Matter of Anibal H. (Maria G. G. H.)

Matter of Anibal H. (Maria G. G. H.) 2016 NY Slip Op 02816 Decided on April 13, 2016 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 April 13, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
JOHN M. LEVENTHAL
CHERYL E. CHAMBERS
BETSY BARROS, JJ.
2015-01051
(Docket No. G-7130-14)

[*1]In the Matter of Anibal H. (Anonymous).

and

Maria G. G. H. (Anonymous), appellant.

Bruno Joseph Bembi, Hempstead, NY, for appellant.

Kellie Stabile, Westbury, NY, attorney for the children.

DECISION & ORDER

Appeal from an order of the Family Court, Nassau County (Elaine Jackson Stack, J.H.O.), dated December 19, 2014. The order, without a hearing, in effect, denied the mother's motion for the issuance of an order, inter alia, making specific findings so as to enable the subject child, Anibal H., 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 mother's motion for the issuance of an order, inter alia, making specific findings so as to enable the subject child, Anibal H., to petition the United States Citizenship and Immigration Services for special immigrant juvenile status pursuant to 8 USC § 1101(a)(27)(J) is granted, it is declared that Anibal H. is dependent on the Family Court, and it is found that he is unmarried and under 21 years of age, that reunification with one of his parents is not viable due to parental abandonment, and that it would not be in his best interests to return to El Salvador, his previous country of nationality and last habitual residence.

The mother filed a petition pursuant to Family Court Act article 6 to be appointed guardian of Anibal H. (hereinafter the child). The petition sought 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 of his parents is not viable due to parental abandonment, and that it would not be in his best interests to be returned to El Salvador, his previous country of nationality and last habitual residence, so as to enable the child to petition the United States Citizenship and Immigration Services (hereinafter the USCIS) for special immigrant juvenile status (hereinafter SIJS) pursuant to 8 USC § 1101(a)(27)(J). Thereafter, the mother moved for the issuance of an order making the requisite declaration and specific findings to enable the child to petition for SIJS. In an order dated December 19, 2014, the Family Court denied the mother's motion for the issuance of an order, inter alia, making the requisite specific findings.

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 Trudy-Ann W. v Joan [*2]W., 73 AD3d 793, 795), and that it would not be in the juvenile's best interests to be returned to his or her native country 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).

Here, the record supports the Family Court's findings that the child is under the age of 21 and unmarried, and that the child is dependent upon a juvenile court or legally committed to an individual appointed by a state or juvenile court within the meaning of 8 USC § 1101(a)(27)(J) (i) (see Matter of Trudy-Ann W. v Joan W., 73 AD3d at 795). The court erred, however, with respect to its recital of the element of "reunification." The law does not require a finding that reunification with one or both of a child's parents is viable, but that reunification with one or both of the parents is not viable due to abuse, neglect, abandonment, or a similar basis found under state law (see 8 USC § 1101[a][27][J][i]; Matter of Leslie J.D. [Maria A.A.G.-Sylvia D.], 136 AD3d 902; Matter of Haide L.G.M. v Santo D.S.M., 130 AD3d 734, 736). We have the authority to make that finding, and upon our independent factual review of the record, we find that reunification of the child with his father is not a viable option due to abandonment (see Matter of Fatima J.A.J. [Ana A.J.S.-Carlos E.A.F.], __AD3d__, 2016 NY Slip Op 01673 [2d Dept 2016]; Matter of Dallas Keith M., 55 AD3d 612), and that it would not be in the best interests of the child to be returned to El Salvador (see Matter of Marisol N.H., 115 AD3d 185, 191).

Accordingly, the Family Court should have granted the mother's motion for the issuance of an order making the requisite declaration and specific findings so as to enable the child to petition for SIJS. Inasmuch as the record is sufficient for this Court to make its own findings of fact and conclusions of law, the mother's motion is granted, we declare that the child is dependent on the Family Court, and we find that the child is unmarried and under 21 years of age, that reunification with one of his parents is not viable due to parental abandonment, and that it would not be in his best interests to return to El Salvador (see Matter of Tommy E.H. [Silvia C.], 134 AD3d 840).

DILLON, J.P., LEVENTHAL, CHAMBERS and BARROS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court