Joaninha Kitoko v. Manzambi Salomao
No. 2019-121
Supreme Court of Vermont
June Term, 2019
2019 VT 45
David R. Fenster, J.
On Aрpeal from Superior Court, Addison Unit, Family Division
Michelle Donnelly and Erin Jacobsen, South Royalton Legal Clinic, South Royalton, for Plaintiff-Appellant and Minor Children.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.
¶ 1. REIBER, C.J. This case concerns the trial court’s authority to make special findings necessary for individuals to apply for “special immigrant juvenile” (SIJ) status under federal law. The trial court concluded that it lacked authority to make SIJ findings because they were not necessary to its parental-rights-and-responsibilities (PRR) decision. We conclude that given the primacy of a child’s best interests in cases like this and the cоurt’s broad discretion in determining those interests, the court does have the authority to make such findings. It should make such findings when it is in a child’s best interests to do so and where such findings are supported by the evidence. We therefore reverse and remand the trial court’s decision to allow it to engage in this analysis. Because one of the juveniles will turn eighteen on July 13, 2019, we issue the mandate immediately and direct the court to issue its findings forthwith.
¶ 3. We begin with an overview of the SIJ law, emphasizing at the outset the purpose of this federal provision and its consonance with priorities in our own state law. As the Maryland Court of Appeals aptly observed:
Children are a vulnerable cohort, uniquely susceptible to various forms of mistreatment. Their protection is of the utmоst importance to all involved in governance and the administration of justice. Consequently, numerous policies at both the federal and state level have been implemented to protect the safety and well-being of children in this country.
Romero v. Perez, 205 A.3d 903, 904-05 (Md. 2019). SIJ status is designed to protect vulnerable children. It was added to the Immigration and Nationality Act in 1990 “to enable immigrant children who have been subject to abuse, neglect, or abandonment by one or both of their parents to remain in the United States and aрply for lawful permanent residence.” Guardianship of Penate, 76 N.E.3d 960, 965 (Mass. 2017) (citing
¶ 4. To apply for SIJ status, an immigrant child must first obtain special findings from a state “juvenile court.” See
(J) an immigrant who is present in the United States—
(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, оr a similar basis found under State law; [and]
(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 . . . .
¶ 5. After obtaining such findings, an immigrant child must then “file a petition, including the special findings, with USCIS [(United States Citizenship and Immigration Services)],” which “conducts a plenary review.” Penate, 76 N.E.3d at 966 (citing
¶ 6. Thus, as set forth above, “a person’s immigration status remains a matter governed solely by Federal law,” but the responsible federal agency relies on state courts to “make the special findings of fact necessary to the USCIS’s legal determination of the immigrаnt child’s entitlement to SIJ status.” Penate, 76 N.E.3d at 966. This “unique hybrid procedure” recognizes that state courts have “ ‘distinct expertise . . . in the area of child welfare and abuse,’ which makes them best equipped to shoulder ‘the responsibility to perform a best interest analysis and to make factual determinations about child welfare for purposes of SIJ eligibility.’ ” Id. (quoting Recinos, 46 N.E.3d at 65); see also J.U., 176 A.3d at 139 n.6 (“The unusual involvement of state courts in what is ultimately a federal immigration decision appears based on the belief that state courts have greater experience in determining matters of abuse, neglect, and abandonment.”).1
¶ 7. States have responded to the SIJ law in various ways. See generally K. Moulding, Eligibility for Special Immigrant Juvenile Status Under
¶ 8. The Virginia Court of Appeals held, by contrast, that its courts have no authority to entertain independent SIJ petitions. Canales v. Torres Orellana, 800 S.E.2d 208, 216-17 (Va. Ct. App. 2017). The court acknowledged that “there may be circumstances when a Virginia court, by rendering a custody determination in the normal course, will deliver a judgment and resulting order that may satisfy the SIJ requirements,” but held that its courts were not “required to make such findings or tailor their orders to increase the likelihood that fеderal immigration officials will find them acceptable.” Id. at 220; see also De Rubio, 541 S.W.3d at 572-73 (citing Canales and concluding that Missouri juvenile courts could, but were not required to, make special findings if requested in dissolution case).
¶ 9. With this overview in mind, we turn to the facts here. Mother and her four minor children are undocumented immigrants from Angola living in Vermont. Mother is married to the children’s father. At one time, father indicated that he would join the family in North America but he has not done so; he is believed to be in Angola. Mother alleged that father had not contacted or supported the family since 2013. She also testified that there is no place for the children in Angola.
