In re B.Y.G.M.

• Decision Date: 15 July 2015
• Docket Number: No. 3D14–2409.,3D14–2409.
• Citation: 176 So.3d 290
• Parties: In the Interest of: B.Y.G.M., etc., A minor child, Appellant.
• Court: Florida District Court of Appeals

176 So.3d 290

In the Interest of: B.Y.G.M., etc., A minor child, Appellant.

No. 3D14–2409.

District Court of Appeal of Florida, Third District.

July 15, 2015.
Rehearing Denied Oct. 1, 2015.

176 So.3d 291

Shook, Hardy & Bacon L.L.P., Daniel B. Rogers, Harold A. Arteagaand Iain L.C. Kennedy, Miami; Mary M. Gundrum, Immigrant Children's Justice Clinic, FIU College of Law; Kristie–Anne Padron, Catholic Charities Legal Services, for appellant.

Bernard P. Perlmutter for Americans for Immigrant Justice, Florida's Children First, University of Miami School of Law Children & Youth Law Clinic and Immigration Clinic, as amicus curiae.

Opinion

FERNANDEZ, J.

Bernard P. Perlmutter for Americans for Immigrant Justice, Florida's Children First, University of Miami School of Law Children & Youth Law Clinic and Immigration Clinic, as amicus curiae.

B.Y.G.M. appeals the trial court's denial of her private petition for dependency in which she sought an adjudication of dependency based on abandonment and neglect by her father. We affirm because the evidence is insufficient to support a finding of abandonment or neglect.

B.Y.G.M. is a native of El Salvador who was seventeen years old when she filed her petition. B.Y.G.M.'s father abandoned her when she was eight months old. He never visited or contacted her. He never provided financial or emotional support.

B.Y.G.M.'s mother left for the United States when B.Y.G.M. was three years old. B.Y.G.M. lived with her grandparents in El Salvador. She has a close relationship with them, but they were not able to protect her against alleged life threats and harassment from local gang members. In 2014, B.Y.G.M. fled to the United States where she lives with her mother.

The trial court heard B.Y.G.M.'s petition for dependency based on abandonment and neglect by her father. B.Y.G.M. argued that she qualified for Special Immigrant Juvenile Status or “SIJS.” See

176 So.3d 292

8 U.S.C. § 1101(a)(27)(J)(i). SIJS is a visa that enables a child to apply for lawful permanent residency (a green card) after which the child can seek citizenship. To be eligible for SIJS, a court must declare an alien minor dependent. Id.The court must also find that it would not be in the alien child's best interest to be returned to their country of origin. Id.This finding is contained in what is commonly referred to as a “best interest order.” B.Y.G.M. also argued that, if she is returned to El Salvador, she will have no one there to care for her or protect her.

The trial court denied the petition, holding that B.Y.G.M. was not dependent, pursuant to section 39.01(15)(e), Florida Statutes (2013). The court found that B.Y.G.M. has a parent, her mother, who is capable of providing B.Y.G.M. with supervision and care.

B.Y.G.M. moved for reconsideration. On rehearing, the department challenged the petition.¹The court heard testimony from B.Y.G.M. and her mother. B.Y.G.M. maintained that she had proven the grounds necessary for an adjudication of dependency based on abandonment and neglect. She argued that there is no remoteness limitation on a petition for dependency based on abandonment because parents have an ongoing duty to care for their children. She further argued that Florida law allows for a finding of dependency based on the abandonment of one parent.

The department argued that, while the father had a duty to support B.Y.G.M., the purpose of chapter 39 was not the enforcement of child support but to ensure the secure and safe custody of a child.²The court denied the motion.

The department takes no position in this appeal. B.Y.G.M. has attained the age of majority, and the department is no longer required to supervise her placement.

176 So.3d 293

A de novo standard governs this Court's review of the trial court's denial of B.Y.G.M.'s petition. See C.R. v. Dep't of Children & Family Servs.,53 So.3d 240, 242 (Fla. 3d DCA 2010); G.C. & D.C. v. Dep't of Children & Family Servs.,791 So.2d 17, 19 (Fla. 5th DCA 2001).

