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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.
