11/29/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs June 1, 2017
IN RE DANELY C.
Appeal from the Chancery Court for Rutherford County
No. 16CV-1115 Howard W. Wilson, Chancellor
No. M2016-02054-COA-R3-JV
M.V.C.1, the mother of Danely C., an undocumented minor born in Honduras, filed a
petition in the trial court seeking an order appointing M.V.C. as guardian of her daughter.
She further asked the court to make findings as mandated by 8 U.S.C.A. § 1101(a)(27)(J)
(2014). Findings favorable to the petitioner are a prerequisite for Danely C. to apply
under federal law for special immigrant juvenile status. The petitioner prayed “[t]hat
sevice of process issue as necessary upon [Danely C].” The trial court, acting sua sponte,
dismissed the petition, finding “no justiciable controversy in this cause.” We vacate the
judgment of the trial court and remand for a hearing with respect to the matters
contemplated by 8 U.S.C.A. § 1101(a)(27)(J).
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Vacated; Case Remanded
CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which W. NEAL
MCBRAYER and ARNOLD B. GOLDIN , JJ., joined.
Allison Wannamaker, Memphis, Tennessee, for the appellant, M.V.C.
The petition was not opposed in the trial court nor on this appeal. The case was
submitted to the Court of Appeals on the appellant’s brief only.
1
The petitioner has a hyphenated last name. For ease of reference, we will refer to her as
“M.V.C.” No offense is intended.
1
OPINION
I.
M.V.C. (Mother) filed her petition on July 25, 2016, stating that Danely C. was
born on October 6, 2000, in Choluteca, Honduras. The petition further alleges, in
pertinent part, as follows:
The Minor lived with the [Mother] in Honduras from 2000
until 2004. In 2004, the living conditions in Choluteca,
Honduras were deplorable and dangerous. In order to support
the Minor and provide her with a better future, the [Mother]
made the difficult decision to leave the Minor with the
[Mother]’s mother (now age 70) and grandmother (now age
91), while the [Mother] sought to support herself in the
United States. This arrangement was difficult and grew
worse as the [Mother]’s mother and grandmother aged. The
Minor left to join her mother in the United States because her
grandmother and great-grandmother had grown too old and ill
to care for the Minor, and were unable to protect her from the
dangerous conditions in Honduras.
The Minor’s father, [M.A.R.], is believed to live in Honduras
but his exact location is unknown. The Father has never
taken any responsibility for the Minor, and they have no
emotional attachment to each other. He has not provided
financial or other material support for the Minor.
The Minor last saw her father in Honduras on or about March
12, 2014, as she was preparing to join her mother in the
United States. Prior to this occasion, the Minor had last seen
the Father approximately eight months earlier (in late 2013).
The Minor and the Father occasionally saw each other around
the town of Choluteca; the Father might give the Minor
money to buy candy but no meaningful financial support.
On or about March 26, 2014, the Minor was apprehended by
U.S. Customs and Border Protection (“CBP”) after crossing
the U.S.-Mexico border at Hidalgo, TX at age 13. CBP
placed her in the custody of the Department of Health and
Human Services Office of Refugee Resettlement. On April
2
11, 2014, ORR placed the Minor with the [Mother]. The
Minor has resided in Rutherford County since that time, and
this fall she will enroll in the 10th grade at Smyrna High
School. The Minor is currently in removal proceedings
before the Memphis Immigration Court; her next hearing is
scheduled for November 29, 2016.
(Numbering in original omitted, as are the citations to exhibits attached to the petition.)
Mother further requested that the trial court make findings of fact required by federal
immigration law as a prerequisite to Danely’s application for special immigrant juvenile
status. She alleges as follows:
The Minor will be applying for Special Immigrant Juvenile
Status if this Court grants the guardianship. Therefore,
[Mother] requests the following specific findings be made by
the Court and included in the Court’s order of Appointment:
a) That the Minor has been legally placed with a private
person by this Court, which is a valid exercise of this Court’s
jurisdiction under Tenn. Code Ann. § 34-2-101(a).
b) That the Court has declared that reunification with the
Minor’s father is not possible due to abandonment, as
abandonment is defined in Tenn. Code Ann. § 36-1-102.
c) That the court has declared that it is not in the best interest
of the Minor to be returned to her home country of Honduras.
