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Adoption of Yadira

Supreme Judicial Court of Massachusetts, Suffolk

February 14, 2017

ADOPTION OF YADIRA (and two companion cases). [1]

          Heard: November 7, 2016.

         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.

          Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.

          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.l (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 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 ...

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