Third District Court of Appeal
State of Florida
Opinion filed July 15, 2015.
Not final until disposition of timely filed motion for rehearing.
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No. 3D14-2746
Lower Tribunal No. D14-16095
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In the Interest of:
K.B.L.V., A minor child,
Appellant.
An Appeal from the Circuit Court for Miami-Dade County, Cindy S.
Lederman, Judge.
Akerman LLP, and George Volsky and Sandra J. Millor, for appellant.
Before SHEPHERD, FERNANDEZ and LOGUE, JJ.
FERNANDEZ, J.
K.B.L.V. appeals the dismissal of his private petition for dependency in
which he sought a finding of abandonment as to his father, pursuant to section
39.01(15), Florida Statutes (2013). We affirm because there is no evidence to
support K.B.L.V.’s dependency adjudication as an abandoned child within the
meaning of section 39.01(1).
K.B.L.V. was seventeen years old at the time he filed his petition. It is
undisputed that K.B.L.V.’s father abandoned him in K.B.L.V.’s native country of
Honduras. The father neither established a relationship with him nor provided any
financial support. The father never exercised any parental rights or responsibilities
over K.B.L.V., and he consented to K.B.L.V.’s dependency petition. K.B.L.V.
entered the United States on or about September 2013, and he reunited with his
mother in Florida where he currently resides.
K.B.L.V. sought to have himself declared dependent as to his father,
pursuant to section 39.01(15)(a) and/or (f), Florida Statutes (2013). This finding
would then allow him, as an alien minor, to apply for Special Immigrant Juvenile
status (“SIJS”). See 8 U.S.C. § 1101(a)(27)(J)(i)).1 K.B.L.V. in turn could apply
for lawful permanent residency (a green card) and secure a path toward citizenship
without which K.B.L.V. is subject to deportation to Honduras.
At the adjudicatory hearing on the petition, the trial court found that the
father’s abandonment was too remote in time and that K.B.L.V was living with his
1In addition to a dependency adjudication, the alien minor must also obtain what is
commonly referred to as a “best interest order” in which a court finds that “it
would not be in the alien’s best interest to be returned” to their country of origin.
See 8 U.S.C. § 1101(a)(27)(J)(i)). Thus, an alien minor is unable to apply for SIJS
absent a dependency adjudication and best interest order.
2
mother. The Department of Children and Families added that “due to the
remoteness of the abandonment, there is an issue of the lack of harm or the lack of
imminent risk of harm, imminent being the key issue.” The department took the
position that K.B.L.V. “had an appropriate care giver and there was no harm or any
risk of harm” to him.
The trial court dismissed the petition. In its Order, the court found that
K.B.L.V. had lived with his natural mother since September 13, 2013. The court
found and accepted as true the statements in the petition, but considered the
father’s abandonment to be too remote in time for the court to make a dependency
adjudication. The court further found that the alleged abandonment occurred in
2003.2
K.B.L.V. moved for rehearing, which the court denied. He argued that there
is no remoteness time limitation to abandonment under Florida law. K.B.L.V.
further argued that a failure to find him dependent as to his father would place him
in substantial risk of deportation which would result in imminent further
abandonment and neglect.
K.B.L.V. additionally argues that dependency may be found as to his father,
although K.B.L.V. lives with his mother. Furthermore, the court’s failure to find
K.B.L.V. dependent as to his father will have a real and adverse consequence.
2 The court thereafter sua sponte entered an amended order in which the
court found that the “alleged abandonment occurred at birth.”
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K.B.L.V. will be at a substantial risk of imminent further abandonment and
neglect. K.B.L.V. will be unable to apply for and receive SIJS without which he
will likely face deportation to Honduras where he will not have any immediate
family member who can provide him with food and shelter.
The department takes no position in this appeal. Neither did the department
oppose the petition below. The department’s position below was based on the
legislative requirement, pursuant to section 39.521(b)1, Florida Statutes (2014), to
provide protective supervision over the minor’s placement upon an adjudication of
dependency. K.B.L.V., however, never sought any services from the department
and has since attained the age of majority.
We disagree that K.B.L.V. is a dependent child found to have been
abandoned, abused, or neglected. A de novo standard governs this Court’s review
of the trial court’s application of the correct law. See C.R. v. Dep’t of Children &
Family Servs., 53 So. 3d 240, 242 (Fla. 3d DCA 2010); G.C. & D.C. v. Dep’t of
Children & Family Servs., 791 So. 2d 17, 19 (Fla. 5th DCA 2001). The purpose of
chapter 39, Florida Statutes (2013), is:
To provide for the care, safety, and protection of children
in an environment that fosters healthy social, emotional,
intellectual, and physical development; to ensure secure
and safe custody; to promote the health and well-being of
all children under the state’s care; and to prevent the
occurrence of child abuse, neglect, and abandonment.
4
See 39.001(1)(a), Fla. Stat. (2013). Chapter 39 defines a dependent child as a child
who, consistent with the trial court’s findings, has “been abandoned, abused, or
neglected by the child’s parent or parents or legal custodians”, or a child who is “at
substantial risk of imminent abuse, abandonment or neglect by the parent or parents
or legal custodians.” § 39.01(15)(a),(f), Fla. Stat. (2013).
K.B.L.V. correctly argues that the alleged abuse or neglect need not occur
within a specified time prior to the filing of a petition for dependency. A literal
meaning of the statute permits a court to adjudicate a child dependent, provided that
the child was abused or neglected at any time, regardless of whether the child is at
risk of further abuse or neglect at the time of adjudication.
In the absence of a continuing threat of harm, however, incidents of alleged
abuse found too remote in time will generally not support a dependency adjudication.
