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
25-P-593
ADOPTION OF FARHINA.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a trial on a review and redetermination motion
brought by the Department of Children and Families (department)
pursuant to G. L. c. 119, § 26, a judge of the Juvenile Court
terminated the father's parental rights to his child, Farhina.2
On appeal, the father argues that the evidence did not clearly
and convincingly establish that he is currently unfit or that he
would remain unfit to parent his child in the indefinite future.
He further contends that the judge misinterpreted the testimony
of the father's expert regarding his parental fitness and erred
in concluding that the department made reasonable efforts to
reunite him with Farhina. The father further argues that the
1 A pseudonym.
2The mother's parental rights were also terminated, but she did not file a notice of appeal. judge abused her discretion by concluding that the termination
of his parental rights was in Farhina's best interests.
Finally, the father contends that the judge's consideration of
the Interstate Compact on the Placement of Children (ICPC or
Interstate Compact) home study denial in evaluating the father's
fitness violated his constitutional rights and amounted to an
abuse of discretion.3 We affirm.
Background. The mother and the father were involved in a
romantic relationship for more than four years during which time
the father was aware that the mother was using heroin daily and
"crack" cocaine sporadically. Farhina was born in New York on
March 31, 2020, and had been exposed in utero to marijuana and
methadone. The mother struggled with long-term addiction and,
at the time of Farhina's birth, was participating in a methadone
treatment program. On October 20, 2020, New York Child
Protective Services (NYCPS) responded to a report that the
mother and the father were not providing food or formula for
Farhina. During NYCPS's investigation, the mother admitted to
3 At oral argument, appellate counsel for the father informed the court that he did not file the appellant's principal brief but had filed the reply brief. Counsel represented that he was pressing the issues identified in the father's reply brief and not those included in the appellant's brief. Accordingly, we do not expressly address arguments raised only in the appellant's brief, which in any event, were not persuasive and did not give us pause.
2 co-sleeping with Farhina and the father admitted to
administering a urine test for substances on the mother without
her knowledge and to putting a GPS tracker on the mother's car.
In November, 2020, NYCPS removed Farhina from the mother's care
and, after paternity was established, placed her with the
father, allowing only supervised visitation with the mother.4
In July of 2021, the father brought Farhina to live
temporarily with the mother as a family in Massachusetts while
repairs were being made to the father's home in New York. In
August 2021, the mother gave birth to another child in
Massachusetts, and this infant tested positive for fentanyl,
opiates, and cocaine. The infant remained at the hospital to
obtain medication for the treatment of withdrawal symptoms while
the mother left the hospital against medical advice. The mother
acknowledged using fentanyl, cocaine, and heroin prior to that
child's birth, and asked that the father be given custody of the
child. The father declined to take custody of the infant,
expressing skepticism that he was the father. And, while the
father was later excluded as the biological father of the child
by genetic marker testing, he admitted to still having intimate
4 This placement was briefly suspended when Farhina was eight months old because the father had failed to sign her birth certificate. Once the father established his paternity, NYCPS closed the case and granted him full custody.
3 relations with the mother around the time of conception and was
aware of the mother's substance use. The department filed a
care and protection petition as to that child.
On October 15, 2021, the father attended a funeral in New
York and left Farhina unsupervised with the mother in
Massachusetts, even though he was aware that the New York order
prohibited unsupervised contact with the mother, that Farhina
and the newborn infant were born exposed to substances, and that
the mother continued to struggle with a substance use disorder.
While Farhina was left in the mother's care, police responded to
a call from the mother's neighbor and found the nineteen
month old Farhina alone in the apartment. When the father
refused to cooperate with the department or even allow the
department to view Farhina to check on her welfare, the
department removed her and assumed custody under G. L. c. 119,
§ 51B.