¶ 10. In February 2018, mother sought relief under
¶ 11. Following a hearing, the court made findings on the record with respect to PRR. It found that parents married in September 2000, father deserted mother, and the parties were living sеparate and apart. The parties’ children ranged in age from eight to seventeen. The children had lived with mother at least since July 2013 when mother left Angola. Since that time, mother was clearly the children’s primary caretaker. She had a significant relationship with the children and the ability and disposition to provide them with love, affection, and guidance. The court made additional findings related to the statutory best-interests factors set forth in
¶ 12. After additional briefing, the court denied mother’s request for SIJ findings. The court described the legal framework set forth above and considered case law from other states. It found Canales most persuasive and thus concluded that it must apply Vermont law “in the same manner” as “in every other custody case that does not involve a juvenile immigrant.” 800 S.E.2d at 220-21. Applying this standard, the court determined that, in evaluating mother’s PRR request and the children’s best interests, it lacked authority to decide whether reunification with father was
¶ 13. As to the reunification-viability question, the court expressed uncertainty whether father had permanently deserted the children and observed that it would not ordinarily make findings about the likelihood of future reunification in the context of a PRR determination. The court further reasoned that because no parent was seeking to return the children to Angola, it need not make a finding whether it would be in the children’s best interests to do so. The court stated that it had no context in which to weigh whether returning to Angola would be in the children’s best interests and it questioned, in any event, how it could square such a finding with the deference owed to the custodial parent’s residency decisions. The court thus denied mother’s request for special findings. Mother appealed.
¶ 14. Mother argues that the court does have authority to issue the SIJ findings and she urges us to join the numerous state courts so holding. Mother maintains that the findings she requested fall squarely within an evaluation of the children’s best interests, which is the touchstone in divorce, parentage, and similar cases. She argues that the court wrongly suggested that it must find that father permanently abandoned the children to determine that reunification with him was not viable. Mother further asserts that bеcause the government seeks to return the children to Angola, there is nothing abstract about evaluating whether it would be in their best interests to return there. Mother emphasizes that the purpose of the SIJ law is to protect children from this very outcome if doing so would mean returning them to an abusive, neglectful, or absent parent or to a situation otherwise against their best interests. She argues that the evidence she presented shows that reunification with father is not viable and that returning the children to Angоla is not in their best interests.
¶ 16. We emphasize at the outset that the trial court in this case had jurisdiction. This is not a freestanding action for SIJ findings but rather a petition for relief under
¶ 17. In considering mother’s petition, the court has authority to make SIJ findings if doing so serves a child’s best interests. We leave the substance of such findings to the trial court based on its evaluation of the evidence.
¶ 18. As set forth above, in enacting the SIJ law, Congress created “a unique hybrid procedure that directs the collaboration of state and federal systems.” H.S.P. v. J.K., 121 A.3d 849, 857-58 (N.J. 2015) (quotation omitted) (relying on structure of federal law to conclude that courts must make SIJ findings). State courts are asked “to make initial SIJ factuаl
¶ 19. We do not go so far as other states that always require their courts to make such findings when requested. See, e.g., In re J.J.X.C., 734 S.E.2d 120, 124 (Ga. Ct. App. 2012) (concluding that SIJ statute “affirms the institutional competence of state courts as the appropriate forum for child welfare determinations regarding abuse, neglect, or abandonment, and a child’s best interests” and court “has a duty to consider the SIJ factors and make findings”); Romero, 205 A.3d at 908 (“The [Maryland] Court of Special Appeals has held, and we agree, that when a party requests SIJ status findings in his or her pleadings, the circuit court must undertake the fact-finding process (hear testimony and receive evidence) and issue ‘independent factual findings regarding’ the minor’s eligibility for SIJ status.” (quoting Simbaina, 109 A.3d at 194)); Simbaina, 109 A.3d at 194, 197 (concluding that SIJ statute imposes duty on state court to make special SIJ findings, which are advisory to federal agency determination; finding no separation-of-powers issue; and stating that “federal government delegated the powers to make initial SIJ factual findings to state juvenile courts because of the expertise that these courts have in issues relating to the care and custody of juveniles”); In re L.F.O.C., 901 N.W.2d 906, 911 (Mich. Ct. App. 2017) (finding it “clear that a state juvenile court has authority to issue factual findings pertinent to a juvenile’s SIJ status,” and “trial court erred to the extent that it found that it lacked authority to make predicate factual findings pertaining to the issue of SIJ status”). But our holding that Vermont courts have the authority to make such findings lеads to a corollary principle that courts generally should make such findings when doing so is in the best interests of the children concerned. This holding does not flow from any purported federal command but, rather, rests on a traditional exercise of the trial court’s statutory and discretionary authority guided, as it must be, by what course of action is in a child’s best interests.
¶ 21. The court’s broad authority to make orders it deems “expedient” concerning the care and custody of the children includes the authority to make the requested findings where it concludes that doing so would further a child’s best interests. See Chase v. Bowen, 2008 VT 12, ¶ 34, 183 Vt. 187, 945 A.2d 901 (recognizing trial court’s “broad discretion” in custody cases in determining what course of action is in children’s best interests); see also In re B.L.V.B., 160 Vt. at 371, 628 A.2d at 1273 (recognizing that where statute’s goal “is to promote the welfare of children,” it must be applied to “implement that purpose”).
