| Matter of Gurwinder S. |
| 2017 NY Slip Op 08272 |
| Decided on November 22, 2017 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on November 22, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
CHERYL E. CHAMBERS, J.P.
JEFFREY A. COHEN
BETSY BARROS
LINDA CHRISTOPHER, JJ.
2016-11398
(Docket No. G-24601-15)
Jill M. Zuccardy, New York, NY, for appellant.
DECISION & ORDER
Appeal by the child from an order of the Family Court, Queens County (Julie Stanton, Ct. Atty. Ref.), dated September 29, 2016. The order, after a hearing, denied the child's motion for the issuance of an order, inter alia, making specific findings so as to enable him to petition the United States Citizenship and Immigration Services for special immigrant juvenile status pursuant to 8 USC § 1101(a)(27)(J).
ORDERED that the order is reversed, on the facts, without costs or disbursements, the child's motion for the issuance of an order, inter alia, making specific findings so as to enable him to petition the United States Citizenship and Immigration Services for special immigrant juvenile status pursuant to 8 USC § 1101(a)(27)(J) is granted, and it is found that reunification of the child with his father is not viable due to parental neglect, and that it would not be in the child's best interests to return to India, his previous country of nationality and last habitual residence.
In December 2015, Baldev S. (hereinafter the petitioner) filed a petition pursuant to Family Court Act article 6 to be appointed as guardian for the subject child for the purpose of obtaining an order declaring that the child is dependent on the Family Court and making specific findings that he is unmarried and under 21 years of age, that reunification with one or both of his parents is not viable due to parental abuse, neglect, or abandonment, and that it would not be in his best interests to be returned to India, his previous country of nationality and country of last habitual residence, so as to enable the child to petition the United States Citizenship and Immigration Services for special immigrant juvenile status (hereinafter SIJS) pursuant to 8 USC § 1101(a)(27)(J). Thereafter, the child moved for the issuance of an order making the requisite declaration and specific findings so as to enable him to petition for SIJS. In an order dated September 29, 2016, the Family Court denied the child's motion on the ground that he failed to establish that reunification of the child with one or both of his parents was not viable due to parental abuse, neglect, or abandonment, and that it would not be in the child's best interests to return to India. The child appeals.
Pursuant to 8 USC § 1101(a)(27)(J) (as amended by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub L 110-457, 122 US Stat 5044) and 8 CFR 204.11, a special immigrant is a resident alien who, inter alia, is under 21 years of age, unmarried, and dependent upon a juvenile court or legally committed to an individual appointed by a state or juvenile court. Additionally, for a juvenile to qualify for SIJS, a court must find that reunification of the juvenile with one or both of the juvenile's parents is not viable due to parental abuse, neglect, abandonment, or a similar basis found under state law (see 8 USC § 1101[a][27][J][i]; Matter of Maria P.E.A. v Sergio A.G.G., 111 AD3d 619, 620; Matter of [*2]Trudy-Ann W. v Joan W., 73 AD3d 793, 795), and that it would not be in the juvenile's best interests to be returned to his or her previous country of nationality or country of last habitual residence (see 8 USC § 1101[a][27][J][ii]; 8 CFR 204.11[c][6]; Matter of Maria P.E.A. v Sergio A.G.G., 111 AD3d at 620; Matter of Trudy-Ann W. v Joan W., 73 AD3d at 795).
Based upon our independent factual review, we find that reunification of the child with his father is not a viable option due to parental neglect, which includes the infliction of excessive corporal punishment and requiring the child to begin working at the age of 15 instead of attending school on a regular basis (see Matter of Palwinder K. v Kuldeep K., 148 AD3d 1149, 1151; Matter of Kamaljit S., 114 AD3d 949). The record also supports a finding that it would not be in the child's best interests to be returned to India (see Matter of Palwinder K. v Kuldeep K., 148 AD3d at 1151; Matter of Varinder S. v Satwinder S., 147 AD3d 854, 856).
Accordingly, the Family Court should have granted the child's motion for the issuance of an order, inter alia, making the requisite specific findings so as to enable him to petition for SIJS. Since the record is sufficient for this Court to make its own findings of fact and conclusions of law, we find that reunification of the child with his father is not viable due to parental neglect, and that it would not be in his best interests to return to India, his previous country of nationality and last habitual residence.
CHAMBERS, J.P., COHEN, BARROS and CHRISTOPHER, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court