In the Matter of the Guardianship of Shirla Gonzalez Xitumul: Miguel Hernandez Jeronimo, Appellant-Petitioner.
No. 19A-GU-948
Court of Appeals of Indiana
November 20, 2019
Robb, Judge.
Appeal from the Decatur Circuit Court; The Honorable Timothy B. Day, Judge; Trial Court Cause No. 16C01-1901-GU-1
ATTORNEY FOR APPELLANT
Alexander E. Budzenski
Indianapolis,
Case Summary and Issue
[1] Miguel Hernandez Jeronimo (“Hernandez“) filed a petition seeking to be appointed guardian of his niece, Shirla Gonzalez Xitumul (“Shirla“) and also seeking certain findings that could enable Shirla to seek Special Immigrant Juvenile (“SIJ“) status from the United States Citizen and Immigration Services (“USCIS“). At the time Hernandez filed the petition, he held a foreign power of attorney signed by Shirla‘s parents allowing him to act on their behalf with respect to Shirla. The trial court made findings relevant to Shirla‘s SIJ status but found it unnecessary to appoint Hernandez as her guardian because he already held the power of attorney. In this unopposed appeal, Hernandez raises the sole issue of whether the trial court erred in denying the petition. Concluding the trial court erred in finding the guardianship unnecessary, we reverse and remand.
Facts and Procedural History
[2] Shirla resided in her native country of Guatemala until October of 2017 when, at fourteen years of age and with her mother‘s support, she began her journey to the United States. Shirla traveled with people she did not know, “by car or walking,” because she “didn‘t feel secure” in Guatemala due to her “violent” relationship with her father: “He always hit me. He‘d always get drunk. He threw me out
[3] Hernandez has lived in Indiana since 2007 and works in construction. He is a Guatemalan citizen and an illegal immigrant to this country. He does not believe Shirla could be reunited with her parents in Guatemala “because of what she had to live – she had to go through when she was living over there with her parents.” Id. at 9. Shirla‘s only other relatives in Guatemala are on her father‘s side of the family. Hernandez thinks living in the United States is in Shirla‘s best interest because she can get an education, have better opportunities, and be protected. He supports Shirla emotionally and financially and wishes to be her guardian. At some point after Shirla came to live with Hernandez, Shirla‘s parents signed a document “renounc[ing] the parental authority, guardianship, and custody” of Shirla and giving Hernandez power of attorney “so that he can provide the essentials for her subsistence[.]” Appellant‘s Appendix, Volume 2 at 11.
[4] On January 2, 2019, Hernandez filed a petition seeking to be named guardian of Shirla, then sixteen years old and unmarried with no dependents. The petition alleged Shirla had been abused, abandoned, and neglected by her parents and that it is not in Shirla‘s best interest to return her to her home country for those reasons; appointment of a guardian is necessary to ensure her proper care and supervision and specifically to “obtain decision-making powers in the following areas: healthcare, including treatment and access to medical records, and school enrollment“; and Hernandez is the best person to serve as guardian as Shirla resides with him. Shirla consented to the guardianship, but as to her parents, the petition alleges, “Shirla‘s parents have not objected to [Hernandez] being awarded guardianship of Shirla and it is not likely they will do so.” Id. at 14-15.
Wherefore, [Hernandez] requests that this Court . . . enter an Order finding that:
- [Shirla] is an unmarried minor;
- The Decatur County Circuit Court has jurisdiction over minors, and Shirla, as a minor, is dependent upon the Court per
IC 29-3-5-1 et seq.;- The appointment of a guardian for [Shirla] is necessary;
- Shirla has been physically and mentally abused by her father;
- Shirla has been abandoned and neglected by both of her parents who forced her out of the home and left her with nowhere to live in Guatemala and sent her to journey across Guatemala, Mexico, and the United States alone;
- Reunification with either parent is not a viable option;
- Shirla has no parent willing or able to care for her in the United States;
* * *
- It is not in Shirla‘s best interests to be returned to her country of nationality and last residence, Guatemala . . . .
Id. at 15-16.
[5] The trial court held a hearing at which Hernandez and Shirla both testified. At the conclusion of the hearing, the trial court expressed concern over whether it had jurisdiction to entertain a petition by a
[6] Following this submission, the trial court entered the following order, in pertinent part:
- [Hernandez] is the maternal uncle of [Shirla]. [Hernandez] is not a legal resident of the United States. He has been living illegally in this country since at least 2007.
- [Shirla] is sixteen (16) years of age. [She] is also not a legal resident of the United States. She traveled to this country approximately a year prior from Guatemala.
