In the Interest of: S.A.R.D., A minor child, Appellant.
No. 3D15-1472
Third District Court of Appeal, State of Florida
Opinion filed January 13, 2016.
Not final until disposition of timely filed motion for rehearing.
DLA Piper LLP, and Harout Jack Samra, for appellant.
Before SHEPHERD, ROTHENBERG, and FERNANDEZ, JJ.
ROTHENBERG, J.
S.A.R.D. appeals a final order dismissing his private petition for dependency entered on May 13, 2015, two days before S.A.R.D. reached the age of majority. Because the record supports the trial court’s finding that S.A.R.D. was not abandoned, abused, or neglected by his mother, we agree that S.A.R.D. failed to
The operative facts are as follows. S.A.R.D., who was born in Honduras on May 15, 1997, was seventeen years old when he illegally crossed the border between Mexico and the United States. He was just nine days shy of reaching the age of majority when he filed his petition for dependency on May 6, 2015, and he is now eighteen.
In his petition, S.A.R.D. alleges that when he was seven years old, over ten years ago, his father abandoned him. Since his father abandoned him, he has lived with his mother and maternal uncle, who cared and provided for him. When his uncle was murdered on December 26, 2012, S.A.R.D. continued to live with his mother, but at some point he began working on a coffee farm to subsidize his needs. In 2014, he left his mother and Honduras and illegally entered the United States. He is seeking an order of dependency under section 39.01, Florida Statutes (2015), on the basis of abandonment by his father and neglect by his mother in order to become eligible for a Special Immigrant Juvenile (“SIJ”) status visa under
The Immigration Act of 1990 (“the Act”) created a category of “special immigrants” who are entitled to obtain permanent immigration status in this country.
(i) who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States, and whose reunification with 1 or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law;
(ii) for whom it has been determined in administrative or judicial proceedings that it would not be in the alien’s best interest to be returned to the alien’s or parent’s previous country of nationality or country of last habitual residence; and
(iii) in whose case the Secretary of Homeland Security consents to the grant of special immigrant juvenile status[.]
Id.
“The SIJ provisions of [the ACT] were enacted in 1990 to protect abused, neglected, or abandoned children who, with their families, illegally entered the United States.” Yeboah v. United States Dep’t of Justice, 345 F.3d 216, 221 (3d Cir. 2003). “Rather than being deported along with abusive or neglectful parents, or deported to parents who had abandoned them once in the United States, such
In 2008, Congress eliminated the requirement that the child be eligible for long-term foster care, see
Thus, the procedure provided for obtaining SIJ status is a two-step procedure. First, the child must petition a state juvenile court to obtain an order that makes findings that the child satisfied certain state dependency criteria. This order is a predicate before a child can submit his or her application for SIJ status. The juvenile court does not make an immigration determination. In re Marcelina M.-G. v. Israel S., 112 A.D.3d 100, 109 (N.Y. App. Div. 2013). If the child
As the Third Circuit Court of Appeals noted in M.B. v. Quarantillo, 301 F.3d 109, 114 (3d Cir. 2002), “Being granted such status is, of course, quite advantageous to an alien.” For example, SIJ status provides exemption from deportation on certain grounds, including for being present in the United States illegally.
Even more troubling is the attempt to expand the stated purpose of the Act. As stated earlier, “[t]he SIJ provisions of [the ACT] were enacted in 1990 to protect abused, neglected, or abandoned children who, with their families, illegally entered the United States.” Yeboah, 345 F.3d at 221. (emphasis added). These provisions allowed such children to seek SIJ special status to remain in this country “[r]ather than being deported along with the abusive or neglectful parents, or deported to parents who had abandoned them once in the United States.” Id. (emphasis added). The purpose of the Act was not to provide exemption from deportation to children who leave their families and homes in other countries, with or without the encouragement and support of their families,
The attempt to expand the stated purpose of the Act not only encourages parents to send their children to the United States and children to leave their families and homes to illegally enter the United States, it also places a very difficult burden upon the state courts tasked with reviewing these dependency petitions and making a dependency determination. A dependency petition which alleges abuse, abandonment, or neglect by a child’s parent(s) requires investigation. Investigating such allegations stemming from alleged conduct in the United States, while challenging and costly, is possible. Investigating such allegations regarding parents living in another country is nearly impossible. Testing the veracity of an affidavit from a parent who sent or endorsed a child’s exodus from his native country and family to seek a better life in the United States is equally nearly impossible. And yet, that is what the state courts are being asked to do.
