Opinion
03-13-2024
In the MATTER OF CLAUDIO D.A.I. (Anonymous). Segundo A. (Anonymous), appellant; v. Marla D.I.L. (Anonymous), respondent.
Montenza Law Firm, P.C., New York, NY (Athena Matos of counsel), for appellant. Wendy Pelle-Beer, Fresh Meadows, NY, attorney for the child.
Montenza Law Firm, P.C., New York, NY (Athena Matos of counsel), for
appellant.
Wendy Pelle-Beer, Fresh Meadows, NY, attorney for the child.
COLLEEN D. DUFFY, J.P., PAUL WOOTEN, WILLIAM G. FORD, JANICE A. TAYLOR, JJ.
DECISION & ORDER
In a guardianship proceeding pursuant to Family Court Act article 6, the petitioner appeals from an order of the Family Court, Queens County (Juanita E. Wing, Ct. Atty. Ref.), dated April 5, 2023. The order, insofar as appealed from, after a hearing, in effect, denied that branch of the petitioner’s motion which was for a specific finding that the reunification of the subject child with the mother is not viable due to abuse, neglect, and/or abandonment, so as to enable the subject child 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 order is modified, on the law, on the facts, and in the exercise of discretion, (1) by deleting from the sixth paragraph thereof the phrase beginning with the words "after assisting the child" and ending with the words "life in this country," and substituting therefor the phrase "and due to the Mother’s abandonment of the child," and (2) by deleting from the seventh paragraph thereof the phrase "with the assistance of his parents"; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
In 2021, the petitioner commenced this proceeding pursuant to Family Court Act article 6 to be appointed as guardian of the subject child for the purpose of obtaining an order declaring that the child is dependent on the Family Court and making specific findings 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 USC § 1101(a)(27)(J). Subsequently, the petitioner moved for the issuance of an order making the requisite declaration and specific findings so as to enable the child to petition for SUS.
In an order dated April 5, 2023, made after a hearing, the Family Court, among other things, in effect, denied that branch of the petitioner’s motion which was for a specific finding that the reunification of the child with the mother is not viable due to abuse, neglect, and/or abandonment. The petitioner appeals.
[1] Here, the Family Court did not grant all of the relief sought in the petitioner’s motion, which included a specific finding that reunification of the child with the mother "is not viable due to abuse, neglect and/or abandonment under New York law, as defined by Social Services Law, Section 384 … and Family Court Act § 1012(f), within the meaning of … 8 U.S.C. § 1101(a)(27)(J)." In other words, the petitioner’s appeal does not relate solely to the language used in the order ap- pealed from. Therefore, contrary to the contention of the child, the petitioner is aggrieved by the order (see Mixon v. TBV, Inc., 76 A.D.3d 144, 156–157, 904 N.Y.S.2d 132; cf. Matter of Josue M.A.P. [Mancia–Lue], 143 A.D.3d 827, 828, 38 N.Y.S.3d 819).
[2] In making specific factual findings, the Family Court "is not rendering an immigration determination"; rather, "the final decision regarding [SIJS] rests with the federal government, and, as shown, the child must apply to that authority" (Matter of Marcelina M.-G. v. Israel S., 112 A.D.3d 100, 109, 973 N.Y.S.2d 714 [internal quotation marks omitted]).
[3, 4] In reviewing a court’s determination of a motion for specific findings, "[t]his Court’s power to review the evidence is as broad as that of the hearing court, and where … the record is sufficiently complete to make our own factual determinations, we may do so" (Matter of Fifo v. Fifo, 127 A.D.3d 748, 751, 6 N.Y.S.3d 562 [internal quotation marks omitted]; see Matter of Briceyda M.A.X. [Hugo R.A.O.], 190 A.D.3d 752, 753–754, 135 N.Y.S.3d 917). Here, based upon our independent factual review, the record supports a finding that reunification of the child with his mother is not a viable option due to parental abandonment (see Matter of Joel A.A.R. [Sara I.R.T.—Eddy A.A.G.], 216 A.D.3d 1167, 1170, 191 N.Y.S.3d 414; Matter of Jose E.S.G. [Mejior—Salguero], 193 A.D.3d 856, 858, 142 N.Y.S.3d 397; Matter of Mohamed B., 83 A.D.3d 829, 832, 921 N.Y.S.2d 145).
Accordingly, the order should be modified as indicated herein.
DUFFY, J.P., WOOTEN, FORD and TAYLOR, JJ., concur.