- The Court has concerns as to whether it has the ability to grant a guardianship when no person involved is a United States citizen or has legal authority to reside in the United States.
- Counsel for [Hernandez] provided to the Court a Power of Attorney signed by both [of Shirla‘s] parents . . ., which gives [Hernandez] full parental authority regarding [Shirla]. Evidence was presented that [Hernandez] has been caring for [Shirla] without issue, including [her] enrollment . . . in a public high school. The Power of Attorney should also allow [Hernandez] to seek medical attention for [Shirla] if the need arises.
- The Court does not find that [Shirla‘s] parents . . . were notified of the filing of this guardianship as required by statute.
- The Court is also unable to find that the guardianship requested herein is necessary as required by statute given the Power of Attorney extended to [Hernandez] by the [Shirla‘s] parents.
- Counsel for [Hernandez] directed the Court to the case of [Luis] . . . . In that similar case it is unclear whether the [p]etititoner was a legal resident of the United States. Said case primarily involved a request for findings in support of the child‘s efforts to qualify for “special immigrant juvenile” status under Federal Law.
- In the present case, no request for findings was made at [the] hearing. No mention was made that [Shirla] had ever been detained for immigration purposes. No mention was made that [Shirla] was seeking specific findings for any purpose other than the granting of the guardianship. No mention was made in the pleadings or at the hearing that [Shirla] was seeking “special immigrant juvenile” status under Federal Law.
- The Court feels that [Hernandez] should have been more forthcoming as to the purpose of this litigation if the true purpose was to obtain findings in furtherance of [Shirla‘s] “special immigrant juvenile” status. Even though the guardianship requested herein is being denied, the Court will reluctantly find that evidence was presented that reunification with one or both of [Shirla‘s] parents is not a viable option due to abuse, neglect, abandonment by one or both parents, and it would not be in [Shirla‘s] best interest to be returned to her parents in Guatemala.
It is therefore ordered by the court that the Petition for Appointment of Guardian
filed herein is denied as not necessary.
Appealed Order at 1-2. Hernandez now appeals the denial of the petition.1
Discussion and Decision
I. Standard of Review
[7] Findings and orders issued in guardianship proceedings are within the discretion of the trial court. In re Adoption of J.L.J., 4 N.E.3d 1189, 1194 (Ind. Ct. App. 2014), trans. denied; see also
II. Special Immigrant Juvenile Status
[8] Congress created the special immigrant juvenile (“SIJ“) status “to protect abused, neglected, and abandoned immigrant youth through a process allowing them to become legal permanent residents” despite their unauthorized entry into or unlawful presence in the United States. Luis, 114 N.E.3d at 857 (quoting In the Interest of J.J.X.C., a Child, 734 S.E.2d 120, 123 (Ga. Ct. App. 2012)). A “special immigrant” includes a person:
- who is unmarried,
- who under the age of twenty-one,
- who is present in the United States,
- who has been legally committed to or placed in the custody of an individual by a juvenile court located in the United States,
- “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[,]” and
- “for whom it has been determined . . . that it would not be in the alien‘s best interest to be returned to the alien‘s . . . previous country of nationality[.]”
[9] A state juvenile court determines whether the evidence supports the required findings, but the final decision regarding SIJ status rests with the federal government.
[10] As Luis pointed out, “it is inescapable that a minor seeking SIJ status is dependent upon a state court to make the prerequisite findings in a predicate order for the minor to qualify for such status under the scheme established by federal immigration law.” 114 N.E.3d at 859. With this procedure in mind, we turn to the proceedings in this case.
III. Guardianship Petition
[11] At the hearing and in its order, the trial court expressed concern over its ability to enter a guardianship order when the proposed guardian and the ward are both illegal immigrants. See Tr., Vol. 2 at 15-16 (trial court stating, “[W]e have a non-citizen of our country asking me to grant him relief under the laws of our country. . . . To grant guardianship over again, a non-citizen. . . . So I don‘t know where I stand as a state court, in my ability to grant this[.]“); Appealed Order at 1 (“The Court has concerns as to whether it has the ability to grant a guardianship when no person involved is a United States citizen or has legal authority to reside in the United States.“).
[12] We begin with the jurisdiction of the court in general. “Circuit courts are courts of general jurisdiction, empowered to hear all types of cases, including guardianship actions.” In re B.J.N., 19 N.E.3d 765, 768 (Ind. Ct. App. 2014).
