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Commonwealth v. N.B.D.

Supreme Court of Kentucky

June 13, 2019


          CORRECTED: JULY 17, 2019

          ON 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 County Attorney.

          COUNSEL FOR APPELLEE: Teresa Lyn Cunningham Burlington, Kentucky



         The 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 of Appeals.

         I. Facts

         N. was 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.

         It is 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.

         N.B.D., 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[1]. 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).

         As 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 N.B.D.

         In 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.

         The 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.

         II. Special Immigrant Juvenile Status under 8 U.S.C. Section 1101 (a)(27)(J) and the Role of State Courts

         In 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, saying:

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 abandonment." Id.

Id. at 569-70 (footnotes omitted).

         On 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).

         The 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.

         The Virginia Court of Appeals agreed with the circuit court, holding:

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.

         In this case, N.B.D. requested the extra finding by the trial court to start the process of qualifying the child for Special Immigrant Juvenile ...

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