The trial court denied Mother’s request that “appointment of a Guardian Ad Litem be
waived per Tenn. Code Ann. § 34-1-107(a)(2)(A).” Accordingly, the court appointed a
GAL the day after the petition was filed. A hearing was scheduled for September 6,
2016. On that day, the trial court, acting sua sponte, entered the following order of
dismissal, as quoted in its entirety:
This Cause came to be heard on September 6, 2016, before
the Honorable Howard W. Wilson, Chancellor, upon the
Petition for Appointment of Guardian filed in this matter. At
the call of the docket counsel for [Mother] did not appear, but
did, however, communicate with the Guardian ad litem in an
effort to request the Court to waive her appearance in light of
3
the issues necessitating counsels’ agreed request for a
continuance.
After a review of the Record, it appears that the Petitioner . . .
is the natural mother of the minor child at issue in this
guardianship proceeding. However, pursuant to Tenn. Code
Ann. § 34-1-102, parents are the natural guardians of their
minor children. Therefore, the mother’s Petition fails to state
a claim for which relief can be granted due to the fact that she
already serves as the guardian of her daughter by operation of
law. Accordingly, there is no justiciable controversy in this
cause, and the same is hereby DISMISSED with prejudice.
Court costs in this matter as well as the fees of the Guardian
ad litem shall be taxed to [Mother]. The Guardian ad litem is
instructed to submit an affidavit of fees along with a proposed
order of approval for the Court’s consideration.
(Capitalization and italics in original). Mother timely filed a notice of appeal.
II.
The issue presented is whether the trial court erred in dismissing Mother’s petition
for failure to state a claim upon which relief can be granted. In our review, we accept as
true all factual allegations of the petition, and review de novo the trial court’s legal
conclusion regarding the adequacy of the petition. Moore-Pennoyer v. State, 515
S.W.3d 271, 275-76 (Tenn. 2017) (quoting Webb v. Nashville Area Habitat for
Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011)).
III.
The federal statute at the heart of this case is 8 U.S.C.A. § 1101(a)(27)(J), which
has been described as establishing “a unique hybrid procedure that directs the
collaboration of state and federal systems.” In re Marisol N.H., 115 A.D.3d 185, 188
(N.Y. App. Div. 2014) (internal quotation marks omitted). It provides, in pertinent part,
as follows:
(27) The term “special immigrant” means ‒
* * *
(J) an immigrant who is present in the United States ‒
4
(i) who has been declared dependent on a juvenile court
located in the United States or whom such a court has legally
committed to, or placed under the custody of, an agency or
department of a State, or an individual or entity appointed by
a State or juvenile court located in the United States, and
whose reunification with 1 or both of the immigrant’s parents
is not viable due to abuse, neglect, abandonment, or a similar
basis found under State law;
(ii) for whom it has been determined in administrative or
judicial proceedings that it would not be in the alien’s best
interest to be returned to the alien’s or parent’s previous
country of nationality or country of last habitual residence;
and
(iii) in whose case the Secretary of Homeland Security
consents to the grant of special immigrant juvenile status,
except that ‒
(I) no juvenile court has jurisdiction to determine the custody
status or placement of an alien in the custody of the Secretary
of Health and Human Services unless the Secretary of Health
and Human Services specifically consents to such
jurisdiction; and
(II) no natural parent or prior adoptive parent of any alien
provided special immigrant status under this subparagraph
shall thereafter, by virtue of such parentage, be accorded any
right, privilege, or status under this chapter[.]
This Court recently examined this statute in the context of addressing whether, and to
what extent, Tennessee courts have jurisdiction to make findings in proceedings
involving a child’s effort to obtain special immigrant juvenile status. In re Domingo
C.L., No. M2016-02383-COA-R3-JV, 2017 WL 3769419, at *1 (Tenn. Ct. App., filed
Aug. 30, 2017). Our discussion in Domingo C.L. is helpful to provide a background and
overview of the legal issues and procedure involved here, so we quote it at some length
as follows:
Special Immigrant Juvenile (“SIJ”) status was created by the
United States Congress to provide undocumented children
5
who lack immigration status with a defense against
deportation proceedings[:]
Some children present in the United States
without legal immigration status may be in need
of humanitarian protection because they have
been abused, abandoned, or neglected by a
parent. Special Immigrant Juvenile (SIJ) status
is an immigration classification that may allow
for these vulnerable children to immediately
apply for lawful permanent resident status
(“LPR” status or a “Green Card”).
