Opinion
2018–09547 Docket No. V–1035–18
03-13-2019
In the Matter of Dunia Y. OCHOA VASQUEZ, Appellant, v. Carlos A. CRUZ MEJIA, Respondent.
Bruno J. Bembi, Hempstead, NY, for appellant. Michael Kaszubski, Westbury, NY, attorney for the child.
Bruno J. Bembi, Hempstead, NY, for appellant.
Michael Kaszubski, Westbury, NY, attorney for the child.
CHERYL E. CHAMBERS, J.P., SHERI S. ROMAN, BETSY BARROS, LINDA CHRISTOPHER, JJ.
DECISION & ORDERIn a proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Nassau County (Sharon N. Clarke, Ct. Atty. Ref.), dated July 6, 2018. The order, without a hearing, denied the mother'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 Citizenship and Immigration Services for special immigrant juvenile status pursuant to 8 USC § 1101(a)(27)(J).
ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Nassau County, for a hearing and a new determination thereafter of the mother'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 Citizenship and Immigration Services for special immigrant juvenile status pursuant to 8 USC § 1101(a)(27)(J). In January 2018, the mother filed a petition pursuant to Family Court Act article 6 for custody of Fernando A.C.O. (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 he is unmarried and under 21 years of age, that reunification with his father is not viable due to parental neglect or abandonment, and that it would not be in the child's best interests to be returned to Honduras, his previous country of nationality and last habitual residence, so as to enable the child to petition the United States Citizenship and Immigration Services (hereinafter USCIS) for special immigrant juvenile status (hereinafter SIJS) pursuant to 8 USC § 1101(a)(27)(J). In an order dated April 4, 2018, the Family Court granted the custody petition. In May 2018, the mother moved for an order making the requisite declaration and specific findings to enable the child to petition for SIJS. In an order dated July 6, 2018, the court denied the mother's motion on the ground of lack of jurisdiction due to the child having reached the age of 18. The mother appeals.
While the Family Court lacks jurisdiction to determine a petition for custody once the subject child reaches the age of 18 (see Matter of Batista v. Gaton, 126 A.D.3d 895, 2 N.Y.S.3d 922 ), "there is no jurisdictional impediment to the issuance of an order making the requisite declaration and specific findings to enable the child to petition for SIJS" where the petition was granted before the court was divested of jurisdiction ( Matter of Juan R.E.M. [Juan R.E.], 154 A.D.3d 725, 727, 61 N.Y.S.3d 669 ). Here, since the custody petition was granted on April 4, 2018, prior to the child's 18th birthday on May 6, 2018, the court should not have denied the mother's motion on the ground of lack of jurisdiction.
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 Stat. 5044 ) and 8 CFR § 204.11, a special immigrant is a resident alien who, inter alia, is under 21 years of age, unmarried, and has been legally committed to, or placed under the custody of, an individual appointed by a state or juvenile court. Additionally, for a child to qualify for SIJS, a court must find that reunification of the child with one or both 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 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 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 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 ).
Here, based upon our independent factual review (see Matter of Gomez v. Sibrian, 133 A.D.3d 658, 20 N.Y.S.3d 110 ), we find that the record establishes that the child meets the age and marital status requirements for special immigrant status, and that the child has been legally committed to, or placed under the custody of, an individual appointed by a state or juvenile court (see Matter of Pineda v. Diaz, 127 A.D.3d 1203, 1203–1204, 9 N.Y.S.3d 93 ). However, the record is insufficient to determine whether reunification of the child with the father is not viable due to parental neglect or abandonment, and whether it would not be in the best interests of the child to return to Honduras (see Matter of A.M.G. v. Gladis A.G., 162 A.D.3d 768, 770, 79 N.Y.S.3d 75 ; Matter of Alma D.G.-L. v. Juan C.-P., 152 A.D.3d 516, 517, 58 N.Y.S.3d 483 ).
Accordingly, we reverse the order, and remit the matter to the Family Court, Nassau County, for a hearing and a new determination thereafter of the mother's motion for the issuance of an order, inter alia, making specific findings so as to enable the child to petition for SIJS (see Matter of A.M.G. v. Gladis A.G., 162 A.D.3d at 770, 79 N.Y.S.3d 75 ; Matter of Alma D.G.-L. v. Juan C.-P., 152 A.D.3d at 517, 58 N.Y.S.3d 483 ).
CHAMBERS, J.P., ROMAN, BARROS and CHRISTOPHER, JJ., concur.