Date: 10-21-2015

Case Style: Custody of Victoria

Case Number: 2015-Ohio-4307

Judge: SJC-11826

Court: Massachusetts Supreme Judicial Court

Plaintiff's Attorney: Michael F. Kilkelly, Jeanne M. Kaiser, Brian Pariser

Defendant's Attorney: Benjamin C. Mizer, William C. Peachey, Elizabeth J. Stevens, Erez Reuveni

Description: The child in this case, Victoria,4 was born in
Mexico in 1997. She moved with her mother to Texas when she was
six years old, returned to Mexico to live with her maternal
grandmother when she was ten years old, and moved again to Texas
to live with her mother and stepfather when she was thirteen
years old. When Victoria was fourteen years old, in 2012, she
reported to the school nurse that she was being sexually
exploited, and law enforcement was notified of the report.
After investigating a prostitution ring in which Victoria
was involved,5 local law enforcement referred Victoria to the
United States Department of Homeland Security and, on April 28,
program. We consider this issue because it is important and fully briefed by the parties. See Commonwealth v. Barnes, 461 Mass. 644, 659 n.26 (2012), citing Wellesley College v. Attorney Gen., 313 Mass. 722, 731 (1943).
3 We acknowledge the amicus brief filed by the United States Department of Justice.
4 A pseudonym.
5 On September 8, 2013, a perpetrator against the child pleaded guilty in a criminal case and was sentenced to 111 months in prison for solicitation of a minor.
2012, that department referred Victoria to the Office of Refugee
Resettlement (office). On or about that same date, Victoria was
placed at the Shenandoah Valley Juvenile Detention Center in
Virginia. Victoria was transferred, on or about May 17, 2012,
from Virginia to the Shiloh Residential Treatment Center in
Texas for a psychiatric evaluation, stabilization, and
treatment.
The office notified Victoria that she was eligible for
benefits, effective June 11, 2012, under its unaccompanied
refugee minors program as a victim of trafficking. See Pub. L.
No. 110-457, 110th Cong., 2d Sess., Title II, Subtitle B, § 212,
122 Stat. 5044 (2008); Pub. L. No. 106-386, 106th Cong., 2d
Sess., 114 Stat. 1464 (2000). Victoria's mother sought
reunification, but the office, on June 17, 2013, denied the
release of Victoria to her mother's care after concluding that
the mother was unable to provide the medical and mental health
services, supervision, and structure necessary to care for
Victoria's mental health needs. On February 20, 2014, the
office designated Victoria as an unaccompanied refugee minor,
which entitles a State to Federal funds for providing child
welfare services, and assigned Victoria for placement in
Massachusetts. See 45 C.F.R. §§ 400.110-400.120 (2012).
Victoria was transferred from Texas to Massachusetts on February
25, 2014, where she was released from Federal custody and placed
5
in the care of Lutheran Social Services of New England.
Lutheran Social Services of New England placed Victoria at the
Glenhaven Academy residential school, where she receives mental
health treatment,6 daily living supervision, schooling, and
medical and dental care.
Approximately three weeks after Victoria's arrival in
Massachusetts, on March 14, 2014, the Department of Children and
Families (DCF) filed a petition for custody of Victoria in the
Probate and Family Court. A judge granted temporary custody of
Victoria to DCF under the court's emergency child custody
jurisdiction.7 The judge noted that it was not clear whether
Massachusetts has child custody jurisdiction over Victoria, but
granted temporary custody after reasoning that the child needed
an authorized caretaker. The judge accepted written argument
from the parties on the question of jurisdiction. On June 30,
2014, he dismissed the petition for custody filed by DCF for
lack of child custody jurisdiction, but stayed the dismissal
pending resolution of the issue of jurisdiction, which he
reported as a question to the Appeals Court on July 1, 2014.
6 Victoria is diagnosed with disruptive mood dysregulation disorder and posttraumatic stress disorder.
7 There is no evidence that any court, prior to action taken by the Suffolk Division of the Probate and Family Court Department, ever authorized the removal of the child from her mother's custody or placed the child in State custody.
6
The appeal commenced by the reported question was dismissed by
