In re Guardianship of Carlos D.
915 N.W.2d 581
Neb.2018Background
- Carlos, born in Guatemala in 1998, entered the U.S. in 2015 at age 16 and was released to his aunt, Eleany Gonzalez, in Nebraska.
- Gonzalez petitioned the Lancaster County Court (Jan 2017) for permanent guardianship of Carlos, alleging parental abuse, neglect, and danger if returned to Guatemala; the court appointed Gonzalez guardian.
- Gonzalez requested the court make special factual findings required for Special Immigrant Juvenile (SIJ) status under 8 U.S.C. § 1101(a)(27)(J) (dependency/custody, nonviability of reunification, and best interests against return); the court initially refused, concluding Carlos was "not dependent on this court."
- Gonzalez moved to amend the judgment to obtain the SIJ-related findings; the county court again denied the request (Sept. 2, 2017).
- While the appeal was pending, the Nebraska Legislature enacted L.B. 670 (amending Neb. Rev. Stat. § 43-1238(b)), clarifying that state courts making initial child custody determinations have jurisdiction and authority to make the factual findings analogous to the federal SIJ requirements; the amendment became effective July 19, 2018 and was applied to pending cases.
- The Nebraska Supreme Court found the county court erred in concluding it lacked authority to make the SIJ-related findings and reversed and remanded for further proceedings consistent with the opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether county court made a custody determination sufficient for SIJ predicate | Gonzalez: guardianship appointment is an initial child custody determination and satisfies federal dependency/custody requirement | County court: Carlos was "not dependent on this court," so it lacked authority to make SIJ findings | Held: Guardianship is a child custody determination; county court erred in concluding it lacked dependency/custody authority |
| Whether Nebraska courts may issue SIJ-related factual findings | Gonzalez: state court with initial custody jurisdiction can make findings on abuse/neglect, nonviability of reunification, and best interests | County court: declined to make findings because it believed it lacked dependency jurisdiction for SIJ findings | Held: Under amended § 43-1238(b), courts with initial child custody jurisdiction have authority and "shall issue" such findings when supported and requested |
| Applicability of L.B. 670 amendment to pending cases | Gonzalez: amendment is procedural and applies to pending appeals | State: (implicit) new statute might not apply retroactively | Held: Amendment is procedural (clarifies existing authority) and applies to pending cases |
| Effect of state findings on federal SIJ requirements | Gonzalez: state findings are required predicates for federal SIJ adjudication | State: (implicit) concerns about scope/authority of state findings | Held: State findings are similar to federal SIJ findings and may have substantive federal effects, but making them is a procedural state function; court remanded to allow findings based on existing record |
Key Cases Cited
- In re Trust of Shire, 299 Neb. 25 (statutory interpretation is a question of law)
- In re Guardianship of D.J., 268 Neb. 239 (guardianship constitutes a child custody determination)
- Smith v. Mark Chrisman Trucking, 285 Neb. 826 (distinction between procedural and substantive statutory amendments)
- In re Interest of Clifford M., 261 Neb. 862 (procedural vs. substantive law discussion)
- Zahl v. Zahl, 273 Neb. 1043 (requiring explicit findings of fact is procedural)
- In re Interest of Erick M., 284 Neb. 340 (prior Nebraska recognition of SIJ-related findings)
- In re Interest of Luis G., 17 Neb. App. 377 (same)