Matter of Mario S.

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[*1] Matter of Mario S. 2012 NY Slip Op 22336 Decided on November 21, 2012 Family Court, Queens County Hunt, J. 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 printed Official Reports.

Decided on November 21, 2012
Family Court, Queens County

In the Matter of Mario S. A Person Alleged to be a Juvenile Delinquent, Respondent.



D-26972-09/10A



Michael A. Cardozo, Corporation Counsel (Aimee L. Sklar-Calogero, of counsel),

New York City, for Presentment Agency.

Robin Stone Einbinder, Jamaica, and The Door's Legal Services Center

(Helen Pundurs and Travis M. Johnson, of counsel), New York, NY, for Mario S.

John M. Hunt, J.

I

Mario S., the respondent in this juvenile delinquency proceeding commenced under

article 3 of the Family Court Act, has requested that this Court issue an order pursuant to 8 USC

§1101 (a) (27) (J) finding him eligible for "special immigrant juvenile" ("SIJ") status. For the

reasons which follow, the Court finds that Mario S. satisfies the statutory criteria for a

determination that he is eligible for SIJ status, and this order constitutes an "eligibility order"

for any application which he may file for SIJ status with federal immigration authorities.[FN1]

A

By petition filed pursuant to Family Court Act §310.1 (1) on December 16, 2009, it was [*2]

alleged that Mario S. (born March 1, 1994), is a juvenile delinquent within the meaning of

Family Court Act §301.2.[FN2] The juvenile delinquency petition alleged that respondent committed

acts which, were he an adult, would constitute the crimes of Criminal Mischief, Defacement of

Property, and Possession of Graffiti Instruments. The petition further alleged that respondent was

born on March 1, 1994, that he resides in Astoria, New York, and that he resides with his mother,

Irma V.

Following preliminary proceedings upon the petition, the respondent entered an

admission that he committed an act which would constitute the misdemeanor of Possession of

Graffiti Instruments (Penal Law §145.65), in satisfaction of the entire petition (Fam. Ct. Act

§321.2 [3]). The Court then proceeded to a dispositional hearing at the conclusion of which,

respondent was adjudicated to be a juvenile delinquent (Fam. Ct. Act §352.1 [1]), and he was

placed on probation for a period of 12 months upon specific conditions which included his

participation with Esperanza, a community-based supervision program, his regular attendance at

school, the completion of 80 hours of community service, random screening and negative test

results for alcohol, marijuana, and controlled substances, adherence to a daily curfew, and no

further arrests for criminal or delinquent behavior (Fam. Ct. Act §§352.2 [1] [b]; 353.2).

A petition alleging that respondent violated the conditions of the order of probation was

filed by the Department of Probation on August 4, 2010 (Fam. Ct. Act §360.2). Respondent [*3]

denied the allegations in the petition and a hearing was conducted in accordance with Family

Court Act §360.3. At the conclusion of the hearing the Court found that the evidence established

that respondent had violated the conditions of his probation by failing to report to meetings with

his probation officer, that he failed to cooperate with the Esperanza program, he failed to attend

school regularly and was truant, and that he failed to obey his mother's lawful commands and

had been away from home without her permission. A further dispositional hearing was conducted

and at the conclusion thereof, the Court revoked the prior order of probation and entered a new

order of disposition (Fam. Ct. Act §360.3 [6]). The new order of disposition placed respondent in

the custody of the New York State Office of Children and Family Services ("OCFS") for a period

of 12 months with the further directive that OCFS place respondent in the physical custody of

Lincoln Hall, an authorized agency, for confinement and treatment (Fam. Ct. Act §§360.3 [6];

352.2 [1] [c]; 353.3 [4]; see Matter of Robert J., 2 NY3d 339, 343 [2004]; Matter of Vito G.L.,

27 AD3d 471 [2006]).

B

Respondent through his court appointed attorney (Fam. Ct. Act §249 [a]), in conjunction

with counsel from The Door's Legal Services Center, who are assisting him with immigration

issues, requests that this Court make "special findings" of fact which will "enable him to petition

the United States Customs and Immigration Services (USCIS) for Special Immigrant Juvenile

Status pursuant to Immigration and Nationality Act 8 U.S.C. §1101 (a) (27) (J) (2010), as

amended by Pub. L. No. 110-457, 122 Stat. 5044 (effective March 23, 2009) and 8 C.F.R.

