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www.nebraska.gov/apps-courts-epub/
09/14/2018 08:09 AM CDT
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Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
IN RE GUARDIANSHIP OF LUIS J.
Cite as 300 Neb. 659
In re Guardianship of Luis J., a minor child.
Joaquin Tomas Joaquin A lberto, appellant,
v. State of Nebraska, appellee.
___ N.W.2d ___
Filed July 27, 2018. No. S-17-1142.
1. Courts: Jurisdiction: Evidence: Child Custody. A county court with
a jurisdictional basis under Neb. Rev. Stat. § 43-1238(a) (Reissue 2016)
and which has made an initial child custody determination, such as
appointing a guardian, has the authority to make immigration-related
factual findings where the evidence is sufficient and the court has been
requested to do so.
2. Courts: Juvenile Courts: Jurisdiction: Guardians and Conservators:
Child Custody. A county court properly taking jurisdiction over a
guardianship and making an initial custody determination is not excluded
from Neb. Rev. Stat. § 43-1238(b) (Reissue 2016), even where there is
a juvenile court in that county, and the county court may make special
findings of fact where appropriate.
3. Courts: Juvenile Courts: Guardians and Conservators: Child
Custody: Federal Acts. A Nebraska county court which properly
appoints a guardian for a juvenile makes a custody determination, and
thus, the county court is considered a “juvenile court” for purposes of 8
U.S.C. § 1101 (a)(27)(J)(i) and (ii) (Supp. V 2018).
4. Courts: Jurisdiction: Guardians and Conservators. Under Neb. Rev.
Stat. § 24-517(2) (Reissue 2016), a Nebraska county court has exclusive
original jurisdiction in all matters relating to the guardianship of a per-
son, subject to exceptions.
5. Guardians and Conservators: Child Custody. A guardianship is no
more than a temporary custody arrangement established for the well-
being of a child.
6. Courts: Child Custody: Evidence. Neb. Rev. Stat. § 43-1238(b)
(Reissue 2016), as amended in 2017, provides that when requested by
one of the parties or upon the court’s own motion, a court making an
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Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
IN RE GUARDIANSHIP OF LUIS J.
Cite as 300 Neb. 659
initial custody determination “shall issue” an order containing the three
enumerated factual findings if there is sufficient evidence.
Appeal from the County Court for Douglas County: Thomas
K. H armon, Judge. Reversed and remanded for further
proceedings.
Roxana Cortes Reyes, of Immigrant Legal Center, an affili-
ate of Justice For Our Neighbors Network, for appellant.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ., and Johnson, District Judge.
Miller-Lerman, J.
NATURE OF CASE
Although the county court for Douglas County appointed
Joaquin Tomas Joaquin Alberto as guardian of his juvenile
grandson, Luis J., it declined to make special factual findings
necessary for Luis to apply for special immigrant juvenile
(SIJ) status under 8 U.S.C. § 1101(a)(27)(J) (Supp. V 2018).
Following a hearing on Alberto’s motion to amend this initial
ruling, relying on Nebraska statutes, the county court con-
cluded that the county court for Douglas County “does not
function as juvenile court” and that the issue of making spe-
cific findings to be used in immigration proceedings is com-
mitted to “the Separate Juvenile Court of Douglas County.”
Alberto appealed. During the pendency of this appeal, the
Nebraska Legislature amended Neb. Rev. Stat. § 43-1238(b)
(Reissue 2016) in 2018 Neb. Laws, L.B. 670, to clarify that
courts with jurisdiction over initial child custody determina-
tions under § 43-1238(a) also have “jurisdiction and authority”
to make special findings of fact similar to those contemplated
by 8 U.S.C. § 1101(a)(27)(J). Amendments to § 43-1238(b)
have gone into effect, and because they are procedural rules,
they apply to pending cases. In this case, the county court
made a custody determination under § 43-1238(a), but it
erred when it concluded it was not a “juvenile court” for
purposes of 8 U.S.C. § 1101(a)(27)(J)(i) and refused to make
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Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
IN RE GUARDIANSHIP OF LUIS J.
