Opinion
2022–09155 , 2022–09156, 2022–09157, 2022–09158 Docket Nos. G–671–22, G–672–22, G–672–22
06-21-2023
In the MATTER OF JOSE S.S.G. (Anonymous). Elmer W.G.G. (Anonymous), appellant; v. Norma C.G.C. (Anonymous), respondent. (Proceeding No. 1) In the Matter of Kevin F.S.G. (Anonymous). Elmer W.G.G. (Anonymous), appellant; v. Norma C.G.C. (Anonymous), respondent. (Proceeding No. 2)
Bruno J. Bembi, Hempstead, NY, for appellant.
Bruno J. Bembi, Hempstead, NY, for appellant.
FRANCESCA E. CONNOLLY, J.P., VALERIE BRATHWAITE NELSON, CHERYL E. CHAMBERS, HELEN VOUTSINAS, JJ.
DECISION & ORDER In related guardianship proceedings pursuant to Family Court Act article 6, the petitioner appeals from four orders of the Family Court, Nassau County (Sharon N. Clarke, Ct. Atty. Ref.), all dated October 24, 2022. The first order, after a hearing, dismissed the petition to appoint the petitioner as the guardian of the child Kevin F.S.G. The second order denied the petitioner's motion for the issuance of an order, inter alia, making specific findings so as to enable the child Kevin F.S.G. to petition the United States Citizenship and Immigration Services for special immigrant juvenile status pursuant to 8 USC § 1101(a)(27)(J). The third order, after a hearing, dismissed the petition to appoint the petitioner as the guardian of the child Jose S.S.G. The fourth order denied the petitioner's motion for the issuance of an order, inter alia, making specific findings so as to enable the child Jose S.S.G. to petition the United States Citizenship and Immigration Services for special immigrant juvenile status pursuant to 8 USC § 1101(a)(27)(J).
ORDERED that the orders are reversed, on the law and the facts, without costs or disbursements, the petitions to appoint the petitioner as guardian of the subject children are reinstated and granted, the petitioner is appointed as the guardian of the subject children, the petitioner's motions for the issuance of orders, inter alia, making specific findings so as to enable the subject children to petition the United States Citizen and Immigration Services for special immigrant juvenile status pursuant to 8 USC § 1101(a)(27)(J) are granted, it is declared that the subject children are dependent on a juvenile court, and it is found that the subject children are unmarried and under 21 years of age, that reunification with their father is not viable due to parental abuse, neglect, abandonment, or a similar basis found under state law, and that it would not be in their best interests to be returned to El Salvador, their previous country of nationality and last habitual residence.
In 2022, the petitioner commenced these proceedings pursuant to Family Court Act article 6 to be appointed the guardian of his two nephews, the child Kevin F.S.G., who allegedly was born in 2003 in El Salvador, and the child Jose S.S.G., who allegedly was born in 2005 in El Salvador. Thereafter, the petitioner moved for the issuance of orders, inter alia, making specific findings so as to enable the children to petition the United States Citizenship and Immigration Services for special immigrant juvenile status (hereinafter SIJS) pursuant to 8 USC § 1101(a)(27)(J). Following a hearing, in four orders dated October 24, 2022, the Family Court dismissed the guardianship petitions and denied the motions. The petitioner appeals.
"[W]hen considering guardianship appointments, the infant's best interest is paramount" ( Matter of Alamgir A., 81 A.D.3d 937, 938, 917 N.Y.S.2d 309 ; see SCPA 1707[1] ; Matter of Jose E.S.G. [Mejia—Salguero], 193 A.D.3d 856, 856, 142 N.Y.S.3d 397 ). Contrary to the Family Court's determination, there is no express requirement to submit certified copies of birth certificates in a proceeding such as this pursuant to Family Court Act § 661(a) (see Matter of Joel A.A.R. [Sara I.R.T.—Eddy A.A.G.], 216 A.D.3d 1167, 191 N.Y.S.3d 414 [2d Dept.] ). Likewise, there is no express requirement to submit certified copies of death certificates in a proceeding pursuant to Family Court Act § 661(a) (cf. id. § 661[b] ; SCPA 1704[8][b] ).
