Third District Court of Appeal
State of Florida
Opinion filed December 30, 2015.
Not final until disposition of timely filed motion for rehearing.
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No. 3D15-2120
Lower Tribunal No. 15-15874
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In the Interest of: S.F.A.C., a minor,
Appellant,
vs.
Department of Children and Families,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Martin Zilber,
Judge.
Claudia Del Castillo-Hronsky, for appellant.
Karla Perkins, for appellee.
Before SHEPHERD, SALTER and SCALES, JJ.
PER CURIAM.
S.F.A.C. appeals the trial court’s denial of his private petition seeking an
adjudication of dependency.
We are bound to follow In re B.Y.G.M., 176 So. 3d 290 (Fla. 3d DCA
2015), In re K.B.L.V., 176 So. 3d 297 (Fla. 3d DCA 2015), and In re B.R.C.M.,
No. 3D15-0962 (Fla. 3d DCA Dec. 30, 2015), and, therefore, affirm.
Shepherd, J., concur.
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In re S.F.A.C.
Case No. 3D15-2120
SALTER, J. (dissenting).
I respectfully dissent. I would reverse and remand this case to the trial court
for an evidentiary hearing and individualized adjudication.
I. The Amended Petition
S.F.A.C.’s verified and amended1 “private petition” for dependency, filed on
behalf of an undocumented, sixteen-year-old immigrant from Honduras, seeks an
adjudication of dependency based on three separate subsections of section
39.01(15), Florida Statutes (2015), and as to each parent. The petition alleges that
his parents were also born in Honduras and that they left him with an older sibling
when he was nine years old. When S.F.A.C. was twelve years old, his older
sibling moved out of the home and S.F.A.C. was sent to live with an aunt.
S.F.A.C.’s amended petition alleges that the aunt and her husband forced him to
work, mistreated him, yelled at him, limited his food, and became physically
1 S.F.A.C. amended his petition shortly after it was filed to address three recently-
issued appellate decisions in immigrant juvenile cases: In re B.Y.G.M., 176 So. 3d
290 (Fla. 3d DCA 2015); In re K.B.L.V., 176 So. 3d 297 (Fla. 3d DCA 2015); and
O.I.C.L. v. Department of Children & Families, 169 So. 3d 1244 (Fla. 4th DCA
2015). All three of these immigrant juveniles later sought review by the Supreme
Court of Florida: In re B.Y.G.M., No. SC15-2025 (Fla. filed Nov. 2, 2015);
K.B.L.V. v. Florida Department of Children & Families, No. SC15-2026 (Fla. filed
Nov. 2, 2015); and O.I.C.L. v. Department of Children & Families, review granted,
No. SC15-1570 (Fla. Oct. 30, 2015) (oral argument set for Feb. 2, 2016). In the
present case, the majority opinion is a per curiam affirmance with citations to In re
B.Y.G.M., In re K.B.L.V., and our opinion (including my dissent) released today
in In re B.R.C.M., No. 3D15-0962 (Fla. 3d DCA Dec. 30, 2015).
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aggressive towards him. At that point, S.F.A.C. and his sister departed Honduras,
travelled through Mexico, and sought to enter the United States. After two
unsuccessful tries, in February 2014, S.F.A.C. crossed the border of Mexico near
Hidalgo, Texas, and entered the United States.
S.F.A.C. was detained by U.S. Immigration and Customs Enforcement
personnel, but was later released to the custody of his mother, then living in an
apartment in Miami. He alleges that he has no one able to care for him in
Honduras, that his parents abandoned him to an abusive family member in
Honduras, that his father has completely abandoned him, and that neither parent
has provided for his support or maintained a substantial and positive relationship
with him.
The amended petition alleges that these and additional facts establish that:
he has been abandoned by each of his parents (section 39.01(15)(a), Florida
Statutes (2015)); he has no parent or legal custodian capable of providing adequate
supervision and care for him (section 39.01(15)(e)); and he is at substantial risk of
imminent abuse, abandonment, or neglect by his parent, parents, or legal custodian
(section 39.01(15)(f)). The father’s written consent to an adjudication of
dependency regarding S.F.A.C., signed and notarized in Honduras (with a certified
translation), was also attached to the petition.