“Special Immigrant Juvenile Status: Information for Juvenile
Courts,” U.S. Citizen and Immigration Services (“USCIS”),
(hereinafter “Info. for Juvenile Courts”) available at
http://perma.cc/W5W3-MGGC (last visited March 9, 2015);
see also Perez–Olano v. Gonzalez, 248 F.R.D. 248, 252
(2008) (noting that SIJ provisions create a method for abused,
neglected, and abandoned children to become lawful
permanent residents). Children eligible for SIJ status may be
in the United States with only one parent, or they may have
fled to the United States without either parent.
Obtaining SIJ status requires a specific finding from a state
juvenile court. Thus, “[t]he [Immigration and Nationality Act
of 1990] creates a special circumstance where a State juvenile
court is charged with addressing an issue relevant only to
federal immigration law.” Simbaina v. Bunay, 221 Md. App.
440, 449, 109 A.3d 191 (2015) (internal citations omitted)[:]
[State] juvenile courts issue orders that help
determine a child’s eligibility for SIJ status. A
child cannot apply to USCIS for SIJ status
without an order from a juvenile court.
However, juvenile judges should note that
providing an order does not grant SIJ status or a
“Green Card” ‒ only [the U.S. Customs and
Immigration Services] can grant or deny these
benefits. The role of the court is to make
factual findings based on state law about the
6
abuse, neglect or abandonment; family
reunification; and best interest of the child.
[The source for this is shown as] Info. for Juvenile Courts.
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. Info. for Juvenile Courts.
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 (which we
will explain in detail below), 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.
* * *
The state juvenile court referenced in 8 U.S.C. §
1101(a)(27)(J) is defined in 8 C.F.R. § 204.11(a) as “a court
located in the United States having jurisdiction under state
law to make judicial determinations about the custody and
care of juveniles.” Which courts qualify as “juvenile courts”
varies from state to state. Simbaina, 221 Md. App. at 453,
109 A.3d 191.
The state juvenile court must make specific findings of fact
regarding the child’s eligibility for SIJ status. While the state
juvenile cases often arise through guardianship or custody
proceedings, “[t]he federal statute places no restriction on
what is an appropriate proceeding or how these SIJ factual
7
findings should be made.” Id. at 455, 109 A.3d 191. It is
important to remember that the juvenile court is not granting
SIJ status. Info. for Juvenile Courts. Rather, the juvenile
court is making factual findings that the child meets certain
eligibility requirements. Id. The required findings are:
(1) The juvenile is under the age of 21 and is
unmarried; 8 C.F.R. § 204.11(c)(1)–(2);
(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; 8
C.F.R. § 204.11(c)(3);
(3) The “juvenile court” has jurisdiction under
state law to make judicial determinations about
the custody and care of juveniles; 8 U.S.C.A. §
1101(a)(27)(J)(i); 8 C.F.R. § 204.11(a), (c)
[amended by the Trafficking Victims Protection
Reauthorization Act (“TVPRA”) 2008];
(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; 8 U.S.C.A. § 1101(a)(27)(J)
[amended by TVPRA 2008]; and
(5) It is not in the “best interest” of the juvenile
to be returned to his parents’ previous country
of nationality or country of last habitual
residence within the meaning of 8 U.S.C.A. §
1101(a)(27)(J)(ii); 8 C.F.R. § 204.11(a),
(d)(2)(iii) [amended by TVPRA 2008].
8 C.F.R. § 204.11(a), (c) & (d); 8 U.S.C.A. § 1101(a)(27)(J)
[amended by TVPRA 2008].
These findings of fact by the state juvenile court are issued in
a “predicate order.” The predicate order must be included
with the application for SIJ status submitted to USCIS.
Marcelina M.–G. v. Israel S., 112 A.D.3d 100, 973 N.Y.S.2d
8
714, 719 (2013). Without a predicate order, the child cannot
apply for SIJ status. If the underlying juvenile court filing is
properly before the court, state courts are required to make
these factual findings. Simbaina, 221 Md. App. at 455–56,
109 A.3d 191. Also, trial courts should bear in mind that
Congress established the requirements for SIJ status knowing
that those seeking the status would have limited abilities to
corroborate testimony with additional evidence. See, e.g., 8
U.S.C.A. § 1232(8). The purpose of the law is to permit
abused, neglected, or abandoned children to remain in this
country. In re Y.M., 207 Cal. App. 4th 892, 910, 144 Cal.
