Tekin Adiyaman v. Cevzet Adiyaman.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule
1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to
the parties and, therefore, may not fully address the facts of the case or the
panel's decisional rationale. Moreover, such decisions are not circulated to
the entire court and, therefore, represent only the views of the panel that
decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued
after February 25, 2008, may be cited for its persuasive value but, because of
the limitations noted above, not as binding precedent. See Chace v. Curran, 71
Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

25-P-409

TEKIN ADIYAMAN

vs.

CEVZET ADIYAMAN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On January 10, 2025, Tekin Adiyaman (Tekin), born in Turkey

and currently residing in Boston, filed a complaint for

dependency pursuant to G. L. c. 119, § 39M, in the Probate and

Family Court, requesting declaratory and equitable relief in the

form of a decree of special findings that he was dependent on

the Probate and Family Court. Such findings are necessary to

establish Tekin's eligibility to apply to the United States

Citizenship and Immigration Services for special immigrant

juvenile (SIJ) status under the Immigration and Nationality Act

(INA), 8 U.S.C. § 1101(a)(27)(J).1 One who is eligible must

1 The State court's role is not "to engage in an
immigration analysis or decision." Recinos v. Escobar, 473
Mass. 734, 738 (2016).
submit their petition before their twenty-first birthday,

8 C.F.R. § 204.11(b) (2022), which in Tekin's case will occur on

June 29, 2025.

To be eligible to seek SIJ status, a noncitizen child must

establish: (1) that he or she has been declared dependent on a

"juvenile court"; (2) that reunification with one or both

"parents is not viable due to abuse, neglect, abandonment, or a

similar basis found under State law"; and (3) that it would not

be in the child's best interests to return to his or her country

of nationality. 8 U.S.C. § 1101(a)(27)(J)(i)-(ii).

General Laws c. 119, § 39M (b), provides that

"Upon reviewing the petition or complaint seeking special
findings, any supporting affidavits and other evidence
presented, the court shall issue findings of fact and
rulings of law that shall determine whether the child who
is the subject of the proceeding: (i) is dependent on the
court; (ii) has suffered from abuse, neglect, abandonment
or similar circumstances; (iii) may not be viably reunified
with either or both parents due to abuse, neglect,
abandonment or similar circumstances; and (iv) may not be
returned to the child's or parent's country of nationality
or country of last habitual residence because it is not in
the best interest of the child. A court making a decision
under this paragraph shall be acting as a juvenile court."

"Child" is defined in § 39M to mean "an unmarried person

under the age of 21." G. L. c. 119, § 39M (a). "[T]he Probate

and Family Court has jurisdiction, under its broad equity power,

over youth between the ages of eighteen and twenty-one for the

specific purpose of making the special findings necessary to

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apply for SIJ status pursuant to the INA." Recinos v. Escobar,

473 Mass. 734, 739 (2016). "Similar circumstances" is defined

in § 39M to mean "conditions that have an effect on the child

comparable to abuse, neglect or abandonment including, but not

limited to, the death of a parent" (emphasis added). G. L.

c. 119, § 39M (a).

The findings must also

"be limited to the parent with whom the child claims
reunification is not viable due to abuse, neglect, or
abandonment. Thus, where an immigrant child asserts in her
or his motion for special findings that reunification is
not viable with only one parent, the Probate and Family
Court shall limit its findings to that parent."

Guardianship of Penate, 477 Mass. 268, 275 (2017).

A judge of the probate and family court held a

nonevidentiary hearing in this matter, and, based on the papers,

including copies of Tekin's birth certificate and the death

certificate of his father, Cevzet Adiyaman (Cevzet), found as

facts that Tekin is an unmarried child under twenty-one years of

age, and that his father, Cevzet, died in October 2023, when

Tekin was nineteen years of age. The judge concluded that

reunification of the child with his father is not a viable

option, and that it is not "in Child's best interest to return

to [his] parents' country of nationality or last habitual

residence of Turkey." There is no error in those findings, and

they are affirmed.

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The judge concluded, however, that "Nothing in

Massachusetts law indicates that the death of a parent beyond

the child's 18th birthday is equivalent to neglect or

abandonment." Consequently, he concluded that "Child . . . has

not suffered from abuse, neglect, abandonment, or similar

circumstances under Massachusetts law." Solely on that basis,

the judge denied the decree of special findings that Tekin is

dependent on the Probate and Family Court.

As the statutes quoted above, however, make clear, that was

an error. The statute explicitly defines death of a parent as a

"similar circumstance" as a matter of law. Thus, the judge

should have concluded that the child "has . . . suffered from

abuse, neglect, abandonment, or similar circumstances under

Massachusetts law." And, given that, "it follows that the child

is dependent on the Probate and Family Court." Recinos, 473

Mass. at 743.

The order denying the complaint for dependency is reversed.

The matter is remanded to the Probate and Family Court for entry

of a decree providing the relief sought by the petitioner, and

incorporating the findings and conclusions we have affirmed as

well as the conclusions described in the preceding paragraph.

Given the time-sensitive nature of the relief sought, the First

Justice of the Suffolk Division of the Probate and Family Court

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shall direct the Register to enter the decree forthwith, but in

any event no later than May 7, 2025. The rescript shall issue

forthwith.

So ordered.

By the Court (Blake, C.J.,
Vuono & Rubin, JJ.2),

Clerk

Entered: May 2, 2025.

2 The panelists are listed in order of seniority.

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