Cite as 300 Neb. 659
special findings on this basis. Accordingly, we reverse the
order of the county court and remand the cause for further
proceedings consistent with this opinion based on the exist-
ing record.
FACTS
Luis was born in San Pedro Soloma, Guatemala, in 1999
and arrived in Nebraska in 2016 at age 17 without resources
or parental supervision. On July 21, 2017, Alberto filed a
petition for the appointment of a permanent guardian for Luis
as a minor, under Neb. Rev. Stat. § 30-2605 et seq. (Reissue
2016), in the county court for Douglas County. He also sought
findings that “reunification with his parents is not viable due
to neglect, abandonment, and child abuse” and that “it would
not be in Luis [sic] best interests to be returned to Guatemala.”
These special findings would potentially allow Luis to apply to
the U.S. Citizenship and Immigration Services for SIJ status. 8
U.S.C. § 1101(a)(27)(J). The record includes a sworn statement
by Luis detailing the facts of his situation.
The petition and statement indicate that Luis’ homelife in
Guatemala was troubled and that he fled because “[f]ood,
shelter and safety are things [he] did not have in Guatemala.”
He lived with his mother, father, and four siblings. His father
is an alcoholic, and every time he was drunk, he beat up Luis’
mother in front of Luis and his siblings. He beat her with open
and closed fists and with a belt. Luis would try to defend his
mother during these attacks, but he was a child and lacked the
bodily strength to do so. When Luis tried to defend his mother,
his father would beat him in the same manner, leaving bruises
all over Luis’ body. The beatings would end with Luis’ father
kicking him and his mother out of the house. Luis also testified
regarding the abuse.
Luis’ parents were unable to care for the five children. Luis
stated that in Guatemala, he was forced to work in dangerous
conditions and not allowed to go to school. Luis had to drop
out of school when he was 11 years old to work full time to
help his family. He first started working on his family’s land
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IN RE GUARDIANSHIP OF LUIS J.
Cite as 300 Neb. 659
without pay. At the age of 14, he was required to work on other
land doing hard labor for payment. The labor included prepar-
ing the land for planting, by hand, using a hoe; weeding; and
carrying 100-pound sacks of crops. When he could not carry
a sack, his father beat him. His parents required him to turn
over all the money he made at his field jobs to pay for the fam-
ily’s food.
Luis left Guatemala, where the money he made working
was not enough to feed his family. Luis was expected to send
money back to the family. Luis left without necessary finan-
cial or food resources to survive. Luis stopped and worked in
Mexico multiple times to afford the next bus ticket to continue
his journey.
Since arriving in the United States alone on or about
September 26, 2016, Luis has not seen his parents, nor have
they provided him any food, shelter, security, or education.
Instead, his grandfather, Alberto, provides for Luis’ needs and
sends him to school. Luis stated that he now lives in an envi-
ronment free of violence. He stated that he needs Alberto’s
help to continue with schooling, find a job, and build a life in
the United States.
As noted, in addition to seeking to be appointed as Luis’
guardian, Alberto requested that the county court make special
findings of fact contemplated in 8 U.S.C. § 1101(a)(27)(J).
Alberto sought special findings of fact from the state court to
potentially become eligible for SIJ status. SIJ status allows a
juvenile immigrant to remain in the United States and apply for
lawful permanent resident status. Obtaining the special findings
is the first step in the process to achieve SIJ status. To achieve
SIJ status under 8 U.S.C. § 1101(a)(27)(J), a state court must
have made a predicate finding that (1) the minor is dependent
on a juvenile court or has been “placed under the custody of
. . . an individual . . . appointed by a State or juvenile court”;
(2) “reunification with . . . the . . . parents is not viable due to
abuse, neglect, [or] abandonment”; and (3) it would not be in
the minor’s best interests to be returned to his or her country
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Nebraska Supreme Court A dvance Sheets
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IN RE GUARDIANSHIP OF LUIS J.
Cite as 300 Neb. 659
of origin. Under 8 C.F.R. § 204.11(a) (2018), “[j]uvenile court
means a court located in the United States having jurisdiction
under State law to make judicial determinations about the cus-
tody and care of juveniles.” (Emphasis omitted.)