Rptr. 3d 54 (2012). Imposing insurmountable evidentiary
burdens of production or persuasion is therefore inconsistent
with the intent of the Congress. See William Wilberforce
Trafficking Victims Protection Reauthorization Act of 2008
(“TVPRA”), H.R. Res. 7311, 110th Cong. (2008) (enacted).
Because of the statutory requirements, it is imperative that the
predicate order be worded very precisely and contain all
necessary language. “Template orders are usually not
sufficient” and while the predicate order does not have to
recount every detail of the case, the federal government
requires that it “must show the factual basis for the court’s
findings.” Info. for Juvenile Courts.
* * *
We hold that the trial court must apply the state law
definitions of “abuse,” “neglect,” “abandonment,” “similar
basis under state law,” and “best interest of the child” . . .
without taking into account where the child lived at the time
the abuse, neglect, or abandonment occurred.
Domingo C.L., 2017 WL 3769419, at *2-*5, quoting and adopting In re Dany G., 117
A.3d 650, 654-57 (Md. Ct. Spec. App. 2015) (emphasis added; brackets in original). We
concluded in Domingo C.L.:
the Trial Court had jurisdiction to hear the Petition for
Appointment of Guardian pursuant to Tenn. Code Ann. § 34–
2–101 (2015). As the [Rutherford County Chancery] Court
had jurisdiction under Tennessee law to make a determination
9
as to the Minor’s custody, it qualifies as a “juvenile court”
referenced in 8 U.S.C.A. § 1101(a)(27)(J). Furthermore,
pursuant to Tenn. Code Ann. § 34–2–105:
If the court determines a guardian is needed, the
court shall enter an order which shall:
* * *
(3) State any other authority or direction as the
court determines is appropriate to properly care
for the person and property of the minor.
Tenn. Code Ann. § 34–2–105 (2015).
Id. at *7.
Tennessee’s guardianship statutes expressly contemplate that one parent may be
appointed as guardian of his or her child. Tenn. Code Ann. § 34-2-103 (2015) provides
as follows:
Subject to the court’s determination of what is in the best
interests of the minor, the court shall consider the following
persons in the order listed for appointment of the guardian:
(1) The parent or parents of the minor;
(2) The person or persons designated by the parent or parents
in a will or other written document;
(3) Adult siblings of the minor;
(4) Closest relative or relatives of the minor; and
(5) Other person or persons.
(Emphasis added.) Thus, there is clearly no statutory bar to Mother’s request for
guardianship of Danely. As it currently stands, both Mother and Father are “joint natural
guardians” of their daughter, as provided by Tenn. Code Ann. § 34-1-102:
10
(a) Parents are the joint natural guardians of their minor
children, and are equally and jointly charged with their care,
nurture, welfare, education and support and also with the
care, management and expenditure of their estates. Each
parent has equal powers, rights and duties with respect to the
custody of each of their minor children and the control of the
services and earnings of each minor child; . . .
* * *
(c) If either parent dies or is incapable of acting, the
guardianship of each minor child shall devolve upon the other
parent.
The primary inquiry for a court making a guardianship decision is expressly provided at
Tenn. Code Ann. § 34-2-103 as “what is in the best interests of the minor.” Mother has
alleged on behalf of Danely that it is not in her best interest to be returned to Honduras to
a father who is alleged to have abandoned her. The Appellate Division of the Supreme
Court of New York addressed the same question as presented here in In re Marisol N.H.,
stating as follows in pertinent part:
The children petitioned the Family Court for the appointment
of the mother as their guardian so that they could pursue
special immigrant juvenile status (hereinafter SIJS) as a
means to obtaining lawful residency status in the United
States, and be freed from the fear of being returned to El
Salvador, where they would have no parent to support and
protect them.
. . . the Family Court concluded that a best interests hearing
was not warranted, inter alia, because the children had the
“mother to protect them.” There was “no reason,” even if it
was just “strictly for immigration purposes,” to award the
mother guardianship “of her own children.” The Family
Court issued an order dismissing the petitions without
prejudice for failure to state a cause of action. We reverse.
