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23-P-874 Appeals Court
ADOPTION OF XADEN (and four companion cases1).
No. 23-P-874.
Bristol. April 1, 2024. - August 6, 2024.
Present: Massing, Shin, & D'Angelo, JJ.
Parent and Child, Adoption, Care and protection of minor. Adoption, Care and protection. Interstate Compact on Placement of Children.
Petition filed in the Bristol County Division of the Juvenile Court Department on June 3, 2016.
The case was heard by Michaela C. Stewart, J.
Laura E. Openshaw for Xaden. Roberta Driscoll-Weiss for the mother. Kathryn G. Foster for the father of Arlo, Beth, Laura, and Susan. Abigail Salois, Committee for Public Counsel Services, for the father of Xaden. Jeremy Bayless for Department of Children and Families. Peter Heffernan for Arlo & another. Garry M. O'Brien for Beth & another.
1 Adoption of Arlo; Adoption of Beth; Adoption of Laura; and Adoption of Susan. The children's names are pseudonyms. 2
D'ANGELO, J. After a trial, a judge of the Juvenile Court
issued decrees finding the mother, and the father of Arlo, Beth,
Laura, and Susan,2 unfit to parent the children and ordering
termination of their parental rights. The judge also found the
mother unfit and terminated her parental rights with respect to
her oldest child, Xaden. The judge did not, however, find
Xaden's father unfit. Nonetheless, the judge ordered that Xaden
remain in the temporary custody of the Department of Children
and Families (department) until completion of a home study of
his father's home in Pennsylvania pursuant to the Interstate
Compact on the Placement of Children (ICPC), St. 1963, c. 452,
§ 1.
On appeal, Xaden's father, joined by Xaden, argues that the
judge erred by requiring him to complete an ICPC home study when
the department did not establish that he was unfit to parent
Xaden. We agree and hold that because the department did not
meet its burden of proving unfitness, custody of Xaden should
not have been withheld from his father pending compliance with
the ICPC.3
We refer to Arlo, Beth, Laura, and Susan collectively as 2
"the younger children."
As discussed further below, while this appeal was pending, 3
the judge granted permanent custody of Xaden to his father. Xaden's father concedes that this rendered his appeal moot. Although we generally do not decide moot cases, we agree with 3
Xaden, joined by the mother, also argues that the judge
should not have terminated the mother's parental rights to Xaden
because the goal for Xaden was not adoption. Additionally, the
mother and the father of the younger children argue that the
judge erred in finding that the adoption plan presented by the
department serve the best interests of the younger children. We
affirm.
Background. From 2016 to 2019, the department filed
petitions pursuant to G. L. c. 119, § 24, ultimately alleging
that all five children were in need of care and protection. By
2019, all five were in the department's custody. A termination
of parental rights trial began in September 2021 and concluded
in June 2022. The judge found the mother and the father of the
younger children unfit and issued decrees in August 2022,
terminating their parental rights. The judge did not terminate
the parental rights of Xaden's father.
In January 2023, the judge issued detailed written findings
and conclusions in support of her decision and approving the
department's plan for adoption of the younger children by their
Xaden's father that his appeal falls within an exception to the general rule because the issues he raises are "of public importance, fully argued and briefed on all sides, very likely to arise again in similar factual circumstances, and might otherwise evade appellate review." Care & Protection of Walt, 478 Mass. 212, 219 (2017). We will therefore address the substance of his arguments. 4
foster parents. The judge found the mother and the father of
the younger children unfit based on several factors, including
domestic violence in their relationship, mental health issues,
lack of stable housing, and unsanitary and unsafe home
conditions. Neither the mother nor the father of the younger
children challenges the judge's findings of unfitness on appeal.
They do, however, argue that the judge erred in approving the
adoption plan for the four younger children.
