COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES APPELLANT
CORRECTED: JULY 17, 2019
REVIEW FROM COURT OF APPEALS CASE NUMBER 2018-CA-000494
CAMPBELL CIRCUIT COURT NOS. 17-J-00422 and 17-J-00422-001
COUNSEL FOR APPELLANT: Thomas Edison Edge Assistant Campbell
COUNSEL FOR APPELLEE: Teresa Lyn Cunningham Burlington,
Cabinet for Health and Family Services (hereinafter Cabinet)
seeks reversal of the Court of Appeals, which held that the
Campbell Family Court erred in declining to conduct a Special
Immigrant Juvenile (hereinafter SIJ) hearing at the
disposition phase of a dependency, neglect and abuse case
regarding N.M.D.J. (hereafter N.), an unaccompanied
Guatemalan child. After thorough review, we reverse the Court
born in Guatemala in 2001 and will turn eighteen in July
2019. She is now the mother of two infant children, having
one child born in 2017 in Arizona and one child born in 2018
in Kentucky. Only N.'s case is before us.
believed that her biological parents remain in Guatemala.
They did not participate directly in the dependency case
filed below but were appointed counsel. N. was also appointed
counsel but neither her counsel, nor the counsel for the
parents have participated in the appellate process. N.B.D. is
the mother of N.'s boyfriend (M.). M. is likewise a minor
and the father of N.'s two children.
an adult resident of Newport, Kentucky, filed a dependency
petition in the Campbell County Family Court (the petition
was signed June 20, 2017, but not filed until August 16,
2017) alleging the following:
N. is an unaccompanied minor from Guatemala who is in removal
proceedings with DHS. She was released to her cousin's
custody. The cousin lives out of state. N. had a child on
January 24, 2017. Her cousin made her pay for everything for
her and the child. My son, M., is the father of the child. N.
could not pay to live with her cousin and she came here to
live with me and my son. She is afraid to return to
Guatemala. She and M. were on vacation in Mexico when they
were kidnapped. The kidnappers held them in a house. There
was a lot of blood in the house. I paid $3000 for their
release. When they released them, they put covers on their
heads and took them to the U.S. border and told them not to
return to Guatemala. They had both M. and N.'s (Petition
ends abruptly at this point).
N.B.D. requested, temporary custody of N. was placed with her
at the first court appearance. The Court also ordered the
Cabinet to become involved to offer services to N. After a
couple of pretrial appearances, an adjudication hearing was
set for December 20, 2017. At the end of the adjudication
hearing, the court found that the child was dependent as
there was no legal custodian present and set the disposition
hearing for January 31, 2018. Meanwhile, N. gave birth to her
second child on January 4, 2018. Two days prior to the
disposition hearing, N.B.D.'s counsel filed a motion to
continue the case, incorrectly alleging that the newborn was
premature and that the child remained in the hospital.
Counsel also stated that two experts had been retained to
testify about the dangers to N. if she returned to Guatemala;
and that additional time was needed by counsel to permit the
experts to interview N. and "form an opinion." The
Cabinet objected to a continuance and the Court overruled the
motion, conducted the dispositional hearing, and adopted the
recommendations of the Cabinet to continue custody of N. with
addition to completing the standard form order and docket
sheet, Judge Woeste entered a separate five-page order
addressing his findings in more detail, including the fact
that U.S. immigration authorities had detained both N. and M.
in Arizona, and had temporarily placed them with a cousin in
Arizona pending the immigration proceedings. He noted that N.
and M. subsequently ran from that federal immigration
placement to the home of N.B.D. The Court also noted that N.
had testified that she had come from Guatemala with M. and
while they were traveling through Mexico, they were kidnapped
by a gang.
Court then addressed the motion for a continuance, the
request for the SIJ special findings, and the limits of its
own jurisdiction to make SIJ findings. The Court overruled
the motion for a continuance because it was the Court's
opinion that the testimony of experts regarding N.'s home
country would not be relevant as the child was to stay in
Kentucky in the custody of N.B.D., and therefore it was
without the jurisdictional authority to undertake SIJ
findings because such findings were not relevant to the core
dependency, neglect, and abuse issues before the court.
