 2023, the mother

pleaded guilty in Superior Court to manslaughter and reckless

endangerment of Amy. See Jarosz v. Palmer, 436 Mass. 526, 530

(2002). She was sentenced to a State prison term of three to

four years, with 654 days of jail-time credit, followed by a

five-year term of probation.

Discussion. 1. The ICWA. The mother claims that the

trial judge erred by ignoring evidence of the twins' status as

Indian6 children and failing to conduct her own ICWA inquiry in

addition to the department's. The ICWA, when applicable,

6 We use the term "Indian" for consistency with the ICWA,
mindful that the terms "Native American" and "Indigenous" are
preferred by many.
11

triggers a heightened evidentiary standard and burden of proof

for termination of parental rights. See Haaland v. Brackeen,

143 S. Ct. 1609, 1632 (2023); id. at 1646 (Gorsuch, J.,

concurring); Adoption of Leonard, 103 Mass. App. Ct. 419, 422

(2023).

The mother did not raise her ICWA claim at trial. She

asserts that Federal law allows an Indian parent or tribe at any

time to "petition any court of competent jurisdiction to

invalidate [any action for termination of parental rights] upon

a showing that such action violated any provision of sections

1911, 1912, and 1913" of the ICWA. 25 U.S.C. § 1914.

Acknowledging the ICWA's important policy objectives, as well as

the importance of finality in child custody proceedings, we

assume without deciding that the mother's challenge is properly

before us. In light of the scant evidence that the ICWA might

apply and the overwhelming evidence that it did not, we discern

no error.

Congress enacted the ICWA in 1978 "out of concern that 'an

alarmingly high percentage of Indian families are broken up by

the removal, often unwarranted, of their children from them by

nontribal public and private agencies.'" Haaland, 143 S. Ct. at

1623, quoting 25 U.S.C. § 1901(4). "The cultural biases leading

to unwarranted terminations of parental rights, when coupled

with the failure to recognize the crucial interest that tribes
12

have in the placement of Indian children within their tribes,

threatened continuing tribal viability. The ICWA was the

legislative response." Adoption of Arnold, 50 Mass. App. Ct.

743, 748 (2001).

A child subject to adoption or parental termination

proceedings may qualify as an "Indian child" under 25 U.S.C.

§ 1903(4) by being "a member of an Indian tribe," § 1903(4)(a),

or being both "eligible for membership in an Indian tribe and

. . . the biological child of a member of an Indian tribe,"

§ 1903(4)(b). See 81 Fed. Reg. 38,778, 38,804 (June 14, 2016)

("Indian child" inquiry "is focused on only two circumstances:

[1] Whether the child is a citizen of a Tribe; or [2] whether

the child's parent is a citizen of the Tribe and the child is

also eligible for citizenship"). "[W]here the court knows or

has reason to know that an Indian child is involved, the party

seeking the foster placement of, or termination of parental

rights to, an Indian child shall notify the parent or Indian

custodian and the Indian child's tribe . . . of the pending

proceedings and their right of intervention." 25 U.S.C.

§ 1912(a).

The judge must affirmatively inquire whether a child is an

Indian child. See 81 Fed. Reg. 38,778, 38,805. The inquiry

should be made "at the commencement of the proceeding and all

responses should be on the record." 25 C.F.R. § 23.107(a). An
13

early ICWA inquiry "avoids the problems and inefficiencies

generated by late identification that ICWA is applicable to a

particular case." 81 Fed. Reg. 38,778, 38,804.

Here, the first judge assigned to the twins' care and

protection proceeding promptly dispatched her duty to ascertain

the twins' ICWA status. Docket entries in the care and

protection proceeding dated April 30, 2018 -- twenty-one days

after the department filed its petition -- document the mother's

presence in court and the judge's ICWA inquiry: "Court inquired

as to whether the parties know or have reason to know that the

child is an Indian child subject to ICWA. . . . Parties respond

no as to knowing or having reason to know that the child is an

Indian child subject to ICWA." "Docket entries import

incontrovertible verity and stand as final unless corrected by

the court" (quotation and citation omitted). Commonwealth v.

