In re Estate of Nina L.

• Decision Date: 16 September 2015
• Docket Number: No. 1–15–2223.,1–15–2223.
• Citation: 41 N.E.3d 930
• Parties: In re ESTATE OF NINA L., a Minor, by Terry HOWERTON and Richard Aleong, Coguardians, Petitioners–Appellants.
• Court: United States Appellate Court of Illinois

41 N.E.3d 930

In re ESTATE OF NINA L., a Minor, by Terry HOWERTON and Richard Aleong, Coguardians, Petitioners–Appellants.

No. 1–15–2223.

Appellate Court of Illinois, First District, Third Division.

Sept. 16, 2015.

Clark Hill PLC, Chicago (Ray J. Koenig III, Eric Dorkin, and MacKenzie A. Hyde, of counsel), for appellants.

OPINION

Presiding Justice MASON delivered the judgment of the court, with opinion.

¶ 1 Petitioners, Terry Howerton and Richard Aleong, were appointed by the circuit court of Cook County to act as coguardians of Nina L., a nonrelative minor who was born in Taiwan and came to this country with her mother when she was six years old. At the time the petition was filed, Nina was 17 years old; she will turn 18 on September 23, 2015. Following their appointment, petitioners filed a motion requesting the trial court to make certain findings that would enable Nina to apply for Special Immigrant Juvenile (SIJ) status, an application that, if granted, could lead to permanent resident status and, ultimately, citizenship. The court denied the motion and declined to make any findings, a ruling from which petitioners appealed.

¶ 2 On August 25, 2015, we entered an order vacating the trial court's order and, based on our de novo review of petitioner's brief and supporting record, made findings that (i) Nina's reunification with one or both of her parents is not viable due to abuse, neglect or abandonment and (ii) return to Taiwan is not in Nina's best interest. We now set forth the basis for our ruling.

¶ 3 BACKGROUND

¶ 4 We draw the facts from the affidavits and other materials filed in the trial court.

Nina was born in Taiwan in 1997 and for the past eight years has had virtually no contact with her father, a native of Taiwan. Nina's mother, Maria L., a native of the Philippines, came to this country in 2003 on a student visa. After Maria's visa expired, Maria and Nina remained here and thus are considered undocumented immigrants and are subject to deportation.

¶ 5 Until September 2014, Nina lived with her mother, most recently in Lincolnwood, Illinois. She attends high school in the community. In September 2014, Maria left for California without making any arrangements for Nina's care and left Nina alone in their apartment.

¶ 6 Petitioners are a couple who were married in 2012. They reside with two of Howerton's nieces who came to live with them after their mother, Howerton's sister, died. Howerton has adopted the younger girl and has been appointed to act as guardian of the older girl. The older girl and Nina have been friends for several years and attend the same high school. Nina has also accompanied petitioners and the two girls on family vacations. When petitioners learned of Nina's situation shortly after her mother left, they insisted that Nina come to stay with them, and she has resided with them ever since.

¶ 7 After several months, petitioners decided to seek court appointment as Nina's guardians in order to enable them to more formally arrange for Nina's care, including placing her on their health insurance and having the authority to make decisions for her. Petitioners initiated guardianship proceedings on March 4, 2015. Maria was initially served by publication, but after the court was advised that she had returned to Illinois and Nina had been in contact with her, petitioners were directed to provide her proper notice. Maria executed a consent to guardianship on June 18, 2015, in which she represented that she was “unable and unwilling” to care for her daughter. The notary's attestation on the consent reflects that Maria appeared in Illinois to execute it.

¶ 8 The court also appointed a guardian ad litem (GAL) for Nina. The GAL filed a report with the court summarizing the results of his investigation into the guardianship petition. In addition to the circumstances of Nina's situation, the GAL reported that Maria had returned from California and was now living “on the north side of Chicago.” He further summarized a telephone conversation he had on July 9, 2015, with a person identifying herself as Maria. This individual confirmed that she had left Nina alone while she traveled to California and that she is “grateful” that petitioners have agreed to act as her daughter's guardians but had no prior arrangement with them to do so. She believed the guardianship was in her daughter's best interest, her consent to the guardianship was voluntary, she did not expect Nina to return to live with her, and she was unwilling to come to court.

¶ 9 According to petitioners and the GAL, none of the parties involved was aware at the outset of the possible immigration benefits to Nina resulting from the guardianship and that was not the motivation for Maria's “abandonment” of her daughter or petitioners' efforts to be named her guardians.

¶ 10 Petitioners were appointed to act as Nina's coguardians on July 14, 2015. On July 29, 2015, petitioners filed their motion seeking SIJ findings. In a supplemental report, Nina's GAL supported the motion and urged the court to make the requested findings.

