O.I.C.L. v. Dep't of Children & Families

• Decision Date: 22 July 2015
• Docket Number: No. 4D15–53.,4D15–53.
• Citation: 169 So.3d 1244
• Parties: O.I.C.L., a child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
• Court: Florida District Court of Appeals

169 So.3d 1244

O.I.C.L., a child, Appellant

v.DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.

No. 4D15–53.

District Court of Appeal of Florida, Fourth District.

July 22, 2015.

Jan Peter Weiss of Law Offices of Jan Peter Weiss, West Palm Beach, for appellant.

No brief filed for appellee.

Opinion

KLINGENSMITH, J.

Appellant O.I.C.L. (the “Child”) is an illegal immigrant from Guatemala who appeals the final order denying his private petition for adjudication of dependency. The petition sought an adjudication of dependency on essentially two grounds: (1) that the Child has “been abandoned ... by [his] parent or parents or legal custodians”; and (2) that the Child has “no parent or legal custodians capable of providing supervision and care.” § 39.01(15)(a), (e), Fla. Stat. (2014). For the reasons set forth below, we affirm the trial court's denial of the petition.

A private petition for adjudication of dependency was filed on the Child's behalf two and a half months before his eighteenth birthday. The petition alleged that the Child's father had abandoned him, and that his mother had neglected him since he was twelve years old by not providing enough food, water, and clothing for the Child. The petition also alleged that the mother could not continue supporting the Child, so when he turned seventeen he left home (the petition claims he was “kicked out”) to come to the United States. After conducting the evidentiary hearing, the trial court entered an order denying the petition, finding that the Child did not qualify as dependent, and was admittedly being well-cared-for by an uncle who the court described as “a ready willing and able relative” against whom no allegations of abandonment, abuse, or neglect were made.

Petitioner argued that if the Child was not found dependent by the court, he may be forced to return to Guatemala. Clearly the purpose for this proceeding was to assist the Child in securing a Special Immigration Juvenile Status (“SIJS”) visa that would enable him to apply for lawful permanent residency (a green card), and secure a path to possible citizenship.¹ To be eligible for SIJS status, an alien minor must: (a) have been “declared dependent [by] a juvenile court located in the United States”;² and (b) that court must find that “it would not be in the alien's best interest to be returned” to their country of origin, a finding commonly found in what is referred to as a “best-interest order.”³

To take advantage of these provisions of federal law, private petitions are often filed seeking both a dependency adjudication and best-interest order. These petitions usually allege that the child had been “abandoned, abused, or neglected” in their home country, § 39.01(15)(a), many times in the months or years prior to the filing of the petition, sometimes including admissions in affidavits from parents in foreign countries to wrongful or neglectful acts. These petitions also routinely allege that the child is at “substantial risk of imminent abuse, abandonment, or neglect” if returned to their country of origin. § 39.01(15)(f). It is also standard fare for these petitions to allege, as did the petition filed by the Child, that there is “no parent or legal custodian[ ] capable of providing supervision and care,” § 39.01(15)(e), which would serve to provide another basis for a finding of a dependency.

A trial court's discretion in child welfare proceedings is very broad. A “court's final ruling of dependency is a mixed question of law and fact and will be sustained on review if the court applied the correct law and its ruling is supported by competent substantial evidence in the record.” E.R. v. Dep't of Children & Families, 143 So.3d 1131, 1134 (Fla. 4th DCA 2014) (quoting C.A. v. Dep't of Children & Families, 958 So.2d 554, 557 (Fla. 4th DCA 2007) ).

These types of petitions have become increasingly common, often containing allegations very similar to those made in this case. They routinely share the following common elements: the child is about to turn eighteen years old; the Department of Children and Families (“DCF”) neither supports nor opposes the child's petition; the child agrees not to seek any services from the State; one or more of the child's parents sign consent forms agreeing to entry of a dependency order; no testimony is presented to the court opposing the petition; and, DCF files no briefs in any subsequent appeal. As courts are likely to continue encountering more of these cases in the future, we believe some guidance on the proper handling of these cases is required.

