Opinion
08-09-2017
In the Matter of DENNIS X.G.D.V. (Anonymous), appellant.
Fried, Frank, Harris, Shriver & Jacobson, LLP, New York, NY (Jennifer L. Colyer and Michael P. Sternheim of counsel), for appellant.
Fried, Frank, Harris, Shriver & Jacobson, LLP, New York, NY (Jennifer L. Colyer and Michael P. Sternheim of counsel), for appellant.
RUTH C. BALKIN, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, HECTOR P. LaSALLE, JJ.
Appeal by the child from an order of the Family Court, Queens County (Nicolette M. Pach, J.H.O.), dated August 22, 2016. The order, insofar as appealed from, upon renewal and reargument, adhered to the original determination in a prior order of that court dated March 29, 2016, in effect, denying that branch of the child's motion which was for a specific finding that reunification of the child with one or both of his parents is not viable due to parental neglect.
ORDERED that the order dated August 22, 2016, is reversed insofar as appealed from, on the facts, without costs or disbursements, upon renewal and reargument, the determination in the order dated March 29, 2016, in effect, denying that branch of the child's motion which was for a specific finding that reunification of the child with one or both of his parents is not viable due to parental neglect is vacated, that branch of the motion is granted, and it is found that reunification of the child with one or both of his parents is not viable due to parental neglect.
In April 2015, Dennis X.G.D.V. (hereinafter the child) filed a petition pursuant to Family Court Act article 6 for the father to be appointed as his guardian. The child subsequently moved for the issuance of an order making the requisite declaration and 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 U.S.C. § 1101(a)(27)(J). In an order dated March 29, 2016, made after a hearing, the Family Court found that the child was under 21 years of age, unmarried, and dependent on the court, and that it would not be in his best interests to be returned to El Salvador, his previous country of nationality and last habitual residence. However, the court, in effect, denied that branch of the child's motion which was for a specific finding that reunification of the child with one or both of his parents is not viable on the ground of parental neglect. Thereafter, the child moved for leave to renew and reargue that branch of his prior motion. In an order dated August 22, 2016, the court, upon renewal and reargument, adhered to the original determination in the order dated March 29, 2016.
Pursuant to 8 U.S.C. § 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" is a resident alien who, inter alia, is under 21 years of age, is unmarried, and has been legally committed to, or placed under the custody of, an individual appointed by a state or juvenile court. Additionally, for a juvenile to qualify for SIJS, a court must find that reunification of the juvenile with one or both of the juvenile's parents is not viable due to parental abuse, neglect, abandonment, or a similar basis found under state law (see 8 U.S.C. § 1101 [a] [27][J][i]; Matter of Marvin E.M. de P. [Milagro C.C—Mario
Enrique M.G.], 121 A.D.3d 892, 893, 994 N.Y.S.2d 377 ; 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 juvenile's best interests to be returned to his or her native country or country of last habitual residence (see 8 U.S.C. § 1101 [a] [27][J][ii]; 8 C.F.R. 204.11 [c][6]; Matter of Marvin E.M. de P. [Milagro C.C.—Mario Enrique M.G.], 121 A.D.3d at 893, 994 N.Y.S.2d 377 ; 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 (see Matter of Arthur G. [Tiffany M.], 112 A.D.3d 925, 926, 978 N.Y.S.2d 286 ; Matter of Marte v. Biondo, 104 A.D.3d 947, 960 N.Y.S.2d 914 ; Matter of Aranova v. Aranov, 77 A.D.3d 740, 741, 909 N.Y.S.2d 125 ), 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 (see Matter of Jasmine W. [Michael J.], 132 A.D.3d 774, 775, 18 N.Y.S.3d 636 ; Matter of Arthur G. [Tiffany M.], 112 A.D.3d at 926, 978 N.Y.S.2d 286 ; Matter of Serenity S. [Tyesha A.], 89 A.D.3d 737, 739, 931 N.Y.S.2d 693 ). Based upon our independent factual review, we conclude that the record supports a finding that reunification of the child with his mother is not a viable option based upon parental neglect. The record reflects that the mother failed to meet the educational needs of the child (see Matter of Wilson A.T.Z. [Jose M.T.G.—Manuela Z.M.], 147 A.D.3d 962, 963, 48 N.Y.S.3d 415 ). The child testified that, although he was prevented from attending school by gang members who beat him while walking to school, the mother did not arrange for transportation, which was within her financial means, but instead, told him to stay home. Additionally, the child was expelled from one school due to excessive tardiness, and he failed the seventh grade (see id.; see also Matter of Kiamal E. [Kim R.], 139 A.D.3d 1062, 1063, 30 N.Y.S.3d 830 ; Matter of Justin R. [Gilbert R.], 127 A.D.3d 758, 759, 7 N.Y.S.3d 232 ). Further, the mother did not provide adequate supervision, often leaving the then eight- year-old child home alone at night in the neighborhood where he had encountered the gang violence (see Matter of Alan B., 267 A.D.2d 306, 307, 700 N.Y.S.2d 200 ).
