In re Guardianship of Carlos D.
300 Neb. 646
| Neb. | 2018Background
- Carlos, born in Guatemala in 1998, arrived in Nebraska in 2015 at age 16 and lived with his aunt, Eleany Gonzalez.
- Gonzalez petitioned for permanent guardianship in Lancaster County (Jan 2017); the county court appointed her guardian but denied requested special findings needed for Special Immigrant Juvenile (SIJ) status.
- Carlos’s sworn declaration described abuse, neglect, gang violence, and abandonment that supported claims that reunification with parents was not viable and that return to Guatemala would be contrary to his best interests.
- The county court found the declaration credible but concluded Carlos was “not dependent on this court” and therefore refused the SIJ-related findings; Gonzalez appealed.
- While the appeal was pending, the Nebraska Legislature amended Neb. Rev. Stat. § 43-1238(b) (L.B. 670) to clarify that courts making an initial child custody determination have authority to make factual findings similar to those required for SIJ petitions.
- The Nebraska Supreme Court held the amendment is procedural and applies to pending cases, and that the county court erred in concluding it lacked authority to make the requested findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a county court that appoints a guardian has authority to make factual findings necessary for SIJ eligibility | Gonzalez: guardianship is an initial child custody determination and the court can make SIJ-type findings | County court: Carlos was not "dependent on this court," so it lacked authority to make those findings | Held: A county court that made an initial child custody determination has authority under § 43-1238(b) to make such factual findings when supported by evidence |
| Whether the 2018 amendment to § 43-1238(b) applies to this pending case | Gonzalez: amendment clarifies authority and should apply | Implicitly: timing might bar application to pending matters (not argued in detail) | Held: Amendment is procedural and applies to pending cases |
| Whether guardianship qualifies as a "juvenile court" custody determination for federal SIJ requirements | Gonzalez: guardianship is a child custody determination meeting federal definition | County court: argued lack of dependency meant no such determination | Held: Guardianship is a child custody determination; county court’s contrary conclusion was error |
| Whether the county court abused discretion by refusing to make SIJ-related findings despite credible evidence | Gonzalez: credible evidence supported findings of nonviability of reunification and best-interest determination | County court: refused because it deemed lack of dependency | Held: Court erred; remanded for entry of findings consistent with evidence and statute |
Key Cases Cited
- In re Trust of Shire, 299 Neb. 25, 907 N.W.2d 263 (statutory interpretation is a question of law)
- In re Guardianship of D.J., 268 Neb. 239, 682 N.W.2d 238 (guardianship is a child custody determination)
- Smith v. Mark Chrisman Trucking, 285 Neb. 826, 829 N.W.2d 717 (distinguishing procedural vs substantive statutory changes)
- Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (statutory requirement to make explicit findings is procedural)
- In re Interest of Clifford M., 261 Neb. 862, 626 N.W.2d 549 (procedural/substantive distinction in statutory application)
- In re Interest of Erick M., 284 Neb. 340, 820 N.W.2d 639 (Nebraska courts’ prior acceptance of making findings for SIJ purposes)
- In re Interest of Luis G., 17 Neb. App. 377, 764 N.W.2d 648 (same)