Hernandez v. Dorantes

314 Neb. 905

994 N.W.2d 46

Tania Gallardo HERNANDEZ, appellant, v. Emilio I. Martinez DORANTES, appellee.

No. S-22-549.

Supreme Court of Nebraska.

Filed August 18, 2023

Anna D. Deal, of Immigrant Legal Center, an affiliate of the Justice for Our Neighbors Network, for appellant.

No appearance for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Per Curiam.

I. INTRODUCTION

In this dissolution case, the mother requested sole legal and physical custody of the parties’ minor child, and she also asked the dissolution court to make specific findings to support an application to obtain special immigrant juvenile (SIJ) status for the child under 8 U.S.C. § 1101(a)(27)(J) (2018) of the Immigration and Nationality Act. The court awarded the mother sole custody and made some, but not all, of the requested SIJ findings. The mother timely appealed to challenge the SIJ findings, and we moved this case to our docket on our own motion. ¹ On this record, we find no abuse of discretion regarding the SIJ findings, and affirm.

II. BACKGROUND

Tania Gallardo Hernandez (Tania) and Emilio I. Martinez Dorantes (Emilio) were married in Mexico. The parties’ only child, Max, was born in Mexico in December 2016. Max has been diagnosed with hydrocephaly and spina bifida. In 2018, Tania moved with Max to the United States to seek specialized treatment for his medical conditions. Emilio joined Tania and Max in the United States sometime in 2019. They lived together for a period of time in Omaha, Nebraska, but in 2020, Tania and Emilio separated.

1. COMPLAINT FOR DISSOLUTION

In July 2021, Tania filed, pro se, a complaint for dissolution of marriage in the district court for Douglas County. Her complaint requested sole legal and physical custody of Max. Emilio was personally served with the complaint on July 22, 2021, but he never filed an answer.

Apparently, pursuant to local "Court Rule 4.3," the court referred the case to the conciliation court in Douglas County for the parties to complete parenting classes and mediate a parenting plan. The transcript includes a filing titled "Parenting Plan Disposition" filed by the conciliation court, stating that Tania attended the required parenting class in December 2021 and that Emilio "attended parent education class but did not pay." Attached to this filing is a document dated March 25, 2022, and titled "Default Parenting Plan Rule 4.3," which states:

[Emilio] (defaulting parent) is in default for failing to comply with Court Rule 4.3 requiring participation in the parent education class and mediation for purpose of establishing a parenting plan. [Tania] (custodial parent) shall have custody of the minor child/ren of the parties. The visitation and parenting time of [Emilio] (defaulting parent) shall be at the sole discretion of [Tania] (custodial parent) until such time as [Emilio] (defaulting parent) complies with Rule 4.3 by attending the parent education class and by either mediating or negotiating a parenting plan, which has been approved by the Conciliation Court and Mediation Services.

In April 2022, the Immigrant Legal Center entered an appearance as Tania's counsel of record and filed a notice setting the dissolution for final hearing on April 27, 2022. The notice of hearing advised that Tania "intends to seek special findings, to be requested in a forthcoming motion, with respect to whether her minor child's reunification with [Emilio] is viable and whether return to Mexico would be in the child's best interest."

2. MOTION FOR SPECIAL FINDINGS

In April 2022, Tania filed a motion asking the court to issue "an order containing special findings in support of her minor child's eligibility for [SIJ] Status." As authority for this request, the motion relied on 8 U.S.C. § 1101(a)(27)(J) of the Immigration and Nationality Act and Neb. Rev. Stat. § 43-1238(b) (Cum. Supp. 2022). The relevant provisions of both statutes are set out in the analysis section of this opinion.

Tania's motion asked that the following SIJ findings be incorporated into the dissolution decree:

1. The minor child's reunification with [Emilio] is not viable due to abuse, neglect, abandonment, or a similar basis found under state law within the meaning of Section 101(a)(27)(J) of the INA; 2. [Emilio] has neglected the minor child ... as defined in Neb. Rev. Stat. § 28-710(2)(b)(i) and (iii) [(Cum. Supp. 2022)], in that [he] has knowingly, intentionally, or negligently caused or permitted Max to be placed in a situation that endangers his ... physical or mental health, and to be deprived of necessary food, clothing, shelter, or care. [Emilio] verbally and physically abused [Tania] in the minor child's presence, including threatening and attacking her with a knife. [Emilio] also abused alcohol and drugs in the presence of the minor child. Since December 2020, when [Tania] and [Emilio] separated, [Emilio] has not provided any economic or emotional support for the child or maintained a parent-child relationship. [Tania] alone has provided for Max's physical, emotional, medical, and educational needs.