The judge also found that the department failed to prove
that Xaden's father was unfit to parent him. Instead of
awarding Xaden's father immediate custody of Xaden, however, the
judge ordered him "to comply with the ICPC process" and wrote
that "failure to do so may result in a change in the custody
status of [Xaden]." One month later, Xaden's father filed a
motion for "direct custody," arguing that the ICPC by its terms
does not apply to parents and that imposing the ICPC
requirements on him violated his constitutional rights. The
judge denied the motion without comment.
In April 2023, after Pennsylvania authorities eventually
approved Xaden's father's home, the department placed Xaden with
him. Xaden remained in the legal custody of the department,
however. It was not until October 2023 -- fourteen months after
the judge found that the department failed to prove Xaden's 5
father unfit -- that the judge finally granted him permanent
custody of Xaden.
Discussion. 1. ICPC. Xaden's father, who lived in
Pennsylvania at the time of trial, argues that the ICPC should
not prevent or delay placement of a child with a parent who has
not been deemed unfit and about whom protective concerns have
not been raised. At oral argument, he confirmed that he is not
challenging the application of the ICPC to him while the care
and protection proceeding was still pending. The limited issue
he raises, and the only one we decide, is whether the judge
erred by requiring him to complete the ICPC process as a
condition of obtaining permanent custody of Xaden, even though
the judge had found after the trial that the department failed
to meet its burden of proving him unfit.
As we explained in Adoption of Knox, 102 Mass. App. Ct. 84,
88 (2023), "[t]he ICPC provides an administrative structure
through which a child welfare agency, such as [the department],
can place a child in a different State while ensuring that such
placement is adequately screened, supervised, and supported."
The ICPC applies when an agency seeks to transfer a child out of
State "for placement in foster care or as a preliminary to a
possible adoption." St. 1963, c. 452, § 1. Thus, by its terms,
the ICPC does not extend to placement of a child with an out-of-
State parent because "[c]hildren in the care of their own 6
parents are not in 'foster care' in any ordinary sense of that
phrase." In re Emoni W., 305 Conn. 723, 734-735 (2012).
Despite the literal language of the ICPC, however, other
jurisdictions have reached differing conclusions as to whether
the ICPC can nonetheless be applied to out-of-State parents.
Several jurisdictions have construed the statutory language
strictly to conclude that the ICPC is never applicable to
parents. Others have concluded that out-of-State parents can be
required to comply with the ICPC process in some circumstances.
See Adoption of Knox, supra at 91 n.12 (collecting cases).
In Adoption of Knox, 102 Mass. App. Ct. at 91, we took the
latter view and concluded that the judge did not err in finding
that an ICPC agreement was required before the child could be
returned to the mother, who was living in New Hampshire. We
reasoned that "[t]he fact that the ICPC itself does not require
that there be an ICPC agreement in place hardly means that [the
department], or a judge, could not require this in appropriate
circumstances." Id. at 89.
Seizing on this language, the department argues here that
the "appropriate circumstances" that existed in Adoption of Knox
also exist in this case.4 We disagree. In Adoption of Knox, the
4 Our decision in Adoption of Knox relied in part on the fact that in that case the department had invoked the ICPC in reliance on a duly promulgated regulation. See Adoption of 7
mother had stipulated to her temporary unfitness and had been
adjudicated currently unfit after a trial. See id. at 86-87.
The care and protection proceeding was still pending when the
department was exploring placement of the child with the mother
in New Hampshire. See id. at 91-92. In those circumstances, we
concluded that "it would have been highly imprudent -- at a
minimum -- to return [the child] to New Hampshire without the
support and oversight that an ICPC agreement would provide."
Id. at 92. See Adoption of Warren, 44 Mass. App. Ct. 620, 621-
622 (1998) (receiving State had protective concerns about
father's criminal history, poor living conditions, and inability
fully to understand and to address child's significant emotional
and behavioral problems). Here, in contrast, the judge found
after a multiday trial that the department failed to meet its
burden of proving that Xaden's father was unfit.