* * *
In this instance, in order to satisfy the requirement that the
subject children be legally committed to an individual
11
appointed by a state or juvenile court, they are requesting that
their natural mother be appointed as their guardian.
* * *
. . . the Family Court erred in refusing to conduct a hearing to
determine whether granting the guardianship petition would
be in the best interests of the children. When considering
guardianship appointments, the infant’s best interests are
paramount. The Family Court’s comments indicate that it
found it unnecessary to hold a hearing because the children’s
mother was available to protect them. However, as we
explained in Matter of Marcelina M.-G. v Israel S. [112
A.D.3d 100, 111 (N.Y. App. Div. 2013)], the fact that a child
has one fit parent available to care for him or her “does not,
by itself, preclude the issuance of special findings under the
SIJS statute.” Rather, a child may be eligible for SIJS
findings “where reunification with just one parent is not
viable as a result of abuse, neglect, abandonment, or a similar
state law basis” (id. at 110, [973 N.Y.S.2d 714]). Moreover,
in determining whether it is in the best interests of a child to
grant a guardianship petition, it is entirely consistent with the
legislative aim of the SIJS statute to consider the plight the
child would face if returned to his or her native country and
placed in the care of a parent who had previously abused,
neglected, or abandoned him or her.
In re Marisol N.H., 115 A.D.3d at 188, 189, 190-91 (emphasis added; internal quotation
marks and citation omitted).
State appellate courts reviewing a juvenile court’s decision regarding the issuance
of a predicate order under 8 U.S.C.A. § 1101(a)(27)(J) have generally emphasized two
points. The first is that “the determination of whether a child should be classified as a
special immigrant juvenile rests squarely with the federal government.” H.S.P. v. J.K.,
121 A.3d 849, 858 (N.J. 2015); see also Recinos v. Escobar, 46 N.E.3d 60, 65 (Mass.
2016) (observing that “[i]mmigration is exclusively a [f]ederal power,” and “[i]t is not
the juvenile court’s role to engage in an immigration analysis or decision”); In re Estate
of Nina L. ex rel. Howerton, 41 N.E.3d 930, 937 (Ill. App. Ct. 2015) (“Ultimately,
immigration decisions are the purview of the federal government, not the state
government”) (quoting Eddie E. v. Superior Court, 234 Cal. App. 4th 319, 332 (2015));
Simbaina, 109 A.3d at 198 (“The federal government ‘has exclusive jurisdiction with
12
respect to immigration [but] state juvenile courts play an important and indispensable role
in the SIJ application process’ ” (brackets in original; quoting Leslie H. v. Superior
Court, 224 Cal. App. 4th 340, 168 Cal. Rptr. 3d 729, 735 (2014)). As this Court stated in
Domingo C.L., “juvenile judges should note that providing an order does not grant SIJ
status or a ‘Green Card’ ‒ only [the U.S. Customs and Immigration Services] can grant or
deny these benefits.” 2017 WL 3769419, at *3 (brackets in original). After a state court
has taken the first step of entering a predicate order, “the last two steps are solely under
the jurisdiction of USCIS.” Id.
Secondly, appellate courts have made it clear that it is not the role of a state
juvenile court to consider the purpose or motivation of the minor applicant or a parent,
matters of immigration policy, or whether the minor is a “worthy candidate” for SIJ
status. As the Supreme Judicial Court of Massachusetts recently stated,
a person’s immigration status remains a matter governed
solely by Federal law. Thus, whether a child qualifies for SIJ
status and whether to grant or deny an immigrant child’s
application for SIJ status is beyond the jurisdiction of the
Probate and Family Court. The State court’s role is solely to
make the special findings of fact necessary to the USCIS’s
legal determination of the immigrant child’s entitlement to
SIJ status.
* * *
Acting within the limits of this fact-finding role, the judge
must make the special findings even if he or she suspects that
the immigrant child seeks SIJ status for a reason other than
relief from neglect, abuse, or abandonment. The immigrant
child’s motivation for seeking the special findings, if relevant
to the child’s entitlement to SIJ status, ultimately will be
considered by USCIS in its review of the application. The
immigrant child’s motivation is irrelevant to the judge’s
special findings.