The department was then granted emergency temporary custody
of Farhina by the Juvenile Court pursuant to G. L. c. 209B,
§ 2 (a) (3) (ii).5 The father subsequently returned to reside in
New York in December of 2021. At the request of the department,
5 On October 18, 2021, Farhina had not lived in Massachusetts for the minimum required six consecutive months under the Massachusetts Child Custody Jurisdiction Act, G. L. c. 209B, § 1.
4 between March and June 2022, New York conducted an ICPC home
study. The mother, who was living with the father in New York,
reported that she and the father were planning on getting
married in 2022. She further acknowledged that Farhina had been
removed from the home because of her drug use. The mother
admitted to being eight weeks pregnant, and the father
acknowledged that she continued to struggle with substance use.
The mother reported that the father does not allow her in the
house when she is using drugs and that he administers a urine
screen when he is suspicious that she is using drugs. New York
denied placement of Farhina with the father upon completion of
the interstate home study due to concerns about the mother's
substance abuse and the physical safety of the home. Farhina
was then placed by the department with her current foster
parents in Massachusetts.
While Farhina's care and protection case was pending in the
Juvenile Court, the mother gave birth to another child -- her
second with the father -- in Philadelphia in September of 2022.
That child was born prematurely, weighing a little over two
pounds, and tested positive for cocaine, heroin, and fentanyl.
The child was admitted to the hospital for an extended period to
address his medical issues including his withdrawal from
substances. The mother left the hospital without the child and
5 provided the hospital with only the father's phone number to
contact her.6 The judge did not credit the father's testimony
that he was not in communication with the mother during this
time, notably because the hospital would contact the father when
trying to get in touch with the mother, and he would drive her
to and from the hospital in Pennsylvania. The judge also found
the father was evasive in his testimony about his communication
with the mother.
A termination of parental rights hearing occurred on
January 12, 2023, pursuant to G. L. c. 119, § 26. During these
proceedings, the department had supported reunification and had
provided the father with family action plans that included tasks
for individual counseling, anger management, psychological
evaluation, and parenting classes, all of which were available
in New York. The father failed to complete a psychological
evaluation, stating he had no intention to do so, and did not
attend any parenting classes outside of those originally
mandated by NYCPS. As noted above, when the department sought
to consider placing Farhina with the father at his residence in
New York through an ICPC agreement, New York denied the request.
6 Again, the father was unwilling to sign the child's birth certificate, but later a genetic marker test confirmed paternity.
6 By the hearing date, the department had changed the goal from
reunification to adoption.7
At the hearing in January 2023, the father admitted to
leaving Farhina unsupervised with the mother but blamed the
department for Farhina's removal. He testified that the drug
tests he gave the mother prior to leaving for New York had been
sufficient to protect Farhina and did not acknowledge that
leaving her with the mother violated the NYCPS order or that his
decision placed Farhina "at imminent risk of serious abuse or
neglect." When asked about his engagement in the family action
plan, the father admitted that he only attended mental health
counseling at the department's request and did not have a
"diagnosis, treatment plan, or goal."8 He also acknowledged
that, although he was seeking custody of his second child with
the mother, he had not taken any action and was not cooperating
with child protective services in Pennsylvania.
At the conclusion of the hearing, the judge found that the
father was unfit to parent Farhina at the time, citing to the
father's (1) limited insight on the impact of the mother's
substance abuse on her parenting of Farhina, (2) inability to
7 Farhina supported the department in this goal.
8 The father further testified that during counseling, they "just sit around and talk."
7 set safe boundaries with the mother, (3) limited engagement with
department services to address his shortcomings, and (4) ongoing
residence in New York with no supervision. However, the judge
found that the department had not satisfied its burden to prove
that the father's unfitness would likely continue into the
future to a near certitude, noting that the father had begun
some treatment and engaged in some services. As a result, the
judge placed Farhina in the permanent custody of the department
but did not terminate the father's parental rights.