the Appeals Court for failure to docket the appeal as required
by Mass. R. A. P. 10 (a), as amended, 430 Mass. 1605 (1999).8
After the appeal was dismissed by the Appeals Court, the
judge reconsidered, sua sponte, his dismissal of DCF's petition.
The judge reasoned that Massachusetts courts lacked child
custody jurisdiction over Victoria under its statutes but that
the case should proceed in Massachusetts because it is "an
appropriate court" under Federal law to handle custody
proceedings for Victoria. The judge cited 45 C.F.R.
§ 400.115(a) as applicable to States participating in the
program for resettlement of unaccompanied refugee minors.9
Consistent with the conclusion that jurisdiction existed under
Federal law, the judge vacated his prior order dismissing the
petition, restored custody of Victoria to DCF, and stayed
further custody proceedings pending resolution of a new report
8 Under Mass. R. A. P. 10 (a), as amended, 430 Mass. 1605 (1999), each appellant is required to pay a fee to docket the appeal within ten days after receiving notice of assembly of the record. The judge had designated both the Department of Children and Families (DCF) and the child as the aggrieved parties. The parties were notified of the assembly of record on July 3, 2014. Neither DCF nor the child docketed the appeal, and the case was dismissed on August 6, 2014.
9 This regulation requires a State to "ensure that legal responsibility is established, including legal custody and/or guardianship . . . in accordance with applicable State law, for each unaccompanied minor who resettles in the State." 45 C.F.R. § 400.115(a) (2012).
7
on August 6, 2014, of the following questions to the Appeals
Court:
"a. Does a Massachusetts Probate and Family Court have child custody jurisdiction under G. L. c. 209B, or any other authority, of a minor child who has been granted refugee status by a Federal agency, has resided in another [S]tate for more than six months, but has been placed with a Massachusetts agency, in Massachusetts, for less than six months?
"b. If not, should the case proceed in the Massachusetts court despite lack of child custody jurisdiction because of the Federal statutory and regulatory scheme that brought the child to Massachusetts?"
We transferred the case from the Appeals Court on our own
motion.
Discussion. 1. Statutory overview. Because this case
presents an issue of statutory construction, we begin by
providing an overview of the Massachusetts act. Enacted in
1983,10 the act is a version of uniform standards developed in
1968 by the National Conference of Commissioners on Uniform
State Laws to provide consistency among the States for deciding
and enforcing custody jurisdiction, titled the Uniform Child
Custody Jurisdiction Act (uniform act), 9 U.L.A. §§ 1-28 (Master
ed. 1999). St. 1983, c. 680. See Redding v. Redding, 398 Mass.
102, 105 (1986). See also Thompson v. Thompson, 484 U.S. 174,
10 Massachusetts was the last of the fifty States to adopt a version of the Uniform Child Custody Jurisdiction Act. Blakesley, Child Custody -- Jurisdiction and Procedure, 35 Emory L.J. 291, 358 (1986).
8
181 (1988). Prior to the creation of uniform standards, States
generally did not give full faith and credit to another State's
custody orders. Id. at 180. This led to a "national epidemic
of parental kidnaping" and jurisdictional deadlocks because "a
parent who lost a custody battle in one State had an incentive
to kidnap the child and move to another State to relitigate the
issue." Id. at 180-181. The purposes of the Massachusetts and
uniform acts are similar: both encourage cooperation and
avoidance of jurisdictional conflict between courts of different
States in order to protect a child's welfare when litigating
custody matters. See St. 1983, c. 680, § 2 (a); 9 U.L.A.
§ 1(a). See also Redding, supra at 105.
Under Massachusetts law, a court may exercise jurisdiction
in a custody proceeding only under the provisions of G. L.
c. 209B. See Guardianship of Zeke, 422 Mass. 438, 441 (1996),
quoting Redding, 398 Mass. at 106 ("The decision of a
Massachusetts court to exercise jurisdiction and to make a
custody determination must be based solely on G. L. c. 209B").
Section 2 (a) of the Massachusetts act confers child custody
jurisdiction on Massachusetts courts only if one of the