Here, for purposes of this proceeding pursuant to Family Court Act § 661(a), the record supports a finding that the children are under the age of 21 (see Matter of Joel A.A.R. [Sara I.R.T.—Eddy A.A.G.], 216 A.D.3d 1167, 191 N.Y.S.3d 414 ; Matter of Rosa Amanda L.R. v. Carlos Arnoldo O.R., 189 A.D.3d 1250, 134 N.Y.S.3d 223 ). Further, based upon our independent factual review, we find that the children's best interests would be served by the appointment of the petitioner as their guardian (see SCPA 1707[1] ; Matter of Jose E.S.G. [Mejia—Salguero], 193 A.D.3d at 856, 142 N.Y.S.3d 397 ; Matter of Mardin A.M.-I. [Reyna E.M.-I.—Mardin H.], 187 A.D.3d 913, 913, 130 N.Y.S.3d 743 ; Matter of Silvia N.P.L. v. Jorge M.N.P., 141 A.D.3d 654, 655, 37 N.Y.S.3d 270 ; Matter of Maura A.R.-R. [Santos F.R.—Fidel R.], 114 A.D.3d 687, 689, 979 N.Y.S.2d 701 ).
Further, the Family Court should have granted the petitioner's motions for the issuance of orders, inter alia, making the requisite specific findings so as to enable the children to petition for SIJS. "Pursuant to 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) and 8 CFR 204.11, 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" ( Matter of Trudy–Ann W. v. Joan W., 73 A.D.3d 793, 795, 901 N.Y.S.2d 296 ; see Matter of Jose E.S.G. [Mejia—Salguero], 193 A.D.3d at 857–858, 142 N.Y.S.3d 397 ). 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 USC § 1101 [a][27][J][i]; Matter of Elena G.R. v. Oscar D.V.H., 212 A.D.3d 628, 628, 179 N.Y.S.3d 606 ; Matter of Trudy–Ann W. v. Joan W., 73 A.D.3d at 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 USC § 1101 [a][27][J][ii]; Matter of Trudy–Ann W. v. Joan W., 73 A.D.3d at 795, 901 N.Y.S.2d 296 ).
Here, the record supports a finding that the children are under the age of 21 and unmarried, and, since we have appointed the petitioner as the children's guardian, the children are dependent on a juvenile court within the meaning of 8 USC § 1101(a)(27)(J)(i) (see Matter of Jose E.S.G. [Mejia—Salguero], 193 A.D.3d at 858, 142 N.Y.S.3d 397 ; Matter of Mardin A.M.-I. [Reyna E.M.-I.—Mardin H.], 187 A.D.3d at 913, 130 N.Y.S.3d 743 ; Matter of Maura A.R.-R. [Santos F.R.—Fidel R.], 114 A.D.3d at 688–689, 979 N.Y.S.2d 701 ; Matter of Trudy–Ann W. v. Joan W., 73 A.D.3d at 795–796, 901 N.Y.S.2d 296 ). Further, based upon our independent factual review, the record supports a finding that the children's father is deceased, and therefore, reunification is not possible (see Matter of Luis R. v. Maria Elena G., 120 A.D.3d 581, 582, 990 N.Y.S.2d 851 ). Lastly, the record supports a finding that it would not be in the best interests of the children to return to El Salvador, their previous country of nationality or country of last habitual residence (see Matter of Mardin A.M.-I. [Reyna E.M.-I.—Mardin H.], 187 A.D.3d at 913, 130 N.Y.S.3d 743 ; Matter of Varinder S. v. Satwinder S., 147 A.D.3d 854, 856, 47 N.Y.S.3d 76 ; Matter of Axel S.D.C. v. Elena A.C., 139 A.D.3d 1050, 1052, 32 N.Y.S.3d 295 ; Matter of Luis R. v. Maria Elena G., 120 A.D.3d at 583, 990 N.Y.S.2d 851 ).
We need not reach the petitioner's remaining contentions in light of our determination.
Accordingly, the Family Court should have granted the guardianship petitions and the petitioner's motions for the issuance of orders making the requisite declaration and specific findings so as to enable the children to petition for SIJS.
CONNOLLY, J.P., BRATHWAITE NELSON, CHAMBERS and VOUTSINAS, JJ., concur.