In re Interest of B.R.C.M.
| Decision Date | 30 December 2015 |
| Docket Number | No. 3D15–962.,3D15–962. |
| Citation | 182 So.3d 749 |
| Parties | In the Interest of B.R.C.M., a minor child, Appellant. |
| Court | Florida District Court of Appeals |
Immigrant Children's Justice Clinic, FIU College of Law, and Ricardo Rodriguez and Mary M. Gundrum ; Baker & McKenzie LLP and Steven Hadjilogiou and Angela C. Vigil, for appellant.
Karla Perkins, Appellate Counsel for Department of Children & Families.
Before SHEPHERD, SALTER and LOGUE, JJ.
This is another in a series of cases in which an unaccompanied minor, who illegally crossed the border of the United States, seeks an order finding him or her dependent under Chapter 39 of the Florida Statutes, for the sole purpose of helping the child obtain legal residency in the United States. We previously have affirmed trial court denials of dependency in six similar cases. See In the Interest of F.J.G.M., ––– So.3d ––––, 40 Fla. L. Weekly D1908 (Fla. 3d DCA Aug. 12, 2015) ; D.A.O.L. v. Dep't of Children & Families, 170 So.3d 927 (Fla. 3d DCA 2015) ; In re J.A.T.E., 170 So.3d 931 (Fla. 3d DCA 2015) ; M.J.M.L. v. Dep't of Children & Family Servs., 170 So.3d 931, 932 (Fla. 3d DCA 2015) ; In re B.Y.G.M., 176 So.3d 290 (Fla. 3d DCA 2015) ; In re K.B.L.V., 176 So.3d 297 (Fla. 3d DCA 2015). We now add one more to the list.
Like the petitioners in the prior cases, B.R.C.M. was born in Central America, in this case, Guatemala. B.R.C.M. was abandoned by his father at birth and his mother when he was four-years old. His grandmother then took him into her house and cared for him until he turned age fourteen, when he and some friends left Guatemala, travelled through Mexico, and entered the United States illegally at Hidalgo, Texas. B.R.C.M.'s stated reasons for taking this action, according to the sworn petition filed in this case, are that his grandmother had arrived at an age where she no longer was able to care for him, he did not have any other family members in Guatemala, and he feared he would be assaulted and forced to join a local gang. Upon crossing the border, B.R.C.M. turned himself in to the border patrol, and, before the month was out, the Office of Refugee Resettlement of the United States Department of Health & Human Services placed him with his godmother in Miami. Within days of his arrival in Miami, B.R.C.M. heard from and received a visit from his father, allegedly for the first time since birth. Although B.R.C.M.'s father has not provided any food or money for basic necessities,1 he has maintained telephone contact with B.R.C.M. since that time.
B.R.C.M.'s sole purpose for filing the Petition for Dependency in this case is to facilitate an application for Special Juvenile Immigrant Status and seek lawful permanent residency status in the United States. See 8 U.S.C. § 1101(a)(27)(J). As with every case of this type that has come before this court, B.R.C.M. does not seek any services from the Florida Department of Children and Families. His godmother is providing his every need.
The case before us is distinguishable from all the others that have come before this court in only one respect—the caretaker in this case is neither a parent nor a legal guardian, but instead a godmother. We nevertheless affirm the dismissal of this case by the trial court. As counsel for the Department, whom the court ordered to attend the oral argument in this matter,2 conceded, the purpose of the dependency provisions of Chapter 39 of the Florida Statutes, §§ 39.501 –39.510, Fla. Stat. (2015), is not to facilitate the pursuit of Special Juvenile Immigrant Status, but rather to provide services to children who are truly abandoned, abused or neglected:
(Emphasis added.). It is plain on the face of the petition that B.R.C.M. is not "truly" abandoned, abused or neglected within the meaning of Chapter 39 of the Florida Statutes.