following four requirements are met:
"(1) the [C]ommonwealth (i) is the home [S]tate of the child on the commencement of the custody proceeding, or (ii) had been the child's home [S]tate within six months before the date of the commencement of the proceeding and the child is absent from the [C]ommonwealth because of his
9
or her removal or retention by a person claiming his or her custody or for other reasons, and a parent or person acting as parent continues to reside in the [C]ommonwealth; or
"(2) it appears that no other [S]tate would have jurisdiction under paragraph (1) and it is in the best interest of the child that a court of the [C]ommonwealth assume jurisdiction because (i) the child and his or her parents, or the child and at least one contestant, have a significant connection with the [C]ommonwealth, and (ii) there is available in the [C]ommonwealth substantial evidence concerning the child's present or future care, protection, training, and personal relationships; or
"(3) the child is physically present in the [C]ommonwealth and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child from abuse or neglect or for other good cause shown, provided that in the event that jurisdictional prerequisites are not established pursuant to any other paragraph of this subsection and a court of another [S]tate shall be entitled to assert jurisdiction under any other subparagraph of this paragraph then a court exercising jurisdiction pursuant to this clause of paragraph (3) may do so only by entering such temporary order or orders as it deems necessary unless the court of the other [S]tate has declined to exercise jurisdiction, has stayed its proceedings or has otherwise deferred to the jurisdiction of a court of the [C]ommonwealth; or
"(4) (i) it appears that no other [S]tate would have jurisdiction under prerequisites substantially in accordance with paragraph (1), (2) or (3), or another [S]tate has declined to exercise jurisdiction on the ground that the [C]ommonwealth is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that a court of the [C]ommonwealth assume jurisdiction."
G. L. c. 209B, § 2 (a). Viewed broadly, the Massachusetts act
grants jurisdiction where Massachusetts is the child's "home
[S]tate," but also allows a Massachusetts court to exercise
jurisdiction when, in the Legislature's judgment, it may be
10
appropriate to do so in the best interests of the child even
though the Commonwealth is not the child's home State. We
review each statutory basis for jurisdiction in turn.
a. "Home [S]tate" jurisdiction. Under paragraph (1), a
court may exercise jurisdiction in a custody proceeding if (a)
Massachusetts is the child's "home [S]tate";11 and (b) a "parent
or person acting as parent" continues to reside in
Massachusetts. G. L. c. 209B, § 2 (a) (1). The "home [S]tate"
is the State where the child "resided with his parents, a
parent, or a person acting as parent, for at least [six]
consecutive months" prior to the commencement of the custody
proceedings.12 G. L. c. 209B, § 1. Relevant to that definition,
a "person acting as parent" is a "a person other than a parent
who has physical custody of a child and who has either been
11 Consistent with the underlying purpose of G. L. c. 209B to allow for uniform treatment of custody issues by an appropriate court, the statute creates an exception to the residency requirement if Massachusetts would be the child's home State except that the child is absent from the State "because of his or her removal or retention" by a person claiming custody and a parent or a person acting as parent continues to reside in the Commonwealth. G. L. c. 209B, § 2 (a) (1). In these circumstances, the residency requirement is satisfied even though the child is absent from the Commonwealth. This clause is not applicable to the facts of this case.
12 If a child is less than six months old, the timing requirement begins at birth. G. L. c. 209B, § 1. Further, "[p]eriods of temporary absence of any of the named persons are counted as part of the [six]–month or other period." Id. These provisions are not applicable to the facts of this case.
11
awarded custody of a child or claims a legal right to custody
and includes an authorized social service agency exercising
legal or physical custody of a child." Id. Thus, the "home
[S]tate" analysis involves two components: (1) the timing of
