Opinion
G–10061–2018
05-17-2018
In the Matter of a Proceeding for the APPOINTMENT OF A GUARDIAN PURSUANT TO FAMILY COURT ACT OF the PERSON OF CHRISTIAN J.C.U. a/k/a Monica C. U., Petitioner, a Person Under the Age of 21. v. JORGE R.C., Maria N. U. and Alisha W., Respondents.
Hector R. Rojas, Esq., Catholic Migration Services, 191 Joralemon St., 4th Floor, Brooklyn, NY 11201, (718) 236–3000, hrojas@catholicmigration.org., for Child. Ms. W. was pro se and the parents failed to appear.
Hector R. Rojas, Esq., Catholic Migration Services, 191 Joralemon St., 4th Floor, Brooklyn, NY 11201, (718) 236–3000, hrojas@catholicmigration.org., for Child.
Ms. W. was pro se and the parents failed to appear.
Javier E. Vargas, J.The Motion by Petitioner Christian J. C.U. a/k/a Monica C. U. (hereinafter "Monica"), for the appointment of a guardian and the issuance of an Order making Special Immigrant Juvenile Status findings, is granted and SIJS Findings made in accordance with the following decision.
The following facts are undisputed. Monica was born biologically as male in Honduras to Respondents Maria N. U.P. ("Mother") and Jorge A. C.M. ("Father") on April 26, 1997. From an early age, however, Monica's gender identity has been female. Because of a family tragedy blamed on her, the Parents disliked and abandoned Monica in a Honduran orphanage when she was three years old, but she was rescued by her Paternal Grandmother, who took her in, nurtured and provided for her schooling throughout her childhood. Despite this, the Parents continued to abuse and mistreat Monica with brutal beatings, which once resulted in broken ribs requiring medical attention, as well as by inflicting cigarette burns and scars. She was also victimized at the hands of one of her older brothers, Jorge C., who repeatedly raped and sexually abused her during her infancy. Although Monica told the Grandmother about the rapes, her brother continued the sexual abuse after only a short reprieve.
On one occasion, Monica's Father saw her dressed in a manner consistent with her gender identity, and he beat her up to the point that she was taken to the hospital and the Honduran child protective authorities were called and investigated, yet nothing was done civilly or criminally against the Father to subvert the abuse. To the contrary, the Father resumed his physical abuse against Monica, threatening that if she continued to dress as a woman or be a "fat" that he was going to beat her until she became a man, make her disappear or institutionalize her. Everything came to a head upon the passing of her Grandmother in 2013, when Monica was 16 years of age and left all her little property to her. In 2014, Monica fled her native Honduras escaping her nightmarish Parents and brother's abuse, threats and harassment because of her gender identity, and searched for a new life and peace in the United States. She crossed the U.S. border illegally and was returned to Honduras.
Upon re-entering in 2017, Monica was captured by the U.S. Immigration & Customs Enforcement and detained at the transgendered section of the Cibola County Detention Center located in Milan, New Mexico, where she is currently detained. Catholic Migration Services took over Monica's defense and the totality of her personal property in Brooklyn, consisting of her backpack with clothing, a purse, a wallet, medication and other items. By Petition dated April 17, 2018, just days before her 21st birthday, Monica commenced the instant Family Court Act article 6 proceeding against her Parents in the Kings County Family Court, seeking the appointment of her friend and mentor, Respondent Alisha W., as her guardian for the purpose of obtaining SIJS Findings in order to petition to the United States Citizenship and Immigrations Services ("USCIS") for Special Immigrant Juvenile Status pursuant to 8 USC 1101(a)(27)(J). Thereafter, by Order to Show Cause dated April 18, 2018, Monica moved for an order making the requisite declaration and specific findings so as to enable her to petition for SIJS, alleging that she is unmarried, under 21 years of age, that reunification with one or both of her parents is not viable due to abuse, neglect and abandonment, and that it would not be in her best interests to be returned to Honduras.Given her dire circumstances and the proximity of Monica's 21st birthday, this Court expedited the Guardianship Petition and afforded counsel time to locate and served the Parents with the Petition by Order to Show Cause. Following counsel's unsuccessful search for their whereabouts, the Court waived service upon the Parents on the return date pursuant to Surrogate's Court Procedure Act ("SCPA") § 1705(2) based on their abandonment of Monica. On April 20, 2018, the Family Court (Vargas, J.) conducted a hearing on the Guardianship Petition finding that the Court has jurisdiction over the person of Monica based on the location of her property in Brooklyn, New York, pursuant to SCPA 1702(1)(b), and crediting Ms. W.'S hopeful testimony and plans she has in assuming the guardianship and care of Monica once she is released from the USCIS detention in New Mexico and travels to Brooklyn. A Final Order of Guardianship was issued appointing Ms. W. as Nicole guardian until she turned 21. The Court heard additional testimony and accepted into evidence Monica's Affidavit retelling her harrowing life story in Honduras, thereby granting Monica's SIJS Motion and issuing a SIJS Order (Vargas, J.) dated April 20, 2018, finding that she is eligible to petition for SIJS status, that reunification with both of her parents is not viable due to their neglect and abandonment, and that it would not be in her best interests to be returned to Honduras. However, the Court reserved the opportunity to write an opinion on the novel jurisdictional issues presented and expound on the rulings made.