The predominant question presented to the trial courts in these “private petition” cases, specifically, whether an alien child is dependent under the definition provided by section 39.01, is almost never subjected to a true adversarial proceeding in any manner whatsoever, where evidence is taken and “countervailing position[s] [are] advanced.” Dep't of Children & Families v. Y.C., 82 So.3d 1139, 1144 (Fla. 3d DCA 2012). At their core, these petitions are probably best described as “merely an unopposed request for the assistance of the court,” id. at 1142, for entry of orders to help a child obtain legal immigration status.

Here, following a hearing on the merits, the trial court found that an adjudication of dependency was unwarranted. Relying on our decision in S.H. v. Dep't of Children & Families, 880 So.2d 1279 (Fla. 4th DCA 2004), the court determined that the Child's uncle qualified as a “caregiver,” and was entrusted with the Child's care in accordance with sections 39.01(10) and (47). The evidence revealed that the Office of Refugee Resettlement, the government agency that picked up the Child following his attempt to illegally enter the United States, released the Child to the uncle while his immigration charges remained pending.

Section 39.01(47) allows certain employees of certain governmental agencies, such as the immigration agency involved here, to be considered a caregiver. Thus, upon entering the United States, this agency released the Child and entrusted him to the care of the uncle, thereby making the uncle a relative caregiver under the statutory definition. See § 39.01(10) (defining caregiver in part as an “adult household member”); see also § 39.01(47) (stating that “any other person legally responsible for the child's welfare in a residential setting” is a “person responsible for a child's welfare”); § 39.01(65) (defining “relative” as “a grandparent, great-grandparent, sibling, first cousin, aunt, uncle, great-aunt, great-uncle, niece, or nephew, whether related by the whole or half blood, by affinity, or by adoption. The term does not include a stepparent”). The trial court correctly found that the uncle's presence and care for the Child meant the circumstances did not meet the definition of abandonment necessary for an adjudication of dependency. As there were no allegations of abandonment, abuse, or neglect against the uncle, a presumption arose that he was indeed “capable of providing [both] supervision and care” to the Child. § 39.01(15)(e).

We also consider another vexing issue illustrated by some of the allegations made in the Child's petition—whether a dependency adjudication can be based on alleged abuse or neglect occurring at any time, even if remote to the petition's filing. The petition filed in this matter alleged that the “mother began neglecting [the Child] when he was twelve years old,” and “continued for at least five years.” This claim appears as a predicate to the more specific allegation that the Child was “forced to drop out of school after the sixth grade” and sent out “every day to work in the fields to earn money for the family.”

Chapter 39 defines a dependent child, in part, to include one found by the court to have been “abandoned, abused, or neglected” by the child's “parents or legal custodians.” § 39.01(15)(a). Absent from this particular definition is a requirement that the alleged abuse or neglect occur within a specified period of time prior to the filing of the petition. If section 39.01(15)(a) were to be applied literally, it would permit a child to be adjudicated dependent provided they had been abused or neglected at any time and regardless of whether they were at risk of further abuse or neglect. For example, the statute—again, if applied literally—would permit the adjudication of a seventeen-year-old based upon an isolated incident of “abuse” inflicted at the age of two by a long since deceased parent; a clearly “unreasonable or ridiculous conclusion.” Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (stating that “a literal interpretation of the language of a statute need not be given when to do so would lead to an unreasonable or ridiculous conclusion”). To find a child dependent under such circumstances would stretch section 39.01(15)(a) far beyond any reasonable limit, and endorse a rule permitting the adjudication of any child ever subjected to abuse, abandonment, or neglect by a parent at any point during their minority. We do not believe that the legislature intended for section 39.01(15)(a) to be read and applied in such an expansive way that would provide for such an absurd result. See Vrchota Corp. v. Kelly, 42 So.3d 319, 322 (Fla. 4th DCA 2010) (“The legislature is not presumed to enact statutes that provide for absurd results.”).

Further, a child living in conditions of poverty, in and of itself, is insufficient to sustain a finding of either abandonment or neglect. Section 39.01(1) states in pertinent part that an abandoned child is one found in:

[A] situation in which the parent or legal custodian of a child or, in the absence of a parent or legal custodian, the caregiver, while being able, has made no significant contribution to the child's care and maintenance or has failed to establish or maintain a substantial and positive relationship with the child, or both.

§ 39.01(1) (emphasis added).

Additionally, section 39.01(44), states that:

“Neglect” occurs when a child is

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