Opinion
29952
06-08-2020
In the Matter of a Proceeding for Guardianship Under Article 6 of the Family Court Act M.G.M.L.
Petitioner Father represented by: Marc J. Ackerman, Esq. The Law Office of Marc J. Ackerman, Esq. 337 North Main Street, Suite 2 New City, NY 10956 Respondent Mother represented by: Margaret Regan Smith, Esq. 14 South Main Street New City, New York 10956
Petitioner Father represented by: Marc J. Ackerman, Esq. The Law Office of Marc J. Ackerman, Esq. 337 North Main Street, Suite 2 New City, NY 10956 Respondent Mother represented by: Margaret Regan Smith, Esq. 14 South Main Street New City, New York 10956 Keith J. Cornell, J.
Before the Court is the guardianship petition of M.M.G. ("Father") seeking appointment as guardian of his daughter, M.G.M.L. ("Child"). Counsel for Petitioner also filed a motion requesting factual findings pursuant to Federal Law 8 U.S.C. § 1101(a)(27)(J). The findings would then be submitted to the United States Citizenship and Immigration Services (USCIC) in support of an application for Special Immigrant Juvenile Status ("SIJS") for the child, with a goal toward permanent lawful residency and citizenship. See In re Marisol N.H., 115 AD3d 185, 188, 979 N.Y.S.2d 643, 645 (2d Dept. 2014) ("SIJS is a form of immigration relief that affords undocumented children a pathway to lawful permanent residency and citizenship"). The mother, M.M.L.L. ("Mother"), opposes both applications.
The matter was deemed an essential matter, which needed to be heard on the record despite the Court's reduced operations due to the coronavirus pandemic, because the Child turns 21 years old on xx/xx/2020, at which time the Court will be divested of subject matter jurisdiction.
The matter was heard virtually on June 1, June 3 and June 5. All counsel and the Spanish interpreter appeared by Skype. The Mother appeared by Skype from her attorney's office. The Father appeared by telephone through his attorney's office and the Child appeared by telephone through her attorney's office. It was challenging to hear the Child and the Father, both of whom required the services of the Spanish interpreter. However, despite the audio quality, both the Child and the Father were able to testify, be cross-examined, and indicated to the Court that they were able to hear the proceedings. The circumstances made it all but impossible for the Court to judge the demeanor and credibility of the Child and the Father. That deficit in the proceedings, however, did not affect the Court's determination because the testimony most relevant was largely consistent and did not require any credibility determination.
With regard to the guardianship petition, the standard of review is whether the guardianship is in the best interest of the child. See FCA § 661(b); Matter of Stuart, 280 NY 245, 250, 20 N.E.2d 741 (1939). In determining what is in the best interest of the child, a court must review the totality of the situation. See Eschbach v. Eschbach, 56 NY2d 167 (1982). A determination must be based upon the Court's sound, reasoned and thoughtful discretion as to what arrangement will be in the best interest of the child. See Friederwitzer v. Friederwitzer, 55 NY2d 89, 93 (1982).
Here, there is no question that the purpose of the guardianship petition is to provide the predicate for the SIJS findings, thereby facilitating the Child's intended application to USCIS. While the Mother argues that the guardianship should not be granted, the Child consents to the petition and testified that the Father has been an integral and consistent presence in her life, providing both financial and emotional support. Although she does not live with the Father, that is not a requirement of a guardianship.
As a practical matter, the guardianship would last a matter of days and the only reason for it is to serve as a possible pathway toward citizenship for the Child if the SIJS findings are made. There is nothing improper about that motivation and, of course, the Family Courts hear many of these cases. From a "best interests" analysis standpoint, it is unquestioned that providing that capability for the Child is in her best interest. While the Mother argues that the Child does not need a guardian, the Child is eligible until age 21 to have the appointment made and the Mother has not successfully established the grounds upon which to deny the application. Here, the Court does find that it would be in the Child's best interest to appoint her Father has her guardian and shall issue a separate order simultaneously herewith granting the petition for the guardianship.