Preliminarily, the novel, threshold jurisdictional issue presented is whether SCPA 1702 confers the Family Court with jurisdiction over Monica's Guardianship Petition based not on her physical presence in New York, but on the location of her "property" here. The Family Court "is a court of limited jurisdiction, constrained to exercise only those powers granted to it by the State Constitution or by statute" ( Matter of H.M. v. E.T., 14 N.Y.3d 521, 526, 904 N.Y.S.2d 285, 930 N.E.2d 206 [2010], quoting Matter of Johna M.S. v. Russell E.S., 10 N.Y.3d 364, 366, 859 N.Y.S.2d 594, 889 N.E.2d 471 [2008] ). However, pursuant to Family Court Act § 661 and SCPA 103(27), the Family Court, concurrently with the Surrogate's Court, has jurisdiction to make judicial determinations regarding the care, control, guardianship and custody of minors, which include within its definition juveniles up to the age of 21 years old ( SCPA 1706 ; see Matter of Marisol N.H., 115 A.D.3d 185, 979 N.Y.S.2d 643 [2nd Dept. 2014] ). Where a minor has no guardian, the Family Court "may appoint a guardian of his person or property, or of both, in the following cases: (a) Where the infant is domiciled in that county or has sojourned therein immediately preceding the application, or (b) Where the infant is a non-domiciliary of the state but has property situated in that county" ( SCPA 1702 [emphasis supplied] ). Courts have long recognized a Surrogate's jurisdiction to appoint a guardian of a minor who resides outside the state, but has property in the county in question (see Matter of Thorne, 240 N.Y. 444, 450, 148 N.E. 630 [1925] ; Matter of Klineman, 105 Misc. 2d 896, 898, 430 N.Y.S.2d 24 [Surrogate's Ct., NY County 1980] [infant's "property" consisted of securities and cash, valued at approximately $120,000, on bank deposit] ).
Applying these legal principles to the matter at bar, the Court finds that the Family Court has the same jurisdiction over Monica's Guardianship proceeding as the Surrogate's Court would. It is undisputed that Monica is currently detained by USCIS in New Mexico and, as such, is a "non-domiciliary of the state." But, as the statute provides, Monica "has property situated in [the] county," consisting of her personal property located in Kings County. It does not consist of real estate property, substantial assets or any significant monetary property, but merely Monica's own personal property items, including her backpack, clothing, purse, wallet and medicines. Nevertheless, those items are Monica's only "property" in the world! Unlike the Civil and Supreme Court which have monetary minimums for their jurisdiction, the Family Court is the real "People's Court" which welcomes all parties with open arms regardless of their gender, sexual orientation, gender identity, race, national origin, financial or citizenship status. That Monica's property is de minimis should not stymie her jurisdictional right to pursue her Guardianship proceeding here. "When considering guardianship appointments, the infant's best interests are paramount" ( Matter of Axel S.D.C. v. Elena A.C., 139 A.D.3d 1050, 1051, 32 N.Y.S.3d 295 [2nd Dept. 2016] ; see Matter of Alamgir A., 81 A.D.3d 937, 938, 917 N.Y.S.2d 309 [2nd Dept. 2011] ; SCPA 1707[1] ). As such, this Court rules that it has subject matter jurisdiction over the person of Monica to rule on her Guardianship Petition and hereby appoints Ms. W. as Monica's guardian until she turns 21.