ANALYSIS
Although we have articulated the problems associated with petitions for dependency filed by children who leave their families for another country and
S.A.R.D. sought an adjudication of dependency pursuant to Chapter 39 of the Florida dependency statutes. Chapter 39 defines a dependent child, in part, as one who has been “abandoned, abused, or neglected” by the child’s “parents or legal custodians.”
These petitions have become increasingly common and typically are filed just before the child, who illegally crossed the border into the United States, turns eighteen. Because this was a private petition, the Department of Children and Families (“DCF”) declined to involve itself in any of the proceedings and no testimony or opposing argument was presented to the trial court.1 The child does not seek any services from the State. Thus, the petition was not subjected to a true adversarial proceeding at the trial court level, and this Court was not presented with opposing argument or analysis on appeal. As the Fourth District Court of Appeal correctly noted in O.I.C.L. v. Department of Children & Families, 169 So. 3d 1244, 1247 (Fla. 4th DCA 2015), review granted, SC15-1570 (Fla. Oct. 30, 2015), “[a]t their core, these petitions are probably best described as merely an unopposed request for assistance of the court for entry of orders to help a child obtain legal immigration status.” (internal quotation omitted).
In his petition, S.A.R.D. alleged that he was abandoned by his father at the age of seven and neglected by his mother at some point after December 2012. We address each ground in turn.
A. Abandonment by S.A.R.D.’s father
Section 39.01(1), Florida Statutes (2015), defines “abandonment” as:
[A] situation in which the parent or legal custodian of a child or, in the absence of a parent or legal custodian, the caregiver, while being able, has made no significant contribution to the child’s care and maintenance or has failed to establish or maintain a substantial and positive relationship with the child, or both.
S.A.R.D. contends that abandonment by his father is undisputed. As already noted above, however, S.A.R.D.’s petition was not subjected to an adversarial proceeding because he filed a private petition, sought no services from the State,
The Fourth District Court of Appeal in O.I.C.L., suggested:
When evaluating the facts supporting these private dependency petitions, trial courts should consider: (1) the nature, severity and frequency of the abuse, neglect or abandonment; (2) the time that has elapsed between the abuse, neglect or abandonment and the filing of the petition; (3) whether the child is presently at a continued, but not necessarily imminent, risk of harm before turning eighteen years old; (4) the availability of a caregiver capable of providing both supervision and care; and (5) any other relevant factors unique to the particular case.
O.I.C.L., 169 So. 3d at 1249. In the instant case, the trial court noted that S.A.R.D.’s petition alleges abandonment by the father over ten years prior to S.A.R.D.’s departure for the United States and the filing of his dependency petition, and concluded that based on the law in the circuit and this district, the alleged abandonment was too remote to serve as a basis for dependency when the alleged abandonment did not cause S.A.R.D. any harm, noting that while the father did not care for S.A.R.D., S.A.R.D. continued to live with his mother and uncle, who did care for him. In reaching this legal conclusion, the trial court correctly applied the law in this district. See In re K.B.L.V., 176 So. 3d 297, 299 (Fla. 3d DCA 2015) (finding that the abandonment of the seventeen-year-old child by her father since her birth was too remote); In re B.Y.G.M., 176 So. 3d 290, 293 (Fla.
S.A.R.D. was also at no substantial risk of imminent abuse, abandonment, or neglect when he filed his petition. When he filed his petition, he was nine days short of his eighteenth birthday and he had been living with and was being cared for by friends of his family in the United States since December 2014. There were no allegations that since his illegal arrival in the United States and his placement with family friends that he was not being adequately cared for or that he was neglected or abused by his caregivers. See
(47) “Other person responsible for a child’s welfare” includes the child’s legal guardian or foster parent; an employee of any school, public or private child day care center, residential home, institution, facility, or agency; a law enforcement officer employed in any facility, service, or program for children that is operated or contracted by the Department of Juvenile Justice; or any other person legally responsible for the child’s welfare in a residential setting; and also includes an adult sitter or relative entrusted with a child’s care.
