| Matter of Alejadro V.P. v Floyland V.D. |
| 2017 NY Slip Op 03518 |
| Decided on May 3, 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 May 3, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RANDALL T. ENG, P.J.
REINALDO E. RIVERA
RUTH C. BALKIN
BETSY BARROS, JJ.
2017-01245
(Docket No. G-9552-16)
v
Floyland . D. (Anonymous), et al., respondents.
Scott Coomes, Hempstead, NY, for appellant.
DECISION & ORDER
Appeal by the child from an order of the Family Court, Nassau County (Ellen R. Greenberg, J.), dated January 19, 2017. 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 law and 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 abandonment, and that it would not be in the child's best interests to return to Guatemala, his previous country of nationality and last habitual residence.
In September 2016, the child filed a petition pursuant to Family Court Act article 6 for Isael E. G. P. (hereinafter the guardian) to be appointed his guardian, for the purpose of obtaining an order declaring that he 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 abandonment, neglect, or abuse, and that it would not be in his best interests to be returned to Guatemala, 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 January 5, 2017, the Family Court granted the guardianship petition. In an order dated January 19, 2017, 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 Guatemala.
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 [*2]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 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 abandonment (see Matter of Varinder S. v Satwinder S., 147 AD3d 854; Matter of Anibal H. [Maria G.G.H.], 138 AD3d 841, 843), and that it would not be in his best interests to return to Guatemala (see Matter of Carlos A.M. v Maria T.M., 141 AD3d 526).
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 abandonment, and that it would not be in his best interests to return to Guatemala, his previous country of nationality and last habitual residence.
ENG, P.J., RIVERA, BALKIN and BARROS, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court