A year later, in January 2024, the department filed a
motion for review and redetermination under G. L. c. 119, § 26,
once again seeking to terminate the father's parental rights. A
trial took place over the course of three days in September and
October of 2024, at which the father testified and introduced
into evidence the testimony and report from Dr. Christopher
Rose, who was qualified as an expert in clinical psychology.
Dr. Rose's report was entered into evidence without objection
and he also testified, opining that the father showed no signs
of intellectual deficit, that he used an avoidant coping style
to avoid sources of stress (a barrier, the judge found, to safe
and stable parenting), and had a personality profile that
indicated the father was not equipped to meet the demands of
parenting Farhina. Dr. Rose also diagnosed the father with an
8 adjustment disorder with mixed anxiety and a depressed mood and
found he had mixed personality traits that could cause distress
or interfere with optimal functioning. He recommended that the
father attend weekly counseling and explained to the father that
participating in Al-Anon could help him interact with the
mother. The father did not heed Dr. Rose's advice. The father
testified that he was aware that the mother reported to
Pennsylvania authorities that she was still using drugs and that
the mother would frequently and inexplicably go back and forth
to the car during their supervised visits with their second
child in Philadelphia. While the father acknowledged the
mother's drug use, he testified that he was not concerned that
it had any impact on Farhina or any of her other children
despite evidence to the contrary and he denied that the mother
posed any risk to Farhina. He also refused to engage in Al-Anon
or other counseling because he was "not involved with anyone
with an addiction."
In her findings of fact and conclusions of law explaining
the basis of her decision, the judge found that the "evidence at
the initial trial and the review and redetermination trial
overwhelmingly indicate that [the] [f]ather is unfit to parent
Farhina." See Care & Protection of Erin, 443 Mass. 567, 570
(2005) ("In review and redetermination hearings, the judge . . .
9 builds on findings established in the preceding stages. The
proper focus of inquiry . . . is on those facts that have
undergone some metamorphosis since the previous order or are
newly developed" [quotation and citation omitted]).
Specifically, the judge found that the father's pattern of
behavior had essentially not changed since the January 2023
hearing, nor was it likely to change in the future. The judge
noted that the only things that had changed between the initial
trial in January 2023 and the review and redetermination hearing
in 2024 were the father's completion of a psychological
evaluation and his continued engagement with the mother
regarding their child in Pennsylvania. The judge further noted
that since Farhina's removal, "the primary areas of danger" to
her have been centered on the mother's continued substance abuse
and "the ways in which that makes [the] [m]other unable to care
for Farhina and [the] [f]ather's inability or unwillingness to
acknowledge this danger and change his behavior regarding [the]
[m]other." Furthermore, the judge found that the father
continued to demonstrate an inability to grasp the risk posed to
Farhina by the mother -- an understanding the judge found
unlikely to change -- as well as an unwillingness to factor in
the mother's ongoing struggle with drug abuse into his decision-
making about Farhina.
10 Accordingly, the judge determined the father was still
unfit, that his unfitness was likely to continue into the
indefinite future, and as a result terminated the father's
parental rights and approved the department's plan of adoption
as being in the best interests of Farhina. Farhina was
flourishing with the preadoptive family, who facilitated visits
between Farhina and her sister, saw to her ophthalmological
issues, and recognized and supported her relationship with the
father. The judge also recognized the bond between the father
and Farhina and ordered posttermination and postadoption contact
with a minimum of two visits per year if the custodian
determines it to still be in Farhina's best interests.
Discussion. 1. Reasonable efforts. For the first time on
appeal, the father argues that the department failed to make
reasonable efforts to reunify him and Farhina. Because the
father did not raise this claim in the Juvenile Court, it is
waived. Adoption of Yalena, 100 Mass. App. Ct. 542, 554 (2021).
