In re Adoption Jason K.

• Decision Date: 30 September 2013
• Citation: 2013 N.Y. Slip Op. 23327,972 N.Y.S.2d 481,41 Misc.3d 885
• Parties: In the Matter of the ADOPTION OF JASON K., A Child Under the Age of Eighteen Years.
• Court: New York Family Court

41 Misc.3d 885

972 N.Y.S.2d 481

2013 N.Y. Slip Op. 23327

In the Matter of the ADOPTION OF JASON K., A Child Under the Age of Eighteen Years.

Family Court, Queens County, New York.

Sept. 30, 2013.

Joong Jay Shin, New York City and Elkins Park, PA, for Petitioner.

JOHN M. HUNT, J.

Wallace C., a naturalized citizen of the United States, has filed a petition in accordance with Domestic Relations Law § 115, seeking approval of his proposed adoption of his great-nephew, Jason K., who was born in Seoul, South Korea to his niece and her husband on October 7, 1997.

The following facts appear to be uncontroverted. Jason K., is the 15–year–old son of C.J.W. (age 38) and E.H.K. (age 43), both of whom are citizens and residents of the Republic of Korea. It appears that Jason's parents have been divorced and they live separately in Korea. On August 25, 2008 Jason obtained a passport from the Ministry of Foreign Affairs and Trade of the Republic of Korea,¹ and on February 24, 2009 the United States Customs and Immigration Services (“USCIS”) post at the embassy in Seoul issued a Class F–1 student visa to Jason authorizing him to enter the United States temporarily as a nonimmigrant for the purpose of pursuing his education ( 8 USC § 1101[a] [15][F][i]; 8 CFR § 214.1[a][2] ).²

Jason first entered the United States on or about February 25, 2009, and he appears to have departed and then returned to the United States on August 31, 2010. At that time, he assumed residence in the household of his maternal great-uncle, Wallace C.,³ in Queens County, and according to the report of investigation provided to the Court by a licensed master social worker, Jason first attended “a public middle school in Queens”.⁴ In the Fall of 2012 Jason began 10th grade at a private boarding school in New Jersey, although he returns to the home of his great-uncle on weekends and for holidays and school recess periods.

Jason and Wallace have developed a close relationship, and Mr. C. has assumed the role of grandfather to Jason. Mr. C., who is divorced and is seeking to adopt as a single person (Domestic Relations Law § 110), has executed an agreement of adoption signifying his willingness to become Jason's legal parent and to treat him as his own child (Domestic Relations Law § 115 [4]; see, Matter of Baby Boy C., 84 N.Y.2d 91, 101, 615 N.Y.S.2d 318, 638 N.E.2d 963 [1994] ). Similarly, Jason who has expressed his desire to remain in the United States for the foreseeable future and through his completion of college, has executed a consent signifying his agreement with his proposed adoption by his great-uncle (Domestic Relations Law § 111[1][a] ). Jason's biological parents have likewise executed extra-judicial consents to the proposed adoption (Domestic Relations Law § 115–b [3] ),⁵ notwithstanding that the granting of the proposed adoption by this Court will result in a permanent termination of their legal status as Jason's parents ( Domestic Relations Law § 117[1][a]; Matter of Peter Z. v. Nilda C., 46 A.D.3d 696, 696–697, 847 N.Y.S.2d 607 [2007];Matter of Michelle N. v. Sandra N., 79 A.D.3d 753, 911 N.Y.S.2d 913 [2010],lv. denied16 N.Y.3d 704, 705, 919 N.Y.S.2d 120, 944 N.E.2d 658 [2011] ).⁶

Prior to the submission of the adoption petition to the Clerk of the Family Court on June 26, 2013,⁷ Mr. C. had filed a petition on January 24, 2013 seeking an order of guardianship of the person of Jason and requesting that Letters of Guardianship be issued to him ( Fam. Ct. Act § 661; Surrogate's Court Procedure Act §§ 1701; 1703), and the petition was referred to Judge Nicolette M. Pach, sitting as a Judicial Hearing Officer. On June 24, 2013, Judge Pach issued a temporary order appointing Mr. C. as guardian of the person of Jason. Thereafter, by order dated September 17, 2013, Mr. C. was appointed as guardian and Letters of Guardianship of Jason were issued to Mr. C. based upon Judge Pach's determination that the appointment of Mr. C. was in the best interests of his great-nephew ( Surrogate's Court Procedure Act § 1707[1]; see, Matter of Diego F., 84 A.D.3d 1373, 924 N.Y.S.2d 278 [2011];Matter of Bianca B., 97 A.D.3d 742, 947 N.Y.S.2d 911 [2012];Matter of Deven Meza F., 108 A.D.3d 701, 702, 968 N.Y.S.2d 889 [2013] ).

The issuance of an order of guardianship or an order of adoption for a minor child residing in the United States by a juvenile court may provide a basis for the juvenile court to make the special findings necessary to submit an application to USCIS for Special Immigrant Juvenile (“SIJ”) status pursuant to 8 USC § 1101(a)(27)(J) ( see, Matter of Emma M., 74 A.D.3d 968, 970, 902 N.Y.S.2d 651 [2010] [adoption]; Matter of Jisun L. v. Young Sun P., 75 A.D.3d 510, 512, 905 N.Y.S.2d 633 [2010] [guardianship]; Matter of Sing W.C., 83 A.D.3d 84, 86, 920 N.Y.S.2d 135 [2011] [guardianship]; In re C.G.H., 75 A.3d 166, 2013 WL 4746773 [D.C. Ct. App. 2013] [adoption] ), although guardianship of an alien minor may be granted independently of any application for SIJ status ( Matter of Luis A.–S., 33 A.D.3d 793, 793–794, 823 N.Y.S.2d 198 [2006] ).

