In re Domingo C.L.

Decision Date30 August 2017
Docket NumberNo. M2016-02383-COA-R3-JV,M2016-02383-COA-R3-JV
PartiesIN RE DOMINGO C.L.
CourtTennessee Court of Appeals

Appeal from the Chancery Court for Rutherford County

No. 16CV-1308

M. Keith Siskin, Chancellor

Obispo C.L. ("the Minor's Uncle") appeals the determination of the Chancery Court for Rutherford County ("the Trial Court") finding that it lacked jurisdiction to make a finding regarding whether it is in the best interest of Domingo C.L. ("the Minor") to be returned to his home country of Guatemala. We find and hold that the Trial Court had jurisdiction to make this finding, that the petition specifically requested a finding with regard to this issue, and that it was error to refuse to make a finding with regard to whether it was in the Minor's best interest to be returned to Guatemala. We, therefore, modify the Trial Court's October 31, 2016 Order Appointing Guardian Of A Minor by remanding this case to the Trial Court for a determination of whether it is in the Minor's best interest to be returned to Guatemala. We affirm the remainder of the Trial Court's order.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed as Modified; Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which ANDY D. BENNETT and KENNY W. ARMSTRONG, JJ., joined.

Sally M. Joyner, Memphis, Tennessee, for the appellant, Obispo C.L.

OPINION

Background

The Minor was born in July of 2000, in Guatemala where he lived in a two-room house with his mother, his maternal grandfather, and his two younger sisters. The Minor's father abandoned the family over four years ago. The Minor's mother worked as a seamstress, but she struggled to provide for the family. The Minor was forced to drop out of school after the sixth grade because his mother was too poor to pay for him to continue. After he dropped out of school, the Minor worked in the corn fields. The Minor's mother was unable to provide adquate food and clothing, and the Minor's family ate only once or twice a day and typically ate only the corn they grew.

In July of 2015, the Minor left Guatemala and traveled to the United States where he was apprehended by U.S. Customs and Border Protection after crossing the U.S. - Mexico border at Hidalgo, Texas. In September of 2015, the Minor was placed with his paternal uncle, the Minor's Uncle, who resides in Rutherford County, Tennessee. The Minor has lived in Rutherford County, Tennessee since that time. The Minor's Uncle has provided the Minor with his own room and adequate food, and the Minor has been enrolled in school in Tennessee.

In August of 2016, the Minor's Uncle filed a Petition for Appointment of Guardian for the Minor requesting, among other things, a specific finding regarding whether it is in the Minor's best interest to be returned to Guatemala. A hearing was held and the Trial Court heard testimony from the Minor who testified about the facts discussed above and also testified that he desires to remain in his uncle's care. The Minor further testified that the circumstances in Guatemala had not improved, and if he were forced to return to Guatemala, he would be subjected to the same conditions.

After the hearing, the Trial Court entered its Order Appointing Guardian Of A Minor ("Order Appointing Guardian") on October 31, 2016. In the Order Appointing Guardian, the Trial Court appointed the Minor's Uncle as guardian of the Minor after finding and holding, inter alia:

Proper notice was given to the Minor and the Petitioner. The biological father's location is unknown and he cannot therefore cannot [sic] be notified of these proceedings nor enter an appearance, and the biological mother executed a document before a notary indicating her desire for the Petitioner to be responsible for the care and custody of the Minor. Further, the Court finds by clear and convincing evidence that the Mother has abandoned the Minor.

* * *

The Minor's father abandoned the Minor and his whereabouts are unknown. The Minor's mother resides in Guatemala. The Minor and the Petitioner reside in La Vergne, Tennessee.
THE COURT FURTHER FINDS that reunification with the Minor's father and mother are not viable due to the abandonment, as the Minor's father has failed to communicate with or support the Minor in any way for several years and the Minor's mother has failed to support the child for approximately one year. The Court affirmatively finds that both parents willfully abandoned the child.

The Trial Court refused to make a finding with regard to whether it was in the best interest of the Minor to be returned to Guatemala finding that it lacked jurisdiction to make such a determination. The Minor's Uncle appeals the Trial Court's refusal to make the requested finding to this Court.