Notwithstanding its failure to establish the unfitness of
Xaden's father, the department suggests that it was still
appropriate to require him to comply with the ICPC process
because there was evidence presented at trial of protective
concerns relating to his Pennsylvania home. But even assuming,
Knox, 102 Mass. App. Ct. at 89-90, citing 110 Code Mass. Regs. § 7.503(8) (2008). In this case, the department relies solely on Adoption of Knox and makes no separate argument that its regulations authorized the judge's use of the ICPC. Accordingly, we need not address the argument raised by Xaden's father that the regulations are ultra vires. 8
without deciding, that there may be situations where evidence of
legitimate protective concerns presented at trial (falling short
of establishing unfitness) would warrant application of the
ICPC, the evidence here did not establish any such concerns
about Xaden's father.
As the judge found, Xaden's father moved back to
Pennsylvania, where he had grown up, in May 2018, and two home
studies of his apartment were conducted the following year.
Both studies disapproved the placement solely on the ground that
the apartment did not have enough space, which is not a
legitimate reason to deny custody to a parent. Cf. 110 Code
Mass. Regs. § 1.11 (2008) ("children should never be removed
from their parents and placed into substitute care on the sole
basis of homelessness of a family"). Moreover, although a third
home study request submitted by the department also ended
unfavorably because Xaden's father failed to make himself
available, a court investigator subsequently traveled to his
apartment during the trial and succeeded in conducting a home
study.
Based on the investigator's observations, the judge found
that Xaden's father lived in a "well-kept" apartment building in
a residential neighborhood, that the bedroom was set up with a
bed for Xaden, that Xaden's father had located a school and
pediatrician's office near the apartment, and that he would be 9
able to shift his work schedule to accommodate Xaden's
schooling. Xaden's paternal grandmother also lived nearby, and
she testified that she would "assist [Xaden's father] in caring
for [Xaden]." The evidence therefore did not show any
legitimate protective concerns for placement of Xaden with his
father.
The ICPC is a valuable tool for the Commonwealth to ensure
that children remain safe when they are placed with families
living in other States. Where a care and protection case is
pending, and either temporary unfitness has been established or
there are legitimate protective concerns regarding the out-of-
State parent, the ICPC facilitates a thorough assessment of the
receiving State placement to ensure that the placement will
serve the child's best interests. See Adoption of Knox, 102
Mass. App. Ct. at 91-92. But these considerations are not
present where a judge finds that the department failed to prove
unfitness because, "absent a showing to the contrary," which was
not made in this case, "we presume a fit parent will act in
[his] child's best interest." Martinez v. Martinez-Cintron, 93
Mass. App. Ct. 202, 205 (2018). Accord Blixt v. Blixt, 437
Mass. 649, 658 (2002), cert. denied, 537 U.S. 1189 (2003).
We therefore conclude that, because the department failed
to prove at trial that Xaden's father was unfit, the judge erred
by requiring him to comply with the ICPC process and delaying 10
placement of Xaden with him until a full ICPC assessment was
completed. See Green v. Division of Family Servs., 864 A.2d
921, 928 (Del. 2004) (concerns that ICPC seeks to address are
not implicated "where the fitness of a non-custodial parent is
not in doubt, and no continuing supervision will be necessary").
We need not decide whether, as the department suggests, there
may be circumstances where the trial evidence, although not
establishing unfitness, would still warrant invoking the ICPC
process because of protective concerns regarding the out-of-
State parent's home. Even assuming there may be such
circumstances, they would be extraordinary. The evidence in
this case did not establish any legitimate protective concerns
about Xaden's father's home, let alone present extraordinary
circumstances justifying withholding custody of his child from
him when the department failed to prove him unfit.
Were we to conclude otherwise, serious constitutional
questions would arise. "Parental rights to raise one's children
are essential, basic rights that are constitutionally
protected." Adoption of Vito, 431 Mass. 550, 562 (2000). See
Care & Protection of Jaylen, 493 Mass. 798, 807 (2024) (parents
have a "fundamental right . . . to make decisions concerning the
care, custody, and control of their children" [citation
omitted]). General Laws c. 119, § 24, protects that basic right
by prohibiting the department from removing a child from a 11
parent's care, even temporarily, unless it can show that removal
"is necessary to protect the child from serious abuse or
neglect."
