Adoption of Farhina.

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.

22