In re Interest of Luis G.

• Decision Date: 24 February 2009
• Docket Number: No. A-08-777.,No. A-08-770.,No. A-08-778.,A-08-770.,A-08-777.,A-08-778.
• Citation: 17 Neb. App. 377,764 N.W.2d 648
• Parties: In re INTEREST OF LUIS G., a child under 18 years of age. State of Nebraska, appellee, v. Luis G., appellant. In re Interest of Jose G., a child under 18 years of age. State of Nebraska, appellee, v. Jose G., appellant.
• Court: Nebraska Court of Appeals

764 N.W.2d 648

17 Neb. App. 377

In re INTEREST OF LUIS G., a child under 18 years of age.

State of Nebraska, appellee, v. Luis G., appellant.

In re Interest of Jose G., a child under 18 years of age.

State of Nebraska, appellee, v. Jose G., appellant.

No. A-08-770.

No. A-08-777.

No. A-08-778.

Court of Appeals of Nebraska.

February 24, 2009.

Jerom E. Janulewicz, of Mayer, Burns, Koenig & Janulewicz, Grand Island, for appellants.

No appearance for appellee.

INBODY, Chief Judge, and SIEVERS and MOORE, Judges.

INBODY, Chief Judge.

INTRODUCTION

Jose G. and Luis G. appeal consolidated cases Nos. A-08-770, A-08-777, and A-08-778 from an order of the Hall County Court, juvenile division, vacating an order regarding Jose and Luis' eligibility for special immigrant juvenile status. For the following reasons, we reverse, and remand with directions.

STATEMENT OF FACTS

In late 2001 or early 2002, Jose and Luis came from Guatemala to the United States, undocumented, with their mother, and eventually to Grand Island, Nebraska. After coming to the United States, the boys did not have much, if any, contact with their father, who did not travel to the United States with the family. Jose and Luis' older sister and brother also reside in Grand Island.

This appeal arises from three separate juvenile cases in Hall County Court regarding Jose and Luis. In 2005, separate juvenile petitions, each arising from separate incidents involving Jose and Luis, were filed, alleging that each child was within the court's jurisdiction pursuant to Neb.Rev.Stat. § 43-247(1) (Reissue 2004).

In case No. A-08-770, in 2005, Luis admitted to one count of shoplifting and was placed in the temporary custody of the Office of Juvenile Services (OJS) for a residential evaluation and was eventually committed to the custody of the Department of Health and Human Services (DHHS), OJS. In case No. A-08-777, in 2005, Jose admitted to two counts of trespassing and was committed to the custody of DHHS, OJS. In 2005, a second petition was filed on Jose, case No. A-08-778, alleging assault in the third degree, resisting arrest, and disturbing the peace. Since the juveniles have been adjudicated, review hearings have been held every 6 months. Throughout the proceedings, Jose's permanency objective has been independent living and Luis' permanency objective has been guardianship.

In approximately 2006, Jose and Luis' mother was deported to Guatemala after being arrested for an unknown offense. At the time of their mother's deportation, Jose was living in a group home and Luis was living in a foster home after living with his older sister.

On May 11, 2007, DHHS filed motions, in each of the three cases, for an order regarding the minors' eligibility for special immigrant juvenile status,

for the reason that the juvenile intends to apply to the U.S. Bureau of Citizenship and Immigration Services (CIS) for a Special Immigrant Juvenile Visa and adjustment of status to permanent resident, and as a part of that application process, the juvenile must show that he meets the eligibility requirements, to wit:

1. The juvenile must have been declared dependent on a U.S. juvenile court or whom the court has committed to or placed under the custody of a state agency or department;

2. The juvenile must have been deemed eligible for long-term foster care;

3. The juvenile is so eligible due to abuse, neglect or abandonment;

4. It must have been determined in judicial or administrative proceedings that it is not in the juvenile's best interest to be returned to his or his parents' country of nationality or last habitual residence;

5. The juvenile must be under the jurisdiction of the juvenile court;

6. The juvenile must be unmarried;

7. The juvenile must be under the age of 21.

At a hearing on July 10, 2007, DHHS argued that Jose and Luis were attempting to submit applications to federal citizenship and immigration services for permanent status and that it was necessary for the court to make findings for special immigrant status in order to complete that process. Specifically, DHHS argued that Jose and Luis had been abandoned as a result of their mother's deportation back to Guatemala.