Here, the department presented no evidence that Xaden would
be at risk of serious abuse or neglect in his father's care, yet
his father was denied physical custody for eight months and
denied legal custody for fourteen months pending completion of
the lengthy ICPC home study process. This did not comport with
either the protections afforded by G. L. c. 119 or
constitutional principles. See Commonwealth v. Roman, 489 Mass.
81, 86 (2022), quoting Finch v. Commonwealth Health Ins.
Connector Auth., 459 Mass. 655, 668-669 (2011), S.C., 461 Mass.
232 (2012) (State action that "burdens the exercise of a
fundamental right protected by our State Constitution . . . is
subject to strict judicial scrutiny," under which State action
"must be narrowly tailored to further a legitimate and
compelling governmental interest and must be the least
restrictive means available to vindicate that interest");
Adoption of Vito, 431 Mass. at 563 ("State intrusion in the
rearing of children by their parents may be justified only in
limited circumstances"). See also Matter of B.H. & G.H., 398
Mont. 275, 304 (2020) ("A request for an ICPC cannot be used to
diminish the protections for parents provided [by statute]
simply because the parent lives across state lines"). 12
2. Termination of the mother's parental rights to Xaden.
The mother and Xaden argue that the judge abused her discretion
in terminating the mother's right to parent Xaden. In
particular, they argue that because the goal for Xaden was not
adoption, but reunification with his father, and because Xaden
now lives with his father in Pennsylvania, terminating the
mother's parental rights was not necessary to protect Xaden from
harm or to facilitate his transition to a permanent placement.
We disagree.
"Termination of parental rights may occur only after a
judge determines that a parent is unfit and that termination is
in the child's best interest." Adoption of Malik, 84 Mass. App.
Ct. 436, 438 (2013). "When reviewing a decision to terminate
parental rights, we must determine whether the trial judge
abused his discretion or committed a clear error of law."
Adoption of Elena, 446 Mass. 24, 30 (2006). When a child has
been placed with one parent, the judge may determine that
termination of the noncustodial parent's parental rights serves
the best interests of the child when doing so "significantly
eases the [child's] path to a stable placement." Adoption of
Willow, 433 Mass. 636, 647 (2001). In Adoption of Willow, the
department's goal was to reunite the children with the father,
after the mother was found unfit. Id. at 643. The mother
argued that the judge lacked the authority to terminate her 13
parental rights if he did not also terminate the rights of the
father. Id. The court concluded that the judge did not err in
finding that even though the children had already gone to live
with the father, terminating the mother's parental rights served
the best interests of the children because "severing all legal
relations between the mother and the children . . . is a
critical step in promoting stability in their lives." Id. at
647.
Termination also protects a child from attempts by a parent
"to interfere with the child[], initiate multiple, repetitious
litigation," and hinder "the child['s] path to a stable
placement" (citation omitted). Adoption of Willow, 433 Mass. at
647. These same considerations support the judge's decision
here to terminate the mother's parental rights notwithstanding
Xaden's placement with his father in Pennsylvania. And because
the judge found that posttermination visitation with the mother
served Xaden's best interests, termination of the mother's
parental rights here does not preclude Xaden and the mother from
maintaining a relationship.
Xaden argues that termination will harm his relationship
with the mother and possibly interfere with his economic
interests, such as his ability to receive child support payments
and his eligibility for health insurance through the mother.
The judge determined, however, as to all of the mother's 14
children, that their "future security and welfare far outweigh
[the mother's] custody rights." The judge noted, for example,
that the "[m]other has failed to address her mental health,
anger management, and substance abuse issues, continuing to
ignore its impact on the welfare of her children." The evidence
supports the judge's decision, and we conclude that she did not
abuse her discretion in terminating the mother's parental rights
to Xaden.5
3. Adoption placement of the younger children. The mother
and the father of the younger children argue that the judge
erred in approving the adoption plan for the younger children,
because there was insufficient evidence that the preadoptive
family, their foster family at the time of trial, was a suitable
placement for them and the judge failed to meaningfully consider
the alternative placement options. Specifically, they claim
that the judge did not consider sexualized behaviors that Xaden
exhibited while he was also living at the preadoptive family
home. The mother also argues that the preadoptive mother failed
to meet Xaden's educational and emotional needs because she did
not allow him to resume attending in-person school in September
and October 2020 due to concerns over exposure to COVID-19.