§204.11 (2008)".

More specifically, Mario S. requests that the Court find that he is an unmarried person [*4]

less than 21 years of age; that he is dependent upon the Family Court by virtue of the juvenile

delinquency proceeding which resulted in his placement in state custody; that reunification with

at least one of his parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law; and that it is not in his best interests to return to Mexico, his country of

birth.

In support of the application for the requested "special findings", counsel for the

respondent assert that he was born in Mexico to Irma V. and Mario S., Sr. on March 1, 1994,[FN3]

and that "[w]hen Mario [Jr.] was about six months old, his mother brought him to the United

States to live with his father, who had come to the US in early 1993. Mario's parents separated in

2004, after which Mario and his siblings remained with their mother in Astoria, Queens."

Respondent further asserts that his father has not supported him or his siblings since his parents

separated in 2004, and that his father has made no substantial effort to maintain a relationship

with him. In addition, "[i]n 2008 . . . Mario went to live with his father in Corona, Queens. After

Mario had lived there for about three months, his father was arrested on charges related to

domestic violence for slapping his girlfriend. Mario's father was subsequently deported" and

Mario, Jr. returned to his mother's home where he resided when the underlying juvenile

delinquency proceeding was filed in 2009.

Respondent's mother, Irma V., has submitted an affidavit in support of the motion. The

mother's affidavit states, in pertinent part, that she and her son Mario came to the United States

in October 1994 to live with her husband, the father of respondent and his siblings, when Mario, [*5]

Jr. was six months old. She and her husband separated in "late 2004" and respondent and her

other children remained in her care. "In 2008, Mario and his sister Teresita went to live with

their father in Corona, Queens [and] [a]fter Mario had lived there for about three months, his

father was deported. This occurred after the woman he [the father] was living with called the

police during an argument." Ms. V. further states that respondent "has received no financial

support from his father and is rarely in contact with him; they probably speak three or four times

a year. He does not seem to care whether he is a part of Mario's life."

Also appended to the motion are a letter from a social worker at Lincoln Hall, the

authorized agency which provided services and treatment to respondent during the period of

his court-ordered placement and an affidavit from the respondent. The social worker's statement

provides that respondent "made fair progress during his stay at Lincoln Hall', including anger

management, effective communication with his family, effective decision making, and positive

peer interactions. Respondent "passed every class" and has excelled academically. At the time of

his scheduled release from Lincoln Hall, the plan was for respondent to return to his mother's

home where he would receive "aftercare" services through OCFS in the community. In his own

affidavit, Mario S. states that I am currently not in contact with my Dad. I called him around my

birthday this year [2011], but I can't remember the last time we talked before that. He has not

tried to maintain a relationship with me since he was deported. He has sent our family no money

or gifts, and I don't think he has ever tried to call me." Respondent further states that he departed

Mexico when he was an infant, he does not have complete fluency in the Spanish language in

that while he can converse in Spanish, he "is not good at reading it", and that were he to return to

Mexico ,"I don't know what I would do for work and I'm not sure where I would live."

II

"Federal law provides a path to lawful permanent residency in the United States to

resident alien children who qualify for special immigrant juvenile' (SIJ) status" (In the Interest

of J.C.C.X., ___ Ga App ___, ___ SE2d ___, 2012 WL 5458223 [2012]). "SIJ status allows a

juvenile immigrant to remain in the United States and seek lawful permanent resident status if

federal authorities conclude that [certain] statutory conditions are met" (In re Interest of Erick

M., 284 Neb 340, 341, 820 NW2d 639, 641 [2012]; see also, Zhen-Hua Gao v. Jenifer, 185

F3d 548, 557 [6th Cir 1999]; M.B. v. Quarantillo, 301 F3d 109, 114 [3rd Cir 2002]).

