De Rubio v. Herrera, WD 79933

• Decision Date: 14 November 2017
• Docket Number: WD 79933
• Parties: Roxana Villalta DE RUBIO, Appellant, v. Santos E. RUBIO HERRERA, Respondent.
• Court: Missouri Court of Appeals

541 S.W.3d 564

Roxana Villalta DE RUBIO, Appellant,

v.Santos E. RUBIO HERRERA, Respondent.

WD 79933

Missouri Court of Appeals, Western District.

OPINION FILED: November 14, 2017

Motion for Rehearing and/or Transfer to Supreme Court Denied January 30, 2018

Application for Transfer to Supreme Court Denied April 3, 2018

Shaun Mackelprang, Jefferson City, MO, for respondent.

Natalie H. Hoge, Kansas City, MO, for appellant.

Before Division One: Cynthia L. Martin, P.J., James Edward Welsh, and Karen King Mitchell, JJ.

James Edward Welsh, Presiding Judge

Roxana Villalta de Rubio ("Mother") appeals the circuit court's judgment granting her petition to dissolve her marriage to Santos E. Rubio Herrera ("Father"). Mother claims that the court erred in denying her request for an "Order of Special Findings" as to the parties' minor child ("Son") for purposes of applying for Special Immigrant Juvenile status with the federal government. We affirm.

I. Background

Mother and Father were married on December 22, 1997, in El Salvador. The parties have two children, a daughter, born in 1996, and Son, born in 1998. Mother and Father separated in 2003, when Father abandoned the family.

Sometime in 2005, Mother left the children in the care of her mother in El Salvador and unlawfully entered the United States. She settled in Saline County, Missouri. Ten years later, in April 2015, Son unlawfully entered the country to reunify with Mother. Son was apprehended by immigration officials and placed in the custody of the Department of Health and Human Services' Office of Refugee Resettlement. In May 2015, Son was released into Mother's custody pending disposition of his immigration case.

Nine months later, in February 2016, Mother filed a petition for dissolution of her marriage, pursuant to Chapter 452 RSMo.¹ Mother, Father, and Son all are citizens of El Salvador. None are United States citizens, nor do they have any valid immigration status. At the time of the dissolution proceedings, Mother and Son were living in Saline County, and Father's whereabouts were unknown. Mother served Father by publication, and an appropriate affidavit of publication was timely filed with the court.

In her petition, Mother requested sole legal and sole physical custody of Son, who was seventeen years old at the time. Mother alleged that Father had abandoned Son in 2003 and that she is the only parent willing and able to care for him. She also alleged that Son "is subject to removal proceedings" (i.e. , deportation) and "may be eligible to file an application for Special Immigrant Juvenile Status with the United States Citizenship and Immigration Services (USCIS)." To facilitate that, Mother sought "three Special Findings of Fact which will assist [Son] residing in the United States." In short, the findings Mother requested were (1) that Son is dependent upon the trial court, (2) that reunification with one or both parents is not viable due to abandonment, pursuant to state law, and (3) that it is not in Son's best interest to be returned to El Salvador.

On June 14, 2016, Mother and Son appeared for a "default" dissolution hearing. Father did not appear. Mother testified that she was seeking sole legal and physical custody of Son as Father had not communicated with or supported him since 2003. She stated that it would be in Son's best interest to remain in the United States in her custody because Son would be in danger from gangs if he returned to El Salvador and because there is no one there to care for him.

Son testified that he was seventeen years old and a citizen of El Salvador.² He stated that he did not want to return to his home country because of safety concerns and because there was no one to care for him there. Son confirmed that Father had abandoned him in 2003. He stated that he was currently living with his mother and wished to remain in her custody.

Mother's counsel offered a proposed parenting plan that granted her sole legal and sole physical custody of Son on the basis that "this arrangement [would] be in the best interest of the child due to [Father]'s abandonment and neglect of [Son]." In addition, Mother's counsel filed a proposed Order of Special Findings of Fact and a memorandum in support. The memorandum explained that the order is a required predicate for Son to apply to the federal government for Special Immigrant Juvenile status and that the requisite findings could be obtained only from a state or juvenile court having jurisdiction over the minor child.