Discussion

Although not stated exactly as such, the Minor's Uncle raises one issue on appeal: whether the Trial Court erred in finding it lacked jurisdiction to make a finding regarding whether it is in the Minor's best interest to be returned to Guatemala. In the absence of an order containing this finding, the Minor cannot qualify to apply for special immigrant juvenile status pursuant to 8 U.S.C.A. § 1101(a)(27)(J), which provides:

(27) The term "special immigant" means - -

* * *

(J) an immigrant who is present in the United States - -
(i) who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States, and whose reunification with 1 or both of the immigrant's parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law;(ii) for whom it has been determined in administrative or judicial proceedings that it would not be in the alien's best interest to be returned to the alien's or parent's previous country of nationality or country of last habitual residence; and
(iii) in whose case the Secretary of Homeland Security consents to the grant of special immigrant juvenile status, except that - -
(I) no juvenile court has jurisdiction to determine the custody status or placement of an alien in the custody of the Secretary of Health and Human Services unless the Secretary of Health and Human Services specifically consents to such jurisdiction; and
(II) no natural parent or prior adoptive parent of any alien provided special immigrant status under this subparagraph shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this chapter;

8 U.S.C.A. § 1101(a)(27)(J) (2014).

While the issue now before us is a matter of first impression in Tennessee, the United States Court of Appeals for the Sixth Circuit has held that a state court has the jurisdiction to make the determination regarding whether sending a child alien back to his or her home country would be in the child's best interest. Gao v. Jenifer, 185 F.3d 548, 556 (6th Cir. 1999) (discussing a case arising in Michigan and stating: "As we held above, the state juvenile court had jurisdiction to declare Gao[, the child alien,] dependent and to determine that sending him back to China would not be in his best interest.").

Other state courts also have dealt with the issue now before us. We find the analysis and reasoning employed by the Court of Special Appeals of Maryland ("Maryland Court") on this issue as contained in In re Dany G. to be persuasive, and we adopt it. In re Dany G., 117 A.3d 650 (Md. Ct. Spec. App. 2015). The Maryland Court stated:

Special Immigrant Juvenile ("SIJ") status was created by the United States Congress to provide undocumented children who lack immigration status with a defense against deportation proceedings.
Some children present in the United States without legal immigration status may be in need of humanitarian protection because they have been abused, abandoned, or neglected by aparent. Special Immigrant Juvenile (SIJ) status is an immigration classification that may allow for these vulnerable children to immediately apply for lawful permanent resident status ("LPR" status or a "Green Card").
"Special Immigrant Juvenile Status: Information for Juvenile Courts," U.S. Citizen and Immigration Services ("USCIS"), (hereinafter "Info. for Juvenile Courts") available at http://perma.cc/W5W3-MGGC (last visited March 9, 2015); see also Perez-Olano v. Gonzalez, 248 F.R.D. 248, 252 (2008) (noting that SIJ provisions create a method for abused, neglected, and abandoned children to become lawful permanent residents). Children eligible for SIJ status may be in the United States with only one parent, or they may have fled to the United States without either parent.
Obtaining SIJ status requires a specific finding from a state juvenile court. Thus, "[t]he [Immigration and Nationality Act of 1990] creates a special circumstance where a State juvenile court is charged with addressing an issue relevant only to federal immigration law." Simbaina v. Bunay, 221 Md. App. 440, 449, 109 A.3d 191 (2015) (internal citations omitted).
[State] juvenile courts issue orders that help determine a child's eligibility for SIJ status. A child cannot apply to USCIS for SIJ status without an order from a juvenile court. However, juvenile judges should note that providing an order does not grant SIJ status or a "Green Card"—only [the U.S. Customs and Immigration Services] can grant or deny these benefits. The role of the court is to make factual findings based on state law about the abuse, neglect or abandonment; family reunification; and best interest of the child.
Info. for Juvenile Courts.
The process for applying for SIJ status consists of several steps. First, there must be a filing in state court, which is often in the form of a guardianship or custody complaint, see Simbaina, 221 Md. App. at 453-54, 109 A.3d 191, but which can also come through filings in orphans, probate, and
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