"The SIJ provisions of the [Immigration and Naturalization Act] were enacted in 1990

to protect abused, neglected, or abandoned children who, with their families, illegally entered the

United States. Congress provided an alternative to deportation for these children. Rather than

being deported along with abusive or neglectful parents, or deported to parents who had

abandoned them once in the United States, such children may seek special status to remain in

the United States" (Yeboah v. Department of Justice, 345 F3d 216, 221 [3rd Cir 2003]). " A

minor who obtains SIJ status may become a naturalized United States citizen after five years"

(In re Y.M., 207 CalApp4th 892, 915, 144 CalRptr3d 54, 71-72 [4th Dist 2012]; see also, Zheng

v. Pogash, 416 FSupp2d 550,554 [SD TX 2006]; B.F. v. Superior Court of Los Angeles County,

207 CalApp4th 621, 626, 143 CalRptr3d 730, 733 [2nd Dist 2012]).

The creation of the special immigrant juvenile classification "show[s] a congressional

intent to assist a limited group of abused children to remain safely in the country with a means to [*6]

apply for [lawful permanent resident] status" (Garcia v. Holder, 659 F3d 1261, 1271 [9th Cir

2011]), and the conferring of SIJ status upon a qualifying juvenile therefore serves as "a gateway

to lawful permanent residency in the United States" (Matter of Trudy-Ann W. v. Joan W., 73

AD3d 793, 795 [2010]; see also, Matter of Jisun L. v. Young Sun P., 75 AD3d 510, 511 [2010];

Matter of Alamgir A., 81 AD3d 937, 939 [2011]).

As enacted in 1990, "[t]he original eligibility requirements were a judicial or adminis-

trative order determining only that the juvenile alien was dependent on a juvenile court and that

it would not be in the juvenile's best interest to be returned to the juvenile's or parent's home

country" (Erick M. at 347; see also, Gao at 552; M.B. at 114). However, because abuses of the

SIJ provisions were discovered after their enactment in 1990, primarily the use of SIJ as a

method "of obtaining legal permanent status, rather than for the purpose of obtaining relief from

abuse or neglect" (Erick M. at 347; see also, Yeboah 221; M.B. at 114), Congress has amended

the SIJ provisions of the immigration statute twice since their enactment (Pub L No. 105-119,

111 US Stat 2440, 2460 [1997]; Pub L No. 110-457, 122 US Stat 5044 (William Wilberforce

Trafficking Victims Protection Reauthorization Act) [2008]).

"In 1997 . . . Congress amended §1101 (a) (27) (J) to require that a court, in its order,

determine that the juvenile (1) is eligible for long-term foster care due to abuse, neglect, or

abandonment; and (2) has been declared a dependent of a juvenile court or committed or placed

with a state agency" (Erick M. at 347; see also, Yeboah at 221-222). "Under the 2008 amend-

ment, the eligibility requirements under [8 USC §1101 (a) (27) (J) (i)] hinge primarily on a

reunification determination. The amendment expanded eligibility to include juvenile immigrants

whom a court has committed to or placed in the custody of an individual or state-appointed entity [*7]

— not just those whom a court has committed to or placed with a state agency or department. In

addition, Congress removed the requirement that a state juvenile court find that a juvenile is

eligible for long-term foster care because of abuse, neglect, or abandonment. Finally, Congress

removed the requirement that a state juvenile court find that a juvenile is eligible for long-term

foster care because of abuse, neglect, or abandonment. Instead, a court must find that

reunification is not possible because of abuse, neglect, or abandonment" (Erick M. at 346).