the child's residency in a State; and (2) whether the child
resides in the State with a "parent or person acting as parent"
during the requisite time period. G. L. c. 209B, § 1.
Although the timing component of the home State analysis is
relatively straightforward, the component requiring residency
with a parent or "person acting as parent" is more complex. The
complexity arises from the definition of a "person acting as
parent." The distinction between the Massachusetts act and the
uniform act is relevant to the analysis. In contrast to the
uniform act, which defines a "person acting as parent" as "a
person, other than a parent, who has physical custody of a child
and who has either been awarded custody by a court or claims a
right to custody," the Massachusetts act expands this definition
to include an "authorized social service agency exercising legal
or physical custody of a child." Compare G. L. c. 209B, § 1,
with 9 U.L.A. § 2(9). As the term "person" is undefined in
either the uniform act or Massachusetts act, the language added
by the Legislature clarifies that an authorized social service
agency, such as DCF in Massachusetts, is a "person" under the
12
act.13 In summary, unless a residency exception applies,14
Massachusetts is the home State if the child has resided in the
Commonwealth for six months with either a parent or a "person
acting as parent," defined to include a social service agency
such as DCF.
b. Default jurisdiction. Paragraph (2) allows
Massachusetts courts to exercise jurisdiction over a custody
proceeding if "no other [S]tate would have jurisdiction under
paragraph (1)" and the best interest of the child would be
served by the court assuming jurisdiction of the matter. G. L.
c. 209B, § 2 (a) (2). Here, in contrast to the definition of
"best interest of the child" generally applied in child custody
litigation, the phrase as used in this context elevates the
13 Many years after the Massachusetts Child Custody Jurisdiction Act was enacted, in 1997, the uniform act was revised and included a definition of "person," which accorded legal status to government agencies and other entities that might have a custodial relationship with the child. Uniform Child Custody Jurisdiction and Enforcement Act (revised uniform act), 9 U.L.A. § 101 (Master ed. 1999). Under the revised uniform act, "person" is defined as "an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government; governmental subdivision, agency, or instrumentality; public corporation; or any other legal or commercial entity." Id. at § 102(12). This definition was added "to ensure that the provisions of this Act apply when the State is the moving party in a custody proceeding or has legal custody of a child." Id. at § 102 comment.
14 See note 11, supra.
13
value of the child's connections to the Commonwealth in the
jurisdiction calculus. See id.
c. Emergency jurisdiction. Paragraph (3) establishes an
option for emergency jurisdiction in certain limited
circumstances. Under this provision, a Massachusetts court may
exercise jurisdiction over custody if the child is physically in
Massachusetts and has been abandoned or there is an emergency
need to protect the child. G. L. c. 209B, § 2 (a) (3).
d. Appropriate forum jurisdiction. Paragraph (4) allows
Massachusetts courts to exercise jurisdiction over custody if
(i) no other State would have jurisdiction under any of the
first three paragraphs or another State has "declined to
exercise jurisdiction on the ground that the [C]ommonwealth is
the more appropriate forum to determine the custody of the
child," and (ii) it is in the "best interest of the child" for
Massachusetts to assume jurisdiction. G. L. c. 209B,
§ 2 (a) (4).
2. Jurisdiction over Victoria's custody. With this
background, we now review whether Massachusetts has jurisdiction
over the child custody proceedings regarding Victoria under any
of the four paragraphs in G. L. c. 209B, § 2 (a). We may
quickly dispose of paragraphs (1) and (3). Massachusetts does
not have jurisdiction under paragraph (1) because Massachusetts
is not Victoria's home State. Victoria did not reside in
14
Massachusetts for six months prior to commencement of this
custody proceeding; she resided in Texas at the Shiloh
Residential Treatment Center from approximately May 17, 2012, to
February 25, 2014, when she was transferred to Massachusetts.