II. The Circuit Court Hearing and Order
The circuit court hearing on the petition consisted of legal argument—no
evidence was presented. In this case,
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unlike a number of other special immigrant juvenile petitions described in earlier
appellate decisions, an attorney from the Department of Children and Families
(DCF) presented argument in opposition to the amended petition. The court asked
counsel for S.F.A.C. a series of questions: whether there was an imminent risk of
harm to S.F.A.C., other than the threat of going back to Honduras; whether the
juvenile was presently being harmed in his current placement with his mother; and
whether S.F.A.C. was in need of any services. S.F.A.C.’s attorney responded “no”
to each of these questions. The parties and court did not address the difference
between the allegations in the amended petition as to the father, versus those
addressed to the mother’s acts and omissions.
The court referred to “the recent Third DCA and Fourth DCA decisions”2
and found them indistinguishable from S.F.A.C.’s case. Though acknowledging
“the plight of this young man” and other immigrant juveniles, the court denied the
petition. A few days later, the court issued its written order denying the petition:
The Petitioner acknowledges that the Mother – [S.F.A.C.’s]
present custodian – is meeting the child’s needs “emotionally and
financially.” [] The only claimed threat is that removal from the
United States will result in [S.F.A.C.] being placed back in the
custody of his aunt – an allegedly unfit custodian. This is legally no
different than the risk of imminent neglect posted in K.B.L.V.;
namely, the “threat” that absent a dependency adjudication the child
would “likely face deportation to Honduras, where he will not have
any immediate family member who can provide him with food and
shelter.” [In re K.B.L.V., 176 So. 3d 297, 299 (Fla. 3d DCA 2015)].
In this case, like in K.B.L.V., “the threat is essentially deportation.”
[Id. at 300].
2 These are cited in the preceding footnote, including for each citation the later
history.
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What the K.B.L.V. and B.Y.G.M. court seem to reject is the
notion that a child who is not presently at risk here in the United States
may be adjudicated “dependent” in an attempt to prevent a future risk that
will (or may) result from deportation; a risk of harm that will materialize
– if at all – in a foreign country only after – and as a consequence of
– the child’s removal. Thus, if the child could not be found “dependent”
absent the threat of deportation, he should not be found “dependent” at
all. In other words, K.B.L.V. and B.Y.G.M. suggest that a Florida
court should not be adjudicating a child “dependent” in an attempt to
prevent him from later becoming “dependent” in his country of origin
post deportation.
The Petitioner in this case (and several other petitioners),
however, argue these alien children should be treated the same as any
other child who would be at “imminent” risk of abuse or neglect if
placed with an unfit parent/custodian, and that the scenario presented
here is no different than a case where – hypothetically – a child in the
custody of a Mother recently deceased or incapable of providing care
due to illness would – absent a dependency order – be placed in the
custody of an “abusive” aunt. Or say a hypothetical where the child’s
only parent passes and – absent a dependency adjudication – the child
would have no parent or legal custodian. In both these instances
Petitioner says the dependency court would “step-in” and adjudicate
the child dependent to prevent “imminent” abuse or neglect, and that
it should do the same in a case where – absent a dependency
adjudication – an alien child will suffer the same fate. According to
the Petitioner both children face the same risk; the only difference
being that the risk to the alien child will result after a deportation,
whereas the risk to the domestic child will result sans deportation.
But the risk of being “abused” or “neglected” is the same.
As in these hypothetical scenarios it is true that absent a
dependency order an alien child such as [S.F.A.C.] may be returned to
an abusive family member (aunt) in his country of origin or, as was
the case in K.B.L.V., be returned and have no family at all. Some
question[] why these alien children should be treated differently than a
domestic child who – absent an adjudication of dependency – would
be placed with an “abusive” parent or have no legal custodian. The
answer is that the perceived – and in some instances real – risk of
future harm facing alien children results as a consequence of the
federal government’s deportation decision, not due to the application
of state family law principles or the child’s orphanage. That is
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precisely why, as Judge Shepherd observed, “[t]hese cases are
immigration cases, pure and simple.” [In re B.G.Y.M., 176 So. 3d
290, 296 (Fla. 3d DCA 2015) (Shepherd, J., concurring)]. And if
Congress wants to provide an avenue of immigration relief to children
who – if deported – will be at “imminent” risk of “abuse” or “neglect”
in their home country it is free to do so, as “[t]he authority to control
immigration–to admit or exclude aliens–is vested solely in the Federal
government.[”] Truax v. Raich, 239 U.S. 33 (1915); Galvan v. Press,
347 U.S. 522, 531(1954) (“Policies pertaining to the entry of aliens and
their right to remain here are ... entrusted exclusively to Congress”).
