Gonzalez v. State (In re Carlos D.)

300 Neb. 646

915 N.W.2d 581

IN RE GUARDIANSHIP OF CARLOS D., a minor child.

Eleany Esmerelda Zunun Gonzalez, appellant,

v.State of Nebraska, appellee.

No. S-17-1056.

Supreme Court of Nebraska.

Filed July 27, 2018.

David V. Chipman, of Monzon, Guerra & Associates, Lincoln, for appellant.

Kevin Ruser and Morgan Nelson, Senior Certified Law Student, of Immigration Clinical Law Program, University of Nebraska College of Law, and Robert McEwen, Sarah Helvey, and Allison Derr, Senior Certified Law Student, of Nebraska Appleseed Center for Law in the Public Interest, for amici curiae University of Nebraska Immigration Clinic and Nebraska Appleseed Center for Law in the Public Interest.

Charles Shane Ellison, of Creighton Immigrant and Refugee Clinic, Creighton University School of Law, for amici curiae National Justice For Our Neighbors and Immigrant Legal Center, an affiliate of Justice For Our Neighbors Network.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ., and Vaughan, District Judge.

Miller-Lerman, J.

NATURE OF CASE

Although the county court for Lancaster County appointed Eleany Esmerelda Zunun Gonzalez as guardian of her juvenile nephew, Carlos D., it declined to make special factual findings that are necessary to apply for special immigrant juvenile (SIJ) status under 8 U.S.C. § 1101(a)(27)(J) (Supp. V 2018). Following a hearing on Gonzalez’ motion to amend this initial ruling, the county court stated in an order that Carlos was "not dependent on this court" and that Gonzalez had not satisfied 8 U.S.C. § 1101(a)(27)(J) and therefore denied Gonzalez’ motion to make specific findings to be used in immigration proceedings. Gonzalez appealed. During the pendency of this appeal, the Nebraska Legislature amended Neb. Rev. Stat. § 43-1238(b)(Reissue 2016) in 2018 Neb. Laws, L.B. 670, to clarify that courts with jurisdiction over initial child custody determinations under § 43-1238(a) also have "jurisdiction and authority" to make special findings of fact similar to those contemplated by 8 U.S.C. § 1101(a)(27)(J). Amendments to § 43-1238(b) have gone into effect, and because they are procedural rules, they apply to pending cases. In this case, the county court made a custody determination under § 43-1238(a), but it erred when it concluded Gonzalez had not satisfied the dependency or custody component of 8 U.S.C. § 1101(a)(27)(J) and refused to make special findings on this basis. Accordingly, we reverse the order of the county court and remand the cause for further proceedings consistent with this opinion based on the existing record.

FACTS

Carlos was born in Guatemala in November 1998 and arrived in Nebraska in 2015 at age 16 without any support or parental supervision. On January 23, 2017, Gonzalez filed a petition for the appointment of a permanent guardian for Carlos, her minor nephew, in the county court for Lancaster County. The following facts are taken from the petition and Carlos’ declaration, which the county court found to be credible:

Carlos traveled to the United States by foot and public transportation and arrived on or about April 27, 2015. Before reaching Nebraska, Carlos was detained at the border by U.S. Customs and Border Protection, but he was released to his aunt, Gonzalez, who, according to U.S. Department of Health and Human Services Office of Refugee Resettlement information, lived in Lincoln, Nebraska.

Carlos’ declaration stated that he was born in Tacana de San Marcos, Guatemala, and that he grew up with his mother, stepfather, and three sisters. Carlos never knew his father and denied having any contact with him. Carlos’ stepfather drank almost every day and was verbally and physically abusive toward Carlos, his sisters, and his mother. The stepfather would punch Carlos’ mother in the mouth with a fist and pull her hair. Two or three times a week, the stepfather hit Carlos and his sisters with a belt or whatever item he would find in his path. Verbal abuse happened daily. After 13 years, the stepfather decided to leave and abandoned the family.

After Carlos’ mother became separated from the stepfather, she began to reject Carlos. She would make comments to him such as, " ‘You’re a mistake/error in my life’ " and " ‘I don’t want to see you and don’t care if you run away.’ " Carlos’ mother would not feed him because she would be mad at him. He became the " ‘man’ " of the home at age 8 and had to work at a farm during the evenings after school to earn food for the family. When Carlos was 10 years old, his mother would not allow him to go to school, so that he could be employed full time in order to sustain his mother and sisters. The work that he was required to do was that of an adult man carrying "heavy sacks."

