Lucas F.V. v. Jose N.F.

• Decision Date: 13 February 2019
• Docket Number: Docket No. G–00769–18,2018–04896
• Citation: 94 N.Y.S.3d 294,169 A.D.3d 802
• Parties: In the Matter of LUCAS F.V. (Anonymous), Appellant; v. JOSE N.F. (Anonymous), Respondent.
• Court: New York Supreme Court — Appellate Division

169 A.D.3d 802

94 N.Y.S.3d 294

In the Matter of LUCAS F.V. (Anonymous), Appellant;

v.JOSE N.F. (Anonymous), Respondent.

2018–04896

Docket No. G–00769–18

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

Argued—January 15, 2019

February 13, 2019

Binder & Schwartz LLP, New York, N.Y. (Neil S. Binder and Tessa B. Harvey of counsel), for appellant.

MARK C. DILLON, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, COLLEEN D. DUFFY, JJ.

DECISION & ORDER

In a guardianship proceeding pursuant to Family Court Act article 6, the subject child appeals from an order of the Family Court, Nassau County (Eileen C. Daly–Sapraicone, J.), dated March 15, 2018. The order, after a hearing, denied the child's motion for the issuance of an order, inter alia, making specific findings so as to enable him to petition the United States Citizen and Immigration Services for special immigrant juvenile status pursuant to 8 USC § 1101(a)(27)(J).

ORDERED that the order is reversed, on the facts, without costs or disbursements, the child's motion for the issuance of an order, inter alia, making specific findings so as to enable him to petition the United States Citizenship and Immigration Services for special immigrant juvenile status pursuant to 8 USC § 1101(a)(27)(J) is granted, and it is found that reunification of the subject child with his father is not viable due to parental neglect and that it would not be in the child's best interests to return to El Salvador, his previous country of nationality and last habitual residence.

In December 2017, Lucas F.V. (hereinafter the child) filed a petition in the Family Court, Nassau County, pursuant to Family Court Act article 6 to have his mother appointed as his guardian for the purpose of obtaining an order declaring that the child is dependent on the Family Court and making specific findings so as to enable him to petition the United States Citizenship and Immigration Services for special immigrant juvenile status (hereinafter SIJS) pursuant to 8 USC § 1101(a)(27)(J). In an order dated March 12, 2018, the Family Court granted the guardianship petition appointing the mother as the child's guardian. Thereafter, the child moved for the issuance of an order, inter alia, making the requisite declaration and specific findings so as to enable him to petition for SIJS. In an order dated March 15, 2018 (hereinafter the March 2018 order), made after a hearing, the Family Court found that the child was under 21 years of age, unmarried, and dependent on the court, but denied the motion on the ground that the child failed to establish that his reunification with the father was not viable due to parental abandonment, neglect, or abuse, and that it would not be in the child's best interests to return to El Salvador, his previous country of nationality and last habitual residence. The child appeals from the March 2018 order.

Pursuant to 8 USC § 1101(a)(27)(J) (as amended by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub L 110–457, 122 U.S. Stat. 5044) and 8 CFR 204.11, a special immigrant juvenile is a resident alien who, inter alia, is under 21 years of age, unmarried, and dependent upon a juvenile court or legally committed to an individual appointed by a state or juvenile court. Additionally, for a child to qualify for SIJS, a court must find that reunification of the child with one or both parents is not viable due to parental abuse, neglect, abandonment, or a similar basis found under state law (see 8 USC § 1101 [a][27][J][i]; Matter of Maria P.E.A. v. Sergio A.G.G., 111 A.D.3d 619, 620, 975 N.Y.S.2d 85 ; Matter of Trudy–Ann W. v. Joan W., 73 A.D.3d 793, 795, 901 N.Y.S.2d 296 ), and that it would not be in the child's best interests to be returned to his or her previous country of nationality or country of last habitual residence (see 8 USC § 1101 [a][27][J][ii]; 8 CFR 204.11 [c][6]; Matter of Maria P.E.A. v. Sergio A.G.G., 111 A.D.3d at 620, 975 N.Y.S.2d 85 ; Matter of Trudy–Ann W. v. Joan W., 73 A.D.3d at 795, 901 N.Y.S.2d 296 ).

"While the credibility assessment of a hearing court is accorded considerable deference on appeal, where, as here, the Family Court's credibility determination is not supported by the record, this Court is free to make its own credibility assessments and overturn the determination of the hearing court" ( Matter of Dennis X.G.D.V., 158 A.D.3d 712, 714, 71 N.Y.S.3d 135 [citations omitted] ). Based upon our independent factual review, the record supports a finding that reunification of the child with the father is not a viable option due to parental neglect (see Matter of Ena S.Y. [Martha R.Y.—Antonio S.], 140 A.D.3d 778, 780, 34 N.Y.S.3d 99 ). The record...