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N.B.D. v. Cabinet for Health and Family Services

Court of Appeals of Kentucky

November 2, 2018

N.B.D. APPELLANT
v.
CABINET FOR HEALTH AND FAMILY SERVICES; N.M.D.J., A MINOR CHILD; R.D.; AND F.J. APPELLEES

          OPINION OF OCTOBER 5, 2018, WITHDRAWN

          APPEAL FROM CAMPBELL CIRCUIT COURT HONORABLE RICHARD A. WOESTE, JUDGE ACTION NOS. 17-J-00422 & 17-J-0422-001

          BRIEF FOR APPELLANT: Teresa Cunningham Burlington, Kentucky

          BRIEF FOR APPELLEES: Thomas Edge Assistant Campbell County Attorney Newport, Kentucky

          BEFORE: CLAYTON, CHIEF JUDGE; JOHNSON AND KRAMER, JUDGES.

          OPINION REVERSING AND REMANDING

          CLAYTON, CHIEF JUDGE.

         Under the Immigration and Nationality Act, 8 United States Code (U.S.C.) § 1101(a)(27)(J) (2014), an undocumented juvenile immigrant may apply for permanent residency by obtaining special immigrant ("SIJ") status. As a predicate to acquiring this status, the immigrant must present findings from a state juvenile court that he or she satisfies certain statutory criteria. This appeal is taken from a Campbell Family Court order declining on jurisdictional grounds to make such findings regarding N.M.D.J. ("Child"), a minor who was born in Guatemala and now resides in Kentucky.

         A person who qualifies for SIJ status is defined as

[A]n immigrant who is present in the United States -
(i) who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States, and whose reunification with 1 or both of the immigrant's parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law;
(ii) for whom it has been determined in administrative or judicial proceedings that it would not be in the alien's best interest to be returned to the alien's or parent's previous country of nationality or country of last habitual residence; and
(iii) in whose case the Secretary of Homeland Security consents to the grant of special immigrant juvenile status[.]

8 U.S.C. § 1101(a)(27)(J).

         Thus, "[b]efore an immigrant child can apply for SIJ status, she must receive the following predicate findings from a 'juvenile court': (1) she is dependent on the juvenile court; (2) her reunification with one or both parents is not viable due to abuse, neglect, or abandonment; and (3) it is not in her best interests to return to her country of origin." Recinos v. Escobar, 46 N.E.3d 60, 62 (Mass. 2016) (footnote omitted). "Once these special findings are made, an application and supporting documents may be submitted to the United States Citizenship and Immigration Services (USCIS) agency. An application for SIJ status must be submitted before the immigrant's twenty-first birthday." Id. (Citing 8 Code of Federal Regulations (C.F.R.) § 204.11 (2009)) (footnote omitted). "Congress created the SIJ classification to permit immigrant children who have been abused, neglected, or abandoned by one or both of their parents to apply for lawful permanent residence while remaining in the United States." Id.

         Child was born in Guatemala in 2001. In September 2016, Child and her boyfriend ("Boyfriend") traveled to Mexico from Guatemala to vacation and visit relatives. Child was pregnant at the time. While in Mexico, the couple was kidnapped by a gang. They paid $3, 000 to be released. The gang took them to the United States border and told them not to return to Guatemala. The couple came across the border and were detained in Arizona by immigration authorities. Child was placed in the custody of a cousin in Arizona pending further immigration proceedings. She gave birth on January 24, 2017. According to Child, her cousin tried to make her pay for everything for herself and the baby. She and Boyfriend, who is the father of the baby, left Arizona and went to northern Kentucky to live with N.B.D., Boyfriend's mother ("Appellant").

         On August 16, 2017, Appellant filed a juvenile dependency, neglect or abuse petition in Campbell Family Court. On September 6, 2017, the Child was placed in the temporary custody of Appellant and the family court ordered the Cabinet to become involved in the case. On January 14, 2018, Child gave birth to another baby. Appellant filed a motion to continue the dispositional hearing in order to procure the testimony of experts about gang and drug cartel violence in Guatemala and Mexico, and for a pediatric psychiatrist to perform an evaluation of Child's trauma resulting from the kidnapping in Mexico. The family court denied the motion, stating that those issues were not relevant to the disposition. The Cabinet recommended Child be left in Appellant's custody and also reported allegations of domestic abuse of Child by Boyfriend. The family court adopted the Cabinet's recommendation and awarded continued custody to the Appellant. The court also referred Child to the Women's Crisis Center and ordered Boyfriend to undergo an anger management ...


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