See Adoption of West, 97 Mass. App. Ct. 238, 242 (2020) ("[A]
parent must raise a claim of inadequate services in a timely
manner . . . either when the parenting plan is adopted, when
[he] receives those services, or shortly thereafter" [quotation
and citations omitted]). Counsel for the father argues that his
reasonable efforts challenge was not waived because he filed a
11 letter pursuant to Mass. R. A. P. 16 (l), as appearing in 481
Mass. 1628 (2019), in which he corrected inaccurate legal
citations in the father's appellate brief. This argument misses
the mark, as the waiver did not stem from counsel's failure to
provide correct legal citations before this court, but rather is
due to the father's failure to raise the claim in a timely
manner in the Juvenile Court.
However, even if the argument was somehow preserved, which
it was not, we are not persuaded. The department "is required
to make reasonable efforts to strengthen and encourage the
integrity of the family before proceeding with an action
designed to sever family ties." Adoption of Lenore, 55 Mass.
App. Ct. 275, 278 (2002). "[H]eroic or extraordinary measures,
however desirable they may at least abstractly be, are not
required." Id. "A judge's determination that the department
made reasonable efforts will not be reversed unless clearly
erroneous." Adoption of West, 97 Mass. App. Ct. at 242.9
Here, the record supports the conclusion that the
department made reasonable efforts to reunify Farhina with the
father. The department provided an action plan to the family
9 Even when a judge determines that the department has not made reasonable efforts, it should not "preclude the court from making any appropriate order conducive to the child's best interest." Adoption of Ilona, 459 Mass. 53, 61 (2011), quoting G. L. c. 199, § 29C.
12 upon removal of Farhina and then drafted seven additional action
plans to guide and assist the father in addressing his parental
shortcomings. While the father argues that the department's
efforts were not reasonable because they failed to refer him to
services in New York, there is no evidence that the father could
not access the recommended services. In fact, the father's
employment required him to travel between New York,
Pennsylvania, and Massachusetts on a regular basis. Contrary to
the father's claim that the department did not provide him with
services that he could readily access, the undisputed facts show
that the father refused to engage in most recommendations
suggested by the action plans. His refusal to engage in
services cannot be recast to a claim that the department somehow
failed to make reasonable efforts to reunite him with Farhina.
There was no error in the judge's finding that the department
had made reasonable efforts.
2. The father's unfitness and the termination of his
parental rights. "In deciding whether to terminate a parent's
rights, a judge must determine whether there is clear and
convincing evidence that the parent is unfit, and, if the parent
is unfit, whether [Farhina]'s best interests will be served by
terminating the legal relation between parent and child."
Adoption of Patty, 489 Mass. 630, 637 (2022), quoting Adoption
13 of Ilona, 459 Mass. 53, 59 (2011). "While a decision of
unfitness must be supported by clear and convincing evidence, a
judge's findings will be disturbed only if they are clearly
erroneous" (citations omitted). Adoption of Paula, 420 Mass.
716, 729 (1995). "A finding is clearly erroneous when there is
no evidence to support it, or when, although there is evidence
to support it, the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake has
been committed" (quotation and citation omitted). Adoption of
Rhona, 57 Mass. App. Ct. 479, 482 (2003). "We give substantial
deference to the judge's findings of fact and [termination]
decision, and will reverse only 'where the findings of fact are
clearly erroneous or where there is a clear error of law or
abuse of discretion.'" Adoption of Luc, 484 Mass. 139, 144
(2020), quoting Adoption of Ilona, 459 Mass. at 59.
"Parental unfitness is determined by considering a parent's
character, temperament, conduct, and capacity to provide for
[Farhina]'s particular needs, affections, and age." Adoption of
Anton, 72 Mass. App. Ct. 667, 673 (2008). In determining
parental unfitness, a judge must decide both whether the parent
is currently unfit and whether there is a reasonable likelihood
that the parent's unfitness is likely to continue indefinitely
into the future. See Adoption of Lisette, 93 Mass. App. Ct.