Here, petitioner's attorney has informed the Court that there is no intention to seek SIJ status for Jason, and it would appear that no such application can be filed as there was no request that Judge Pach enter the special findings which would establish that Jason has been abused, neglected, or abandoned by his biological parents. In the absence of special findings made by a state juvenile court, the USCIS is precluded from considering an application for SIJ status ( see, Yeboah v. U.S. Department of Justice, 345 F.3d 216, 221 [3rd Cir.2003]; Garcia v. Holder, 659 F.3d 1261, 1271 [9th Cir.2011]; Matter of Trudy–Ann W. v. Joan W., 73 A.D.3d 793, 901 N.Y.S.2d 296 [2010];Matter of Mohamed B., 83 A.D.3d 829, 831, 921 N.Y.S.2d 145 [2011];Matter of Hei Ting C., 109 A.D.3d 100, 102, 969 N.Y.S.2d 150 [2013];Matter of Francisco M.–G. v. Marcelina M.–G., 100 A.D.3d 900, 901–902, 955 N.Y.S.2d 350 [2012];Matter of Nirmal S. v. Rajinder K., 101 A.D.3d 1130, 1131, 956 N.Y.S.2d 545 [2012];Matter of Mario S., 38 Misc.3d 444, 954 N.Y.S.2d 843 [2012];In re J.J.X.C., 318 Ga.App. 420, 424, 734 S.E.2d 120, 123 [2012];E.C.D. v. P.D.R.D., 114 So.3d 33, 35 [Ala. Ct. App. 2012] ).

It is also noted that the reported cases which address SIJ status all involve “[a]n unaccompanied child [who] is subject to deportation unless granted permission to stay in the United States” ( In re Y.M., 207 Cal.App.4th 892, 914–915, 144 Cal.Rptr.3d 54, 71–72 [4th Dist. 2012]; see also, In Interest of Luis G., 17 Neb.App. 377, 385, 764 N.W.2d 648, 654 [Ct. App. 2009] [SIJS applies to “undocumented children”]; Matter of Alamgir A., 81 A.D.3d 937, 938, 917 N.Y.S.2d 309 [2011];Matter of Denys O.H. v. Vilma A.G., 108 A.D.3d 711, 712, 968 N.Y.S.2d 887 [2013] ), and not a minor such as Jason who is lawfully present in the United States on an F–1 student visa.⁸

A

While the social worker's investigation report and documents submitted to this Court raise no obvious concerns about Mr. C.'s suitability as a prospective adoptive parent, and there is nothing in particular which indicates that the proposed adoption would be contrary to Jason's best interests (Domestic Relations Law § 114[1] ), the Court had concerns with the child's status as a nonimmigrant student and its possible impact on the proposed adoption. The Court therefore through its staff requested that counsel for Mr. C. submit further information relating to Jason's legal status and whether it presents any obstacle to the granting of the petition for adoption. In particular, the attorney, Mr. Shin, was requested to provide the Court with “confirmation from USCIS of the Family Court's jurisdiction to proceed [with the adoption] in conformance with federal law.”

Several weeks later the Court received a written response from petitioner's counsel. In his letter to the Court, Mr. Shin states that there has been and would be no application made for special findings under 8 USC § 1101(a)(27)(J), and therefore there will be no request made to USCIS by Jason for SIJ status. Instead of providing the Court with legal authority from the USCIS, counsel proceeded to recite the “three distinct ways an adopted child may be considered for immigration purposes, to be the child of his or her adoptive parent(s)”, namely INA (8 USC § 1101) § 101(b)(1)(E) “which applies to adopted children if certain requirements are met, including where the parent or parents have two years of legal custody and joint residence”; INA (8 USC § 1101) § 101(b)(1)(F) “which applies to children coming to the United States as orphans' from countries that have not adopted the Hague Adoption Convention, if they have been adopted, or are coming to the United States to be adopted, by a U.S. citizen(s);” and INA (8 USC § 1101) § 101(b)(1)(G) “which applies to children coming to the United States who have been adopted, or are coming to the United States to be adopted, by U.S. citizen(s) under the Convention on Protection and Co–Operation in Respect of Inter–Country Adoption”.

Counsel then states that Jason “does not fit in above (B) orphan case and [does] not fit in above (C) Hague Convention Case ... but [Jason] [does] fit in the above 8 USC § 101(b)(1)(B) case.” Counsel further writes that while this case is not one for the issuance of a pre-adoption certificate pursuant to Domestic Relations Law § 115–a, “[b]ut this case has satisfied with all requirements [ sic ] for the New York Domestic Relations Law § 115–d for issuing of Certification as qualified Adoptive Parent”. Finally, counsel advised the Court that Jason's 16th birthday is on October 7, 2013 and counsel requests that the Court “issue immediately a Certification as Qualified Adoptive Parent under New York Domestic [Relations] Law § 115–d”; and “[t]o set up a hearing date for this adoption case before October 3, 2013”.

II

Petitioner has failed to respond to the Court's request...