Guardianship of Penate, 76 N.E.3d 960, 966 (Mass. 2017); see also H.S.P., 121 A.3d at
860 (“state courts are not charged with undertaking a determination of whether an
immigrant’s purpose in applying for SIJ status matches with Congress’s intent in creating
that avenue of relief”); In re Israel O., 233 Cal. App. 4th 279, 289 (2015); In re Mario
S., 954 N.Y.S.2d 843, 852-53 (N.Y. Fam. Ct. 2012). In this vein, the Illinois Appellate
Court has observed:
13
One theme that runs through several decisions is the state
court’s reluctance to make the requested findings based on
policy concerns. For example, in Leslie H. v. Superior
Court, 224 Cal. App. 4th 340, 168 Cal. Rptr. 3d 729 (2014),
an immigrant minor was adjudicated delinquent of assault and
burglary after she and two friends attempted to steal items
from a liquor store. After her guilty plea, the minor was
declared a ward of the court and committed to a juvenile
detention facility. She then applied to the court for the
necessary SIJ predicate findings. After a hearing at which
evidence of the minor’s abuse and abandonment by her
biological parents was presented, the court declined to make
the findings. The trial court concluded that Congress could
not have intended to confer immigration benefits on juveniles
adjudicated delinquent of criminal offenses. . . . Reversing,
the California Court of Appeal concluded that the trial court
had misapprehended its role in making the SIJ predicate
findings:
A state court’s role in the SIJ process is not to
determine worthy candidates for citizenship, but
simply to identify abused, neglected, or
abandoned alien children under its jurisdiction
who cannot reunify with a parent or be safely
returned in their best interests to their home
country.” Id. at 737.
See also Mario S., 954 N.Y.S.2d at 852-53 (“The juvenile
court need not determine . . . what the motivation of the
juvenile in making application for the required findings might
be; whether allowing a particular child to remain in the
United States might someday pose some unknown threat to
public safety; and whether the USCIS . . . may or may not
grant a particular application for adjustment of status as a
SIJ.”).
Similarly, a court asked to make SIJ predicate findings need
not discern a parent’s motivation in abandoning the child.
In re Estate of Nina L., 41 N.E.3d at 935-36 (internal citations omitted).
14
Although state courts do not make immigration decisions, it is inescapable that a
minor seeking SIJ status is dependent upon a juvenile court making the prerequisite
findings in a predicate order for the minor to qualify to apply for such status under the
scheme established by federal immigration law. E.C.D. v. P.D.R.D., 114 So.3d 33, 36
(Ala. Civ. App. 2012) (“A juvenile court’s failure to include the findings relevant to SIJ
status ‘effectively terminates the application for legal permanent residence, clearly
affecting a substantial right’ of the child.”) (quoting In re Interest of Luis G., 764
N.W.2d 648, 654 (Neb. Ct. App. 2009)); In re J.J.X.C., 734 S.E.2d 120, 124 (Ga. Ct.
App. 2012) (“Our review of the juvenile court’s decision is impaired by the lack of
findings, and the child’s immigration status hangs in the balance.”); In re Domingo C.L.
2017 WL 3769419, at *2. Consequently, we disagree with the trial court’s judgment that
“there is no justiciable controversy in the cause.” As fully discussed above, there is no
statutory bar to declaring Mother the legal guardian of Danely, nor is such a judgment
precluded by considerations of logic or equity.
On remand, following a hearing at which Mother and Danely shall be allowed to
present evidence pertinent to the following issues, the trial court is directed to enter a
predicate order adjudicating:
(1) whether Danely is under the age of 21 and unmarried;
(2) whether the court has legally committed to, or placed
Danely under the custody of Mother, as her appointed
guardian. This determination shall be made with the primary
consideration of the best interest of the child, as provided by
Tenn. Code Ann. § 34-2-103;
(3) whether reunification with Father is not viable due to
abuse, neglect, abandonment, or a similar basis found under
Tennessee law; and
(4) whether it would not be in Danely’s best interest to be
returned to Honduras.
IV.
The judgment of the trial court is vacated and the case remanded to the trial court
for further proceedings consistent with this opinion. There being no appellee in this
15
action, costs of appeal are assessed to the appellant, M.V.C.
_______________________________
CHARLES D. SUSANO, JR., JUDGE
16