Opinion
02-08-2017
In the Matter of NELSON R.N.C. (Anonymous), petitioner-appellant, v. MARIA G.V.P. (Anonymous), et al., respondents; Jenifer B.N.V. (Anonymous), nonparty-appellant.
Joseph J. Artrip, Cornwall, NY, for appellants.
Joseph J. Artrip, Cornwall, NY, for appellants.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, JOSEPH J. MALTESE, and COLLEEN D. DUFFY, JJ.
Appeals by Nelson R.N.C. and Jenifer B.N.V. from two orders of the Family Court, Orange County (Christine P. Krahulik, J.), both dated March 25, 2016. The first order granted a petition to appoint Nelson R.N.C. as guardian of Jenifer B.N.V. The second order, after a hearing, denied Jenifer B.N.V.'s motion for the issuance of an order, inter alia, making specific findings so as to enable her to petition the United States Citizenship and Immigration Services for special immigrant juvenile status pursuant to 8 U.S.C. § 1101(a)(27)(J).
ORDERED that the appeal from the first order is dismissed, without costs or disbursements, as the appellants are not aggrieved by that order (see CPLR 5511 ; Mixon v. TBV, Inc., 76 A.D.3d 144, 904 N.Y.S.2d 132 ); and it is further,
ORDERED that the appeal by Nelson R.N.C. from the second order is dismissed, without costs or disbursements, as he is not aggrieved by that order (see CPLR 5511 ); and it is further,
ORDERED that the second order is affirmed on the appeal by Jenifer B.N.V., without costs or disbursements.
In November 2014, Nelson R.N.C. (hereinafter the petitioner) filed a petition pursuant to Family Court Act article 6 to be appointed guardian of Jenifer B.N.V. (hereinafter the child), for the purpose of obtaining an order declaring that the child is dependent on the Family Court and making specific findings that she is unmarried and under 21 years of age, that reunification with one or both of her parents is not viable due to parental abandonment and neglect, and that it would not be in her best interests to be returned to Ecuador, her previous country of nationality and country of last habitual residence, so as to enable the child 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). Thereafter, the child moved for the issuance of an order making the requisite declaration and specific findings so as to enable her to petition for SIJS. In an order dated March 25, 2016, the Family Court granted the guardianship petition, and in a separate order, also dated March 25, 2016, the court denied the child's motion.
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 C.F.R. 204.11, a special immigrant is a resident alien who, inter alia, is 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. 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 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 previous country of nationality 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 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 ).
Contrary to the child's contention, the record does not support a determination that her reunification with one or both of her parents is not viable due to parental neglect or abandonment (see Matter of Del Cid Martinez v. Martinez, 144 A.D.3d 905, 42 N.Y.S.3d 39 ; Matter of Jasbir S. [Dayal S.-Gurdev S.], 138 A.D.3d 750, 29 N.Y.S.3d 446 ; Matter of Malkeet S., 137 A.D.3d 799, 26 N.Y.S.3d 330 ; Matter of Leslie J.D. [Maria A.A.G.-Sylvia D.], 136 A.D.3d 902, 26 N.Y.S.3d 129 ).
Accordingly, the Family Court properly denied the child's motion for the issuance of an order, inter alia, making specific findings so as to enable her to petition for SIJS.