Denehy, 466 Mass. 723, 727 (2014). A judge's determination of

an issue on the docket is conclusive "absent a showing that the

court has intentionally falsified the record." Zabin v.

Picciotto, 73 Mass. App. Ct. 141, 172 (2008), quoting Burda v.

Spencer, 28 Mass. App. Ct. 685, 689 (1990). The mother provides

no reason, and we see no reason, to question these docket

entries.

The mother correctly notes that the trial judge, who was

assigned to the case after the intradepartmental transfer of the
14

case from Plymouth to Suffolk County, did not include a second

ICWA inquiry. As the transfer order called for the case to

"proceed in the [Suffolk County] court as if originally

commenced therein," the first judge's ICWA colloquy remained in

full force and effect. Without additional "reason to know" that

the twins might be Indian children, further inquiry was

unnecessary.

The mother argues that the record presented evidence of an

Indian affiliation that gave the trial judge "reason to know"

and a corresponding duty to conduct further inquiry. We have

previously construed the scope of the "reason to know"

requirement by looking to persuasive precedent from other

jurisdictions. For example, we looked to Oregon case law to

hold that there was no reason to know that the children were

Indian children where they and the mother were initially

designated as Caucasian, and the father as Hispanic. See

Adoption of Arnold, 50 Mass. App. Ct. at 749-750, discussing

State ex rel. Juvenile Dep't v. Tucker, 76 Or. App. 673 (1985).

In this case, we likewise look to other State court decisions

for guidance.

Given the ICWA's history and policy objectives, courts

construe the statute liberally in favor of tribal membership.

Accordingly, a "specific claim of Native ancestry" may alone

qualify as a reason to know. See Jimmy E. v. State, 529 P.3d
15

504, 516 (Alaska 2023), citing Matter of Z.J.G., 196 Wash. 2d

152, 175-176 (2020). A reason to know can be as minimal as a

parent's "asserted belief that [he or] she may be eligible for

enrollment in" a tribe. Matter of S.R., 394 Mont. 362, 377

(2019). Construing "reason to know" broadly facilitates notice

to the tribes and upholds their plenary authority over tribal

membership. See Matter of Z.J.G., supra.

However, a "reason to know" must be specific enough to

suggest that the parent or child is likely enrolled or eligible

to be enrolled in a particular tribe; it "requires something

more than a bare, vague, or equivocal assertion of possible

Indian ancestry without reference to any identified Indian

ancestors with a reasonably suspected tribal connection."

Matter of S.R., 394 Mont. at 377. See Matter of Jeremiah G.,

172 Cal. App. 4th 1514, 1520 (2009). For example, a judge has

"reason to know" that a child is an Indian child if a party or

an Indian tribe or organization informs the judge that the child

is in fact an Indian child; if information indicating that the

child is an Indian child is discovered; if the child, a parent,

or an Indian custodian lives on a Native American reservation or

Alaska Native village; if the child is or has been a ward of a

tribal court; or if either parent or the child has an

identification card indicating tribal membership. See 25 C.F.R.

§ 23.107(c).
16

The earliest reference to the ICWA in the record of this

case appears in a 51B investigation report from June 2017,

before the twins were born, but after the birth of Amy, who had

the same mother and father: "Mother denied that she or the

children have any [I]ndian or tribal affiliation." Because Amy

and the twins had the same biological parents and were too young

to develop any tribal affiliation on their own, the twins'

tribal affiliation, if any, would be the same as Amy's.

