Adoption of Yadira

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SJC-12113
ADOPTION OF YADIRA (and two companion cases).1
Suffolk. November 7, 2016. - February 14, 2017.
Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, &
Budd, JJ.
Adoption, Dispensing with parent's consent. Minor, Adoption.
Parent and Child, Adoption, Dispensing with parent's
consent to adoption. Regulation. Practice, Civil,
Adoption, Report.
Petitions filed in the Suffolk Division of the Probate and
Family Court Department on March 20, 2014.
A motion to deny the petitions was heard by Virginia M.
Ward, J.
The Supreme Judicial Court granted an application for
direct appellate review.
Jeanne M. Kaiser for the mother.
Brian Pariser for Department of Children and Families.
Nena S. Negron for Yadira & others.
Michael F. Kilkelly, for the father, was present but did
not argue.
1
Adoption of Sabra; Adoption of Sabrina.
2
BUDD, J. We granted an application for direct appellate
review in this case to determine whether the Code of Federal
Regulations, 45 C.F.R. § 400.115(c) (1998), allows the
Department of Children and Families (department) to petition for
termination of parental rights on behalf of unaccompanied
refugee minors whose parents also are present in the United
States. We hold that the regulations do allow such petitions.
Background. In December, 2010, four minor siblings arrived
in Massachusetts from a Nepalese refugee camp through the
Federal Unaccompanied Refugee Minors Program (minor refugee
program). See Custody of Victoria, 473 Mass. 64, 65 n.1 (2015).
The department placed two of the children in a foster home in
Fitchburg and the other two in a foster home in Ashby.2 No later
than April, 2013, the children's mother and father had entered
the United States and settled in North Dakota and Ohio,
respectively. Since coming to the United States, both the
mother and the father have had "very limited contact" with the
children.
In March, 2014, the department petitioned the Probate and
Family Court to free the children for adoption by terminating
2
The oldest child is now over the age of eighteen and is
not a subject of this case.
3
parental rights pursuant to G. L. c. 210, § 3.3 The mother moved
to deny the department's petition. The judge denied the
mother's motion and subsequently reported the matter to the
Appeals Court. In her report, the judge framed the following
question for the court's consideration:
"Is it permissible under the Code of Federal
Regulations for the [department] to proceed to seek a
termination of parental rights where the child(ren) are
present in the United States pursuant to the [minor refugee
program] and both parents are also believed to be present
in the United States, i.e., not dead or missing and
presumed dead?"4
Discussion. a. Federal regulation. The Office of Refugee
Resettlement (resettlement office), the Federal agency within
the United States Department of Health and Human Services
responsible for implementing the minor refugee program, has
promulgated regulations pertaining to this program. See Custody
of Victoria, 473 Mass. at 65 n.1. The regulation pertinent to
this case, 45 C.F.R. § 400.115(c), provides:
3
According to the Probate and Family Court judge, the
department has alleged facts in its petition that could "lead
[that] Court to dispense with Mother and Father's consent to the
adoption of each of the three minor children."
4
"Although a judge may report specific questions of law in
connection with an interlocutory finding or order, the basic
issue to be reported is the correctness of [the] finding or
order. Reported questions need not be answered in this
circumstance except to the extent that it is necessary to do so
in resolving the basic issue." Maher v. Retirement Bd. of
Quincy, 452 Mass. 517, 522 n.9 (2008), cert. denied, 556 U.S.
1166 (2009), quoting McStowe v. Bornstein, 377 Mass. 804, 805
n.2 (1979). See, e.g., Barnes v. Metropolitan Hous. Assistance
Program, 425 Mass. 79, 83-84 (1997).
4
"Unaccompanied minors are not generally eligible for
adoption since family reunification is the objective of the
program. In certain rare cases, adoption may be permitted
pursuant to adoption laws in the State of resettlement,
provided a court finds that: (1) Adoption would be in the
best interest of the child; and (2) there is termination of
parental rights (for example, in situations where the
parents are dead or are missing and presumed dead) as
determined by the appropriate State court. When adoption
occurs, the child's status as an unaccompanied minor
terminates."