On June 30, 2016, the circuit court issued its Judgment of Dissolution finding that service by publication was proper and that Father had abandoned both Mother and Son. The court granted Mother "sole legal and physical custody and care of [Son]" and incorporated Mother's proposed parenting plan into the judgment. The court denied Mother's request for an Order of Special Findings of Fact, however, noting that:

[W]ithout personal service on [Father], a guardian-ad-litem for the minor child, the child being a party to the action, and one of the child's parents being a United States citizen, the requested special findings would be inappropriate....

Mother thereafter obtained a sworn affidavit from Father, in which he attested that he refused to appear for any hearing on the matter and waived personal service. Father reaffirmed his abandonment of Son and attested that he would continue to abandon Son even if Son were returned to El Salvador.

On July 13, 2016, Mother filed a motion to reconsider her request for the Order of Special Findings of Fact based on Father's waiver of personal service and sworn affidavit. Mother argued in her motion that an Order of Special Findings of Fact should have been issued because (1) it was established that the trial court has jurisdiction over Son, and (2) the court's granting sole legal and physical custody to Mother and adopting her parenting plan satisfied the second and third requested special finding of facts, in that it was not in Son's best interest to return to his home country but to stay in the United States in her custody and care.

At a hearing on Mother's motion, her counsel explained the purpose of the special findings of fact and why only a state court can issue such findings. Without receiving any further testimony, the court denied the motion to reconsider. The court also declined Mother's request for findings of fact and conclusions of law on that decision.

Mother appeals.

II. Standard of Review—Dissolution Case

In reviewing a dissolution of marriage action, we will affirm the trial court's judgment unless we find that it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Cox v. Cox , 504 S.W.3d 212, 216 (Mo. App. 2016) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976) ). "In assessing the sufficiency of the evidence, we examine the evidence and all its reasonable inferences in the light most favorable to the judgment, and we disregard all evidence and inferences to the contrary." Id. at 216-17. We review questions of law de novo. Pearson v. Koster , 367 S.W.3d 36, 43 (Mo. banc 2012).

III. Point One

Mother contends that the circuit court erred in denying her request for an Order of Special Findings of Fact (in addition to the dissolution judgment), which would permit Son to apply to the federal government for "Special Immigrant Juvenile" status, in that she "clearly established" a basis for the following findings:

(1) [Son] is dependent upon this State's (family) court or has been legally committed or placed under the custody of an agency or department of [the] State, or an individual or entity appointed by a State or juvenile court[;]

(2) [Son]'s reunification with one or both parents is not viable due to abuse, neglect, or abandonment, or similar basis found under State law[;] and

(3) It is not in [Son]'s best interest to be returned to his or his parents' previous country of nationality or country of last habitual residence of El Salvador[.]

See 8 U.S.C. § 1101(a)(27)(J) and 8 C.F.R. § 204.11. Mother asserts that she asked the court to issue these findings because Father had abandoned Son and because Son was "concurrently a minor in removal (deportation) proceedings [and would be] attempting to request consideration for Special Immigrant Juvenile Status in a separate immigration proceeding."

A. Special Immigrant Juvenile Status

We first examine the basis for Mother's request. The federal Immigration and Nationality Act provides a path for undocumented immigrant children who have been abused, neglected, or abandoned to gain lawful permanent residency in the United States by obtaining Special Immigrant Juvenile status. In re Guardianship of Guaman , 879 N.W.2d 668, 671-72 (Minn. App. 2016) (citing 8 U.S.C. § 1101(a)(27)(J) ; 8 CFR § 204.11 ).³ A child who obtains such status may become a naturalized United States citizen after five years. Eddie E. v. Superior Court , 234 Cal. App. 4th 319, 326, 183 Cal.Rptr.3d 773 (Cal. App. 2015).

This process was established in 1990, when Congress amended the Act to include the definition of "Special Immigrant Juvenile" ("SIJ") in 8 U.S.C. § 1101(a)(27)(J). Recinos v. Escobar , 473 Mass. 734, 46 N.E.3d 60, 63 (2016). The 1990 definition required (1) a finding by a state court that the child is "dependent on a juvenile court" and eligible for long-term foster care, and (2) a finding that it is "not in the child's best interests to return to his or her country of origin." Id. at 64. In 1997, Congress modified the definition to include a child who had been "legally committed to, or placed under the custody of, an agency or department of a State" and required that eligibility for long-term foster care be "due to abuse, neglect, or abandonment." Id.⁴

In 2008, the Act was amended to eliminate the foster care requirement and to expand eligibility to children whom a juvenile court has placed in the custody of an "individual or entity appointed by...