Lucia A.A. v. Maria M.R. (In re B.A.A.R.)

474 P.3d 838

In the MATTER OF the GUARDIANSHIP OF B.A.A.R., A Protected Minor.

Lucia A.A., Appellant,

v.Maria M.R.; and Jesus V.A., Respondents.

No. 78626-COA

Court of Appeals of Nevada.

FILED SEPTEMBER 03, 2020

Law Offices of Martin Hart, LLC, and Alissa A. Cooley, Las Vegas, for Appellant.

Jesus V.A., in Pro Se.

Maria M.R., in Pro Se.

BEFORE GIBBONS, C.J., TAO and BULLA, JJ.

OPINION

PER CURIAM:

NRS 3.2203 provides that Nevada district courts may, in certain types of proceedings, make the predicate factual findings necessary for an individual to apply for Special Immigrant Juvenile (SIJ) status with the United States Citizenship and Immigration Services of the Department of Homeland Security (USCIS). In her petition for guardianship of her nephew, B.A.A.R., appellant Lucia A.A. requested that the district court make such findings, including a finding that reunifying B.A.A.R. with his mother in his country of origin was not viable due to abuse or neglect. In denying Lucia's request, the district court applied the heightened standard of proof applicable in proceedings for the termination of parental rights under NRS Chapter 128. As an issue of first impression, we hold that a party requesting predicate factual findings under NRS 3.2203 need only show that such findings are warranted by a preponderance of the evidence, which is the minimum civil standard of proof, rather than the heightened standard applicable in termination proceedings. Thus, because the district court evaluated Lucia's request for predicate findings under the incorrect standard, we reverse the denial of the request and remand for further proceedings consistent with this opinion.

Additionally, because the district court appears to have misconstrued both the statutory definition of "abuse or neglect" under NRS 3.2203 and Lucia's arguments concerning it, we take the opportunity to briefly discuss that term. In so doing—and in line with recent precedent—we emphasize that district courts should consider the entire history of the relationship between a parent and child when evaluating the practical workability of reunification in light of past abuse or neglect.

BACKGROUND

B.A.A.R. was born in El Salvador in 2001 to respondents Maria M.R. and Jesus V.A. He lived there with Maria and other family members until he fled to the United States as a teenager in 2018. Ultimately, B.A.A.R.’s aunt, Lucia, took him into her care in Las Vegas, and she petitioned the district court for guardianship. Despite being served with the petition, neither Maria nor Jesus opposed it or otherwise appeared in the proceedings below.¹ The district court granted the unopposed petition and appointed Lucia as B.A.A.R.’s guardian, and B.A.A.R. consented to the continued existence of the guardianship until he reaches the age of 21.

In her petition for guardianship, Lucia had also requested that the district court make predicate factual findings under NRS 3.2203 that would allow B.A.A.R. to apply for SIJ status with USCIS. Lucia later submitted a more detailed motion, along with supporting declarations from both herself and B.A.A.R., alleging that reunifying B.A.A.R. with Maria in El Salvador was not viable because of abuse or neglect. Lucia further asserted that returning to El Salvador would not be in B.A.A.R.’s best interest. Lucia argued primarily that Maria had allowed B.A.A.R. to be exposed to domestic violence occurring between Maria and her live-in boyfriend, Jose, and that she had failed to intervene when Jose physically abused B.A.A.R.’s sister in the family home and when Jose threatened to kill B.A.A.R. if he continued to intervene in those altercations. According to Lucia, and as set forth in B.A.A.R.’s declaration, these events caused B.A.A.R. to fear Jose and suffer emotional distress. Lucia asserted that this amounted to abuse or neglect as defined under NRS 3.2203, as did Maria's poverty and lack of employment, because she was unable to properly provide for B.A.A.R.

After the district court entered its order appointing Lucia as B.A.A.R's guardian, it issued a separate order denying Lucia's request for findings under NRS 3.2203. In denying the request, the court determined that the allegations in the motion and accompanying declarations did not provide sufficient factual support for a finding that reunification was not viable, especially in light of the fact that Maria and Jose had separated months before B.A.A.R. fled to the United States. The district court further stated that it would require Lucia to present a far more detailed history of neglect if the sole basis for such a finding was Maria's poverty, reasoning that a lack of financial resources alone is never a sufficient basis to terminate a parent's relationship with her child. Lucia now appeals from the district court's order.