Thus, it is clear that S.A.R.D., for the nine-day period of his minority status, was not in substantial risk of abuse, neglect, or abandonment. See O.I.C.L., 169 So. 3d at 1247-48 (finding that the release of the child to an uncle, while the child’s immigration charges remained pending by the government agency that picked up the child following his attempt to illegally enter the United States, precluded an adjudication of dependency because the child’s circumstances did not meet the definition of “abandonment”).
Because the alleged abandonment by S.A.R.D.’s father in Honduras nearly eleven years prior to the filing of S.A.R.D.’s petition was too remote and S.A.R.D. presented no evidence that there was a substantial risk of abuse, neglect, or abandonment for the nine days from the filing of his petition until he reached the age of majority, the trial court correctly denied S.A.R.D.’s petition on the basis of abandonment by his father.
B. Neglect by S.A.R.D.’s mother
Section 39.01(30) Florida Statutes (2015) provides:
“Harm” to a child’s health or welfare can occur when any person:
. . . .
(f) Neglects the child. Within the context of the definition of “harm,” the term “neglects the child” means that the parent or other person responsible for the child’s welfare fails to supply the child with
adequate food, clothing, shelter, or health care, although financially able to do so or although offered financial or other means to do so.
. . . .
(emphasis added). Section 39.01(44) also specifies that:
“Neglect” occurs when a child is deprived of, or is allowed to be deprived of, necessary food, clothing, shelter, or medical treatment or a child is permitted to live in an environment when such deprivation or environment causes the child’s physical, mental, or emotional health to be significantly impaired or to be in danger of being significantly impaired. The foregoing circumstances shall not be considered neglect if caused primarily by financial inability unless actual services for relief have been offered to and rejected by such person. . . .
(emphasis added).
The record reflects that S.A.R.D. lived in Honduras with his mother and his mother’s other small children until he left for the United States in late 2014. S.A.R.D.’s claim of neglect by his mother is premised on his allegation that although he and his family had been supported by his maternal uncle, when his uncle was murdered in December of 2012, he was forced to work on a coffee farm to help subsidize his needs. Glaringly absent from his petition and this record is any claim or evidence that his mother was financially able to provide S.A.R.D. with adequate food, clothing, etc., but refused to do so.
Section 39.01(44) specifically recognizes that a finding of neglect requires a willfulness component—the ability to provide for these needs and the failure to provide them. As the Fourth District Court of Appeal aptly noted in O.I.C.L.:
Contrary to the assertions raised in the child’s petition, living conditions of the kind routinely found in many lesser-developed countries where parents are financially unable to support a child, including but not limited to situations such as dropping out of school at an early age, working fields for income to support a family, infrequent receipt of new clothes or shoes, and limited access to electricity or other utilities of any kind are, without more, insufficient to support a finding of dependency unless substantial, competent evidence supports a finding that the parents were financially able but refused to provide support thereby “evince[ing] a willful rejection of parental obligations,” [S.H. v. Dep’t of Children & Families, 880 So. 2d 1279, 1280 (Fla. 4th DCA 2004)], or that financial or relief services were offered to the parents and rejected.
In D.C. v. A.B.C., 8 A.3d 260 (N.J. Super. Ct. Ch. Div. 2010), the New Jersey Superior Court addressed the alleged neglect in Guatemala by the mother of a child (“Paul”) who illegally entered the United States at age fourteen and petitioned the New Jersey Court for a finding of dependency under New Jersey’s statutes that are similar to Florida’s dependency statutes. Like S.A.R.D., Paul’s claim of neglect by his mother was based on his mother’s failure to provide for him and his need to work at a construction job to help support the family. In finding that there was insufficient evidence to establish neglect, the New Jersey Court noted the lack of evidence that Paul’s mother’s actions were intentional. Rather, the evidence demonstrated her inability to adequately support her family. D.C., 8 A.3d at 265-66. The court also noted that “Guatemala is one of the poorest countries in the world . . . [and that] about 15% of children between the ages of ten
Similarly, in the instant case, there is no record evidence that S.A.R.D.’s mother, who also had other children to care for, was financially able to meet S.A.R.D.’s needs, but refused to or that she rejected any offered financial assistance. There was also no evidence that S.A.R.D.’s mother exposed him to illegal drugs, kept her home in a deplorable condition, or that S.A.R.D.’s work on a coffee farm at the age of seventeen to assist the family subjected S.A.R.D. to abuse or harm. Thus, the family’s poverty, without more, does not constitute neglect as contemplated by our dependency statutes, specifically sections 39.01(3)(f) and 39.01(44), and the trial court correctly denied S.A.R.D.’s petition based on his claim of neglect by his mother.
