In re Hampshire

• Decision Date: 05 February 2014
• Citation: 2014 N.Y. Slip Op. 00664,979 N.Y.S.2d 643,115 A.D.3d 185
• Parties: In the Matter of MARISOL N.H. (Anonymous), appellant. (Proceeding No. 1) In the Matter of Samuel D.H. (Anonymous), appellant. (Proceeding No. 2) In the Matter of Silvia J.H. (Anonymous), appellant. (Proceeding No. 3).
• Court: New York Supreme Court — Appellate Division

115 A.D.3d 185

979 N.Y.S.2d 643

2014 N.Y. Slip Op. 00664

In the Matter of MARISOL N.H. (Anonymous), appellant.

(Proceeding No. 1)

In the Matter of Samuel D.H. (Anonymous), appellant.

(Proceeding No. 2)

In the Matter of Silvia J.H. (Anonymous), appellant.

(Proceeding No. 3).

Supreme Court, Appellate Division, Second Department, New York.

Feb. 5, 2014.

Theo Liebmann, Hempstead, N.Y., for appellants.

WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, JOHN M. LEVENTHAL, and CHERYL E. CHAMBERS, JJ.

CHAMBERS, J.

On this appeal, we conclude that the subject children, facing the possibility of being separated from their only parent and returned to their native country where gang members have threatened their lives, may seek to have their natural mother appointed as their guardian as a first step toward obtaining legal residency in the United States.

The subject children, Samuel D.H., Marisol N.H., and Silvia J.H., ages 19, 18, and 16, respectively, were born in El Salvador to Miriam A.G. (hereinafter the mother) and Leonidas H. (hereinafter the father). According to the allegations made in support of the petitions, the father drank often, and he verbally and physically abused the mother. When Samuel was just four years old, the mother left the father, taking the children with her to her mother's home. The father never again had meaningful contact with the children; he did not provide them with any financial support, give them any birthday or Christmas presents, or show any interest in them.

It is further alleged that in El Salvador, in the small neighborhood where the mother and the subject children settled, now abandoned by their father, they lived under the constant threat of violence from gangs. Members of a certain gang threatened to kill Samuel, as they did with many other children, if he refused to join their ranks, and they tried to extort money from his grandmother in exchange for sparing his life. Samuel knew nine children, one a close friend, who had refused to join that gang and were later killed. One gang member told the mother he would kill her, if she did not have sexual relations with him. The perilous situation led the mother to leave El Salvador for the United States so that she could establish a safe home for the children. She found work and lived with family and friends, saving money so that she could bring the children to her. Meanwhile, though, Samuel had stopped attending school because gang members had continued to threaten to kill him if he did not join them. Fearing for Samuel's life, the mother arranged for him to travel to the United States. Marisol and Silvia stayed behind with their grandmother. Subsequently, while the children's grandmother was walking home from work, she was killed by members of that gang. Three gang members were arrested for the murder, but the threats did not abate; other gang members threatened the lives of all the members of the mother's family. Marisol and Silvia stopped attending school, and would only leave their house if an unrelated adult male accompanied them. The mother then brought Marisol and Silvia to the United States.

Now, the children live with their mother in Nassau County, along with their teenaged uncle, Javier, who was left orphaned by the death of the children's grandmother. The mother, who is Javier's legal guardian, works 60 hours per week in order to support him and the children.

The children petitioned the Family Court for the appointment of the mother as their guardian so that they could pursue special immigrant juvenile status (hereinafter SIJS) as a means to obtaining lawful residency status in the United States, and be freed from the fear of being returned to El Salvador, where they would have no parent to support and protect them.

At a conference on the matter, the Family Court concluded that a best interests hearing was not warranted, inter alia, because the children had the “mother to protect them.” There was “no reason,” even if it was just “strictly for immigration purposes,” to award the mother guardianship “of her own children.” The Family Court issued an order dismissing the petitions without prejudice for failure to state a cause of action. We reverse.