14 284, 296 (2018). "[A] judge's conclusion that a parent's
unfitness is temporary must rest on credible evidence supporting
a reasonable likelihood that the parent will become fit, not on
a 'faint hope.'" Adoption of Ilona, 459 Mass. at 59, quoting
Adoption of Inez, 428 Mass. 717, 723 (1999). "Because childhood
is fleeting, a parent's unfitness is not temporary if it is
reasonably likely to continue for a prolonged or indeterminate
period." Adoption of Ilona, supra at 60.
We conclude that the judge's ultimate findings that the
father remained unfit and that his unfitness was likely to
continue into the indefinite future were well supported by the
record, and we also discern no error or abuse of discretion in
the judge's conclusion that termination was in Farhina's best
interests. The judge's initial determination that the father
was unfit was based mainly on the father's failure to
acknowledge, let alone address, the inherent risk of serious
abuse or neglect to Farhina by allowing unsupervised contact
with the mother. The judge's determination in 2024 that the
father's unfitness was not temporary was based mainly on the
undisputed evidence of the father's ongoing failure to
acknowledge the risk that the mother posed to Farhina. After
the department assumed custody of Farhina, the father continued
to be involved in a relationship with the mother even though he
15 knew that the mother "has problems with not staying clean."
Instead of addressing his own parental shortcomings, including
following the department's recommended action plan to understand
the risks associated with allowing the mother unsupervised
contact with Farhina, the father refused to recognize the danger
to Farhina and continued to prioritize his relationship with the
mother over reducing the risk to Farhina. In fact, the father
had another child with the mother, a child also born exposed to
substances.
In concluding that the father was unfit, the judge
appropriately considered the testimony of the father's own
expert, Dr. Rose, who evaluated the father and testified about
the father's avoidant coping style and his inability to manage
stressful situations. The judge credited Dr. Rose's opinion
that the father has average cognitive functioning and that he
did not suffer any intellectual deficit that would grossly
interfere with his ability to function and perform daily living
tasks. Dr. Rose also found the father to be experiencing
anxiety, depression, and an adjustment disorder and recommended
that the father engage in long-term therapy. Dr. Rose described
that the father uses an "avoidant coping style" to maintain
emotional stability, and as such will go to great lengths to
avoid the sources of stress. The father's expert advised him to
16 continue with outpatient therapy on a weekly basis, share the
evaluation with his therapist, and participate in Al-Anon, but
the father did not heed this advice. While the father completed
an intake for therapy, he never actually engaged in any
counseling to address the avoidant behavior that was directly
related to his parental shortcomings.
Despite this undisputed evidence from the father's expert,
the father argues that the judge abused her discretion by
misconstruing Dr. Rose's testimony and report. We are not
persuaded, as these arguments "amount to no more than a
disagreement with the judge's weighing of the evidence and
credibility determinations regarding witnesses." Adoption of
Don, 435 Mass. 158, 166 (2001). In determining the father's
ability to safely to parent Farhina, the judge properly
considered that the father would go to great lengths to avoid
stress, which in this case resulted in inherent risk and danger
to Farhina by allowing unsupervised contact with the mother.
The father also contends that, because the father had made
substantial progress in addressing his parental shortcomings,
the judge erred in finding that his fitness was likely to
continue into the indefinite future. Again, we disagree. "Even
where a parent has participated in programs and services and
demonstrated some improvement, we rely on the trial judge to
17 weigh the evidence in order to determine whether there is a
sufficient likelihood that the parent's unfitness is temporary."
