In re B.M., 1521

CourtCourt of Special Appeals of Maryland
PartiesIN RE B.M.
Docket NumberNo. 1521,1521
Decision Date28 November 2018


No. 1521


September Term, 2017
November 28, 2018

Circuit Court for Prince George's County
Case No.


Wright, Reed, Eyler, Deborah S. (Senior Judge, Specially Assigned), JJ.

Opinion by Eyler, Deborah S., J.

*This is an unreported opinion and therefore may not be cited either as precedent or as persuasive authority in any paper, brief, motion, or other document filed in this Court or any other Maryland court. Md. Rule 1-104.

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In the Circuit Court for Prince George's County, CL, the uncle of BM, filed a petition for guardianship of the person of BM and for approval of factual findings that would permit BM to apply for special immigrant juvenile ("SIJ") status. After an evidentiary hearing, the court issued an order denying the guardianship request, while at the same time refusing to make findings that would allow an application for SIJ status. CL filed a motion to alter or amend judgment and to accept additional evidence. After the court denied that motion, CL noted this appeal. We shall set forth the issues raised on appeal after we recite the facts and proceedings.


BM was born in Guatemala on April 24, 1999. He came to the United States in October 2014, at age fifteen. Soon after arriving he moved in with CL, his mother's brother, in Maryland.

In 2016, when BM was seventeen years old, CL filed the petition in this case. He sought guardianship of BM and findings by the court that would permit BM to apply for SIJ status with the federal immigration authorities. Specifically, CL sought findings that BM's reunification with his mother, who still lived in Guatemala, was not viable due to neglect; that BM's reunification with his father, who also still lived in Guatemala, was not viable due to neglect; and that BM's return to Guatemala would not be in his best interest. BM's parents were properly served with process. They and BM signed written consents for CL to be granted guardianship of BM.

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The court held an evidentiary hearing on May 25, 2017. Counsel for BM called two witnesses - BM and CL - and moved several documents into evidence, which we shall discuss, as relevant, below.

BM testified that he was eighteen years old, was born in Guatemala, and had never been married. BM explained that he moved to the United States in 2014 and that he began living with CL soon after.

BM identified his parents by name and testified that they still lived in the village in Guatemala from which he came. He further testified that, although he had reached the ninth grade while living in Guatemala, from the time he was thirteen years old, his parents had required him to pay for his own school tuition and for his food and clothing. Because his parents would not support him, BM began working on farms in the area to earn money to pay for school, food, and clothing. BM testified that, from the age of thirteen on, he worked five days a week, from 5:00 a.m. to 2:00 p.m., and that he attended school on Saturdays only. According to BM, the work he performed was hard manual labor, requiring him to use a machete to cut vines, a tiller to till the soil, and a pump to fumigate crops in the fields. On one occasion, BM injured himself when the machete he was using slipped, cutting his thumb to the bone.1 BM also testified that his work required him to fumigate the fields twice a week and that he was not given any protective gear to wear when he was spraying chemicals, which caused symptoms such as burning

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eyes. BM explained that his parents knew about his work conditions but did not express any concern. BM further explained that he kept working under those conditions because that was the only way he could earn money for school, clothes, and food.

BM testified that, because there were no stores in his village in Guatemala, he had to walk to a nearby small town to buy food and clothing for himself. One evening when he was returning home from the town, he was accosted by four men wearing gang-identifying clothing and wielding knives. The men held him at knife-point for about 20 minutes, robbed him of all his belongings, and then threatened to do the same if he walked that path again. After that incident, BM was afraid to go to the town, only doing so during the day or with a friend. Not long after the attack, BM moved to the United States. BM testified that if he returned to Guatemala he would be in danger of being injured or killed by gang members; that he would have no place to live, as his parents would not furnish him with shelter; that he would not be able to continue in school; and, that he would not have any means to support himself.