See, e.g., In re K.V., 939 So. 2d 200, 202 (Fla. 2d DCA 2006) (where instances of
domestic violence in the presence of the child were too remote in time to support an
adjudication of dependency); B.C. v. Dep’t of Children & Families, 846 So. 2d 1273,
1274 (Fla. 4th DCA 2003) (stating that “[i]n order to support an adjudication of
dependency, the parents’ harmful behavior must be a present threat to the child”).
Furthermore, as K.B.L.V. also correctly argues, the court need only find dependency
as to one parent. See § 39.01(15), Fla. Stat. (2013).
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Moreover, the uncontested allegations do not involve a continuing threat of
substantial risk of imminent abuse, abandonment, or neglect so to support a
dependency adjudication where, as here, the threat is essentially deportation. It is
apparent that K.B.L.V. sought a dependency adjudication to secure a certain
immigration status or SIJS, rather than to obtain relief from abuse, neglect, or
abandonment. This alone is an invalid basis upon which to qualify for a
declaration of dependency consistent with the definition of the term dependency
pursuant to chapter 39.
In ordinary dependency cases, chapter 39 charges courts with the
responsibility to ensure that children under its jurisdiction are cared for in a safe
and secure environment. See, e.g., § 39.001(1)(a), Fla. Stat. (2013). K.B.L.V. is in
a safe and secure environment in the custody of his mother such that he is not in
substantial risk of imminent abuse, abandonment, or neglect.
This is unlike the case, for example, In re Y.V., 160 So. 3d 576 (Fla. 1st
DCA 2015). In that case, the petitioner lived with his uncle, his non-legal
custodian. Id. at 577. The trial court dismissed the petition because the events that
gave rise to the dependency grounds occurred outside the State of Florida, and the
court found that the petition was an attempt to circumvent federal immigration
laws. Id. at 577-80. The district court reversed and remanded for further
proceedings, concluding that the petition established a prima facie case of
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dependency. Id. at 581. K.B.L.V., however, lives with his mother who is his
legal custodian. Additionally, the trial court conducted an adjudicatory hearing
prior to the dismissal of K.B.L.V.’s petition.
We therefore affirm the Amended Order Dismissing Private Petition for
Dependency because there is no evidence to support K.B.L.V.’s dependency
adjudication as an abandoned child within the meaning of section 39.01(1).
Affirmed.
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K.B.L.V. v. Dep’t of Children & Families
Case No. 3D14-2746
SHEPHERD, J., specially concurring.
Here we have another unopposed petition to have a minor child who has
illegally crossed the border of the United States declared dependent on the court
for the sole purpose of helping the child obtain legal residency status in the United
States. I concur in the decision of the court in this case for the reasons appearing
in my concurrence in B.Y.G.M., Case No. 3D14-2409, issued this date. I pause to
add that in all probability, these cases do not reach the threshold of a case or
controversy for consideration in this court or the court below. Although required
for SJIS purposes, our decisions in these cases are nothing but advisory opinions.
Anything we decide is subject to review and reconsideration by the United States
Department of Homeland Security. See In re: [Identifying Information Redacted
By Agency], No. [Identifying Information Redacted By Agency] 2007 WL
5337158 *10 (Dep’t of Homeland Sec. AAO July 3, 2007) (“While an order [of a
dependency court] is required to establish eligibility under section 101(a)(27)(J) of
the [Immigration and Nationality Act], it does not relieve the applicant from the
burden of satisfying [the Department of Homeland Security, Citizenship and
Immigration Services] that the order was supported by relevant facts, and that it
may serve as a basis for special immigrant juvenile status.”). I see no
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jurisprudentially acceptable way for one to file what is nothing more than an
unopposed request for assistance in our courts, acquiesce in the allegations of the
petition, and thereby secure judicial relief. See Fla. Dep’t of Children & Families
v. Y.C., 82 So. 2d 1139, 1141 (Fla. 3d DCA 2012).
As in B.Y.G.M., the petitioner here asks us to read a single subsection of the
Florida dependency law, 39.01(15), Florida Statutes (2013), in isolation and
independent from the remainder of Chapter 39 of the Florida Statutes. Such an
interpretation is a “no-no” under the principle that statutes must be read as a whole.
See Robinson v. Stewart, 161 So. 3d 589, 595-96 (Fla. 1st DCA 2015) (Makar, J.
concurring) (citing Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 167 (2012) (“Perhaps no interpretative fault is more
common than the failure to follow the whole-text canon, which calls on the judicial
interpreter to consider the entire text, in view of its structure and of the physical
and logical relation of its many parts.”)); see also Stephen Breyer, Active Liberty:
Interpreting Our Democratic Constitution 101 (Vintage Books 2006) (“An overly
literal reading of a text can too often stand in the way” of ‘translat[ing] the popular
will into sound policy.’”).
Despite the long settled understanding in our federal system that “[p]olicies
pertaining to the entry of aliens and their right to remain here are ... entrusted
exclusively to Congress,” Galvan v. Press, 347 U.S. 522, 531 (1954), the United
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States Congress, for reasons of its own, has decreed that our stamp of approval is a
sine qua non for consideration by the United States Citizenship and Immigration
Services of a child’s request for SJIS status and permanent residency. It is as if we
are customs agents, although the federal government will make the final decision.
I admit to an erosion of roles between state and federal responsibilities in our
federal system in recent times. However, we are not yet colonies or territories of
the United States government. We correctly decline to subordinate ourselves to the
whim of the United States Congress in this case. The purpose of the dependency
laws of this state is to protect and serve children and families in need, not those
with a different agenda.3
3 Section 39.001 of the Florida Statutes provides a lengthy list of purposes, the first
of which is “[t]o provide for the care, safety, and protection of children.”
Assistance to the United States Citizenship and Immigration Services is not one of
them. But see, § 39.5075, Fla. Stat. (2014).
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