Opinion
2021–02408 Docket G–6152–19
04-14-2021
In the MATTER OF JOSE E.S.G. (Anonymous). Felix Mejia, appellant; v. Maria Estela Salguero, et al., respondents.
Bruno J. Bembi, Hempstead, NY, for appellant.
Bruno J. Bembi, Hempstead, NY, for appellant.
CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
In a guardianship proceeding pursuant to Family Court Act article 6, the petitioner appeals from an order of the Family Court, Nassau County (Lisa A. Cairo, J.), dated March 23, 2021. The order, after a hearing, dismissed the guardianship petition and denied the petitioner's motion for the issuance of an order, inter alia, making specific findings so as to enable the subject child to petition the United States Citizen and Immigration Services for special immigrant juvenile status pursuant to 8 USC § 1101(a)(27)(J).
ORDERED that the order is reversed, on the facts, without costs or disbursements, the petition to appoint the petitioner as the guardian of the subject child is reinstated and granted, the petitioner is appointed as the guardian of the subject child, an order of the same court dated March 24, 2021, is vacated, the petitioner's motion for the issuance of an order, inter alia, making specific findings so as to enable the subject child to petition the United States Citizen and Immigration Services for special immigrant juvenile status pursuant to 8 USC § 1101(a)(27)(J) is granted, it is declared that the subject child is dependent on a juvenile court, and it is found that the subject child is unmarried and under 21 years of age, that reunification with his father is not viable due to parental abandonment, and that it would not be in the subject child's best interests to return to El Salvador, his previous country of nationality and last habitual residence.
In 2019, the petitioner commenced this proceeding pursuant to Family Court Act article 6 to be appointed the guardian of Jose E.S.G. (hereinafter the subject child). Thereafter, the petitioner moved for the issuance of an order declaring that the subject child is dependent on the Family Court and making specific findings that the subject child is unmarried and under 21 years of age, that reunification with one or both of his parents is not viable due to parental neglect or abandonment, 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, so as to enable him to petition the United States Citizenship and Immigration Services for special immigrant juvenile status (hereinafter SIJS) pursuant to 8 USC § 1101(a)(27)(J). In an order dated March 23, 2021, the Family Court denied the motion and dismissed the guardianship petition.
"[W]hen considering guardianship appointments, the infant's best interests is paramount" ( Matter of Alamgir A., 81 A.D.3d 937, 938, 917 N.Y.S.2d 309 ; see SCPA 1707[1] ; Matter of Grechel L.J., 167 A.D.3d 1011, 1012, 91 N.Y.S.3d 438 ; Matter of Axel S.D.C. v. Elena A.C., 139 A.D.3d 1050, 1051, 32 N.Y.S.3d 295 ; Matter of Trudy–Ann W. v. Joan W., 73 A.D.3d 793, 794, 901 N.Y.S.2d 296 ). Upon our independent factual review of the record, we find that the subject child's best interests would be served by the appointment of the petitioner as his guardian (see Matter of Grechel L.J., 167 A.D.3d at 1012, 91 N.Y.S.3d 438 ; Matter of Axel S.D.C. v. Elena A.C., 139 A.D.3d at 1051, 32 N.Y.S.3d 295 ; Matter of Alamgir A., 81 A.D.3d at 938, 917 N.Y.S.2d 309 ).
Further, the Family Court should have granted the petitioner's motion for the issuance of an order making the requisite specific findings so as to enable the subject child 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 at 795, 901 N.Y.S.2d 296 ). "Additionally, for a juvenile to qualify for special immigrant juvenile status, 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, 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" ( Matter of Maria P.E.A. v. Sergio A.G.G., 111 A.D.3d 619, 620, 975 N.Y.S.2d 85 [citations omitted]; see 8 USC § 1101 [a][27][J]; 8 CFR 204.11 [c][6]).
Here, the subject child is under the age of 21 and unmarried, and since we have appointed the petitioner as the subject child's guardian, the subject child is dependent on a juvenile court within the meaning of 8 USC § 1101(a)(27)(J)(i) (see Matter of Grechel L.J., 167 A.D.3d at 1013, 91 N.Y.S.3d 438 ; Matter of Axel S.D.C. v. Elena A.C., 139 A.D.3d at 1052, 32 N.Y.S.3d 295 ; Matter of Maura A.R.-R. [Santos F.R.—Fidel R.], 114 A.D.3d 687, 689, 979 N.Y.S.2d 701 ; Matter of Trudy–Ann W. v. Joan W., 73 A.D.3d at 796, 901 N.Y.S.2d 296 ). Further, based upon our independent factual review, the record supports a finding that reunification of the subject child with his father is not a viable option due to parental abandonment (see Matter of Briceyda M.A.X. [Hugo R.A.O.], 190 A.D.3d 752, 135 N.Y.S.3d 917 ; Matter of Mardin A.M.-I. [Reyna E.M.-Mardin H.], 187 A.D.3d 913, 130 N.Y.S.3d 743 ; Matter of Rina M.G.C. [Oscar L.G.-Ana M.C.H.], 169 A.D.3d 1031, 1033, 94 N.Y.S.3d 616 ). Lastly, the record reflects that it would not be in the subject child's best interests to be returned to El Salvador, his previous country of nationality or country of last habitual residence (see Matter of Palwinder K. v. Kuldeep K., 148 A.D.3d 1149, 1151, 50 N.Y.S.3d 518 ; Matter of Mohamed B., 83 A.D.3d 829, 832, 921 N.Y.S.2d 145 ; Matter of Alamgir A., 81 A.D.3d at 940, 917 N.Y.S.2d 309 ; Matter of Trudy–Ann W. v. Joan W., 73 A.D.3d at 796, 901 N.Y.S.2d 296 ).
Accordingly, the Family Court should have granted the guardianship petition and the motion for the issuance of an order, inter alia, making the requisite declaration and specific findings so as to enable the subject child to petition for SIJS.
CHAMBERS, J.P., AUSTIN, BRATHWAITE NELSON and IANNACCI, JJ., concur.