Matter of Gurwinder S.
155 A.D.3d 959
| N.Y. App. Div. | 2017Background
- Petitioner (Baldev S.) filed an Article 6 guardianship petition in Dec. 2015 to enable the child (Gurwinder S.) to seek Special Immigrant Juvenile Status (SIJS).
- Child moved for Family Court findings that he is unmarried, under 21, dependent, reunification with one or both parents is not viable due to abuse/neglect/abandonment, and return to India would be contrary to his best interests.
- Family Court denied the child’s motion on Sept. 29, 2016, concluding he failed to prove non-viability of reunification and that return to India would be against his best interests.
- Record contained allegations of parental neglect: excessive corporal punishment and being forced to work at age 15 in place of regular schooling.
- Appellate Division conducted an independent factual review of the record and found the proofs sufficient to support the SIJS-related findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether reunification with a parent is not viable due to parental abuse/neglect/abandonment | Child argued reunification with father is not viable because of parental neglect (excessive corporal punishment; forced work instead of school) | Family Court found child failed to establish non-viability of reunification | Reunification with father is not viable due to parental neglect; appellate court so finds |
| Whether return to prior country (India) would be contrary to child's best interests | Child argued return to India would not be in his best interests based on record evidence | Family Court found child failed to show return to India would be against his best interests | Appellate court found, on independent review, return to India would not be in child's best interests |
| Whether Family Court should issue the specific SIJS findings to permit a USCIS petition | Child sought an order making the statutory SIJS findings to permit filing with USCIS | Family Court denied the requested specific findings | Appellate Division reversed and granted the child's motion, directing the required findings be made |
| Whether this Court may make independent factual findings on appeal | N/A — issue raised by procedural posture | Family Court decision relied on its factual conclusions; parties contested sufficiency | Appellate Division exercised independent factual review and made its own findings because the record was sufficient |
Key Cases Cited
- Matter of Maria P.E.A. v. Sergio A.G.G., 111 A.D.3d 619 (App. Div. 2013) (describes SIJS requirements under federal law)
- Matter of Trudy-Ann W. v. Joan W., 73 A.D.3d 793 (App. Div. 2010) (SIJS parental-viability and best-interest standards)
- Matter of Palwinder K. v. Kuldeep K., 148 A.D.3d 1149 (App. Div. 2017) (parental neglect may include excessive corporal punishment and disruption of schooling)
- Matter of Kamaljit S., 114 A.D.3d 949 (App. Div. 2014) (parental neglect as a basis for non-viability determination)
- Matter of Varinder S. v. Satwinder S., 147 A.D.3d 854 (App. Div. 2017) (best-interest considerations for SIJS findings)