¶ 22. In the context of this and similar cases, the question of a possible return to one’s country of origin and the implications of such a move on a child’s best interests, as well as the viability of reunification with a parent in that country, are not abstract questions. They will be “the reality of these children’s lives” absent a successful application for SIJ status. In re B.L.V.B., 160 Vt. at 376, 628 A.2d at 1276; see also J.U., 176 A.3d at 139 n.6 (“While the ultimate decision for SIJ status is with the federal government, it might be observed that the refusal by a juvenile court to make a requisite finding can have the effect of leaving the minor open to deportation, thus making it a significant decision in itself.”); In re Luis G., 764 N.W.2d 648, 654 (Neb. Ct. App. 2009) (concluding that “without the order of eligibility, including the required findings from the
¶ 23. When a court does find it in a child’s best interests to make these findings, it must construe the terms “abuse,” “neglect,” and “abandonment” broadly. See Romero, 205 A.3d at 914-15 (holding that broad interpretation of these terms required to protect children and serve Congressional intent, adopting position of J.U., 176 A.3d at 143, and citing B.R.L.F. v. Sarceno Zuniga, 200 A.3d 770, 777 (D.C. 2019) (stating that “all the relevant factors must be understood in the light most favorable to determinations of neglect and abandonment”)). The court here did not need to find, for example, that father permanently abandoned the childrеn to establish that reunification with father was not viable. See J.U., 176 A.3d at 140 (stating that court must focus on precise question before it, which “is not the abstract question whether the minor has been . . . abandoned by the father,” but rather “whether reunification with the father in [country of origin] is ‘viable’ due to ‘abandonment’ ”).
¶ 24. In the SIJ context, “the concept of abandonment is being considered not to deprive a parent of custody or to terminate parental rights but rather to assess the impact of the history of the parеnt’s past conduct on the viability, i.e., the workability or practicability of a forced reunification of parent with minor, if the minor were to be returned to the home country.” Id. at 141; see also Romero, 205 A.3d at 912-13 (citing J.U., 176 A.3d at 141; U.S. Citizenship & Immigration Servs., Policy Manual, vol. 6, part J, ch. 2, § D.2 (stating that to satisfy reunification-viability requirement, “actual termination of parental rights is not required”)) (recognizing that SIJ status cases “do not involve any termination of parental rights; they merely entail judicial fact finding about the viability of a forced reunification between a parent and а child”). This “calls for a realistic look at the facts on the ground in the country of origin and a consideration of the entire
¶ 25. We do not suggest that the court must make findings favorable to mother. We leave it to the trial court to evaluate the evidence. In re J.J.X.C., 734 S.E.2d at 124 (holding that juvenile courts are “authorized to conclude that the petitioners failed to present evidence to support the SIJ factors or that thеir evidence was not credible”); Romero, 205 A.3d at 915 (stating that “trial judges should not abdicate their responsibility as fact finders; judges should assess witness credibility and discredit evidence when warranted”). We acknowledge that there may be challenges “in developing a proper evidentiary record,” J.U., 176 A.3d at 141 n.9, but “trial courts should bear in mind that Congress established the requirements for SIJ status knowing that those seeking the status would have limited abilities to corroborate testimony with additional evidence.” In re Dany G., 117 A.3d 650, 655-56 (Md. Ct. Spec. App. 2015). We note that the “purpose of the [SIJ] law is to permit abused, neglected, or abandoned children to remain in this country,” and we agree that “[i]mposing insurmountable evidentiary burdens of production or persuasion is . . . inconsistent with the intent of the Congress.” Id. Thus, in evaluating the sufficiency of the evidence, courts should remain mindful that “ ‘creation of contrary evidence [often] rests on surmise,’ particularly in uncontested cases,” and “all evidence in SIJ status cases is ‘made under penalty of perjury and would appear to have some presumptive validity.’ ” Romero, 205 A.3d at 915 (quoting J.U., 176 A.3d at 141 n.9).
¶ 27. As set forth above, we conclude that the role of our state courts in the SIJ process is to continue making decisions that serve children’s best interests. This includes making SIJ findings where requested if doing so promotes a child’s best interests. This is consistent with the broad authority of our trial courts in these matters and it serves the goal of the Vermont Legislature and Congress to “protect abused, neglected, or abandoned children.” Yeboah v. U.S. Dep’t of Justice, 345 F.3d 216, 221 (3d Cir. 2003).
The court’s denial of mother’s request for special findings is reversed and the case is remanded to the trial court for additional proceedings consistent with this opinion. The mandate shall issue immediately and the trial court shall issue its findings forthwith.
FOR THE COURT:
Chief Justice