3. It would not be in Max's interest to return to Mexico, his country of nationality, within the meaning of Section 101(a)(27)(J) of the INA. Max has significant disabilities due to congenital conditions including hydrocephaly and spina bifida. In Mexico, he would be without parental support and care and would lack access to the medical treatment, therapy, and special education services he requires to survive and reach his full potential.

The record shows that Tania served Emilio with the notice of hearing and a Spanish translation of the motion for SIJ findings.

3. FINAL HEARING

On April 27, 2022, the district court held a final hearing on the complaint for dissolution and took up the motion for special SIJ findings. Emilio appeared pro se, and Tania appeared with counsel of record. Although the parties had not reached a formal settlement agreement, the record shows there was no dispute that the marriage was irretrievably broken, that Tania should have sole custody of Max, that Tania did not want child support, and that the parties had already divided all their marital property. The evidence thus focused primarily on Tania's requested SIJ findings. The court received several exhibits and heard testimony from both parties, each of whom testified through a Spanish interpreter.

(a) Tania's Testimony

As relevant to the issues on appeal, Tania testified that when Max was born in Mexico City, Mexico, Emilio was working in Acapulco, Mexico, and did not earn enough to support the family. No specific evidence was adduced about Emilio's earnings or earning potential, either historically or currently. Tania testified that Max was hospitalized for 3 months after his birth and has required several additional hospitalizations and surgeries. Tania said she relied primarily on her mother, who resides in the United States, to pay for Max's medical care in Mexico. Tania also testified that Emilio has never participated in Max's daily care and that he did not want to.

According to Tania, she moved with Max to the United States in 2018, in part because of "all the violence in Mexico" but also to receive medical care because Max's doctor in Mexico "said that he couldn't do anything for him." She said Emilio did not want to come to the United States at that point, but he joined them in 2019. After Emilio moved to the United States, Tania said their marital relationship deteriorated. She testified that Emilio became physically, emotionally, and verbally abusive and would use drugs in Max's presence. The parties separated in 2020. Tania testified that since the separation, Emilio has not asked to see Max and has provided no financial support. There is nothing in the record suggesting either party requested temporary orders during the pendency of the dissolution.

At the time of trial, Max was 5 years old. He was attending school, as well as receiving regular medical care and therapy, and Tania described his progress as "really, really good." Max uses a wheelchair and requires assistance with daily activities. Tania offered a letter from one of Max's medical providers that explains that due to his spina bifida, Max is unable to walk or move his legs. He has a neurogenic bladder that requires assistance to be emptied completely and as a result is at greater risk for urinary tract infections. Max has a shunt for his hydrocephalus that requires great care and monitoring, as infections can be life threatening. As a result of his hydrocephalus, Max has speech delays that are being addressed in school. Max has a good prognosis for a full life, but he will continue to require specialized medical care and support.

Tania generally testified that Emilio does not know how to care for Max; he has never fed Max or changed his diaper. Tania said that if Max was placed in Emilio's care she would worry for Max's safety. Tania requested full legal and physical custody of Max. She also testified that it would not be in Max's best interests to return to Mexico, because he would not have access to the medical specialists or the therapy he needs and he would not be able to attend school.

Tania also testified about occasions when she called police to report that Emilio was being physically and verbally abusive toward her. At one point Emilio was arrested and charged with terrorism, and he spent approximately 3 months in jail awaiting trial. Tania said she eventually "drop[ped] the charges" and then petitioned for, and was granted, a domestic abuse protection order against Emilio, on behalf of herself and Max. File-stamped photocopies of the protection order filings and orders were received into evidence. These documents show that Emilio requested a hearing on the ex parte domestic abuse protection order, but then failed to appear so the ex parte order was affirmed. The affidavit attached to Tania's...