Alberto v. State (In re Luis J.)
| Decision Date | 27 July 2018 |
| Docket Number | No. S-17-1142.,S-17-1142. |
| Citation | 915 N.W.2d 589,300 Neb. 659 |
| Parties | IN RE GUARDIANSHIP OF LUIS J., a minor child. Joaquin Tomas Joaquin Alberto, appellant, v. State of Nebraska, appellee. |
| Court | Nebraska Supreme Court |
Roxana Cortes Reyes, of Immigrant Legal Center, an affiliate of Justice For Our Neighbors Network, for appellant.
Although the county court for Douglas County appointed Joaquin Tomas Joaquin Alberto as guardian of his juvenile grandson, Luis J., it declined to make special factual findings necessary for Luis to apply for special immigrant juvenile (SIJ) status under 8 U.S.C. § 1101(a)(27)(J) (Supp. V 2018). Following a hearing on Alberto's motion to amend this initial ruling, relying on Nebraska statutes, the county court concluded that the county court for Douglas County "does not function as juvenile court" and that the issue of making specific findings to be used in immigration proceedings is committed to "the Separate Juvenile Court of Douglas County." Alberto appealed. During the pendency of this appeal, the Nebraska Legislature amended Neb. Rev. Stat. § 43-1238(b) (Reissue 2016) in 2018 Neb. Laws, L.B. 670, to clarify that courts with jurisdiction over initial child custody determinations under § 43-1238(a) also have "jurisdiction and authority" to make special findings of fact similar to those contemplated by 8 U.S.C. § 1101(a)(27)(J). Amendments to § 43-1238(b) have gone into effect, and because they are procedural rules, they apply to pending cases. In this case, the county court made a custody determination under § 43-1238(a), but it erred when it concluded it was not a "juvenile court" for purposes of 8 U.S.C. § 1101(a)(27)(J)(i) and refused to make special findings on this basis. Accordingly, we reverse the order of the county court and remand the cause for further proceedings consistent with this opinion based on the existing record.
Luis was born in San Pedro Soloma, Guatemala, in 1999 and arrived in Nebraska in 2016 at age 17 without resources or parental supervision. On July 21, 2017, Alberto filed a petition for the appointment of a permanent guardian for Luis as a minor, under Neb. Rev. Stat. § 30-2605 et seq. (Reissue 2016), in the county court for Douglas County. He also sought findings that "reunification with his parents is not viable due to neglect, abandonment, and child abuse" and that "it would not be in Luis [sic] best interests to be returned to Guatemala." These special findings would potentially allow Luis to apply to the U.S. Citizenship and Immigration Services for SIJ status. 8 U.S.C. § 1101(a)(27)(J). The record includes a sworn statement by Luis detailing the facts of his situation.
The petition and statement indicate that Luis' homelife in Guatemala was troubled and that he fled because "[f]ood, shelter and safety are things [he] did not have in Guatemala." He lived with his mother, father, and four siblings. His father is an alcoholic, and every time he was drunk, he beat up Luis' mother in front of Luis and his siblings. He beat her with open and closed fists and with a belt. Luis would try to defend his mother during these attacks, but he was a child and lacked the bodily strength to do so. When Luis tried to defend his mother, his father would beat him in the same manner, leaving bruises all over Luis' body. The beatings would end with Luis' father kicking him and his mother out of the house. Luis also testified regarding the abuse.
Luis' parents were unable to care for the five children. Luis stated that in Guatemala, he was forced to work in dangerous conditions and not allowed to go to school. Luis had to drop out of school when he was 11 years old to work full time to help his family. He first started working on his family's land without pay. At the age of 14, he was required to work on other land doing hard labor for payment. The labor included preparing the land for planting, by hand, using a hoe; weeding; and carrying 100-pound sacks of crops. When he could not carry a sack, his father beat him. His parents required him to turn over all the money he made at his field jobs to pay for the family's food.
Luis left Guatemala, where the money he made working was not enough to feed his family. Luis was expected to send money back to the family. Luis left without necessary financial or food resources to survive. Luis stopped and worked in Mexico multiple times to afford the next bus ticket to continue his journey.