As to abandonment, section 39.01 of the Florida Statutes states:
(1) "Abandoned" or "abandonment" means a situation in which the parent or legal custodian of a child or, in the absence of a parent or legal custodian, the caregiver, while being able, has made no significant contribution to the child's care and maintenance or has failed to establish or maintain a substantial and positive relationship with the child, or both. For purposes of this subsection, "establish or maintain a substantial and positive relationship" includes, but is not limited to, frequent and regular contact with the child through frequent and regular visitation or frequent and regular communication to or with the child, and the exercise of parental rights and responsibilities. Marginal efforts and incidental or token visits or communications are not sufficient to establish or maintain a substantial and positive relationship with a child.
"Caregiver" is defined to mean "the parent, legal custodian, permanent guardian, adult household member, or other person responsible for a child's welfare as defined in subsection (47)." See § 39.01(10), Fla. Stat. (Emphasis added.). Subsection 47 provides in pertinent part:
(47) "Other person responsible for a child's welfare" includes the child's legal guardian or foster parent; an employee of any school, public or private child day care center, residential home, institution, facility, or agency; a law enforcement officer employed in any facility, service, or program for children that is operated or contracted by the Department of Juvenile Justice; or any other person legally responsible for the child's welfare in a residential setting; and also includes an adult sitter or relative entrusted with a child's care.
(Emphasis added.) Although a "godmother" is not expressly included in the enumeration of other persons responsible for a child's welfare in subsection 47, the definition by its terms is not exclusive. See Include, Black's Law Dictionary (10th ed.2014) ( ); see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 132 (2012) ( [T]he word include does not ordinarily introduce an exhaustive list....). Especially considering the purpose of the statute is to assist families and children who are truly needy, we decline to accept the crabbed interpretation of "other persons" sought by the petitioner in this case.
On this measure, the case before us is indistinguishable from In re B.Y.G.M., 176 So.3d at 290. B.Y.G.M. was a native of El Salvador. His father abandoned him when he was eight-months old, and his mother left for the United States when B.Y.G.M. was three-years old. After he illegally entered the United States, the Office of Refugee Resettlement placed him with his mother in the United States. Just as with B.R.C.M., B.Y.G.M.'s every need was met at the time he filed his petition for dependency. In B.Y.G.M., we concluded that the "father's abandonment was ... too remote to serve as the basis for dependency and did not cause B.Y.G.M. any harm." Id. at 293 (). The same conclusion obtains, a fortiori, in this case.
B.R.C.M.'s claim of abuse under Chapter 39 fails for the same reason. Section 39.01(2) of the Florida Statutes defines "Abuse" as follows:
(2) "Abuse" means any willful act or threatened act that results in any physical, mental, or sexual abuse, injury, or harm that causes or is likely to cause the child's physical, mental, or emotional health to be significantly impaired. Abuse of a child includes acts or omissions. Corporal discipline of a child by a parent or legal custodian for disciplinary purposes does not in itself constitute abuse when it does not result in harm to the child.
There is no allegation in this case that anyone has ever laid a hand or threatened to lay a hand on B.R.C.M., even while he resided in his home country, Guatemala. His problem is one typical of all minors who are not safe outside their homes because of a government that is unable to provide them, their family members and neighbors a safe environment in which to go about their daily lives. Sadly, what exists in Guatemala is what exists in the majority of countries of the world today—lawless nations and societies which do not provide or do not choose to provide freedom, safety and security to their citizens. Whether or not to accommodate individuals of any age into this country on the basis of the conditions of the country in which they were born or reside is not for us to decide. It is a matter of federal policy entrusted to the United States Congress. See, e.g., Galvan v. Press, 347 U.S. 522, 531, 74 S.Ct. 737, 98 L.Ed. 911 (1954) ().
Finally, there is no cognizable claim in this case for an adjudication of dependency based upon "neglect." Section 39.01(44) of Florida's dependency law defines "neglect" as follows:
(44) "Neglect" occurs when a child is deprived of, or is allowed to be deprived of, necessary food, clothing, shelter, or medical treatment or a child is permitted to live in an environment when such deprivation or environment causes the child's physical, mental, or emotional health to be significantly impaired or to be in danger of being significantly impaired. The foregoing circumstances shall not be considered neglect if caused primarily by financial inability unless...
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