In its September 27, 2017, order, the county court found
it was in the best interests of Luis to have Alberto appointed
as his legal guardian. However, because it concluded that the
Douglas County Court’s probate division does not function as
a “juvenile court,” it declined to make the requested special
findings of fact that Luis could use in his immigration petition.
In reaching its conclusion as to what constituted a “juvenile
court” for SIJ findings purposes, the county court relied on
Nebraska statutes, rather than the federal definition. Under
the county court’s reasoning, the request for findings would
require that the Douglas County Court find that (1) Luis was
“dependent” on the Nebraska juvenile court system, (2) he was
eligible for long-term foster care or kinship placement, and (3)
it is not in Luis’ best interests to be returned to Guatemala to
his parents. The court determined that such findings are “exclu-
sive functions of and are determinations to be made solely by
the Separate Juvenile Court of Douglas County Nebraska[,]
or to those County Courts throughout greater Nebraska who
exercise exclusive jurisdiction over juveniles.” The order con-
cluded that immigration status should be determined by the
U.S. government, not by the county court.
Alberto moved to alter or amend the county court’s
September 27, 2017, order and again requested factual findings
regarding Luis’ best interests for SIJ purposes. After briefing
and another hearing, the county court denied the motion to
alter or amend on October 17. In its order, the county court
noted that pursuant to the population guidelines of Neb. Rev.
Stat. § 43-2,111 (Reissue 2016), there are presently three coun-
ties with a separate juvenile court: Douglas, Lancaster, and
Sarpy Counties. The county court acknowledged that under
Neb. Rev. Stat. § 24-517(2) (Reissue 2016), the county court
can have concurrent original jurisdiction over a child in need of
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Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
IN RE GUARDIANSHIP OF LUIS J.
Cite as 300 Neb. 659
a guardian, but determined that making additional findings of
fact would exceed its jurisdictional directives under state law.
The county court stated that it “cannot and does not function
as a juvenile court and the applicable statutes and regulations
commit these specific issues to the Separate Juvenile Court of
Douglas County, Nebraska.”
Alberto appeals.
ASSIGNMENTS OF ERROR
Alberto generally claims that the county court erred when
it concluded that it is not a “juvenile court” for purposes
of the federal SIJ process. Alberto specifically claims that
although it found a need to appoint a permanent guardian, the
county court erred (1) when it concluded that although the
Douglas County Court has the power to appoint a guardian
for a minor, it lacks the authority to make the special findings
of fact for SIJ purposes, and (2) when it refused to make the
requested findings of fact that (a) reunification with one or
both parents is not viable due to abuse, neglect, or abandon-
ment and (b) it would not be in Luis’ best interests to return
to Guatemala.
STANDARD OF REVIEW
Statutory interpretation presents a question of law. In re
Trust of Shire, 299 Neb. 25, 907 N.W.2d 263 (2018). We
independently review questions of law decided by a lower
court. Id.
ANALYSIS
[1,2] We recently considered the central issue in this case in
In re Guardianship of Carlos D., ante p. 646, ___ N.W.2d ___
(2018), in which we held that a county court with a jurisdic-
tional basis under § 43-1238(a) and which has made an initial
child custody determination, such as appointing a guardian,
has the authority to make immigration-related factual find-
ings where the evidence is sufficient and the court has been
requested to do so. In this case, the county court concluded
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Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
IN RE GUARDIANSHIP OF LUIS J.
Cite as 300 Neb. 659
that in Douglas County, only the separate juvenile court of
Douglas County would have authority to make SIJ findings,
and thus, it refused to make the special findings. During the
pendency of this appeal, the Nebraska Legislature enacted
2018 Neb. Laws, L.B. 670, which became effective on July
19, 2018, and made clear, inter alia, that a county court mak-
ing a guardianship determination also has authority to make
the special findings for the ward to establish SIJ status. See
§ 43-1238(b). As explained below, a county court properly
taking jurisdiction over a guardianship and making an initial
custody determination is not excluded from § 43-1238(b), even
where there is a juvenile court in that county, and the county
court may make special findings of fact where appropriate.