On July 23, 2007, the court, in an order regarding the minors' eligibility for special immigrant juvenile status, found that the juveniles were committed to DHHS and remained under the court's jurisdiction, eligible for long-term foster care; that it was not in the best interests of the juveniles to be returned to their parents' country of nationality; and that the findings were made due to the abuse, neglect, or abandonment of the juveniles.

At a review disposition hearing on March 25, 2008, the county court continued the hearing and sua sponte ordered a consolidated hearing to "determine whether the orders entered by this Court in July of 2007 regarding the minors' eligibility for special immigrant juvenile status should be vacated." At the April 22, 2008, hearing, Jose and Luis both testified.

Jose testified that he lives with a foster family and attends high school in Grand Island. Jose testified that he was in the 11th grade and was in the process of "testing out" for a diploma. Jose explained that he would be finished with school in a few weeks but would not receive his diploma until May 2009. Jose's foster mother explained that he was completing his GED program, but would receive a diploma from the high school in 2009. Jose testified that he was employed part time at a fast-food restaurant through a minor's work permit and explained that he planned on eventually enlisting with the Marines or attending community college.

Jose described that he was dealing with depression and posttraumatic stress disorder. Jose stated that the posttraumatic stress disorder stemmed from his dreams recalling his father's abuse of his mother and from witnessing "[m]urders and dead bodies" in Guatemala. Jose participates in weekly therapy and takes medication for those problems. Jose explained that if he were forced back to Guatemala, he does not know how he and Luis would survive. Jose described his two uncles, who live in Guatemala and abuse members of the family, and how he would not feel safe because there is basically "no law" to protect him and Luis. Jose explained that he did not know where in Guatemala his mother was living, because she had been living with his grandmother until the grandmother was placed in the hospital after being beaten by his uncles. When questioned by the court, Jose testified that when his mother was being deported, DHHS thought it was best if he did not return to Guatemala with his mother and he did not know why she left him in the United States.

Jose's foster mother testified that Jose had lived with her family twice, once for about a year in 2005 to 2006 and again since March 2007. She testified that in the past year Jose had been with them, he had had no contact with his mother. Jose's foster mother described how Jose had shared with her details about living in Guatemala, such as surviving amongst gangs, shootings, and death, and how Jose and his siblings were left to fend for themselves. She testified that she would be willing to provide "[l]ong-term foster care, guardianship" to Jose if he were to stay in the United States.

Luis also testified at the hearing. Luis testified that he lives in a foster home in Grand Island and was in the ninth grade at a Grand Island high school. Luis testified that he was involved in track and was getting "A's and B's and some C's" in school. Luis explained that if he stayed in the United States, he wanted to try out for cross-country in high school and then, after high school, to become a welder and enlist in the Army. Luis testified that at the time his mother was involved in deportation proceedings, he was living with a foster family after living with his sister. Luis explained that the immigration judge gave him and his mother the choice for Luis to return to Guatemala or stay in the United States. Luis stated, "It was 50/50. She told me she couldn't take care of me and I—I should stay here. `Cause she can—she can barely take care of her own stuff." Both juveniles testified that they had had little contact with their mother in the last 2 years, apart from her calling to ask for money. Luis described trying to forget about Guatemala because it was a "bad time." Luis testified that his family "didn't really have a home," because they were always moving from place to place with different relatives. Luis also described being abused by his mother with a belt and the abuse inflicted by his father, in Guatemala, with a belt and/or open hand. Luis testified that he participates in counseling for anger and depression and is taking medication for "ADHD."

Luis' foster parent testified that Luis had been placed with her family for about 1½ years. She testified that when Luis was first placed with her family, he was very restless and depressed, but has since improved and was doing very well in school. She testified that at first, Luis was very restless because he was worried about being sent back to Guatemala, fearing that he would have to live in the streets or be killed. She described Luis' telling her that he had roamed the streets in Guatemala and that he had seen murders occur and dead bodies. She opined that Luis would be better off living in the United States, because she did not think that there was any family in Guatemala who would be able to protect the boys. She explained that Luis' recent involvement in sports had really helped him and that her family was willing to continue to have Luis in their home, even if it were to include a guardianship.

Carissa Cemper, the DHHS foster care caseworker for both Jose and Luis, testified that Jose and Luis were currently in deportation court with an appeal. Cemper testified that if the county court were to withdraw the special findings for the boys, they would have to start the...