The mother challenges several of the judge's factual 5
findings as clearly erroneous. We have reviewed each of her arguments and discern no clear error. 15
Finally, the mother claims that the preadoptive mother
interfered with the relationship between the mother and the
children by not allowing in-person visits.
"We review the judge's placement determination for abuse of
discretion." Adoption of Zak, 87 Mass. App. Ct. 540, 545
(2015), S.C., 90 Mass. App. Ct. 840 (2017). "In choosing among
placement plans, it falls to the sound discretion of the trial
judge to determine what is in the best interests of the child,
and our review on appeal is one of 'substantial deference.'"
Adoption of Bianca, 91 Mass. App. Ct. 428, 434 (2017), quoting
Adoption of Hugo, 428 Mass. 219, 225 (1998), cert. denied sub
nom. Hugo P. v. George P., 526 U.S. 1034 (1999).
While we recognize that the mother and the father of the
younger children may have disagreed with the preadoptive
mother's educational decisions and her manner of dealing with
Xaden's behavioral issues, they have not articulated how these
concerns warrant disturbing the judge's approval of the
placement of the younger children in the preadoptive home. At
the time of trial, Xaden no longer lived with the preadoptive
family, and the judge made detailed findings supporting her
decision to approve the placement of the younger children with
the family. She found that the younger children "have a close
bond" with the family and that they live in "a structured
household which offers the children love, nurture, safety, and 16
consistency." The judge also found that the younger children
benefit from "receiv[ing] services in the home to address their
needs" and from the preadoptive family's ability to "provide
permanency for [them]."
We disagree with the father of the younger children's
general unsupported allegations that the children are unhappy
and that there is no evidence of affection between the
preadoptive mother and those children. We find ample support
for the judge's findings that the younger children are doing
well with the preadoptive family and that they "would suffer
harm if removed from their current foster home." Arlo has
received support managing his attention deficit hyperactivity
disorder, allowing him to focus more easily and to control his
impulses. Beth's mood and behavior have also stabilized, and
she was able to adjust to a new daycare center without any
issues. Laura's social and communication skills have progressed
at preschool, and she does well with structure and consistency.
Susan, who joined her siblings with the preadoptive family in
2021, has adjusted well to the new placement and has a happy,
smart, and playful disposition. We conclude that there were
sufficient facts to support the judge's finding that the plan of 17
adoption by the preadoptive family is in the younger children's
best interests.6
The mother also suggests that the judge did not
sufficiently consider the alternative adoptive placement option
for Susan, Laura, and Beth to live with a prior foster mother.
The judge expressly concluded, however, that adoption by the
prior foster mother would not serve the younger children's best
interests. Although it would have been better had the judge
explained her reasoning in more detail, the evidence, which the
judge was in the best position to weigh, supported her
conclusion. Most significantly, the prior foster mother
testified that she wanted to adopt only Susan, Laura, and Beth,
but not Arlo. Because the judge found the fact that the four
younger children would be living together as a positive feature
of the placement with the preadoptive family, it is implicit
that she also found it would not be in the children's best
interest if three of them lived with the prior foster mother and
one lived in a separate, unidentified home. There was no abuse
of discretion. See Adoption of Ilian, 91 Mass. App. Ct. 727,
732 (2017).
6 Because the judge did not abuse her discretion in approving the adoption plan, we decline the request by the father of the younger children to vacate the decrees terminating his parental rights on this basis. 18
Conclusion. The decrees terminating the parental rights of
the mother and the father of the younger children are affirmed.
The appeal by Xaden's father is dismissed as moot.
So ordered.