Maybe children who face an “imminent” risk of abuse or
neglect by a parent in their country of origin – or children who – if
returned – would have no legal custodian – should be offered removal
relief. And maybe – as a matter of immigration policy designed to
deter illegal entry – these children should be returned no matter the
consequence, thereby imposing on foreign authorities the
responsibility of addressing the needs of “dependent” children within
their borders. However, as my colleague Judge Hanzman has pointed
out repeatedly in his eloquent private petition orders and in this Court’s
opinion that is a “policy” decision that should not be made by juvenile
court judges applying the text of vastly different state dependency
statutes; particularly when, as Judge Shepherd also noted, these
“decisions” are nothing more than non-binding advisory opinions.
[See In re K.B.L.V., 176 So. 3d at 300 (Shepherd, J., specially
concurring)] (“our decisions in these cases are nothing but advisory
opinions… subject to… reconsideration by the United States
Department of Homeland Security.”)
In any event, Petitioner’s “immanency” argument needs not be
taken head on here because, as the Court has already found, the facts of
this particular case do not suggest that [S.F.A.C.] is at “imminent” risk
of “abuse” or “neglect” if returned to his aunt’s custody.
Conclusion
My colleagues and this Court have repeatedly said – and again
reiterate – that it is sympathetic to the plight of these alien minors who
embark upon an often treacherous journey in an effort to reach U.S. soil –
become productive members of our society – and secure the
opportunity of a better life. The Court also “cannot blame these
illegal immigrant children [and their dedicated and charitable counsel]
for exploring any lawful means of remaining in the United States
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after arriving here.” [In re B.Y.G.M., 176 So. 3d at 295 (Shepherd, J.,
concurring)]. But the Court has also made clear that its role is to
honor its constitutional oath and apply the law “as it is”; not to “set
immigration policy or decide whether, as a humanitarian gesture, any
particular alien child should be permitted to stay in the United States.”
See [In re E.G.S.-H., 22 Fla. L. Weekly Supp. 693b (Fla. 11th Cir. Ct. Jan.
27, 2015)]. And a faithful and consistent application of the law – “as
it is” – compels the Court to conclude that [S.F.A.C.] is not
“dependent” as defined by Florida Law.
This appeal followed.
III. Analysis
For the sake of brevity, I will rely primarily upon the lengthy analysis in my
dissenting opinion issued today in an appeal by another immigrant juvenile heard
at oral argument this year, In re B.R.C.M., No. 3D15-962 (Fla. 3d DCA Dec. 30,
2015). Although S.F.A.C.’s amended petition seeks an adjudication that would
assist him in applying for Special Immigrant Juvenile (SIJ) status under federal
immigration law,3 that should not deter DCF from investigating, or our courts from
adjudicating, each of these petitions on an individualized basis.
Other state courts have addressed the issues in such “private petition” or SIJ
cases, and have developed a practical approach to adjudicating them. The
Supreme Court of New Jersey’s recent and comprehensive decision in H.S.P. v.
J.K., 121 A.3d 849 (N.J. 2015), includes citations to decisions in other such cases
by the appellate courts of other states. H.S.P. also provides an appropriate
procedure for individualized adjudication in state SIJ cases such as this one. In my
view, H.S.P. correctly concludes that specific written findings as to each parent
38 U.S.C. § 1101(a)(27)(J); see also § 39.5075, Fla. Stat. (2015).
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and each legal claim are important for the subsequent evaluation of an immigrant
juvenile’s ability to obtain federal relief.4 Detailed findings will also permit
meaningful appellate review in our state appellate courts.
Unless our Florida courts follow the procedure detailed in H.S.P. (or
something substantially similar), we are approaching a categorical, summary
denial of all juvenile immigrant petitions—apparently because they are felt to
involve federal immigration issues rather than our traditional domestic dependency
claims—followed by the categorical and summary affirmance of those circuit court
denial orders on appellate review. We cannot lose sight of the fact that each
immigrant juvenile petitioner is a child inside our state borders, that he or she may
have scars that go unseen, and that each such petitioner is equal to other Florida
children under the law.
For these reasons (and those set forth in my dissenting opinion in In re
B.R.C.M.), I respectfully dissent. I would reverse the order summarily denying
S.F.A.C.’s amended petition for dependency. I would remand the case for further
proceedings, including the presentation or proffer of testimony, and for the entry of
specific adjudicatory findings on each claim (and separately as to each of
S.F.A.C.’s parents).
4 As made clear in several of our decisions, any finding of dependency a Florida
court may make does not automatically confer any special federal immigration
status upon a petitioning juvenile. Our adjudication of dependency under Florida
law must be followed by an application to federal immigration authorities—and
that application for federal SIJ status may or may not be granted.
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