ANALYSIS

Lucia contends that the district court erroneously applied the heightened standard of proof applicable in proceedings for the termination of parental rights to her request for predicate findings under NRS 3.2203. She further contends that the district court misconstrued the statutory definition of "abuse or neglect" and thereby ignored her primary argument as to why reunifying B.A.A.R. with his mother is not viable—that Maria abused or neglected B.A.A.R. by allowing him to be exposed to Jose's harmful behavior. We address each of these arguments below, in turn.

Standard of review

We review a district court's factual determinations for an abuse of discretion. In re Guardianship of N.M ., 131 Nev. 751, 754, 358 P.3d 216, 218 (2015). But the district court must apply the correct legal standard in reaching its decision, and we owe no deference to legal error. See Davis v. Ewalefo, 131 Nev. 445, 450, 352 P.3d 1139, 1142 (2015) ; Williams v. Waldman, 108 Nev. 466, 471, 836 P.2d 614, 617-18 (1992). Moreover, this court reviews the district court's interpretation of statutes de novo. Amaya v. Guerrero Rivera , 135 Nev. 208, 210, 444 P.3d 450, 452 (2019) (interpreting NRS 3.2203 ).

Predicate factual findings for Special Immigrant Juvenile status

Obtaining SIJ status—which allows undocumented juveniles² to acquire lawful permanent residency in the United States—is a two-step process involving both state and federal law. Id. at 209, 444 P.3d at 451. First, an aspiring applicant must obtain an order from a state juvenile court³ issuing certain predicate findings, and only once such an order is issued may the applicant petition USCIS for SIJ status. Id. at 209, 444 P.3d at 451-52. While the function of state courts in this process is limited, they nonetheless play a key role in facilitating an applicant's efforts to obtain SIJ status. See Leslie H. v. Superior Court , 224 Cal.App.4th 340, 168 Cal. Rptr. 3d 729, 735 (2014) (noting that, although the federal government has exclusive jurisdiction to grant SIJ status, "state juvenile courts play an important and indispensable role in the SIJ application process" (internal quotation marks omitted)). As our supreme court recognized in Amaya , "[t]he state trial court does not determine whether a petitioner qualifies for SIJ status, but rather provides an evidentiary record for USCIS to review in considering an applicant's petition." 135 Nev. at 209-10, 444 P.3d at 452 (citing Benitez v. Doe , 193 A.3d 134, 138-39 (D.C. 2018) ); see Romero v. Perez, 463 Md. 182, 205 A.3d 903, 915 (2019) ("[T]rial judges are not gatekeepers tasked with determining the legitimacy of SIJ petitions; that is exclusively the job of USCIS.").

NRS 3.2203 sets forth the mechanism by which an aspiring applicant may obtain SIJ predicate findings, which "may be made by the district court at any time during a proceeding held pursuant to [various chapters of the Nevada Revised Statutes]." NRS 3.2203(2). Pursuant to NRS 3.2203(3), a person may include in a petition or motion made in various types of proceedings, including guardianship proceedings under NRS Chapters 159 and 159A,⁴ a request that the district court make the following predicate findings to allow the subject juvenile to apply for SIJ status:

(1) the juvenile is dependent on a juvenile court, the juvenile has been placed under the custody of a state agency or department, or the juvenile has been placed under the custody of an individual appointed by the court (dependency or custody prong); (2) due to abandonment, abuse, neglect, or some comparable basis under state law, the juvenile's reunification with one or both parents is not viable (reunification prong); and (3) it is not in the juvenile's best interest to be returned to the country of the juvenile's origin (best interest prong).

Amaya, 135 Nev. at 210, 444 P.3d at 452 (citing 8 U.S.C. § 1101(a)(27)(J) and NRS 3.2203(3) ). If the district court determines that there is evidence to support all of the findings—including, but not limited to, a declaration from the subject juvenile—it "shall issue an order setting forth such findings." NRS 3.2203(4). And the use of the word "shall" in the statute indicates that issuing such an order is mandatory if there is sufficient evidence to support the findings. See Pasillas v. HSBC Bank USA, 127 Nev. 462, 467, 255 P.3d 1281, 1285 (2011) ("[T]his court has stated that ‘shall’ is mandatory unless the statute demands a different construction to carry out the clear intent of the legislature." (internal quotation marks omitted)).

The preponderance-of-the-evidence standard applies when a district court determines whether to make SIJ predicate findings under NRS 3.2203

Lucia contends that the district court erroneously applied the heightened standard of proof applicable in proceedings for the termination of parental rights to her request for predicate findings under NRS 3.2203. Specifically, she points to a portion of the district court's order where it stated that it "would require [a] very specific and detailed history of neglect if the sole basis for such neglect is a parent's poverty" and that, "[w]hile lack of financial resources may be...