O.T. v. N.B.

O.T. v. N.B.

No. 378

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2020

December 11, 2020

Circuit Court for Prince George's County

Case No. CAD19-34768

UNREPORTED

Berger, Graeff, Eyler, Deborah S., (Senior Judge, Specially Assigned), JJ.

Opinion by Berger, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

On October 25, 2019, O.T. filed a Complaint for Joint Custody and Judicial Findings of Fact of Child's Eligibility for Special Immigrant Juvenile Status ("SIJS") in the Circuit Court for Prince George's County.¹ O.T. sought: (1) an order granting joint custody of his partner's then-nine-year-old son, D.S.; and (2) factual findings to be used in D.S.'s eventual Special Immigrant Juvenile ("SIJ") status applications. On October 29, 2019, N.B., the mother of D.S., filed an answer in which she admitted the allegations in the complaint and supported O.T.'s request for relief. Following a hearing, the circuit court issued an order granting joint custody of D.S. to O.T. and N.B. but denied the request for SIJS factual findings. O.T. noted a timely appeal.

O.T. presents one question for our consideration on appeal which we have rephrased slightly as follows:

Whether the circuit court erred by denying O.T.'s request that the circuit court issue Special Immigrant Juvenile Status factual findings.

For reasons we shall explain, we shall hold that the court erred by failing to issue SIJS findings. We, therefore, shall vacate the judgment and remand for additional proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

D.S. was born on November 9, 2009 in Honduras to N.B., his mother, and F.A., his father. F.A. died from leukemia on March 22, 2010, when D.S. was an infant. F.A. waswell-educated and had been employed as a teacher at a private school, but his employment status provided no survivor benefits to N.B. or D.S. F.A. did not have any life insurance. Neither N.B. nor D.S. received any type of financial compensation following F.A.'s death. D.S. has no recollection of his biological father.

After F.A.'s death, N.B., D.S., and D.S.'s older half-brother, De.S., lived together in N.B.'s mother's home. N.B. was able to find part-time work in Honduras, but, in 2012, N.B. found it necessary to come to the United States to find work. N.B.'s sister, Jenny, agreed to care for D.S. and De.S. in Honduras. Since arriving in the United States, N.B. has worked as a cashier, house cleaner, and waitress. N.B. kept in close contact with her children in Honduras and communicated with them almost daily via telephone and Skype calls. N.B. also sent money and gifts every week.

While living in the United States, N.B. met O.T., the appellant. They have been together as a couple for over five years. They reside together in a home in Laurel, Maryland. They have two children together.²

In 2015, De.S.'s uncle, Marvin, returned to Honduras after he had been deported from the United States. Marvin came to live near the home where D.S. and De.S. resided with their aunt. Marvin was constantly on drugs and/or drunk. In 2016, Marvin abused De.S. during an argument with N.B.'s mother (the children's grandmother). Jenny called N.B. and told her that she feared for the safety of D.S. and De.S. and that D.S. and De.S. should leave Honduras in order to be safe.

D.S. and De.S. left Honduras in January 2017. They traveled via bus through Central America and Mexico before reaching the United States border. The trip was difficult, but they remained in contact with N.B. during the journey, which took approximately twenty-five days. After they crossed the Rio Grande River, D.S. and De.S. were immediately apprehended.

Initially, D.S. and De.S. were taken to a shelter in Texas where they were provided with water and food. They were able to telephone N.B., and, after some medical tests, they were permitted to fly to Reagan National Airport, where they reunited with N.B. Since then, D.S. and De.S. have resided in Maryland with N.B., O.T., and their two younger half-brothers.

D.S. gets along very well with his parents and siblings and is an excellent student. At the time of the filing of the initial custody complaint, D.S. was in the fourth grade. He enjoys playing soccer with his friends in Maryland. D.S. does not want to return to Honduras because "there is no place [he] can live" there. D.S.'s "Aunt Jenny is the only family that could support [him] and she does not think [he] would be safe." The abusive relative is "always around," is "constantly doing drugs and starting fights," and has "threatened to kill [Jenny's] family members back [in Honduras]."

Within this context, O.T. sought to obtain joint custody with N.B. over D.S.³ Along with his complaint for custody, O.T. requested SIJS factual findings. Following a hearing, the circuit court denied the request for SIJS findings on the basis that "[t]he Petition doesnot meet the statutory requirements for [F.A.], who is deceased. The act of neglect was not before his death, but [F.A.'s] non-support as a result of his death."

