IN RE: Kenia M. Rodriguez EUCEDA (2024)

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 6, the petitioner appeals from two orders of the Family Court, Nassau County (Joy M. Watson, J.), both dated December 19, 2023.  The first order, after a hearing, denied the petition for guardianship of the subject child and dismissed the proceeding.  The second order denied the petitioner's motion for the issuance of an order, inter alia, making specific findings so as to enable the subject child to petition the United States Citizenship and Immigration Services for special immigrant juvenile status pursuant to 8 USC § 1101(a)(27)(J).

ORDERED that the orders are reversed, on the facts, without costs or disbursements, the guardianship petition is granted, the petitioner's motion for the issuance of an order, inter alia, making specific findings so as to enable the subject child to petition the United States Citizenship and Immigration Services for special immigrant juvenile status pursuant to 8 USC § 1101(a)(27)(J) is granted, and it is found that reunification of the subject child with his mother is not viable due to parental abandonment and neglect and that it would not be in the best interest of the subject child to return to Honduras, his previous country of nationality and last habitual residence, as there is no one to care for him or support him in that country.

In June 2022, the petitioner filed a petition pursuant to Family Court Act article 6, seeking to be appointed guardian of the subject child, her nephew.  The petitioner also moved for the issuance of an order, inter alia, making specific findings so as to enable the child to petition the United States Citizenship and Immigration Services for special immigrant juvenile status (hereinafter SIJS).  In two orders, both dated December 19, 2023, the Family Court, respectively, after a hearing, denied the petition and dismissed the proceeding and denied the motion.  The petitioner appeals.

“ ‘Pursuant to 8 USC § 1101(a)(27)(J) (as amended by the William Wilberforce Trafficking Victim Protection Reauthorization Act of 2008, Pub L 110–147, 122 U.S. Stat 5044) and 8 CFR 204.11, a “special immigrant” is a resident alien who is, inter alia, under 21 years of age, unmarried, and dependent upon a juvenile court or legally committed to an individual appointed by a state or juvenile court’ ” (Matter of Briceyda M.A.X. [Hugo R.A.O.], 190 A.D.3d 752, 753, 135 N.Y.S.3d 917, quoting Matter of Trudy–Ann W. v. Joan W., 73 A.D.3d 793, 795, 901 N.Y.S.2d 296).  “ ‘Additionally, for a juvenile to qualify for special immigrant juvenile status, a court must find that reunification of the juvenile with one or both of the juvenile's parents is not viable due to parental abuse, neglect, abandonment, or a similar basis found under State law, and that it would not be in the juvenile's best interest to be returned to his or her native country or country of last habitual residence’ ” (id., quoting Matter of Maria P.E.A. v. Sergio A.G.G., 111 A.D.3d 619, 620, 975 N.Y.S.2d 85;  see 8 USC § 1101[a][27][J]).

“When considering guardianship appointments, the infant's best interests is paramount” (Matter of Joel A.A.R. [Sara I.R.T.—Eddy A.A.G.], 216 A.D.3d 1167, 1168–1169, 191 N.Y.S.3d 414 [citations, alteration, and internal quotation marks omitted];  see Family Ct Act § 661[a];  SCPA 1707[1]).

Here, based upon our independent review of the record, the Family Court should have granted the guardianship petition and the motion for the issuance of specific findings so as to enable the child to petition the United States Citizenship and Immigration Services for SIJS pursuant to 8 USC § 1101(a)(27)(J).  Under the circumstances of this case, neither the guardianship petition nor the motion for the issuance of specific findings was contingent upon the child's relationship with his father or the father's ability to provide for the child.

Rather, the petitioner established that it would be in the child's best interest to appoint her as the child's guardian, despite the father remaining an active part of the child's life (see Matter of Jose S.S.G. [Elmer W.G.G.-Norma C.G.C.], 217 A.D.3d 864, 866, 192 N.Y.S.3d 141;  Matter of Joel A.A.R. [Sara I.R.T.-Eddy A.A.G.], 216 A.D.3d at 1170, 191 N.Y.S.3d 414).  The record also supports a finding that reunification of the child with his mother is not viable due to the mother's abandonment of the child.  The record reflects that the mother lives in Honduras, has not supported or seen the child since October 2021, and has no plans to do so in the future (see Matter of Eddy A.P.C. [Maria G.C.S.], 226 A.D.3d 1005, 1006, 210 N.Y.S.3d 215;  Matter of Joel A.A.R. [Sara I.R.T.-Eddy A.A.G.], 216 A.D.3d at 1170, 191 N.Y.S.3d 414).  Further, the record supports the finding that it would not be in the best interests of the child to return to Honduras, his previous country of nationality and country of last habitual residence, as there is no one to care for him or support him in that country (see Matter of Eddy A.P.C. [Maria G.C.S.], 226 A.D.3d at 1006, 210 N.Y.S.3d 215).

DUFFY, J.P., WOOTEN, TAYLOR and HOM, JJ., concur.