BM testified that, as of the time of the hearing in May 2017, he was in the eleventh grade at High Point High School in Prince George's County. BM stated that he had attended school since moving in with CL, except for a six-month period in 2016, during which his father was ill and could not work and his parents demanded that he earn money to send home to them. BM returned to school when his father was well enough to resume work. BM testified that school was important to him, that he liked school, and that math was his favorite subject. BM's school progress reports for 2015 and 2017,

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which were moved into evidence, showed the courses he took, the grades he received, the comments by his teachers, and the number of times he was absent or late for school.

BM stated that he planned to graduate from high school, go to college, and eventually become a teacher, and that CL supported those goals. BM also stated that CL provided him shelter, food, and clothing and that he felt safe living with CL. BM testified that he wanted CL to be his guardian until he reached twenty-one years old.

CL testified that he came to the United States in or about 2001, that he had lived in Maryland since that time, and that he was employed as a construction worker in Virginia. CL explained that he opened his home to BM because BM needed help, that he paid for all of BM's necessaries, and that BM's parents had not provided any financial assistance for BM. CL also stated that he did not agree with BM's decision to drop out of school for six months but that he knew BM's parents had pressured him. CL testified that BM was back in school, that he supported BM's goals of finishing high school and going to college, and that he was willing to support BM financially until age twenty-one.

At the conclusion of CL's testimony, the hearing judge announced that he was going to "reset this matter for the 27th of June for disposition." Counsel for BM stated that she had another witness to call, but the judge did not permit that witness to testify.2 The judge then informed counsel that she need not appear on June 27th, as he was just going to "make certain the order is signed." The judge then stated:

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I will say this. I have no idea what the Court is going to do with the order, but I will say unequivocally the Court has some serious concerns regarding the education. The statements are that you and everybody's concerned about his education, but this school year [referring to the 2017 school progress report] you have been tardy 84 days. And in addition to that, you have been absent 31 days. This is almost a complete quarter of absences. Let me also say that there are apparently behavior or conduct issues, disruptive (sic) the class, conduct needs improvement, excessive absences throughout. Just letting you know my concerns. Nevertheless, whatever the Court may do with this case has nothing to do with you getting your act together academically because if your education is your future, you need to be more serious and concerned about it.

In response, and with the court's permission, BM's counsel asked BM if he had an explanation for why he had been absent so many days during the 2016-2017 school year. BM responded that he had fractured his foot and had not been able to attend school for that reason. The hearing judge then interjected, saying that, when he was a student, he had broken his foot on a Friday and was back in school the following Monday wearing a cast. The judge also stated that a broken foot "only takes about four weeks . . . to heal" and that BM's injury could not account for 31 days of absences from school. When BM's counsel sought to have BM's medical records introduced into evidence, the judge refused stating, "don't use that as an excuse." The judge went on to state that

[a broken foot] might be a reason why you may have missed a couple of days but when you break a foot you go to the hospital, they set the matter, they put it in a cast or a boot nowadays and they go on. You might have a couple of other days where you do physical therapy, but you don't have full days of physical therapy because physical therapy is 45 minutes to an hour. I'm just - you can make - you can give the Court a reason but don't make an excuse, and it has nothing to do with 84 days of tardies. Have a good day.

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The hearing judge then concluded the hearing and stated that the proceedings were "reset for the 27th"; however, no further proceedings were held in the matter. Rather, on July 18, 2017, the clerk's office entered into the docket an order entitled, "Petition for Guardianship and Order Regarding Minor's Eligibility for Special Immigrant Juvenile Status." That document, which was signed by the court on June 6, 2017, stated, in pertinent part:

THE COURT FINDS and concludes there are major concerns regarding the credibility of the witnesses in this matter.
THE COURT FINDS that it has jurisdiction under Maryland Law to make judicial determination about the custody and care of juveniles within the meaning of Section 101(a)(27)(J) of the Immigration and Nationality Act, 8 U.S.C. §204.11(a)(c). [sic]
THE COURT FURTHER FINDS that the minor Child is not legally committed to, nor placed in the custody of an individual or entity appointed by a State of

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