This appeal followed.

DISCUSSION

We review the circuit court's factual determinations applying a clearly erroneous standard of review. Maryland Rule 8-131(c). When an order involves "an interpretation and application of Maryland constitutional, statutory or case law, our Court must determine whether the trial court's conclusions are 'legally correct' under a de novo standard of review." Simbaina v. Bunay, 221 Md. App. 440, 448 (2015) (citation omitted). Finally, we review the circuit court's ultimate conclusions for an abuse of discretion. In re Dany G., 223 Md. App. 707, 720 (2015).

SIJ status was created by the U. S. Congress to provide undocumented children who lack immigration status with a defense against deportation proceedings. Dany G., supra, 223 Md. App. at 712. "The Immigration and Nationality Act of 1990, which established the initial eligibility requirements for SIJ status, was enacted 'to protect abused, neglected, or abandoned children who, with their families, illegally entered the United States.'" Simbaina, supra, 221 Md. App. at 448-49 (quoting Yeboah v. U.S. Dep't of Justice, 345 F.3d 216, 221 (3d Cir. 2003)). The Act creates "a special circumstance where a State juvenile court is charged with addressing an issue relevant only to federal immigration law.'" Dany G., supra, 223 Md. App. at 713 (quoting Simbaina, supra, 221 Md. App. at 449). The Act requires a state court to make specific factual findings regarding whether an individual has satisfied certain requirements for SIJ status. Id.

An individual cannot obtain SIJ status absent specific findings from a state court. Dany G., supra, 223 Md. App. at 713. In Dany G., we explained the process by which an individual obtains SIJ status:

The process for applying for SIJ status consists of several steps. First, there must be a filing in state court, which is often in the form of a guardianship or custody complaint, see Simbaina, 221 Md. App. at 453-54, 109 A.3d 191, but which can also come through filings in orphans, probate, and delinquency courts, among others . . . In conjunction with the state court proceedings there must be a request for specific findings. These findings can be requested at the same time as the initial guardianship or custody complaint, or, as in Dany's case, the motion for findings can come separately, after the guardianship or custody has been granted.

Once the state court has made the specific findings . . . , [an] application is made to USCIS for SIJ status. If SIJ status is granted by USCIS, there is a third step of applying to adjust status to Legal Permanent Resident (green card application). As the last two steps are solely under the jurisdiction of USCIS, our analysis focuses on the first step, the filing in the state court and the related request for specific findings.

Dany G., supra, 223 Md. App. at 712-14. The required SIJ findings are:

1) The juvenile is under the age of 21 and is unmarried;

2) The juvenile is dependent on the court or has been placed under the custody of an agency or an individual appointed by the court;

3) The juvenile court has jurisdiction under state law to make judicial determinations about the custody and care of juveniles;

4) That reunification with one or both of the juvenile's parents is not viable due to abuse, neglect, or abandonment or a similar basis under state law;5) It is not in the best interest of the juvenile to be returned to his or her parents' previous country of nationality or country of last habitual residence.

Id. at 714-15; see also 8 C.F.R. §204.11(a), (c) & (d); 8 U.S.C.A. §1101(a)(27)(J). The findings of fact by the state court are issued in a "predicate order" that must be included with the child's application for SIJ status. Id. at 715.

When a motion for SIJ status findings is properly filed, "state courts are required to make [the requested] factual findings." Dany G., supra, 223 Md. App. at 715 (emphasis supplied). There is no ambiguity in the law. "Circuit courts are required to take evidence and make individual factual findings on each of these factors when they are petitioned by an immigrant applying for SIJ status." Romero v. Perez, 236 Md. App. 503, 506 (2018), rev'd on other grounds, 463 Md. 182 (2019). Courts apply the preponderance of the evidence standard when making SIJ factual findings. Romero v. Perez, 463 Md. 182, 199 (2019).

The undisputed facts set forth in the record establish that: (1) D.S. is under the age of 21 and unmarried; (2) D.S. has been placed under the custody of an individual appointed by the court -- O.T., jointly with N.B.; (3) the trial court has jurisdiction under Maryland law to make judicial determinations about the custody and care of juveniles; and (4) it is not in D.S.'s best interest to be...