Adoption of Xaden

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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.