Special Immigrant Juvenile Status under 8 U.S.C. Section 1101
(a)(27)(J) and the Role of State Courts
de Rubio v. Rubio Herrera, 541 S.W.3d 564
(Mo.Ct.App. 2017), the Missouri Court of Appeals addressed
the jurisdiction of Missouri courts to make SIJ findings in a
dissolution case where the parents were both citizens of El
Salvador and the custody of the child was granted solely to
the mother. The mother wanted the court to enter an order
that it would not be in the child's best interest to
return to his home country with the father. Id. at
568-69. The de Rubio Court discussed the statute,
The federal Immigration and Nationality Act provides a path
for undocumented immigrant children who have been abused,
neglected, or abandoned to gain lawful permanent residency in
the United States by obtaining Special Immigrant Juvenile
status. In re Guardianship of Guaman, 879 N.W.2d
668, 671-72 (Minn.App. 2016) (citing 8 U.S.C. §
1101(a)(27)(J); 8 CFR § 204.11). A child who obtains
such status may become a naturalized United States citizen
after five years. Eddie E. v. Superior Court, 234
Cal.App.4th 319, 326, 183 Cal.Rptr.3d 773 (Cal.App. 2015).
This process was established in 1990, when Congress amended
the Act to include the definition of "Special Immigrant
Juvenile" ("SIJ") in 8 U.S.C. §
1101(a)(27)(J). Recinos v. Escobar, 473 Mass. 734,
46 N.E.3d 60, 63 (2016). The 1990 definition required (1) a
finding by a state court that the child is "dependent on
a juvenile court" and eligible for long-term foster
care, and (2) a finding that it is "not in the
child's best interests to return to his or her country of
origin." Id. at 64. In 1997, Congress modified
the definition to include a child who had been "legally
committed to, or placed under the custody of, an agency or
department of a State" and required that eligibility for
long-term foster care be "due to abuse, neglect, or
Id. at 569-70 (footnotes omitted).
appeal, the mother argued the circuit court erred by not
making the findings required for SIJ status. Id. at
571. The Court found no error based on the fact that Missouri
does not have a statute or legal precedent
requiring a court to issue special findings
of fact to qualify a juvenile for SIJ status. Id. at
571-72. Nor does the federal statute itself require a state
to make those findings. Id. at 571. The Court
acknowledged that a court is permitted to
make those findings, but the obligation to do so arises
solely from a court's duty to act in the child's best
interest. Id. at 573. Ultimately, the court held:
Our reading of the SIJ statute is in accordance with the
analysis in [Canales v. Torres Orellana, 800 S.E.2d
208 (Va. Ct. App. 2017)], which is consistent with the idea
that federal law cannot mandate a state court to make
findings but may rely on state courts in the proper
circumstances to make such findings that are in a child's
best interest and required of the court while in the
position of in loco parentis.
Id. (emphasis added).
case cited by the de Rubio opinion, Canales v.
Torres Orellana, 800 S.E.2d 208 (Va. Ct. App. 2017),
came to the same well-reasoned conclusion. In
Canales, mother and father were both Honduran.
Id. at 212. When the child was two, the mother
immigrated to the United States and left the child in the
care of the child's grandmother in Honduras. Id.
Nine years after immigrating, when the child was in the
United States, the mother petitioned the juvenile court to
grant her sole custody and make specific factual findings
that the child had been "abused" and
"abandoned" by the child's father, as those are
the terms used in the SIJ statute. Id. 212-13. The
father at all times lived in Honduras and his whereabouts
were unknown. Id. The juvenile court granted sole
custody to the mother but declined to make the specific SIJ
findings. Id. The mother then appealed to the
Circuit Court. Id. The Circuit Court also granted
the mother sole custody, but declined to make the specific
SIJ findings, believing it "did not have jurisdiction to
make findings as to [SIJ] petitions[, ] as such authority is
not set forth in the Code of Virginia." Id.
Virginia Court of Appeals agreed with the circuit court,
the SIJ statute does not request, much less order, state
courts to make specific, separate SIJ findings; rather, it
allows the appropriate federal entities to consider
a state court's findings of fact, as recorded in a
judgment order rendered under state law, when determining
whether an immigrant meets the SIJ criteria. In other words,
the SIJ definition only lists certain factors which,
if established in state court proceedings, permit a
juvenile immigrant to petition the United States Citizenship
and Immigration Services ("USCIS") of the
Department of Homeland Security for SIJ status-8 U.S.C.
§ 1101(a)(27)(J) does not require that the
state court make such findings or convey jurisdiction upon
them to do so.
Id. at 217.
case, N.B.D. requested the extra finding by the trial court
to start the process of qualifying the child for Special
Immigrant Juvenile ...