In re J.A.S.
| Decision Date | 21 July 2022 |
| Docket Number | 2021 AP 12 0033 |
| Citation | 192 N.E.3d 1313 |
| Parties | In the MATTER OF: J.A.S. |
| Court | Ohio Court of Appeals |
DAVID C. KNOWLTON, 111 South Buckeye Street, Suite 270, Wooster, OH 44691, For-Appellant.
OPINION
{¶1} Appellant S.S. appeals the December 14, 2021 judgment entry of the Tuscarawas County Court of Common Pleas, Juvenile Division.
{¶2} On September 20, 2021, appellant S.S. filed a complaint for custody and specific findings with respect to the eligibility of J.A.S. for Special Immigrant Juvenile Status ("SIJ"). S.S. is the sibling of J.A.S., a minor child. J.A.S. was born on March 1, 2009. The complaint requested the following findings: reunification with one or both of the child's parents is not viable due to the abandonment, neglect, or abuse of the parents; it is not in the best interest of J.A.S. to be returned to his previous country of nationality or country of last habitual residence, Guatemala, as there is no one in that country who could care for him; and it is in the best interest of J.A.S. to remain in the United States.
{¶3} S.S. attached her own affidavit to the complaint. She averred as follows: J.A.S. is currently residing with her in Dover; their father ("Father") left them when J.A.S. was six years old; Father was very abusive to all of them; their mother ("Mother") was abusive to J.A.S., and she can no longer provide for J.A.S.; J.A.S. suffers from depression from the pain he experienced living with his parents; S.S. can provide a stable and safe home for J.A.S.; and it is in the best interest of J.A.S. for S.S. to be his sole custodian.
{¶4} Appellant also filed the affidavit of Mother stating as follows: Father abandoned her and J.A.S. when J.A.S. was almost six years old; Father has never been present in J.A.S.’s life since he left; Father never provided for J.A.S.; and she does not know Father's whereabouts.
{¶5} The trial court held a hearing on appellant's complaint on November 16, 2021. Appellant testified she has lived in the United States for eight years. Appellant stated Father was an alcoholic, and abused his children, including J.A.S. Father abandoned J.A.S. when he was six years old. Appellant stated that when J.A.S. was in Guatemala, he was not able to attend school, and did not have food or clothing.
{¶6} Appellant testified J.A.S. has been living with her and husband for approximately five or six months. Appellant and her husband both work, and have money to pay for J.A.S.’s food, clothing, and medical expenses. J.A.S. attends middle school. Appellant believes it is in J.A.S.’s best interest to stay with her in the United States because his life would be in danger if he returned to Guatemala. Upon questioning by the trial court, appellant stated she paid for a bus to transport J.A.S. to the United States.
{¶7} In lieu of the minor child's testimony regarding his current mental state and the abuse that occurred in Guatemala, appellant submitted, and the trial court admitted into evidence, Exhibit 1. Exhibit 1 is the report of Robin Chancer ("Chancer"), a licensed clinical social worker, who completed a psychological evaluation on J.A.S. Chancer diagnosed J.A.S. with post-traumatic stress disorder
due to Father's violence towards him, including being hit with objects, repeatedly being struck in the head by Father, and being threatened with a gun by Father.
{¶8} The trial court issued a judgment entry on November 18, 2021. The trial court first found that J.A.S. meets the definition of child under R.C. 2151.011(B)(6), and therefore is subject to the trial court's jurisdiction. The trial court additionally found it had jurisdiction under Ohio law "to make judicial determinations about the custody and care of juveniles" as defined in 8 C.F.R. § 204.11(a), because R.C. 2151.23(F)(1) provides that the juvenile court "shall exercise its jurisdiction in child custody matters." Next, the trial court cited the following provision of R.C. 3109.04(D)(2), "if the court finds that it is in the best interests of the child for neither parent to be designated the residential parent and legal custodian of the child, it may commit the child to a relative." Finally, the trial court cited R.C. 3111.13(C) which states, in pertinent part, "a judgment or order may contain provisions concerning any other matter in the best interests of the child."
{¶9} The trial court determined that, pursuant to the court's authority, "it is in the best interest of the minor child, [J.A.S.], to be placed in the legal custody of his sister, [S.S.]."