The explicit purpose of the program is "family reunification."
However, adoption of unaccompanied refugee minors is possible
"in certain rare cases."
The parents argue5 that the use in the regulation of the
passive voice in the phrase "there is termination of parental
rights . . . as determined by the appropriate State court"
indicates that qualifying terminations must occur through
nonjudicial means, such as parental death, and that the court is
to determine only whether such termination occurred, not act to
terminate rights itself. They further argue that the use in the
regulation of the present tense means that the department cannot
petition for what would be a future termination; that is, the
termination must already be in effect before the department can
pursue adoption.
5
Both parents submitted briefs; the father has adopted the
mother's arguments seeking to dismiss the department's petition
to terminate parental rights and makes an additional argument
regarding the Federal Adoption and Safe Families Act of 1997
(adoption act), discussed infra.
5
This narrow reading of this regulation is unpersuasive.
First, under this interpretation, there would be no need to use
the phrase "for example," because, according to the parents,
there are only two circumstances in which nonjudicial
termination occurs: when parents are dead, or when they are
missing and presumed dead. We conclude that the provision of
examples indicates that there are more applicable situations
than those listed. "[I]t is plain from the structure and
language of the [regulation] that the [agency] did not intend to
give an exhaustive list." Harrison v. Loyal Protective Life
Ins. Co., 379 Mass. 212, 215 (1979).
Second, and more importantly, the parents' interpretation
would mean that for unaccompanied refugee minors there would be
no mechanism for a court ever to make a determination of
parental unfitness and terminate parental rights. This would
leave a whole category of children without protection and would
be in direct conflict with the Federal Adoption and Safe
Families Act of 1997, discussed infra. Such an interpretation
is unreasonable, and "we will not adopt a construction of a
statute that creates 'absurd or unreasonable' consequences"
(citation omitted). Lowery v. Klemm, 446 Mass. 572, 578-579
(2006).
Because the termination of parental rights is a necessary
precondition to adoption, the Federal regulation simply directs
6
the court to determine the issue of termination according to its
own State laws. Here the department seeks just such a
determination with its petition. See Adoption of Nancy, 443
Mass. 512, 515 (2005) ("the judge must determine whether the
parent's unfitness is such that it would be in the child's best
interests to end all legal relations between parent and child").
Our interpretation of this Federal regulation accords with
the guidance statement on the adoption of unaccompanied refugee
minors issued by the resettlement office, which advises that
adoption cases involving such children "must be decided on their
own merit, on a case-by-case basis, by local courts empowered to
make such decisions based on State law and the best evidence
available." Office of Refugee Resettlement Statement of Goals,
Priorities, Standards, and Guidelines, 52 Fed. Reg. 38147, 38148
(1987). See Thomas Jefferson Univ. v. Shalala, 512 U.S. 504,
512 (1994) ("We must give substantial deference to an agency's
interpretation of its own regulations").
b. Massachusetts regulation. The relevant State
regulation, 110 Code Mass. Regs. § 1.12(3) (2008), regarding
implementation of the minor refugee program, is in accord with
45 C.F.R. § 400.115(c),6 and provides in relevant part:
6
Federal regulations require the department to establish
legal custody or guardianship for unaccompanied refugee minors
who settle in the Commonwealth. 45 C.F.R. § 400.115(a) (1998).
7
"The [d]epartment operates [a minor refugee program],
which provides foster care and case management services to
. . . refugee children who arrive in Massachusetts
unaccompanied by a parent or immediate relative. In every
case the parents of such children are either deceased or of
parts unknown. The intent of this program is to reunite
such children with a member or members of their family . .
. . The [minor refugee program] is fully funded by the
federal government through [resettlement office]. At
present, a federal regulation requires that such children
not be freed for adoption by the states. A proposed
amendment to the federal regulation, to allow states to
free such children for adoption awaits enactment. The
[d]epartment will adhere to the federal regulation in
question."