¶ 11 After a hearing, the court entered its August 7, 2015 order. The order recites that petitioners requested “this Court to ‘find that reunification with one or both of [Nina L.'s] parents is not viable due to abuse, neglect, or abandonment or similar basis found under state law.’ ” The order further recites that “[t]here has been no finding by this court that reunification of the minor is not viable” and otherwise denied the petition. The court did not address whether return to Taiwan was in Nina's best interest. Petitioners filed their notice of appeal on August 12, 2015. There is no party opposing petitioners in this court.

¶ 12 ANALYSIS

¶ 13 We must first address whether we have jurisdiction over this appeal. The circuit court's order denying petitioners' motion for SIJ findings is not a “final judgment” in the traditional sense. Generally, in order to be considered “final” for purposes of appeal, an order must dispose of the rights of the parties either on the entire case or on some definite and separate part of the controversy. See Brentine v. DaimlerChrysler Corp., 356 Ill.App.3d 760, 765, 292 Ill.Dec. 621, 826 N.E.2d 1057 (2005) ; In re Marriage of Gutman, 232 Ill.2d 145, 151, 327 Ill.Dec. 510, 902 N.E.2d 631 (2008). In most contexts, the denial of a motion does not satisfy this standard. See, e.g., Cabinet Service Tile, Inc. v. Schroeder, 255 Ill.App.3d 865, 868–69, 194 Ill.Dec. 137, 627 N.E.2d 253 (1993) (denial of motion to dismiss was not a final and appealable order); Resurgence Financial, LLC v. Kelly, 376 Ill.App.3d 60, 62, 314 Ill.Dec. 706, 875 N.E.2d 679 (2007) (denial of summary judgment motion was not final and appealable, because “ ‘[w]hen an order leaves a cause still pending and undecided, it is not a final order’ ” (quoting Austin's Rack, Inc. v. Gordon & Glickson, P.C., 145 Ill.App.3d 500, 502, 99 Ill.Dec. 402, 495 N.E.2d 1137 (1986) )). But at least one court considering issues pertaining to SIJ predicate findings has observed that the denial of the juvenile's motion effectively terminates the juvenile's ability to pursue this avenue of immigration relief. See In re Interest of Luis G., 17 Neb.App. 377, 764 N.W.2d 648, 654–55 (2009). In Luis G., the trial court initially made the requested SIJ findings, but later vacated them, an order from which the minors appealed. Id. Concluding it had jurisdiction over the appeal, the court stated:

“[W]ithout the order of eligibility, including the required findings from the state court, [the minors] would be barred from proceeding in the federal system with a valid application for special immigrant juvenile status and would face deportation to Guatemala. The order vacating that eligibility determination effectively terminates the application for legal permanent residence, clearly affecting a substantial right of both [minors].” Id.

We agree with this reasoning and therefore conclude we have jurisdiction to address the merits of petitioners' appeal.

¶ 14 No reported decision in Illinois addresses the issues presented here. State courts in a number of other jurisdictions have addressed issues relating to requests for predicate findings required for SIJ applications and so we examine those authorities for guidance. See Rhone v. First American Title Insurance Co., 401 Ill.App.3d 802, 812, 340 Ill.Dec. 588, 928 N.E.2d 1185 (2010) (“Although the decisions of foreign courts are not binding, ‘the use of foreign decisions as persuasive authority is appropriate where Illinois authority on point is lacking or absent.’ ” (quoting Carroll v. Curry, 392 Ill.App.3d 511, 517, 332 Ill.Dec. 86, 912 N.E.2d 272 (2009) )). We begin by discussing the history of SIJ status under federal law.

¶ 15 The Immigration and Nationality Act of 1990 (Act) first established SIJ status as a path for resident immigrant children to achieve permanent residency in the United States. In re Israel O., 233 Cal.App.4th 279, 182 Cal.Rptr.3d 548, 549 (2015) (discussing history of SIJ status); see 8 U.S.C. § 1101(a)(27)(J) (Supp. I 2014) (current version of statute). The provisions for SIJ status, as applied to minors, were designed “ to protect abused, neglected, or abandoned children, who, with their families, illegally entered the United States.” Yeboah v. United States Department of Justice, 345 F.3d 216, 221 (3d Cir.2003). These provisions also apply to children who legally entered the country, but who have fallen out of status and have elected to remain here. See In re Mohamed B., 83 A.D.3d 829, 921 N.Y.S.2d 145 (2011) (minor who overstayed visitor's visa entitled to pursue SIJ findings).

¶ 16 The criteria for eligibility for SIJ status have changed over time. As initially drafted, a literal reading of the statute permitted juveniles admitted to the United States as visiting students to apply for SIJ status. See Yeboah, 345 F.3d at 221. In 1997, the statute was amended to require that the juvenile be...