SIJS is a form of immigration relief that affords undocumented children a pathway to lawful permanent residency and citizenship ( see Matter of Marcelina M.-G. v. Israel S., 112 A.D.3d 100, 106–107, 973 N.Y.S.2d 714; E.C.D. v. P.D.R.D., 114 So.3d 33, 35 [Ala.Civ.App.]; Angie Junck, Special Immigrant Juvenile Status: Relief for Neglected, Abused, and Abandoned Undocumented Children, 63 Juv. & Fam. Ct. J. 48 [winter 2012] ). The Immigration and Nationality Act, which established SIJS ( see8 USC § 1101 [a] [27][J]; Pub. L. 101–649, § 153, 104 U.S. Stat. 4978 [101st Cong., 2d Sess., Nov 29, 1990] ), employs “a unique hybrid procedure that directs the collaboration of state and federal systems” (Matter of Hei Ting C., 109 A.D.3d 100, 104, 969 N.Y.S.2d 150). The child, or someone acting on his or her behalf, must first petition a state juvenile court to issue an order making special findings of fact that the child is dependent upon a juvenile court or legally committed to an individual appointed by a state or juvenile court. Further, a state juvenile court must find that reunification with one or both parents is not viable due to parental abuse, neglect, abandonment, or a similar basis, and that it is not in the child's best interests to be returned to his or her home country ( see8 USC § 1101[a][27][J][iii]; 8 CFR 204.11[c]; Matter of Marcelina M.-G. v. Israel S., 112 A.D.3d at 107, 973 N.Y.S.2d 714). Only once a state juvenile court has issued this factual predicate order may the child, or someone acting on his or her behalf, petition the United States Citizenship and Immigration Services (hereinafter USCIS) for SIJS ( see8 CFR 204.11[d]; Matter of Hei Ting C., 109 A.D.3d at 104, 969 N.Y.S.2d 150). In addition, to be eligible for SIJS, the child must be unmarried and under 21 years of age ( see8 CFR 204.11[c][1], [2] ). Ultimately, the Secretary of the Department of Homeland Security must consent to the grant of SIJS ( see8 USC § 1101[a][27][J][iii]; Matter of Marcelina M.-G. v. Israel S., 112 A.D.3d at 114, 973 N.Y.S.2d 714). The Secretary's consent ensures that the child is seeking SIJS for the purpose of obtaining relief from abuse, neglect, or abandonment, and not primarily for the purpose of obtaining lawful permanent residency status ( see Mem of Donald Neufeld, USCIS Acting Associate Director, Domestic Operations, to Field Leadership, Trafficking Victims Protection Reauthorization Act of 2008: Special Immigrant Juvenile Status Provisions at 3 [March 24, 2009], quoting H.R. Rep. 105–405, 105th Cong., 1st Sess. at 130 [1997] ). Since ultimately the Secretary must give consent, the Family Court “is not rendering an immigration determination” ( Matter of Marcelina M.-G. v. Israel S., 112 A.D.3d at 109, 973 N.Y.S.2d 714; see Matter of Hei Ting C., 109 A.D.3d at 104, 969 N.Y.S.2d 150).

In this instance, in order to satisfy the requirement that the subject children be legally committed to an individual appointed by a state or juvenile court, they are requesting that their natural mother be appointed as their guardian. We begin our analysis by considering the threshold issue of whether the Family Court has the statutory authority to appoint a natural parent to be the guardian of his or her children. Family Court Act § 661 provides that “the provisions of the surrogate's court procedure act shall apply to the extent they are applicable to guardianship of the person of a minor or infant and do not conflict with the specific provisions of this act” (Family Ct. Act § 661[a] ). Under the Surrogate's Court Procedure Act, “any person” (SCPA 1703) may petition to be named as guardian of an infant, and a guardian is “[a]ny person to whom letters of guardianship have been issued by a court of this state, pursuant to this act, the family court act or article 81 of the mental hygiene law” (SCPA 103[24] ).^* Since these statutes are without limitation, they must include even the appointment of a natural parent as guardian.

Indeed, it is well established that in a contest for guardianship between a natural parent and a relative or nonrelative of the child, the natural parent may be named as the guardian or coguardian of the child. For example, in Matter of Revis v. Marzan, 100 A.D.3d 1004, 954 N.Y.S.2d 217, in a proceeding where the maternal aunt and maternal uncle were seeking guardianship of their niece, this Court affirmed an order awarding custody of the child to her natural mother. In Matter of Justina S., 180 A.D.2d 641, 579 N.Y.S.2d 955, over the natural father's objection, the natural mother and her new...