On a request for special findings in a SIJS matter, this Court must make the following preliminary factual findings:
1. the juvenile immigrant is under 21 years of age;
2. the juvenile immigrant is unmarried;
3. the juvenile immigrant is dependent on the juvenile court or legally committed to, or placed under the custody of, an agency or department of the State, or an individual or entity appointed by the State or juvenile court;
4. reunification with one or both of the juvenile immigrant's parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law; and
5. that it would not be in the juvenile immigrant's best interest to be returned to his/her (or his/her parents') previous country of nationality or country of last habitual residence.
In making the factual findings, the Court can consider any testimony or evidence presented at a hearing, as well as affidavits submitted by the juvenile or the proposed guardian/custodian in support of the SIJS application. See Pineda v. Diaz, 127 AD3d 1203, 9 N.Y.S.3d 93 (2d Dept. 2015) (relying on detailed affidavit from child in holding that reunification with father was not viable option due to abandonment); In re Maura A.R.-R., 114 AD3d 687, 979 N.Y.S.2d 701 (2d Dept. 2014) (same). The Court is required to make the above-mentioned preliminary factual findings, but the Court does not render any immigration determination. See Pineda, 127 AD3d at 1204. The final decision regarding SIJS rests with the federal government. See Marcelina M.-G. v. Israel S., 112 AD.3d 100, 973 N.Y.S.2d 714 (2d Dept. 2013).
Here, the record establishes that the Child is 1) under the age of 21 and 2) unmarried. Per New York law, appointment of guardian constitutes a "declaration of dependency on a juvenile court," satisfying the third requirement. Trudy-Ann W. v. Joan W., 73 AD3d 793, 795, 901 N.Y.S.2d 296 (App. Div. 2d Dept. 2010). Finally, is not disputed that it is not in the Child's best interest to be returned to her country of nationality, as both of her parents reside in the United States. None of these criteria are questioned by any party.
Only the fourth criteria, viability of reunification, is contested. Petitioner argues that the Child could not reunite with the Mother because the Mother abandoned the child. New York State defines abandonment by a parent as the "failure for a period of six months to visit the child and communicate with the child or person having legal custody of the child, although able to do so." Domestic Relations Law § 112(2)(a). See Jack T. v. Douglas S., 3 AD3d 13, 18, 769 N.Y.S.2d 22 (App. Div. 1st Dept. 2003) ("abandonment is established if the natural parent made no attempt to have a relationship with the child, and the natural parent's contact with the child was never thwarted"); Matter of Jennifer Lauren D., 110 AD2d 699, 487 N.Y.S.2d 817 (App. Div. 2d Dept. 1985) (finding that child was abandoned when parent failed to financially support child and had not seen child in ten years). The key factor in determining abandonment is the length of the separation without parental effort to make contact. See Jack T., 3 AD3d 13 at 18.
The Father, the Mother, and the Child all testified that the Mother and the Child have not been in contact for the last two years. The Mother argues that she did not abandon the Child. She argues that the Child ceased communications with the Mother after getting pregnant, leaving home, and moving in with her boyfriend's family in New Jersey. The Mother claims that the Father and the Child devised a scheme to claim the Mother's abandonment only for the purpose of seeking SIJS status. The Mother protests that she wished to have contact with and a relationship with the Child over the last two years.
While the Mother's theory is plausible, there is no evidence that the Mother's alienation from the Child is the result of a scheme by the Child and the Father. The Mother admitted that she provided no financial support for over two years. The Mother could not point to any evidence of any effort to reestablish contact. And crucially, the Mother testified that the only reason she contests the application is because she fears for her own immigration status if there is a finding that she has abandoned the Child.
There may be some truth to the Mother's position that the Child is the one who cut off contact with the Mother, but it was the Mother's responsibility to foster a relationship. She did not. She provided no evidence of providing any financial support or of attempting to contact the Child, even while living in the same community for much of the period of separation. Under these circumstances, the Court finds that the Mother did abandon the Child, as a matter of law. Consequently, the petition has established all five grounds for the SIJS findings. Therefore, the motion for special findings is GRANTED. Dated: June 8, 2020 New City, NY
ENTER
__________
Keith J. Cornell Acting Judge of the Family Court