DCF commenced this custody proceeding three weeks after her
arrival, on March 14, 2014. Massachusetts does not have
jurisdiction under paragraph (3), which requires either that the
child has been abandoned or that a party has established an
emergency need to protect the child from abuse or neglect.
Neither factual predicate applies in this case.
We now turn to paragraph (2), which allows Massachusetts to
exercise jurisdiction if no other State qualifies as Victoria's
home State under the definition provided in G. L. c. 209B, § 1,
and the best interest of the child is served by the exercise of
jurisdiction by a Massachusetts court. As explained below, both
factors required for jurisdiction under this provision of the
statute are satisfied in the circumstances of this case.
a. Home State analysis. We first consider whether Texas
is the home State in accordance with the definition in G. L.
c. 209B, § 1. See MacDougall v. Acres, 427 Mass. 363, 366
(1998) (requiring application of Massachusetts law in
15
determining custody jurisdiction). Texas law is not
applicable.15 See id.
Although it is undisputed that Texas satisfies the timing
component of the home State analysis, the second requirement,
that Victoria was in the custody of a "parent or person acting
as parent" while residing in Texas, is not met. The analysis
centers on whether a Federal agency such as the office is an
"authorized social service agency" that, under G. L. c. 209B,
§ 1, is recognized as a "parent or person acting as parent."
Resolution of the issue is a matter of statutory interpretation.
"A fundamental tenet of statutory interpretation is that
statutory language should be given effect consistent with its
15 Although Texas law is not applicable to our analysis, we note that it is questionable whether Texas would be Victoria's home State under its laws. Texas has adopted the revised uniform act, which defines "person acting as a parent" differently from the uniform act and from the Massachusetts act. Compare Tex. Family Code Ann. § 152.102(13) (Thomson Reuters 2014) and revised uniform act, 9 U.L.A. § 102(13), with G. L. c. 209B, § 1, and uniform act, 9 U.L.A. § 2(9). Under Texas law, a "person acting as a parent" means "a person, other than a parent, who: (A) has physical custody of the child or has had physical custody for a period of six consecutive months, including any temporary absence, within one year immediately before the commencement of a child custody proceeding; and (B) has been awarded legal custody by a court or claims a right to legal custody under the law of this [S]tate." Tex. Family Code Ann. § 152.102(13). The Commonwealth argues that the office is not a person acting as a parent under Texas law because it had not been awarded legal custody "under the law of this [S]tate," Texas, and instead had been awarded legal custody under Federal law.
16
plain meaning and in light of the aim of the Legislature unless
to do so would achieve an illogical result." Sebago v. Boston
Cab Dispatch, Inc., 471 Mass. 321, 339 (2015), quoting Sullivan
v. Brookline, 435 Mass. 353, 360 (2001). "All the words of a
statute are to be given their ordinary and usual meaning, and
each clause or phrase is to be construed with reference to every
other clause or phrase without giving undue emphasis to any one
group of words, so that, if reasonably possible, all parts shall
be construed as consistent with each other so as to form a
harmonious enactment effectual to accomplish its manifest
purpose." Worcester v. College Hill Props., LLC, 465 Mass. 134,
139 (2013), quoting Selectmen of Topsfield v. State Racing
Comm'n, 324 Mass. 309, 312-313 (1949). In other words, we
consider the specific language of a statute in connection with
the statute as a whole and in consideration of the surrounding
text, structure, and purpose of the Massachusetts act. College
Hill Props., LLC, supra. See Rodman v. Rodman, 470 Mass. 539,
543 (2015).
The placement of the phrase, "authorized social service
agency," in its statutory context is instructive. The phrase
expands on the definition of "person acting as parent" and is
relevant only in the analysis of jurisdiction based on a child's
home State. G. L. c. 209B, §§ 1, 2 (a) (1). By granting to an
"authorized social service agency" the same legal status as a
17
"person acting as parent," the Legislature recognized that a