[13] As for the trial court‘s specific concern about how Hernandez and Shirla‘s citizenship status might affect its authority in this specific case,
[14] In its order, the trial court stated, “No mention was made in the pleadings or at the hearing that [Shirla] was seeking ‘special immigrant juvenile’ status under Federal Law” and indicated Hernandez “should have been more forthcoming as to the purpose of this litigation if the true purpose was to obtain findings in furtherance of [Shirla‘s] ‘special immigrant juvenile’ status.” Appealed Order at 2. Hernandez contends that he was “sufficiently forthcoming about seeking special-immigrant-juvenile findings” because he requested those findings in his petition and cited Luis both at the hearing and in his post-hearing brief. Brief of Appellant at 14. We agree Hernandez‘s petition sought findings on the predicate facts required for Shirla to apply for SIJ status. However, Hernandez never clearly articulated that purpose to the court. The petition never mentions special immigrant juvenile status, and at the conclusion of the hearing, Hernandez‘s counsel simply agreed without elaboration when the trial court stated, “So basically, you‘re asking that I grant guardianship.” Tr., Vol. 2 at 15. When citing Luis to the trial court at the hearing, counsel only said the case “addresses the state court‘s role in adjudicating these – these sorts of petitions.” Id. at 16. Citation to “pertinent authority” in a guardianship petition or specific invocation of SIJ status at a hearing may not be required. See Brief of Appellant at 14; see also Simbaina v. Bunay, 109 A.3d 191, 200 (Md. Ct. Spec. App. 2015) (noting the federal statute has no specific pleading requirements). However, it is certainly not prohibited. And indeed, it is likely a good idea to be forthcoming in order to avoid situations such as this, where the relief requested was oblique at best and the lack of clarity likely contributed to the order failing to meet the requirements of an SIJ predicate order. See Simbaina, 109 A.3d at 201 (“When pleading this issue before the . . . court, a moving party should ensure that the court is on notice of the request for these factual findings.“). Nonetheless, the issue was before the trial court.
[15] In Luis, this court held that a trial court errs by failing to make the SIJ findings if the matter is properly before the court. 114 N.E.3d at 858. The trial court is authorized to conclude that the petitioner failed to present evidence supporting the SIJ factors or that the evidence presented was not credible, but the court has a duty to consider the factors and make relevant findings. Id. at 859. In Luis, the trial court granted the guardianship but was silent as to the SIJ factors, neither making findings nor stating that it had considered the factors and rejected them. We therefore remanded to the trial court to consider the request for SIJ findings. Id. Here, we have the opposite situation: the trial court denied the guardianship but made basic SIJ findings. However, because a predicate order must make findings about 1) dependency or custody, 2) parental reunification, and 3)
[16] With respect to Shirla‘s dependency or custody, the trial court found that a guardianship was not necessary because Hernandez already had a power of attorney entitling him to act on Shirla‘s behalf. However, a guardian appointed by a court to have the care and custody of the person or property of a minor, see
[17] We do note, however, that even when considering the necessity of the guardianship for federal SIJ status, the appointment of a guardian is guided by state statute. In re Guardianship of Hollenga, 852 N.E.2d 933, 937 (Ind. Ct. App. 2006). Thus, the trial court must still determine if Hernandez is “a qualified person” to be named Shirla‘s guardian.
[18] As for the remaining two findings required in an SIJ predicate order, the trial court “reluctantly” made findings about reunification and Shirla‘s best interests, essentially tracking the language of federal law about SIJ findings. Appealed Order at 2; see
[19] As the Illinois Appellate Court has noted, “the potential benefits associated with SIJ status are substantial, [but a minor‘s] decision to pursue SIJ status is not without risk. Relief is not guaranteed and denial of the application renders [the minor] subject to deportation as an undocumented immigrant.” In re Estate of Nina L., 41 N.E.3d at 938-39. When a minor is willing to assume that risk, the “opportunity to pursue SIJ status should not be thwarted by [a court‘s] refusal to make the findings necessary to allow [the] application to proceed.” Id. at 939. Here, the trial court has already found that Shirla has met two of the three requirements to apply for SIJ status, though without the specificity required of a predicate order. Accordingly, we remand to the trial court with instructions to reconsider the request for guardianship in light of Indiana law and the request for SIJ findings and, if the guardianship is granted, to issue a predicate order with the appropriate findings.
Conclusion
[20] The trial court erred in concluding the guardianship was unnecessary based on the existence of a power of attorney. Accordingly, the trial court did not make a proper dependency determination and made only the most basic findings regarding the SIJ factors. We therefore reverse and remand for further proceedings consistent with this opinion.
[21] Reversed and remanded.
Mathias, J., and Pyle, J., concur.