When Carlos was 13 years old, he began to be approached by some members of the " ‘MS 13’ " gang. They would wait for him after work to try to recruit him. At first, they were friendly, but once he declined to join the gang, things changed. The gang verbally harassed Carlos and then, after the third encounter with the gang members, four or five gang members who were heavily armed "beat up" Carlos because he declined to join the gang. The assault included hitting Carlos with "big wooden sticks" on the stomach and face and kicking him while he was on the ground. One gang member used a knife and cut Carlos on his right arm and each of his index fingers. The members threatened Carlos that he would be killed if he did not join.

Carlos stated that he was in fear for his life after the gang had beaten him. He was anxious and always checking his surroundings. He would try to find a different route to work and to avoid the gang members. However, he would inevitably run into them, and each time, he would be verbally abused, beat up, "threatened with [his] life," and robbed. He was robbed approximately 10 times, and each time, he had either a gun to his head or a knife behind his back, or both.

Carlos fled Guatemala and was eventually united with his aunt, Gonzalez. Carlos stated that his aunt provides him with "all of [his] care and need, including food and a place to live."

The petition for guardianship alleged that Carlos’ father abandoned him prior to birth and his mother had neglected him in Guatemala. In addition to seeking a permanent guardianship, the petition requested certain special findings that "unification with [Carlos’] parents is not viable due to abuse and neglect" and that "it would not be in [Carlos’] best interests to be returned to Guatemala." There is no dispute that the county court had jurisdiction to hear the petition for guardianship.

The matter came before the county court for hearing on June 13, 2017. The county court received the declaration by Carlos with details of his life and conditions in Guatemala. At the hearing, the county court filed Gonzalez’ proof of service to Carlos’ mother in her village in Guatemala and by publication.

At the hearing, the county court stated it was not inclined to make special findings regarding Carlos’ best interests "based on a number of different things." Gonzalez submitted a proposed order which included special findings consistent with 8 U.S.C. § 1101(a)(27)(J). The county court denied Gonzalez’ request for special findings. The county court entered a written order appointing Gonzalez as Carlos’ guardian.

Gonzalez, on Carlos’ behalf, filed a motion to alter or amend the judgment, requesting that the county court make the special findings of fact contemplated in 8 U.S.C. § 1101(a)(27)(J). Gonzalez sought special findings of fact from the state court to potentially become eligible for SIJ status. SIJ status allows a juvenile immigrant to remain in the United States and apply for lawful permanent resident status. Obtaining the special findings is the first step in the process to achieve SIJ status.

To achieve SIJ status under 8 U.S.C. § 1101(a)(27)(J), a state court must have made a predicate finding that (1) the minor is dependent on a juvenile court or has been "placed under the custody of ... an individual ... appointed by a State or juvenile court"; (2) "reunification with ... the ... parents is not viable due to abuse, neglect, [or] abandonment"; and (3) it would not be in the minor’s best interests to be returned to his or her country of origin.

At the hearing on the motion to alter or amend the judgment, the county court found Carlos’ declaration to be credible. However, on September 2, 2017, the county court denied the request for specific findings, stating in its order that Carlos is "not dependent on this court."

Gonzalez appeals.

ASSIGNMENTS OF ERROR

Gonzalez generally claims that the county court erred when it concluded that because Carlos was not dependent on the county court, it could not make the requested special findings. Gonzalez specifically claims that although it found a need to appoint a permanent guardian, the county court erred (1) when it failed to determine that Carlos was "declared dependent" on the county court or "legally committed to, or placed under the custody of, ... an individual or entity appointed by a ... juvenile court" as these terms are defined by 8 U.S.C. § 1101(a)(27)(J) and (2) when it refused to make the requested findings of fact that (a) reunification with one or both parents is not viable due to abuse, neglect, or abandonment and (b) it would not be in Carlos’ best interests to return to Guatemala.

STANDARD OF REVIEW

Statutory interpretation presents a question of law. In re Trust of Shire, 299 Neb. 25, 907 N.W.2d 263 (2018). We independently review questions of law decided by a lower court. Id.

ANALYSIS

As we read the challenged order, the county court believed that it did not have authority to make the special findings of fact requested by Gonzalez. However, during the pendency of this appeal, the Nebraska Legislature enacted 2018 Neb. Laws, L.B. 670, which became effective on July 19, 2018, and made clear, inter alia, that a county court making a guardianship determination also has...