State social services agency with custody of a child provides
the same connection as a parent or guardian residing in the
State. A State agency, such as DCF, with custody of and
responsibility for a child's welfare exemplifies this kind of
connection and is a basis the Legislature properly could
consider for jurisdiction of a custody proceeding. By linking
"authorized social service agency" only to the "home [S]tate"
analysis, the Legislature prioritized, for jurisdictional
purposes, only those relationships between the State and social
services agencies within its boundaries. A Federal agency that
merely assigns children to placement in various States does not
provide the requisite connection to the State. Thus, we
conclude that the Legislature intended "authorized social
service agency" to apply to State, but not Federal, agencies.
This interpretation of the reach of "authorized social
service agency" is consistent with the overarching statutory
purpose to grant jurisdiction to the State best able to protect
a child's welfare when litigating custody matters. St. 1983,
c. 680, § 2 (a). In that regard, the statute seeks to "avoid
jurisdictional competition and conflict with courts of other
[S]tates in matters of child custody." St. 1983, c. 680,
§ 2 (a) (1). While a State agency provides a direct nexus to
that State's interest in overseeing custody of a child and the
18
child's interest in having his or her custody determined by that
State, a Federal agency lacks that connection, leaving open the
possibility that the jurisdictional conflicts that the statute
seeks to avoid may occur. By construing "authorized social
service agency" to apply to State, but not Federal, agencies, we
further the statutory purpose of avoiding jurisdictional
conflict. See College Hill Props., LLC, 465 Mass. at 139 ("all
parts [of a statute] shall be construed as consistent with each
other so as to form a harmonious enactment effectual to
accomplish its manifest purpose").
Because the office, a Federal agency, is not an authorized
social service agency as defined in G. L. c. 209, § 1, Texas is
not Victoria's home State. Based on this conclusion, Victoria
does not have a home State.
b. Best interest of the child. If there is no home State,
paragraph (2) grants jurisdiction to Massachusetts courts if it
is in the child's best interest for the Commonwealth to assume
jurisdiction because (i) she "and at least one contestant . . .
have a significant connection with the [C]ommonwealth, and (ii)
there is available in the [C]ommonwealth substantial evidence
concerning the child's present or future care, protection,
training, and personal relationships." G. L. c. 209B,
§ 2 (a) (2). "Contestant" is defined as "a person who claims a
legal right to custody or visitation with respect to a child."
19
G. L. c. 209B, § 1. These factors are met given the facts of
this case. Lutheran Social Services of New England is a
contestant with a significant connection to the Commonwealth
because it is a Massachusetts agency that was assigned custody
of Victoria by the office. Victoria has a significant
connection with the Commonwealth because she has received mental
health treatment and education in the Commonwealth since her
arrival. Last, there is substantial evidence concerning
Victoria's present and future care in the Commonwealth because a
review of her medical treatment was transferred with Victoria to
Massachusetts and she receives mental health treatment, daily
living supervision, schooling, and medical and dental care
through her Lutheran Social Services placement.
Because we hold that Massachusetts has jurisdiction under
paragraph (2), we do not review jurisdiction under paragraph (4)
of G. L. c. 209B, § 2 (a).

Outcome: We conclude that because (a) Victoria has no
home State as defined in G. L. c. 209B, § 1, and, (b) it is in
Victoria's best interest for a Massachusetts court to exercise
jurisdiction over the custody proceeding, Massachusetts has
jurisdiction over the custody proceeding under G. L. c. 209B,
§ 2 (a) (2). Accordingly, we answer "yes" to the first reported
question. No answer to the second reported question is
required. We remand this case to the Probate and Family Court
for further proceedings consistent with this opinion.
So ordered.

Plaintiff's Experts:

Defendant's Experts:

Comments: