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-760 ADOPTION OF GORDON (and two companion cases 1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0 The mother appeals from a single justice's denial of her motion for leave to file a late notice of appeal from decrees of the Juvenile Court terminating her parental rights as to each of her three children. 2 On appeal, the mother's principal claim is that the single justice abused his discretion where she established good cause for the delay, and her appeal presented meritorious issues. We affirm.

Discussion. We review a single justice's decision on a motion for leave to file a late notice of appeal for an abuse of

Here, the time to file a notice of appeal expired on February 13, 2023, i.e., thirty days after the judge issued the decrees terminating the mother's parental rights. The mother

did not file a motion for leave to file a late notice of appeal in the Juvenile Court until May 25, 2023, which was more than three months after the deadline expired. 4 Thus, even if the mother could establish excusable neglect, the period for filing the notice of appeal would have nonetheless exceeded the maximum extension of time afforded under Mass. R. A. P. 4 (c). See Eyster v. Pechenik, 71 Mass. App. Ct. 773, 780 (2008) (judge lacked authority to enlarge appeal period beyond sixty days after challenged order docketed in trial court).

However, if a party demonstrates both good cause and a meritorious case, a single justice or appellate court may enlarge the time for filing a notice of appeal up to one year from the date of entry of the order from which an appeal is sought. See Mass. R. A. P. 14 (b), as appearing in 481 Mass. 1626 (2019); Tisei v. Building Inspector of Marlborough, 3 Mass. App. Ct. 377, 379 (1975). "The . . . function of [rule 14 (b)] is to care for cases where for extraordinary reasons the party was unable to apply for a [rule 4 (c)] extension within the time allowed in that rule." Commonwealth v. Smith, 491 Mass. 377, (2023), quoting Commonwealth v. Trussell, 68 Mass. App. Ct. 452, 454-455 (2007). In civil cases, the rule 14 (b) standard

of "good cause" does not substantially differ from the rule 4 (c) standard of "excusable neglect." See id.; Commonwealth v. Salinger, 76 Mass. App. Ct. 776, 780 (2010).

Under either standard, the movant must show that "the mistake, misunderstanding, or neglect was excusable and was not due to [her] own carelessness." Smith, 491 Mass. at 386, quoting Tai v. Boston, 45 Mass. App. Ct. 220, 223 (1998). "Excusable neglect requires circumstances that are unique or extraordinary, . . . [and] is [meant] to take care of emergency situations only" (quotations and citation omitted). BJ's Wholesale Club, Inc., 52 Mass. App. Ct. at 587-588 (2001). A single justice does not have the discretion "to allow late filing of a notice of appeal simply because the matter is important to the parties, the issues to be raised in the appeal are debatable, or the consequences to the losing party are harsh. Rather, such discretion must focus on the nature of the acts or failures to act that are offered up as excusable neglect." Smith, supra, quoting Shaev v. Alvord, 66 Mass. App. Ct. 910, 911-912 (2006). 5 Good cause does not include "[g]arden-

Accordingly, the full panoply of constitutional rights afforded

variety oversight[s]" or "the usual excuse that the lawyer is too busy" (quotation and citation omitted). Smith, supra at 387.

Here, the mother provided three reasons for her failure to file a timely notice of appeal. The first is that she is immunocompromised and became very ill with nausea and abdominal pain on several occasions between January 2023 and May 2023, although she could not specify any such occasion except for the time of trial. She asserted in an affidavit attached to her motion for leave filed in this court that she had set up an appointment to meet with her trial attorney in early February to sign the notice of appeal but was unable to make that appointment. She stated, "I do not remember why[,] but it is likely that I was sick." Given the lack of specificity in her assertions, as well as the implication that there were occasions during this time period in which the mother was not so ill as to prevent her from simply signing a notice of appeal, this fails to constitute good cause. Compare Lawrence Sav. Bank v. Garabedian, 49 Mass. App. Ct. 157, 161-163 (2000) (single justice did not abuse discretion in denying second request for extension of time to file appellate brief based on asserted good cause of attorney's illness).

criminal defendants does not apply in these cases" (quotations and citations omitted). Adoption of Patty, 489 Mass. at 639.