The 51A intake report prepared just after the twins' birth

provides no information about the twins' ICWA status, and lists

their race as "Unable to Determine," but with respect to each of

Amy, the four older children, and the mother, includes the

notations "ICWA . . . No" and "Race . . . Black." A November

2020 family assessment states, "The family is Black and they

speak English. [The mother and the twins' father] deny Native

American affiliation." For some reason not apparent on the

record, however, the same family assessment notes a Cherokee

tribal affiliation and states that the department sent an ICWA

notice or notices on behalf of all seven children in October

2018. In response, the tribes "report[ed] family ineligible for

enrollment. ICWA does not apply." A tribal determination of a

child's eligibility for tribal membership is conclusive as a
17

matter of law. See Matter of S.R., 394 Mont. at 375, citing 25

C.F.R. § 23.108(b).7

Moreover, no information presented at trial suggested that

the twins' family identified as an Indian family or had Native

American ancestry. When presented with opportunities to discuss

their racial identities at trial, both the mother and father

affirmatively identified as Black and did not hint at any Native

American roots. During a verbal outburst on the first day of

trial, the mother testified, "I'm an innocent Black woman,

okay?" The father testified that he was "African-American" and

expressed concern about the twins not being raised by a Black

family.

7 The department should have filed or included in the trial
record of the twins' care and protection case an original or a
copy of the notice or notices sent to each tribe, together with
proof of service, as well as the tribes' responses. See
Adoption of Uday, 91 Mass. App. Ct. 51, 52-53 (2017); 25 C.F.R.
§ 23.111(a)(2). We take judicial notice, based on the docket
entries of the Juvenile Court and of this court, that such
documentation was filed in the related case concerning the
mother's four older children, which was tried almost
simultaneously with the twins' case and by the same judge. See
Jarosz, 436 Mass. at 530 ("a judge may take judicial notice of
the court's records in a related action"). However, judges are
not permitted to take judicial notice of evidence introduced in
a different case, even if closely related. See Care &
Protection of Zita, 455 Mass. 272, 283 (2009); Mass. G. Evid.
§ 201(b) note (2023). The department's failure to file the
notices and responses concerning the twins in their case was
error, but the mother does not raise this error in her brief,
nor do we find it fatal to the adjudication of the mother's ICWA
claim.
18

The mother's ICWA claim rests on three exhibits, copies of

51A intake reports all dated December 28, 2019, that include the

notation "ICWA . . . Yes" with respect to the twins, Amy, and

three of the four older siblings. The mother never brought this

information to the trial judge's attention, and the trial judge

cannot be faulted for failing to search through every page of

the voluminous record to find a needle in the haystack.

However, even if the judge had been made aware of these

notations, in light of the record as a whole, this type of bare

assertion does not rise to the level of "reason to know" within

the meaning of the ICWA.

In addition, the mother argues, relying on the Federal

regulations and O'Coin's, Inc. v. Treasurer of the County of

Worcester, 362 Mass. 507, 510 (1972), that the trial judge

breached an affirmative duty to order the court investigator to

research the twins' Indian status. We discern no such duty.

The applicable Federal regulations require judges merely "to ask

participants in the proceeding if they know or have reason to

know that the child is an 'Indian child,'" 81 Fed. Reg. 38778,

38805 (2016), as was done here. Any further investigation is

within the court's discretion. "States or courts may choose to

require additional investigation . . . and may choose to explain

the importance of answering questions regarding whether the

child is an Indian child." Id. While the judge could have
19

independently ordered further ICWA investigation, the judge did

not abuse her discretion by failing to do so.

2. Issues arising from mother's criminal prosecution. The

mother argues the judge abused her discretion by denying the

mother's motion to continue the care and protection trial while

criminal proceedings against her were ongoing. The mother

relatedly maintains, for the first time on appeal, that the

department was acting as an agent of the prosecution and that

she was unable to engage with the department's action plan or

present evidence in defense of her parental fitness without

incriminating herself.

"Whether to continue any judicial proceeding is a matter

entrusted to the sound discretion of the judge, and [the]

decision will be upheld absent an abuse of that discretion."

Care & Protection of Quinn, 54 Mass. App. Ct. 117, 120 (2002).

In ruling on a motion to continue, "the judge should 'balance

any prejudice to the other civil litigants which might result

from granting a stay, against the potential harm to the party

claiming the privilege if he is compelled to choose between

defending the civil action and protecting himself from criminal

prosecution.'" Id. at 122, quoting United States Trust Co. of

N.Y. v. Herriott, 10 Mass. App. Ct. 313, 317 (1980).