Adoption of Ilona, 459 Mass. at 59-60. See Adoption of Ulrich,
94 Mass. App. Ct. 668, 677 (2019) (parent's failure to benefit
from services is "relevant to the determination of unfitness"
[citation omitted]). Farhina's stability is an important
consideration, and her best interests are not served by
indefinitely waiting for the potential or hope that the father
will address his parental shortcomings. See Adoption of Nancy,
443 Mass. 512, 517 (2005).
The judge recognized that the father had completed a
psychological evaluation, but, in the context of this case, the
completion of an evaluation was not enough to establish that the
father was making significant progress and certainly was not
enough to reduce the risk of harm to Farhina. In the almost
three-year span since Farhina had been removed from the father's
custody, the father had yet to acknowledge or address the main
issue identified in the 2023 hearing -- the risk of allowing the
mother to have unsupervised contact with Farhina. The father
ignored most of the department's recommendations in the action
plan as well as those of his own expert. While the father
claims that the judge erred because "nothing changed" to justify
termination of his parental rights, the fact that nothing
18 changed is exactly the reason why the judge determined that the
father's unfitness was likely to continue into the indefinite
future. The undisputed facts support the judge's determination
that the father was unfit and the termination decision.
3. Interstate Compact. The father's final argument is
that in determining parental fitness, the judge improperly
considered the ICPC denial of his New York home plan and the
father's failure to relocate to Massachusetts once he learned of
its denial. Though the ICPC statute provides a floor of
protection, not a ceiling, "[the department] has promulgated
regulations that require there to be an ICPC agreement in place
even in some situations where the statute itself does not do
so." Adoption of Knox, 102 Mass. App. Ct. 84, 89 (2023). This
includes the requirement of ICPC compliance for "any stay across
state borders whenever the sending agency requests a home study
or supervision of a child by the receiving state." Id., quoting
110 Code Mass. Regs. § 7.503(8) (2008). "This regulation has
the force of law, and is presumptively valid and must be
accorded with all the deference due to a statute" (quotations
and citation omitted). Adoption of Knox, supra. The father
does not challenge the department's regulation as ultra vires.10
To the extent that the father argues that the 10
department's regulation infringes on the father's constitutional right to travel, we are not persuaded. "[A]pplication of the
19 The judge found that by the end of the first trial in 2023,
the father was aware of the identified risks that supported a
finding of unfitness, including that the ICPC home plan denial
was a barrier to placing Farhina in his custody. Given the
history of the father's continued relationship with the mother
despite her ongoing substance abuse and the fact that she gave
birth to several babies exposed to substances, the judge had
told the father that if she were to consider granting custody of
Farhina to him and sending Farhina to New York, it would have to
be supervised. Finally, it was explained to the father that if
he resided in New York and the updated ICPC request was denied,
he would not be granted custody.
The ICPC plan was denied and, despite his acknowledgment
that he was considering moving to Massachusetts, the father
never did. The judge found this "to be an example of [the]
[f]ather's patterned response to information or feedback that he
does not want to hear. He ignores it. [The] [f]ather's
avoidance of supervision or scrutiny prevented the possibility
ICPC to parents who have moved out of State does not discriminate against such parents; instead, it merely seeks to ensure that they will receive the same supports and oversight that would be in place had they remained in the Commonwealth." Adoption of Knox, 102 Mass. App. Ct. at 90 n. 9.
20 that [Farhina] might be placed with him. He chose his own
comfort over [Farhina]."
The father's argument that the judge improperly considered
this evidence lacks merit, as the undisputed facts establish
that, prior to moving to Massachusetts, Farhina had been placed
in the custody of child protective services in New York due to
the mother's substance use. It is also undisputed that the
father failed to protect Farhina when he left her with the
mother and returned to New York, in violation of the conditions
of custody imposed by New York and resulting in Farhina's being
left unattended in the mother's apartment. In considering
whether Farhina should be placed with the father, the judge
correctly noted that it would require the supervision of the New
York authorities, which in turn required an approved ICPC. In
determining his ability to care for Farhina, the judge did not
err in considering the ICPC home study or the father's failure
21 to make the necessary changes to provide a safe and suitable
home for Farhina.
Decree affirmed.
By the Court (Rubin, Walsh & Hershfang, JJ.11),
Clerk
Entered: January 29, 2026.
11 The panelists are listed in order of seniority.