{¶10} On December 9, 2021, appellant filed a "motion for ruling on all relief requested in plaintiff's complaint." Appellant requested findings of fact and conclusions of law. She specifically requested findings with regard to SIJ status as requested in her complaint. The trial court issued a judgment entry on December 14, 2021. The court reaffirmed its finding that it is in the best interest of J.A.S. to be placed into appellant's legal custody. The trial court then stated, "based on the evidence presented on November 16, 2021, all other requested findings in the Plaintiff's Complaint filed on September 20, 2021 are hereby DENIED."
{¶11} Appellant appeals the December 14, 2021 judgment entry of the Tuscarawas County Court of Common Pleas, Juvenile Division, and assigns the following as error:
{¶12}
I.
{¶13} "A trial court has broad discretion in proceedings involving the care and custody of children." In re Mullen , 129 Ohio St.3d 417, 2011-Ohio-3361, 953 N.E.2d 302. We review a juvenile court's decision to grant legal custody under an abuse-of-discretion standard. In re H.J.H. , 1st Dist. Hamilton No. C-180019, 2019-Ohio-116, 2019 WL 244625. However, questions of law are examined by this Court de novo. Consumers’ Counsel v. Pub. Util. Comm. , 58 Ohio St.2d 108, 388 N.E.2d 1370 (1979). Accordingly, to the extent appellant's assignment of error involves a question of law, we review it de novo.
{¶14} SIJ status was added to the Immigration and Nationality Act in 1990 "to enable immigrant children who have been subject to abuse, neglect, or abandonment by one or both of their parents to remain in the United States." 8 U.S.C. § 1101(a)(27)(J). Obtaining SIJ status is a multistep process that requires involvement of both state courts and federal agencies. Guardianship of Penate , 477 Mass. 268, 76 N.E.3d 960 (2017).
{¶15} The application process for SIJ status is set forth in the Federal Immigration and Nationality Act, and involves two primary steps. First, the child, or, as here, someone acting on the child's behalf, must obtain a predicate order from a state juvenile court that includes certain factual findings. In re J.J . , Ct. of Special Appeals of Maryland, No. 1421, 2022 WL 390835 (Feb. 9, 2022). Without that order, a child, or someone acting on the child's behalf, cannot apply for SIJ classification. Id. ; In the Matter of Guardianship of Luis , 114 N.E.3d 855 (Ind. App. 2018). Second, the child, or a person acting on the child's behalf, must submit an application, along with the predicate order and other supporting documents, to United States Citizenship and Immigration Services ("USCIS") for review. To apply for SIJ status with the USCIS, the petitioner must first obtain the following special findings from a juvenile court: (1) the child is dependent on a juvenile court, or under the custody of an agency or department of a State, or an individual entity appointed by the court or State; (2) reunification with one or both parents is not viable due to abuse, neglect, or abandonment; and (3) returning the child to his or her country of origin would not be in the child's best interest. 8 U.S.C. § 1101(a)(27)(J).
{¶16} The criteria for eligibility for SIJ status has changed over time. Initially, eligibility was limited to abused, abandoned, or neglected noncitizen children eligible for long-term foster care. U.S. Citizenship & Immigration Servs., Policy Manual, vol. 6, Chapter 1(A). Several amendments have been made to federal law since its initial establishment in 1990. In 2008, the Trafficking Victims Protection and Reauthorization Act of 2008 removed the need for a juvenile court to deem a child eligible for long-term foster care and replaced it with the requirement that a juvenile court find the reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis under state law. Id. at Chapter 1(B). The 2008 amendment also made clear that state juvenile courts must make their determinations regarding abuse, neglect, abandonment, reunification, and best interest, based on state law. Id. at Chapter 2(C).
{¶17} The framework trial courts should utilize when assessing the requisite SIJ factors comes from 8 U.S.C. § 1101(a)(27)(J) and 8 C.F.R. § 204.11, which require that: (1) the minor is presently in the U.S., unmarried, and under the age of 21; (2) the minor is dependent on the court or has been placed under the custody of a state agency, department, or individual appointed by the court; (3) the presiding court has jurisdiction under Ohio law to make determinations about the minor's custody and care; (4) reunification with one or both of the minor's parents is not viable due to any of the following: abuse, neglect, abandonment, or a similar basis under state law; and (5) it is not in the minor's best interest to return to his or her country of nationality or last habitual residence. The USCIS must then determine whether to grant or deny the petition.
{¶18} Courts have described this process as a "unique hybrid procedure that directs collaboration of state...
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