Custody of Victoria

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SJC-11826

CUSTODY OF VICTORIA.

Suffolk. May 4, 2015. - October 21, 2015.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.

Child Custody Jurisdiction Act. Massachusetts Child Custody
Jurisdiction Act. Jurisdiction, Custody of child, Probate
Court. Probate Court, Custody of child, Jurisdiction.
Minor, Custody.

Petition for custody filed in the Suffolk Division of the
Probate and Family Court Department on March 14, 2014.

Questions of law were reported to the Appeals Court by
Jeremy A. Stahlin, J.

The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.

Michael F. Kilkelly for the mother.
Jeanne M. Kaiser for the child.
Brian Pariser for Department of Children and Families.
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, William C. Peachey, Elizabeth J. Stevens, & Erez
Reuveni, of the District of Columbia, for the United States,
amicus curiae, submitted a brief.
 2

HINES, J. In this case, we determine whether the

Massachusetts Child Custody Jurisdiction Act (Massachusetts act

or act), G. L. c. 209B, grants a Massachusetts court

jurisdiction to decide the custody of an unaccompanied refugee

minor transferred to Massachusetts by the Office of Refugee

Resettlement, a Federal agency.1 The issue is presented on a

report from a judge of the Suffolk Division of the Probate and

Family Court Department. The judge concluded that Massachusetts

lacks jurisdiction under the act, but jurisdiction was

nonetheless proper where Massachusetts is "an appropriate court"

under Federal law governing custody and resettlement of

unaccompanied refugee minors.2 See 45 C.F.R. § 400.115(a)

1
The Office of Refugee Resettlement (office) is a Federal
agency within the United States Department of Health and Human
Services. See 8 U.S.C. § 1521 (2012). The office was created
to facilitate resettlement of refugees, including unaccompanied
refugee minors. Pub. L. No. 96–212, 96th Cong., 2d Sess., Title
I, § 101, Title IV, §§ 411, 412(d), 94 Stat. 102 (1980). Under
that authority, the office provides foster care services and
benefits to certain refugee children who are unaccompanied by a
relative available to provide long-term care. In situations
such as here, where a victim of trafficking is apprehended by
the United States Department of Homeland Security, the child may
be eligible for services under the office's unaccompanied
refugee minor program, in which case, the child is transferred
to the care and custody of the office. Pub. L. No. 110-457,
110th Cong., 2d Sess., Title II, Subtitle B, § 212, 122 Stat.
5044 (2008).
2
The minor child in this case turned eighteen on the date
of argument. According to the director of the office, in April,
2015, the child was one of approximately 160 children and youths
served by the Massachusetts unaccompanied refugee minors
 3

(2012). We conclude that G. L. c. 209B, § 2 (a) (2), as applied

to the facts of this case, grants jurisdiction to Massachusetts

courts because no other State has "home [S]tate" jurisdiction

and it is in the best interest of the child that a Massachusetts

court assume jurisdiction of the custody proceeding.3

Background. 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.
 4

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).

Conclusion. 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
 20

required. We remand this case to the Probate and Family Court

for further proceedings consistent with this opinion.

So ordered.