Opinion
Decided on August 14, 2009.
Petitioner is represented by Melissa DiTomasso, Esq., Office of the County Attorney. Bruce J. Cohen, Esq. was appointed attorney for the child.
The issue before this Court is whether a finding of neglect based on the child's abandonment by one parent sufficiently meets the requirements as set forth in 8 U.S.C. § 1101(a)(27)(J), to permit the Court to issue an Order of Special Findings.
SUMMARY OF FACTS
The minor child, E.G., was born on June 9, 1993 in Villa Nueva, Guatemala, where he was raised with his mother and siblings. In 2006, by ways unclear to the Court, E.G. made his way from Guatemala to the United States where his biological father, M.G. ("father" or "respondent"), was domiciled. E.G. resided in an apartment with his paternal aunt, paternal uncle, and father and was enrolled in the eighth grade at Valley Stream North High School. Due to conflicts between the father and father's brother, E.G.'s aunt and uncle eventually moved out of the shared apartment. E.G. continued to reside with his father after his paternal aunt and uncle's departure, but eventually the pair moved to a less expensive residence because of financial constraints. E.G. contends in his affidavit that his father's alcohol use escalated such that all his wages were spent on alcohol rather than rent and food for the household. E.G. and his father were evicted from the residence and settled in another home in Elmont. On or about January 1, 2009, after an altercation ensued between E.G. and his father, the father left the residence and failed to return until the following evening. When he returned, the father packed his belongings, said goodbye to his son, and left.
PROCEDURAL HISTORY
On or about January 20, 2009, the child was temporarily removed from the care of the father and taken into the custody of the Department of Social Services ("DSS"). On January 21, 2009, DSS filed a neglect petition against the respondent alleging that on January 18, 2009, the respondent returned to the family's residence, packed his belongings, and left his then fifteen-year-old son without money, provisions, or a plan for E.G.'s future care in respondent's absence. Respondent reportedly has not contacted the child since his departure. Respondent's whereabouts remain unknown and an outstanding warrant issued by this Court remains.
On January 22, 2009, this Court issued a Temporary Order directing the continued removal of the child. Earnest efforts were made to serve the respondent with the summons and petition; such efforts included multiple attempts at personal service at respondent's last known address, and service by publication. On May 7, 2009, an inquest was held and a finding of neglect was made. The matter was adjourned to May 27, 2009 for a dispositional hearing.
On May 26, 2009, Bruce J. Cohen, Esq., the Attorney for the Child, filed a motion with the Court seeking that the Court issue an Order making the factual findings necessary for the child to petition the U.S. Citizenship and Immigration Services ("USCIS") for Special Immigrant Juvenile Status pursuant to 8 U.S.C. § 1101(a)(27)(J) — a necessary pre-requisite to applying for permanent residency. DSS has not opposed the application.
LAW 8 U.S.C. § 1101(a)(27)(J)(i) provides for an immigrant child residing in the United States ("U.S."): (1) who is declared dependent on a juvenile court located in the U.S., placed under the custody of an agency or department of a State, individual or entity appointed by the State or juvenile court; AND (2) reunification with one or both of the immigrant child's parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law, to obtain Special Immigrant Juvenile Status ("SIJS"). A pre-requisite to qualifying for SIJS is that the Family Court issue an Order of Special Findings. The Court must make a determination that: (1) the immigrant child is under the age of twenty-one (21) years; (2) the minor is unmarried; (3) the minor has been declared dependent upon a juvenile court; (4) the minor has been deemed eligible by the court for long-term foster care due to abuse, neglect, or abandonment; (5) the minor continues to be dependent on the juvenile court and remains eligible for long-term foster care, in that family reunification is no longer a viable option; and (6) it would not be in the minor's best interest to be returned to the country of nationality. 8 U.S.C. § 1101(a)(27)(J) (2008), as amended by the Trafficking Victims Protection and Reauthorization Act of 2008 ("TVPRA"), Pub.L. No. 110-457, 122 Stat. 5044; see also 8 C.F.R. §§ 204.11(c) (1)-(6). Based on the testimony of witnesses and the evidence presented, the Court is satisfied that the child is unmarried and under the age of twenty-one (21). By virtue of respondent's abandonment of E.G. without a plan for his future care and the absence of family members stepping forward to intervene, E.G. is dependent upon the Family Court. See In re Menjivar, A70117167 A.A.U. 1,4 (INS Administrative Appeals Unit, Dec. 27, 1994) (holding that "the acceptance of jurisdiction over the custody of a child by a juvenile court, when the child's parents have effectively relinquished control of the child, makes the child dependent upon the juvenile court."). The non-respondent mother, who remains domiciled in Guatemala, submitted a sworn affidavit attesting to her desire to have her son remain in the United States to further his education and eventually obtain employment. The mother further states that she believes if E.G. is deported, he will suffer retaliation from gang members in Guatemala for abandoning the gang. She further asserts that since E.G. emigrated to the United States, gang members have been to her home harassing the family and threatening to kill the family if they are unsuccessful in finding E.G. Consequently, E.G.'s mother states she fears for his safety if returned to Guatemala, and asks that E.G. remain in the care and custody of an institution or legal guardian within the United States.
A child is deemed "eligible for long-term foster care" when the Court has made a determination that family reunification with one or both parents is not a viable option. See 8 C.F.R. § 204.11(a). Termination of the parents' rights is not a necessary pre-requisite to the Court's determination. Id.
In making special findings, the Family Court is not required to make a determination as to whether the minor child would be at risk of harm if returned to the country of origin; the Court needs only to find that return would not be in the child's best interest. See 8 C.F.R. § 204.11(a). By the account of the Attorney for the Child, and the child's own account, E.G. is currently living in a stable home environment with foster parents who are loving and supportive. E.G. attends school (something he was unable to continue in his native country), and is free from the physical and verbal altercations that he experienced while residing with his father. E.G. is also free from the corporal punishment he attests to receiving at the hands of his mother in Guatemala.
In Bennett v. Jeffreys, 40 NY2d 543, 548 (1976), the Court of Appeals held that a fit parent cannot be deprived of their custodial right simply "because someone else could do a better job of raising the child . . . so long as the parent has not forfeited their rights by surrender, abandonment, unfitness, persisting neglect or other extraordinary circumstance." Accordingly, the Court would not be permitted to make a determination that E.G.'s return to Guatemala would not be in the best interest solely based on the improved quality of life he would be afforded if permitted to remain in the U.S. However, in light of the recent amendment to 8 U.S.C. § 1101(a)(27)(J), a child may petition for SIJS even if there is a fit parent living abroad, so long as the minor has been abused, neglected or abandoned by one parent. This is not the case for E.G., however, given the fact that the non-respondent mother has submitted a sworn affidavit to the Court, which was translated on the record, effectively abdicating her parental responsibilities towards E.G. It is this Court's opinion that it would not be in E.G.'s best interest to return to his native country of Guatemala. See In re Antowa McD., 50 AD3d 507, 507 (1st Dept. 2008) (holding that a statement from a biological mother that she is unable to "give [her child] the love and attention she needs" is enough to establish that it was in the child's best interest not to return to Jamaica, after the child has been abandoned by her biological father).
CONCLUSION
This Court finds that the movant has set forth sufficient grounds for the issuance of an Order of Special Findings with respect to the minor child E.G.
Accordingly, it is hereby
ORDERED, that the motion requesting an Order of Special Findings is granted. This constitutes the decision and order of this Court.