Once subject matter jurisdiction has been established, the Court may proceed with its SIJS findings. Pursuant to the Immigration and Nationality Act ( 8 USC § 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]; 8 CFR 204.11 [2009] ), Congress provided a pathway for abused, neglect or abandoned non-citizen children to obtain Lawful Permanent Residence in the U.S. through SIJS, if they are, 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. It must also be established that reunification with one or both parents is not viable due to their prior misconduct (see 8 USC § 1101 [a][27][J][i]; Matter of Denia M.E.C. v. Carlos R.M.O., 161 A.D.3d 853, 77 N.Y.S.3d 104, 2018 N.Y. Slip Op. 03355 [2nd Dept. 2018] ; Matter of Trudy–Ann W. v. Joan W., 73 A.D.3d 793, 795, 901 N.Y.S.2d 296 [2nd Dept. 2010] ), and that it would not be in the child's best interests to be returned to his or her previous country of nationality or country of last habitual residence (see 8 USC § 1101 [a][27] [J][ii]; 8 CFR 204.11 [c][6]; Matter of Trudy–Ann W., 73 A.D.3d at 795, 901 N.Y.S.2d 296 ). "Ultimately, the determination of whether to grant SIJS to a particular juvenile rests with USCIS and its parent agency, the U.S. Department of Homeland Security. Thus, when making the requisite SIJS findings, the state or juvenile court is not actually ‘rendering an immigration determination’ " ( Matter Enis A.C.M., 152 A.D.3d 690, 692, 59 N.Y.S.3d 396 [2nd Dept. 2017], quoting Matter of Marcelina M.–G. v. Israel S., 112 A.D.3d 100, 109, 973 N.Y.S.2d 714 [2nd Dept. 2013] ).
Here, this Court found that Monica is fully entitled to SIJS Findings. The record establishes that Monica meets the age and marital status requirements for special immigrant status, and the dependency requirement has been satisfied by the Family Court granting her Guardianship to Ms. W. (see Matter of Silvia N.P.L. v. Estate of Jorge M.N.P., 141 A.D.3d 654, 655, 37 N.Y.S.3d 270 [2nd Dept. 2016] ; Matter of Trudy–Ann W., 73 A.D.3d at 795, 901 N.Y.S.2d 296; SCPA 1706 ). Moreover, Monica's Parents have violently rejected her, physically abused and refused to accept her gender identity issues since very early in her short life. Her Father neglected her by burning her with cigarettes and using excessive corporal punishment, as defined by Family Court Act § 1012(f)(i)(B), that impaired Monica's emotional and physical condition (see Matter of Padmine M., 84 A.D.3d 806, 922 N.Y.S.2d 527 [2nd Dept. 2011] ; Matter of Justyce M., 77 A.D.3d 1407, 908 N.Y.S.2d 783 [4th Dept. 2010] ). Nor have they shown any inclination to support her financially, emotionally, educationally or medically in any way since 2014. Therefore, reunification with either of her Parents is not viable, even impossible (see Matter of Luis R. v. Maria Elena G., 120 A.D.3d 581, 582–583, 990 N.Y.S.2d 851 [2nd Dept. 2014] ; Matter of Cristal M.R.M., 118 A.D.3d 889, 891, 987 N.Y.S.2d 614 [2nd Dept. 2014] ). This Court further finds that it would certainly not be in Monica's best interests to be returned to Honduras—her previous country of nationality and last habitual residence—given the evidence establishing that there is no one there who loves or is able to care for her, and that she was threatened with violence or worse if she were to return (see Matter of Keilyn GG., 159 A.D.3d 1295, 1298, 74 N.Y.S.3d 378 [3rd Dept. 2018] ).
Monica's harrowing life cries for her to be permitted to remain, restart and enjoy her new life on these shores of New York City. As the words of Emma Lazarus's famous 1883 sonnet "The New Colossus," emblazoned on our the Statue of Liberty, exhorts:
Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!
In accordance with the foregoing, the Court grants Monica's Guardianship Petition, and her motion for SIJS findings in her favor, as per the Order (Vargas, J.) dated April 20, 2018. The foregoing constitutes the Decision and Order of this Court.