“Juvenile Court” Under 8 U.S.C. § 1101(a)(27)(J)(i)
Encompasses Courts With Jurisdiction to M ake
Determinations A bout the Custody and Care of
Juveniles and Is Not Limited in Nebraska to
the Separate Juvenile Courts: The County
Court Was a “Juvenile Court” Under
8 U.S.C. § 1101(a)(27)(J)
The county court placed Luis in the custody of Alberto, a
situation encompassed by 8 U.S.C. § 1101(a)(27)(J)(i). Federal
provisions allow a juvenile immigrant to apply for SIJ status
and seek lawful permanent residence if several prerequisites
are met. 8 U.S.C. § 1101(a)(27)(J) provides, in pertinent part,
that a “special immigrant” is
an immigrant who is present in the United States—
(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;
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Nebraska Supreme Court A dvance Sheets
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IN RE GUARDIANSHIP OF LUIS J.
Cite as 300 Neb. 659
(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 pre-
vious country of nationality or country of last habitual
residence; and
(iii) in whose case the Secretary of Homeland Security
consents to the grant of [SIJ] status[.]
(Emphasis supplied.)
Here, the county court concluded that it was not a “juvenile
court” under Nebraska statutory provisions and that therefore,
it could not make the findings required of a “juvenile court”
in 8 U.S.C. § 1101(a)(27)(J)(i) and (ii). The county court
erred as a matter of law when it concluded it was not a “juve-
nile court” as that term is defined for purposes of 8 U.S.C.
§ 1101(a)(27)(J).
[3] In order to achieve SIJ status, the individual whose cus-
tody has been determined prior to age 21, 8 C.F.R. § 204.11,
must have obtained the judicial determinations listed above
in 8 U.S.C. § 1101(a)(27)(J)(i) and (ii) from a “juvenile
court,” as that term is used in the federal provisions. In re
Guardianship of Carlos D., ante p. 646, ___ N.W.2d ___
(2018). The Code of Federal Regulations defines “juvenile
court” as “a court located in the United States having juris-
diction under State law to make judicial determinations about
the custody and care of juveniles.” 8 C.F.R. § 204.11(a). As
we explain below, a Nebraska county court which properly
appoints a guardian for a juvenile makes a custody determi-
nation, and thus, the county court was considered a “juvenile
court” for purposes of 8 U.S.C. § 1101(a)(27)(J)(i) and (ii).
Courts have generally held that a guardianship over a juvenile
renders the juvenile subject to 8 U.S.C. § 1101(a)(27)(J)(i).
E.g., Jisun L. v. Young Sun P., 75 A.D.3d 510, 905 N.Y.S.2d
633 (2010). Having made a “custody” determination, the
county court was considered a “juvenile court” for purposes
of 8 U.S.C. § 1101(a)(27)(J)(i) and (ii), and the county court’s
conclusion to the contrary was error.
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IN RE GUARDIANSHIP OF LUIS J.
Cite as 300 Neb. 659
The County Court M ade a Custody
Determination When it A ppointed
a Guardian for Luis
[4,5] A Nebraska county court has exclusive original juris-
diction in all matters relating to the guardianship of a per-
son with exceptions not applicable here. § 24-517(2). Under
Nebraska statutes and jurisprudence, a guardianship of a child
is a child custody determination. In re Guardianship of D.J.,
268 Neb. 239, 248, 682 N.W.2d 238, 246 (2004) (stating “[a]
guardianship is no more than a temporary custody arrange-
ment established for the well-being of a child”). See Neb. Rev.
Stat. § 43-1227(4) (Reissue 2016) (concerning “a proceeding
in which legal custody, physical custody, or visitation with
respect to a child is an issue,” including a proceeding for
guardianship in which the issue may appear). Elsewhere, the
statutes provide that a “[c]hild custody determination means a
judgment, decree, or other order of a court providing for the
legal custody, physical custody, or visitation with respect to a
child.” § 43-1227(3).
In In re Guardianship of Carlos D., supra, we held that
under a recent amendment to § 43-1238(b), courts with juris-
diction over “initial child custody determination[s]” as used in
§ 43-1238(a) also have jurisdiction and authority to make spe-
cial findings of fact similar to those contemplated by 8 U.S.C.