Since arriving in the United States alone on or about September 26, 2016, Luis has not seen his parents, nor have they provided him any food, shelter, security, or education. Instead, his grandfather, Alberto, provides for Luis' needs and sends him to school. Luis stated that he now lives in an environment free of violence. He stated that he needs Alberto's help to continue with schooling, find a job, and build a life in the United States.
As noted, in addition to seeking to be appointed as Luis' guardian, Alberto requested that the county court make special findings of fact contemplated in 8 U.S.C. § 1101 (a)(27)(J). Alberto sought special findings of fact from the state court to potentially become eligible for SIJ status. SIJ status allows a juvenile immigrant to remain in the United States and apply for lawful permanent resident status. Obtaining the special findings is the first step in the process to achieve SIJ status. To achieve SIJ status under 8 U.S.C. § 1101(a)(27)(J), a state court must have made a predicate finding that (1) the minor is dependent on a juvenile court or has been "placed under the custody of ... an individual ... appointed by a State or juvenile court"; (2) "reunification with ... the ... parents is not viable due to abuse, neglect, [or] abandonment"; and (3) it would not be in the minor's best interests to be returned to his or her country of origin. Under 8 C.F.R. § 204.11(a) (2018), "[j]uvenile court means a court located in the United States having jurisdiction under State law to make judicial determinations about the custody and care of juveniles." (Emphasis omitted.)
In its September 27, 2017, order, the county court found it was in the best interests of Luis to have Alberto appointed as his legal guardian. However, because it concluded that the Douglas County Court's probate division does not function as a "juvenile court," it declined to make the requested special findings of fact that Luis could use in his immigration petition. In reaching its conclusion as to what constituted a "juvenile court" for SIJ findings purposes, the county court relied on Nebraska statutes, rather than the federal definition. Under the county court's reasoning, the request for findings would require that the Douglas County Court find that (1) Luis was "dependent" on the Nebraska juvenile court system, (2) he was eligible for long-term foster care or kinship placement, and (3) it is not in Luis' best interests to be returned to Guatemala to his parents. The court determined that such findings are "exclusive functions of and are determinations to be made solely by the Separate Juvenile Court of Douglas County Nebraska[,] or to those County Courts throughout greater Nebraska who exercise exclusive jurisdiction over juveniles." The order concluded that immigration status should be determined by the U.S. government, not by the county court.
Alberto moved to alter or amend the county court's September 27, 2017, order and again requested factual findings regarding Luis' best interests for SIJ purposes. After briefing and another hearing, the county court denied the motion to alter or amend on October 17. In its order, the county court noted that pursuant to the population guidelines of Neb. Rev. Stat. § 43-2,111 (Reissue 2016), there are presently three counties with a separate juvenile court: Douglas, Lancaster, and Sarpy Counties. The county court acknowledged that under Neb. Rev. Stat. § 24-517(2) (Reissue 2016), the county court can have concurrent original jurisdiction over a child in need of a guardian, but determined that making additional findings of fact would exceed its jurisdictional directives under state law. The county court stated that it "cannot and does not function as a juvenile court and the applicable statutes and regulations commit these specific issues to the Separate Juvenile Court of Douglas County, Nebraska."
Alberto appeals.
Alberto generally claims that the county court erred when it concluded that it is not a "juvenile court" for purposes of the federal SIJ process. Alberto specifically claims that although it found a need to appoint a permanent guardian, the county court erred (1) when it concluded that although the Douglas County Court has the power to appoint a guardian for a minor, it lacks the authority to make the special findings of fact for SIJ purposes, and (2) when it refused to make the requested findings of fact that (a) reunification with one or both parents is not viable due to abuse, neglect, or abandonment and (b) it would not be in Luis' best interests to return to Guatemala.
Statutory interpretation presents a question of law. In re Trust of Shire, 299 Neb. 25, 907 N.W.2d 263 (2018). We independently review questions of law decided by a lower court. Id.
We recently considered the central issue in this case in In re Guardianship of Carlos D., 300 Neb. 646, 915 N.W.2d 581 (2018), in which we held that a county court with a jurisdictional basis under § 43-1238(a) and which has made an initial child custody determination, such as appointing a guardian, has the authority to make immigration-related factual findings where the evidence is sufficient and the court has been requested to do so. In this case, the county court concluded that in Douglas County, only the separate juvenile court of Douglas County would have authority to make SIJ...
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