The department asserts that this regulation was promulgated in
1986. Notwithstanding the fact that it states, "[a]t present, a
federal regulation requires that such children not be freed for
adoption by the states," see id., as previously discussed, in
our view 45 C.F.R. § 400.115(c) does give the department the
discretion in rare instances to seek termination of parental
rights on behalf of unaccompanied refugee minors so that they
may be adopted.
The last sentence of the 110 Code Mass. Regs. § 1.12(3) is
key: "The [d]epartment will adhere to the federal regulation in
question." Thus, ultimately, the department's intention is to
follow, and be in harmony with, the Federal regulation. Whether
the department's interpretation of the Federal statute in 1986
was correct is moot.
See Custody of Victoria, 473 Mass. 64, 65 n.1 (2015), citing 8
U.S.C. § 1521.
8
c. Adoption and Safe Families Act of 1997. Despite the
parents' argument to the contrary (and although they have
different goals), the minor refugee program and the Adoption and
Safe Families Act of 1997, Pub. L. No. 105-89, 105th Cong., 1st
Sess., 111 Stat. 2115 (1997) (amending various provisions of
title IV of Social Security Act, 42 U.S.C. §§ 601 et seq.)
(adoption act), do not conflict.7
The purpose of the adoption act is to provide "safety,
permanency, and . . . well-being" for children who are under
State guardianship. 65 Fed. Reg. 4020, 4020 (2000). It directs
States to petition for the termination of parental rights where
a child has been in foster care for fifteen of the prior twenty-
two months.8 42 U.S.C. § 675(5)(E) (2012). However, there are
three exceptions to this general rule, including if there is a
documented "compelling reason" to refrain from filing a
7
The father also contends that the adoption act does not
apply to unaccompanied refugee minors because the act has a
funding source that is different from that of the Unaccompanied
Refugee Minors Program (minor refugee program). This argument
has no merit; by its own terms, the adoption act applies to all
children under State guardianship. 42 U.S.C. §§ 622(b)(8),
675(5) (2012).
8
There is no question that children in the minor refugee
program are included in the adoption act: "Congress developed
the [termination of parental rights] provision [of the adoption
act] to be applied to all children in foster care, whatever
their entry point into the system. Exempting groups of children
from the requirements would be contrary to [the adoption act's]
goal to shorten children's time in foster care." 65 Fed. Reg.
4020, 4059 (2000).
9
petition. 42 U.S.C. § 675(5)(E)(ii). A compelling reason not
to file a termination petition could include situations where
the child is an unaccompanied refugee minor. See 45 C.F.R.
§ 1356.21(i)(2)(ii)(C) (2015). Thus, read together, the
adoption act is well-aligned with regulations promulgating the
minor refugee program.
3. Conclusion. Unaccompanied refugee minors are different
from other children in foster care because they are separated
from their parents by war, natural disaster, or other forces
beyond their parents' control. Termination of parental rights
in such circumstances would be a clear due process violation.
However, although the overarching goal of the minor refugee
program is the reunification of families so affected,9 where
parents of unaccompanied refugee minors arrive in the United
9
In cases where the parents of refugee children remain
overseas, the department must consider factors different from
those in domestic cases when determining whether reasonable
efforts were made to reunify the family and whether
reunification is still reasonably possible.
In cases in which parents arrive in the United States after
their children do, the resettlement office "expects that the
overwhelming majority" of family reunifications can be achieved
during a "90-day period during which [the resettlement office]
would support services to unaccompanied minor refugees following
arrival of a parent." Office of Refugee Resettlement Statement
of Goals, Priorities, Standards, and Guidelines , 52 Fed. Reg.
38147, 38147 (1987). However, the resettlement office allows
that "in a compelling case" the ninety-day period may be
extended to allow more time for reunification. Id. at 38148.
It is for the court with jurisdiction to determine whether the
department exercised reasonable efforts to reunite the family in
this case.
10
States but make no attempt to reunite with their children (or
are otherwise found to be unfit), their children deserve safety
and permanency just like any other child.
Accordingly, we affirm the judge's interlocutory order
denying the mother's motion to deny the department's petition,
and we remand the case to the Probate and Family Court for
further proceedings consistent with this opinion.
So ordered.