§ 1101(a)(27)(J). Alberto sought a guardianship of the minor
Luis in the county court, and the county court’s order declaring
Alberto as guardian was an initial custody determination.
Section 43-1238(a) generally deals with child custody
determinations which are appropriately raised in a court in
Nebraska, and § 43-1238(b), as amended, lists the factual
findings which can be made by a Nebraska state court with
such initial child custody determination authority and the cir-
cumstances under which such courts must make such findings.
Section 43-1238(b) now provides:
(b) Subsection (a) of this section is the exclusive juris-
dictional basis for making a child custody determination
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IN RE GUARDIANSHIP OF LUIS J.
Cite as 300 Neb. 659
by a court of this state. In addition to having jurisdic-
tion to make judicial determinations about the custody
and care of the child, a court of this state with exclusive
jurisdiction under subsection (a) of this section has juris-
diction and authority to make factual findings regarding
(1) the abuse, abandonment, or neglect of the child, (2)
the nonviability of reunification with at least one of the
child’s parents due to such abuse, abandonment, neglect,
or a similar basis under state law, and (3) whether it
would be in the best interests of such child to be removed
from the United States to a foreign country, including
the child’s country of origin or last habitual residence. If
there is sufficient evidence to support such factual find-
ings, the court shall issue an order containing such find-
ings when requested by one of the parties or upon the
court’s own motion.
(Emphasis omitted.)
[6] As we noted in In re Guardianship of Carlos D., ante p.
646, ___ N.W.2d ___ (2018), the amendment to § 43-1238(b)
became operative on July 19, 2018, 3 calendar months after
the adjournment of the legislative session on April 18. We held
that § 43-1238(b) is a state court procedural amendment which
applies to pending cases. In re Guardianship of Carlos D.,
supra. We also noted that § 43-1238(b), as amended, provides
that when requested by one of the parties or upon the court’s
own motion, a court making an initial custody determination
“shall issue” an order containing the three enumerated factual
findings if there is sufficient evidence. In re Guardianship of
Carlos D., supra.
As explained above, the county court in this case made an
initial child custody determination when it granted Alberto a
guardianship over the minor Luis and was therefore a “juve-
nile court” for federal purposes of making special findings. As
noted, a court with jurisdiction to make a custody determina-
tion under § 43-1238(a) has the authority to make the findings
outlined in § 43-1238(b) as amended. In sum, in a guardianship
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IN RE GUARDIANSHIP OF LUIS J.
Cite as 300 Neb. 659
case, the county court is a court making a custody determina-
tion in satisfaction of 8 U.S.C. § 1101(a)(27)(J)(i) and (ii),
and in this case, the county court erred when it concluded it
was not a “juvenile court” under 8 U.S.C. § 1101(a)(27)(J)(i)
and (ii) based on its erroneous reliance on Nebraska statutes
rather than by reference to the federal provisions describing
“juvenile court.” We reverse the court’s order of October 17,
2017, which denied Alberto’s motion to alter or amend. The
county court has the authority to make findings outlined in
§ 43-1238(b). Although we reverse the county court’s order of
October 17, we express no opinion of the impact upon remand
of Neb. Rev. Stat. § 30-2614 (Reissue 2016), providing for the
termination of a guardian’s authority upon the minor’s attain-
ment of majority.
CONCLUSION
In this guardianship case, the suitability of appointing
Alberto as guardian for Luis is not at issue in this appeal.
The county court erred as a matter of law when it concluded
it was not a “juvenile court” for purposes of making findings
consistent with 8 U.S.C. § 1101(a)(27)(J)(i) and (ii). A county
court with a jurisdictional basis under § 43-1238(a) and which
has made an initial child custody determination, such as
appointing a guardian, has authority under § 43-1238(b) to
make factual findings regarding the enumerated items where
the evidence is sufficient, and the court has been requested to
do so. The enumerated items are similar to the immigration-
related findings in 8 U.S.C. § 1101(a)(27)(J). Thus, we reverse
the order of October 17, 2017, and remand the cause for
further proceedings consistent with this opinion based on the
existing record.
R eversed and remanded for
further proceedings.