Second, the mother states that she was incarcerated between February 21, 2023, and April 13, 2023, and that she did not have a way to contact her trial attorney while incarcerated. Even if we were to credit her claim that she could not contact her trial attorney while incarcerated, 6 this does not constitute good cause because the time to file a notice of appeal had already expired one week prior to her incarceration, as noted above.

Finally, the mother claims that "[t]echnology-related problems," primarily that her cell phone was "lost or stolen more than once this year," difficulties for her to afford a new cell phone, and lack of understanding how to electronically sign documents requiring that she be given the opportunity to do so on paper, impeded her ability to communicate with her attorney to initiate a timely appeal. 7 Again, this claim lacks enough specificity for us to determine whether these issues so impeded her ability to timely sign the notice of appeal. Even if it did, the claim does not amount to the type of "emergency situation" contemplated by the rules. See BJ's Wholesale Club,

Inc., 52 Mass. App. Ct. at 588. Even considering all of the mother's claims together, she has not established the requisite good cause.

Nor has the mother established that her case is "meritorious or substantial in the sense of presenting a question of law deserving judicial investigation and discussion" (quotation and citation omitted). Tisei, 3 Mass. App. Ct. at 379. While the mother is not required to present a case that is "sure of success," General Motors Corp., petitioner, 344 Mass. 481, 482 (1962), the alleged violations of the Indian Child Welfare Act, 25 U.S.C. §§ 1901 et seq. (ICWA), and of her visitation rights do not raise meritorious appellate issues.

The mother claims that the Juvenile Court violated the ICWA by failing to (1) inquire or instruct the parties to inform the court whether they know or have reason to know that any of the children qualify as an "Indian child" under 25 U.S.C. § 1903(4); (2) confirm whether any of the children were members or eligible for membership in Indian tribes; and (3) treat the children as Indian children until established otherwise. See Indian Child Welfare Act Proceedings, 81 Fed. Reg. 38,778, 38,804-38,806 (June 14, 2016). See also Adoption of Ursa, 103 Mass. App. Ct. 558, 564-566 (2023). She also claims that the Department of Children and Families (DCF) violated the ICWA by failing to file the requisite ICWA notices with the Juvenile Court.

As an initial matter, the mother did not raise a ICWA claim at trial, and claims raised for the first time on appeal are generally waived. See Adoption of Willow, 433 Mass. 636, 651 (2001). Even if we assume without deciding that the ICWA claim was not waived, see Adoption of Ursa, 103 Mass. App. Ct. at 564, the claim lacks merit because the children, as a matter of law, are not Indian, so any ICWA violation is without consequence.

On July 15, 2021, DCF sent the requisite ICWA notices to the various tribes that the mother indicated potential affiliations with for all three children. Without exception, each tribe responded that the children are not enrolled and are not eligible for membership in their respective tribes. "A tribal determination of a child's eligibility for tribal membership is conclusive as a matter of law." Id. at 567. 8 Therefore, the single justice did not abuse his discretion in determining that the mother has not raised a meritorious ICWA issue. See id. at 564.

Therefore, the mother's argument is unavailing, as it is nonetheless conclusive, by virtue of this child's status, that the other two children are not Indian children.

Finally, the mother claims that DCF's pretrial termination of her visitation rights with her children without judicial approval was improper. See Adoption of Franklin, 99 Mass. App. Ct. 787, 796 (2021). 9 "It is well-established that a parent must raise a claim of inadequate services in a timely manner." Adoption of Daisy, 77 Mass. App. Ct. 768, 781 (2010), citing Adoption of Gregory, 434 Mass. 117, 124 (2001). Here, the mother raised this issue for the first time during closing arguments at trial; thus, the issue is waived as untimely. See Adoption of Willow, 433 Mass. at 651.

In sum, the mother has neither shown good cause nor a meritorious case. Therefore, the single justice did not abuse

his discretion in denying her motion for leave to file a late notice of appeal.

Order of single justice dated June 23, 2023, affirmed.

By the Court (Meade, Neyman & Hand, JJ. 10),

Assistant Clerk Entered: March 15, 2024.