The mother filed her motion to continue approximately two

weeks before the trial began. On the first day of trial, June
20

22, 2021, the mother's counsel argued that the pending criminal

trial, then scheduled for mid-January 2022, prevented the mother

from testifying during the care and protection trial without

incriminating herself, as the mother's responsibility for Amy's

death would be at issue. Although the judge denied the motion

without explanation, the record permits us to conclude that

judge did not abuse her discretion. The care and protection

petition had been pending for more than three years, and

resolution of the mother's criminal case would take at least

another six months. The judge could not be certain that the

criminal trial would conclude within a reasonable time. See

Care & Protection of Quinn, 54 Mass. App. Ct. at 122. In fact,

it was not resolved for another two years. "No cases of any

kind have a greater claim for expedition at all stages than

those involving care and custody of children." Custody of a

Minor, 389 Mass. 755, 764 n.2 (1983). See Care & Protection of

Quinn, supra. The judge could properly consider that the harm

of delays in such proceedings "is unfortunately suffered

principally by the children." Adoption of Don, 435 Mass. 158,

170 (2001). The judge did not abuse her discretion in

determining that the interests of the children in permanency

outweighed the mother's desire to resolve the criminal case

before the care and protection proceeding.
21

Nor has the mother identified any prejudice flowing from

the denial of the continuance. Had the mother chosen to testify

in the care and protection proceedings, her testimony could not

have been used against her in the subsequent criminal case. See

Care & Protection of M.C., 479 Mass. 246, 249 (2018), S.C., 483

Mass. 444 (2019) ("a parent's decision to present evidence at a

care and protection proceeding does not result in a waiver of

the constitutional privilege against self-incrimination at other

proceedings . . . [and] a parent's prior testimony at a care and

protection trial is not admissible in a subsequent criminal

proceeding"). As the mother made the decision, with advice of

counsel, not to testify on the grounds of self-incrimination, it

was proper for the judge to draw an adverse inference from her

silence. See Custody of Two Minors, 396 Mass. 610, 616 (1986);

Care & Protection of Quinn, 54 Mass. App. Ct. at 123.

For the first time on appeal, the mother raises a related

claim arising from her criminal prosecution. She argues that

the department was acting as an agent of the prosecution, that

its action plan for her was designed to elicit incriminating

information, and that the judge accordingly erred by considering

the mother's refusal to engage with the department as evidence

of her unfitness. Because these claims were not raised at

trial, they are waived. See Adoption of Mary, 414 Mass. 705,

712 (1993); Palmer v. Murphy, 42 Mass. App. Ct. 334, 338 (1997).
22

Even if these claims were properly before us, the record

does not support them. It is true that the department is

required to notify the district attorney and local law

enforcement officials "if, after investigation, it has

reasonable cause to believe that a child has suffered certain

conditions as a result of abuse or neglect." Commonwealth v.

Adkinson, 442 Mass. 410, 419 (2004), citing G. L. c. 119, § 51A,

§ 51B (4); 110 Code Mass. Regs. §§ 4.50-4.53 (1996). In such

circumstances, the department establishes a multidisciplinary

service team that includes a representative of the district

attorney's office, to review and monitor the department's family

action plan. See Adkinson, supra; 110 Code Mass. Regs. § 4.54

(2009).8 In this case, an "area of focus" identified in the

action plan called for the mother to "gain insight into how her

lack of appropriate knowledge and understanding of childhood

growth and development may have contributed to her inability to

recognize that [Amy] needed immediate medical attention and how

her failure to secure same likely contributed to [Amy's] death."

From these facts, the mother asks us to infer that the action

plan was intentionally designed by the department, working in

8 The department's regional director and the district
attorney may agree to waive establishment of the
multidisciplinary service team. See 110 Code Mass. Regs.
§ 4.54(1). Perhaps because the mother did not raise this claim
at trial, there is no record evidence whether a
multidisciplinary team was ever convened.
23

tandem with the district attorney's office, to elicit

incriminating evidence, and that anything the mother said to a

department social worker would be used against her in the

criminal case.