We agree with the trial court's determination that there is no support for an adjudication of dependency. The father's abandonment was, as the court correctly found, too remote to serve as a basis for dependency and did not cause B.Y.G.M. any harm. See, e.g., In re K.V.,939 So.2d 200, 202 (Fla. 2d DCA 2006)(concluding that instances of domestic violence in the presence of the child were too remote in time to support an adjudication of dependency); B.C. v. Dep't of Children and Families,846 So.2d 1273, 1274 (Fla. 4th DCA 2003)(stating that “[i]n order to support an adjudication of dependency, the parents' harmful behavior must be a present threat to the child”).³

Furthermore, chapter 39 defines a dependent child as a child who, consistent with the trial court's findings, has “been abandoned, abused, or neglected by the child's parent or parents or legal custodians”, or a child who is “at substantial risk of imminent abuse, abandonment or neglect by the parent or parents or legal custodians.” § 39.01(15)(a),(f), Fla. Stat. (2013). There is no evidence that B.Y.G.M. is at substantial risk of imminent abuse, abandonment or neglect. She is secure and safe in the custody of her mother who provides supervision and care.

This is unlike the case, for example, of In re Y. V.,160 So.3d 576 (Fla. 1st DCA 2015). In that case, the petitioner lived with his uncle, his non-legal custodian. Id.at 577. The trial court dismissed the petition because the events that gave rise to the dependency grounds occurred outside the State of Florida, and the court found that the petition was an attempt to circumvent federal immigration laws. Id.at 577–80. The district court reversed and remanded for further proceedings, concluding that the petition established a prima facie case of dependency. Id.at 581. B.Y.G.M., however, lives with her mother who is her legal custodian. Additionally, the trial court conducted an adjudicatory hearing prior to the denial of B.Y.G.M.'s petition.

We recognize that the trial court's denial of B.Y.G.M.'s petition simultaneously denies B.Y.G.M. the ability to seek federal relief in the form of SIJS. It is understood that B.Y.G.M. filed her petition to secure SIJS, and that she did not do so in order to obtain relief from abuse, abandonment, or neglect. There is, however, simply no basis for a declaration of dependency under these circumstances where there is neither substantial risk of imminent abuse, abandonment or neglect, nor the absence of a parent or legal custodian incapable of providing supervision and care.

For the foregoing reasons, we affirm the trial court's denial of B.Y.G.M.'s private petition for dependency.

Affirmed.

SHEPHERD, J., concurring.

I concur in the opinion of the majority in this case. I write only to point out the troubling fact that the Florida Department of Children and Families (DCF) has elected not to participate in these proceedings. DCF has admitted both in the trial court

176 So.3d 294

and here that it is a party. DCF trial counsel told the court below: “The Department of Children and Families, as the statute indicates,is an automatic party to all Dependency proceedings.” On appeal to this court, appellate counsel for DCF identified the statute: “The Department's position was based on the legislative requirement, pursuant to § 39.521(b)1(sic), Fla. Stat. (2014), to provide protective supervision over the minor's placementupon an adjudication of dependency.”⁴(Emphasis added). Before us now, DCF's appellate counsel waxes apologetic about its participation below, explaining that it participated there only grudgingly “at the request of the lower court.”

In these cases, the express purpose of the petition is to obtain an adjudication of dependency, based on abuse, abandonment, or neglect, as a predicate to requesting special immigrant status for the purpose of seeking lawful permanent residence in the United States. See 8 U.S.C. § 1101(a)(27)(J) (2013). These private petitions, specifically those that do not seek any state services, are almost always uncontested. See In the Interest of M.A.S–Q & Y.E.S–Q,22 Fla. L. Weekly Supp. 213a (11th Cir.Ct. Oct. 22, 2013) (Judge Hanzman observing with palpable discomfort, “DCF never challenges these cases.”). On those rare occasions where it has taken a position, DCF has opposed the petition. See, e.g. L.T. v. Dep't of Children & Families,48 So.3d 928 (Fla. 5th DCA 2010); see also F.L.M. v. Dep't of Children & Families,912 So.2d 1264, 1269 (Fla. 4th DCA 2005)(“[S]uch is not a proper use of Florida's laws, courts and resources devoted to helping truly-dependent, truly needy children”). DCF may find it uncomfortable to oppose a petition for dependency that will help a child obtain legal immigration status. It may consider these cases to be too...