Romero v. Perez

• Decision Date: 04 April 2018
• Docket Number: No. 2477, Sept. Term, 2016,2477, Sept. Term, 2016
• Citation: 182 A.3d 263,236 Md.App. 503
• Parties: Celso Monterroso ROMERO v. Josefa PEREZ
• Court: Court of Special Appeals of Maryland

236 Md.App. 503

182 A.3d 263

Celso Monterroso ROMERO

v.Josefa PEREZ

No. 2477, Sept. Term, 2016

Court of Special Appeals of Maryland.

April 4, 2018

Submitted by: Lara Wilkinson, Baltimore, MD, for Appellant.

Submitted by: Pro Se, for Appellee.

Panel: Eyler, Deborah S., Leahy, Friedman, JJ.

Friedman, J.Appellant, Celso Romero, appeals a circuit court finding that his son, R.P., was not neglected, abused, or abandoned by his mother in Guatemala. Because the circuit court made the necessary factual findings to support its ruling, we affirm.

DISCUSSION

R.P. was born to Celso Romero and Josefa Perez in Quetzaltenango, Guatemala, in 1998. Romero immigrated to the United States and has resided in Baltimore since 2004. R.P. was raised by Perez until he joined his father in the United States in 2015. R.P. then began the application process for Special Immigration Juvenile ("SIJ") status to seek lawful permanent residence in the United States.¹

To begin the process of obtaining SIJ status, immigrants already residing in the United States must obtain five findings from a state court:

1) The juvenile is under the age of 21 and unmarried;

2) The juvenile is dependent on the court or has been placed under the custody of an agency or an individual appointed by the court;3) The court has jurisdiction under state law to make judicial determinations about the custody and care of juveniles;

4) Reunification with one or both of the juvenile's parents is not viable due to abuse, neglect, or abandonment or a similar basis under state law; and

5) It is not in the "best interest" of the juvenile to be returned to his parents' previous country of nationality.

In re Dany G. , 223 Md. App. 707, 714–15, 117 A.3d 650 (2015) (citing 8 C.F.R. § 204.11 ). Circuit courts are required to take evidence and make individual factual findings on each of these factors when they are petitioned by an immigrant applying for SIJ status. Id. The circuit courts, sitting as juvenile courts, retain jurisdiction over these matters until the petitioner is 21 years old. Md. Code Family Law ("FL") § 1–201(a).

The Circuit Court for Baltimore City placed R.P. under the custody of Romero (Factor # 2) and made three of the other four findings required for SIJ status: that R.P. was under the age of 21 and unmarried (Factor # 1); that the circuit court had the authority to make determinations for juveniles (Factor # 3); and that it was not in R.P.'s best interests to return to Guatemala (Factor # 5). The court was not persuaded that R.P. had been the victim of neglect, abandonment, or abuse (Factor # 4) and therefore, it declined to rule in favor of Romero. In so ruling, the court (1) correctly noted that no decision of this Court or the Court of Appeals has identified the applicable burden of proof in SIJ cases; (2) considered applying either the "preponderance of the evidence" standard or the heightened "clear and convincing evidence" standard; and (3) determined that Romero had failed to persuade the court under either burden of proof that R.P. was a victim of neglect, abandonment, or abuse. We will first determine the proper burden of proof for SIJ findings, then determine whether it was applied here.

I. Burden of proof

Romero argues that the court erred by using the clear and convincing evidence standard, causing the court improperly to find that Romero failed to prove neglect. We agree that it would have been error to apply the clear and convincing standard and hold that Maryland law requires courts to apply the preponderance of the evidence standard to SIJ petitions.

We begin by noting that we write on a blank slate; neither federal law nor existing Maryland law specifies a standard of proof for SIJ cases. Federal law simply requires a finding of neglect, abandonment, or abuse of the juvenile "under state law," 8 C.F.R. § 204.11. The U.S. Citizenship and Immigration Services ("USCIS") Policy Manual instructs state courts to "follow their state law on ... evidentiary standards," but does not specify a standard. USCIS Policy Manual Pt. J Ch. 3(a)(2) (2017), https://perma.cc/N855-YEQA. While Maryland requires that courts with jurisdiction over juveniles entertain SIJ petitions and make the five factual determinations required by SIJ petitions, FL § 1–201(b)(10), there is no statutorily designated standard of proof for these findings. Moreover, as the trial court noted, there are no reported appellate opinions selecting a burden of proof.

We are persuaded, however, that applying the preponderance of the evidence standard to SIJ petitions is consistent with Maryland law. The preponderance standard is "generally applicable in civil and administrative proceedings."² Meyers v. Montgomery Cnty. Police Dep't , 96 Md. App. 668, 691, 626 A.2d 1010 (1993) (discussing appropriate burdens of proof in the absence of a legislatively designated standard). The General Assembly has determined that the appropriate burden of proof for juvenile matters, with some enumerated exceptions, is the preponderance of the evidence standard. Md. Code Courts § 3–817(c) (in Child In Need of Assistance ("CINA") cases); § 3–8A–18(e) (in non-CINA cases). Our courts also use the preponderance of the evidence standard in the custody and visitation context, when a court is required to make a finding of neglect. Michael Gerald D. v. Roseann B. , 220 Md. App. 669, 683, 105 A.3d 578 (2014). In such cases, the court may not grant a parent visitation if the court believes, by a preponderance of the evidence, that there is reason to believe that a parent neglected or abused the child. Id. at 685, 105 A.3d 578. Maryland law generally applies the preponderance of the evidence standard to juvenile cases, and because there is no statutory exception for SIJ petitions, we think that the preponderance standard is appropriate here.³

Our review of other state courts' treatment of SIJ petitions supports the conclusion that the preponderance standard is appropriate. For example, New York courts have adopted the preponderance of the evidence standard for SIJ cases. In re Ena S.Y. , 140 A.D.3d 778, 34 N.Y.S.3d 99, 101 (2016). Texas uses a catch-all preponderance of the evidence standard for juvenile proceedings, including SIJ cases. Tex. Fam. Code § 105.005. Other states specify higher burdens of proof for individual factors in the SIJ analysis, but only as is required to comport with pre-existing state statutes. In re Y.M. , 207 Cal.App.4th 892, 144 Cal.Rptr.3d 54, 73–74 (2012) (adopting the clear and convincing standard to justify termination of court-ordered family reunification services to comply with Cal. Welf. & Inst. Code § 388(c)(1)(A)(3) ); In re Guardianship of Guaman , 879 N.W.2d 668, 672 (Minn. Ct. App. 2016) (adopting the clear and convincing evidence standard for appointment of a guardian to comply with Minn. Stat. § 524.5–310(a) ). Because no pre-existing Maryland law compels the application of the clear and convincing standard, we hold that applying a clear and convincing standard in SIJ petitions would be inappropriate.

Finally, we note that Maryland law is animated by the purpose of "protect[ing] children who have been the subject of abuse or neglect." FL § 5–702. We think that the preponderance of the evidence standard, rather than the heightened clear and convincing standard, will protect more children and will better protect juvenile victims of abuse, neglect, or abandonment. We, therefore, hold that preponderance of the evidence is the proper standard for a circuit court addressing the mandatory factual findings in an SIJ petition. That holding, however, does not resolve this case.

II. The present case

As described above, Romero argues that the circuit court erred by applying the higher clear and convincing standard...