The child's remaining contentions either are without merit or need not be addressed in light of our determination.
Accordingly, the Family Court should have, upon renewal and reargument, granted that branch of the child's motion which was for a specific finding that reunification with one or both of his parents is not viable on the ground of parental neglect. Since the record is sufficient for this Court to make its own findings of fact and conclusions of law, we find that reunification of the child with one or both of his parents is not viable due to parental neglect (see Matter of Varinder S. v. Satwinder S., 147 A.D.3d 854, 856, 47 N.Y.S.3d 76 ).
BALKIN, J.P., dissents, and votes to affirm the order insofar as appealed from, with the following memorandum:
Under 8 U.S.C. § 1101(a)(27)(J), as amended, a "special immigrant" is a resident alien who is, inter alia, 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 (see Matter of Trudy–Ann W. v. Joan W., 73 A.D.3d 793, 795, 901 N.Y.S.2d 296 ). For juveniles to qualify for special immigrant juvenile status, courts must find that their reunification with one or both parents is not viable due to, among other things, parental abuse, neglect, or abandonment, and that it would not be in their best interests to be returned to their native country (see Matter of Marvin E.M. de P. [Milagro C.C.—Mario Enrique M.G.], 121 A.D.3d 892, 893, 994 N.Y.S.2d 377 ; Matter of Trudy–Ann W. v. Joan W., 73 A.D.3d at 795, 901 N.Y.S.2d 296 ; 8 U.S.C. § 1101 [a][27][J]; 8 C.F.R. 204.11 [c][6] ).
Here, the Family Court, upon renewal and reargument, declined to find that the mother abandoned, neglected, or abused the child. The court's finding rested, in large part, on its determination that the child was not credible. Although we have the power to conduct our own "independent factual review," we generally accord deference to the Family Court's credibility determinations and are reluctant to disturb them unless they are clearly unsupported by the record (see Matter of Porter v. Moore, 149 A.D.3d 1082, 1083, 53 N.Y.S.3d 174 ; Matter or Andrew R. [Andrew R.], 146 A.D.3d 709, 710, 46 N.Y.S.3d 87 ; Matter of Brandon V., 133 A.D.3d 769, 769–770, 20 N.Y.S.3d 385 ). I find no basis on this record to reject the court's credibility determinations, which the court explained in detail, both in its original determination of March 29, 2016, and in its order upon renewal and reargument dated August 22, 2016. Moreover, even aside from the court's credibility determinations as to the child, I agree with the court's well-founded conclusion that the mother has always been, and continues to be, a resource for her son.
Accordingly, I would affirm that part of the Family Court's order as declined to find that reunification of the child with his mother is not viable on the basis of neglect, abandonment, or abuse (see Matter of Christian P.S.–A. [Humberto R. S.–B.—Laura S.A.–C.], 148 A.D.3d 1032, 1034, 49 N.Y.S.3d 546 ).
ROMAN, HINDS–RADIX and LaSALLE, JJ., concur.