CONCLUSION
While the plight of children growing up in poor and underdeveloped countries is heartbreaking when we consider the bountiful advantages available to the children in the United States, Florida’s dependency statutes were meant to
Affirmed.
Case No. 3D15-1472
SHEPHERD, J. concurring,
I concur in the decision of the majority and write only to emphasize that there are two separate and independent reasons to affirm the decision of the trial court in this case. First, as we have held in similar cases, the petition in this case fails on state law grounds. See In re B.R.C.M., No. 3D15-962 (Fla. 3d DCA Dec. 30, 2015); In re B.Y.G.M., 176 So. 3d 290 (Fla. 3d DCA 2015); In re K.B.L.V., 176 So. 3d 297 (Fla. 3d DCA 2015); see also O.I.L.C. v. Dep’t of Children & Families, 169 So. 3d 1244 (Fla. 4th DCA 2015). However, the opinion of the court today reveals yet a second reason, and one arguably of a higher order, for the affirmance of the trial court’s decision in such cases, namely that those who seek to stretch state dependency laws for the sole purpose of obtaining lawful residency, as opposed to relief from abuse, neglect or abandonment, are fostering outcomes
The creation of the Special Immigrant Juvenile (SIJ) classification to assist certain children from foreign countries in seeking lawful residency in the United States was added to the United States Immigration and Naturalization Act (INA) in 1990.2 See Immigration Act of 1990, Pub. L. 101–649, ch. I, sec. 153, 104 Stat. 4978 (adding subsection (J) to
Sec. 113.–The conference agreement includes section 113, similar to language included in the Senate bill, that amends the Immigration and Nationality Act to address several problems encountered in the implementation of the special immigrant juvenile provision. The language has been modified in order to limit the beneficiaries of this provision to those juveniles for whom it was created, namely abandoned, neglected, or abused children, by requiring the Attorney General to determine that neither the dependency order nor the administrative or judicial determination of the alien‘s best interest was sought primarily for the purpose of obtaining the status of an alien lawfully admitted for permanent resident, rather than for the purpose of obtaining relief from abuse or neglect. The conferees intend that the involvement of the Attorney General is for the purposes of determining special immigrant juvenile status and not for making determinations of dependency status. In addition, in order to preclude State juvenile courts from issuing dependency orders for juveniles in actual or constructive custody of the INS, the modified provision removes jurisdiction from juvenile courts to consider the custody status or placement of such aliens
(I) no juvenile court has jurisdiction to determine the custody status or placement of an alien in the actual or constructive custody of the Attorney General unless the Attorney General specifically consents to such jurisdiction; and
(II) no natural parent or prior adoptive parent of any alien provided special immigrant status under this subparagraph shall thereafter, by virtue of such parentage, be accorded the right, privilege or status under this Act;
Pub. L. 105-119, ch. I, sec. 113 (modifications bolded).
The House bill did not contain a provision on this matter.
H.R. Rep. 105-405, at 130 (1997) (emphasis added).
In 2008, Congress amended the definition of a SIJ under section 1101(a)(27)(J) in two respects pertinent to this discussion. See William Wilberforce Trafficking Victims Protection Reauthorization Act, Pub. L. No. 110–457, 122 U.S. Stat. 5044 (2008). The requirement that the SIJ applicant be deemed eligible “for long-term foster care” by a state court was removed. Additionally, the SIJ applicant now needed to establish that reunification was not viable with “one or both parents.” Id. at sec. 235(d)(1). However, the demonstration by the juvenile petitioner of “abuse, neglect or abandonment . . . under State law” remained as an important prerequisite to attainment of SIJ status.6
(iii) in whose case the Secretary of Homeland Security consents to the grant of special immigrant juvenile status, except that—
(I) no juvenile court has jurisdiction to determine the custody status or placement of an alien in the custody of the Secretary of Health and Human Services unless the Secretary of Health and Human Services specifically consents to such jurisdiction; and
(II) no natural parent or prior adoptive parent of any alien provided special immigrant status under this subparagraph shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this chapter;