The record in this case, however, is devoid of evidence, as

in Commonwealth v. Howard, 446 Mass. 563, 566-569 (2006), that

the department participated in obtaining incriminating

information outside the presence of counsel otherwise violated

the mother's rights in her criminal case. Absent such evidence,

we must presume that "[t]he relationship between the department

and the district attorney is not an agency relationship, but a

cooperative effort intended to support the best interest of the

child, not the prosecution of criminal cases." Adkinson, 442

Mass. at 420. The statutes and regulations that require the

department to cooperate with law enforcement "[do] not create

for the department an interest in the criminal prosecution, [nor

do they] give the prosecutor any control over the department."

Id. at 419. Cf. Care & Protection of M.C., 479 Mass. at 248-

249, 252-256 (records of care and protection proceedings in

Juvenile Court are impounded, maintained as confidential, and

not to be disclosed or released for use in criminal case absent

showing of good cause).

Rather, the department's efforts were appropriately

directed toward "evaluating [the mother's] fitness, while at the
24

same time ensuring the safety of the child[ren]." Adoption of

Yalena, 100 Mass. App. Ct. 542, 549-550 (2021). The mother's

ability to gain insight into the circumstances of Amy's death,

particularly her failure to seek timely medical attention for

Amy, bore on her ability to safely care for the twins, and was

therefore relevant to the evaluation of her fitness.

3. Posttermination and postadoption visitation. After

finding the mother and father unfit and terminating their

parental rights, the judge declined to order postermination or

postadoption visition between the mother and the twins, but did

order quarterly visitation among the twins and their four

surviving older siblings. The mother contends that the judge

abused her discretion by declining to order visitation between

the mother and the twins and that the sibling visitation order

was vague and unenforceable.

A "judge who finds parental unfitness to be established has

broad discretion to determine what is in a child's best

interests with respect to custody and visitation with biological

family members thereafter." Adoption of Rico, 453 Mass. 749,

756 (2009). The purpose of posttermination and postadoption

contact is not to strengthen the bonds between children and

their biological parents, but rather to assist children "as

[they] negotiate[], often at a very young age, the tortuous path
25

from one family to another." Adoption of Vito, 431 Mass. 550,

565 (2000).

In declining to order visitation with the mother, the judge

considered that the twins were exposed to significant trauma

while in the mother's care; that they had not had contact with

the mother since Amy's death; that the mother was unable to

control her anger and behavior in the community or at trial; and

that the twins, who had spent most of their lives in foster

care, required stable home environments. The judge found that

the twins "do not have a strong bond" with the mother and a

visitation order "would be detrimental to [their] best

interests." We discern no abuse of discretion.

The mother argues that the sibling visitation ruling is

phrased as a mere suggestion, not an enforceable order. The

ruling reads in relevant part: "In the event that the children

are separated in foster, preadoptive or adoptive homes, this

Court orders the children to have visitation once a quarter.

This visitation should include their maternal siblings," whom

the judge listed by name. The mother contends that the word

"should," rather than "must" or "shall," renders the ruling

unenforceable and that the order is vague in specifying which

children are entitled to visition. We disagree. The order

makes it clear that the twins are to have quarterly visitation

with each other if they are separated, and that, in any event,
26

they are to have quarterly visitation with their older siblings.

We are confident that the order, as written, provides the

department and future adoptive parents with sufficient guidance

and direction to implement sibling visitation, as required by

the judge, in the twins' best interests.

Finally, the mother maintains that the judge erred by

declining to order posttermination contact between the twins and

their maternal grandmother. The mother's argument that the

judge was required to order grandparent visitation under G. L.

c. 119, § 26B (a), misconstrues that statute, which is

predicated upon a request from the grandparent and a

determination whether grandparent visitation is in the child's

best interest. On the record before us, neither the mother nor

the maternal grandmother requested visitation between the

grandmother and the twins, and as the issue was not before her,

the judge made no findings whatsoever. In any event, nothing in

the evidence suggests a bond between the twins and the maternal

grandmother such that visitation with her would facilitate their

transition to adoption.

Decrees affirmed.