Accordingly, under the current SIJ provisions enacted in 2008, in order "[t]o be eligible

to petition the federal government for SIJ status, the resident alien must be under age 21 and

unmarried. The child must have been declared dependent upon a state juvenile court . . . [a]nd the

juvenile court must have made two additional findings: (1) that reunification with one or both of

the immigrant's parents is not viable due to abuse, neglect, abandonment, or a similar basis found

under State law; and (2) 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" (J.C.C.X.

at *3 [internal citations omitted]; see also, Y.M. at 915; Erick M. at 346-347; B.F. at 626; Trudy-

Ann W. at 795; Matter of Emma M., 74 AD3d968, 969 [2010]; Jisun L. at 511; Alamgir A. at

939; Matter of Sing W.C., 83 AD3d 84, 86 [2011]; Matter of Mohamed B., 83 AD3d 829, 830-

831 [2011]).

A

While the federal government has exclusive jurisdiction with respect to immigration

(Fiallo v. Bell, 430 US 787, 792 [1977]; United States v. Hernandez-Guerrero, 147 F3d 1075,

1076 [9th Cir 1998]; Rohit v. Holder, 670 F3d 1085, 1087 [9th Cir 2012]; Y.M. at 908), including

the final determination whether an alien child will be granted permanent status as a SIJ (e.g., Gao [*8]

at 556; J.C.C.X. at *3; Erick M. at 341), state juvenile courts play an important and indispensable

role in the SIJ application process.

Under 8 USC §1101 (a) (27) (J) and 8 CFR §204.11 (c), state juvenile courts are charged

with making a preliminary determination of the child's dependency and his or her best interests,

which is a prerequisite to an application to adjust status as a special immigrant juvenile. "The SIJ

statute affirms the institutional competence of state courts as the appropriate forum for child

welfare determinations regarding abuse, neglect, or abandonment, and a child's best interests"

(J.C.C.X., at *4 [citation omitted]; see also, In re Adoption of Peggy, 436 Mass 690, 699, 757

NE2d 29, 37 [2002], cert denied 537 US 1020 [2002]; In re Juvenile, 148 NH 743, 748; 813 A2d

1197, 1198 [2002]; Y.M. at 908; B.F. at 629-630).

B

At the relevant time in this case, Mario had been residing with his mother in New York

City when his mother send Mario and one of his sisters to reside with his father and the father's

girlfriend elsewhere in Queens County. While Mario resided with his father and the father's

girlfriend, the father was apparently arrested for domestic violence, and that arrest and possible

criminal proceedings unrelated to Mario's case, ultimately resulted in the father's deportation to

Mexico. Mario returned to his mother's home and he resided with his mother when he was

arrested for the acts underlying this juvenile delinquency proceeding. This Court adjudicated

Mario to be a juvenile delinquent and he was initially placed under the supervision of the New

York City Department of Probation.

Thereafter, the Court revoked Mario's probation after a judicial proceedings which

resulted in a determination that he had failed to cooperate with the Department of Probation and [*9]

with Esperanza, a community based treatment program to which he had been referred. Upon

further proceedings, the Court then placed Mario in the custody of the state Office of Children

and Family Services for a period of one year. Mario was placed with Lincoln Hall for treatment

and confinement, and he was ultimately discharged to his mother upon the expiration of the

period of placement on August 25, 2011. This motion for SIJS findings was filed on July 11,

2011, a time when Mario was still subject to the placement order which was issued by the Court.

According to Mario and his mother, he has had no direct contact with his father since his

father's arrest and subsequent deportation to Mexico. Since that time, he has resided either with

his mother or at Lincoln Hall, and his mother and OCFS have provided for his well-being and

needs. Mario's father has not provided financial or emotional support for the child or other

members of the family, and the father has apparently expressed little concern for Mario's well-

being or his future.

i

Under New York law, a youth who has been adjudicated to be a juvenile delinquent and

who is placed in the custody of OCFS or the custody of an authorized agency is defined as a

"dependent child" (Social Services Law §371 [7]),[FN4] as well as a "foster child" for certain

purposes (Social Services Law §383-c [1]).[FN5] Juvenile delinquents who have been placed in the [*10]

custody of OCFS or of an authorized agency are subject to permanency hearings, which serve the

same purpose as permanency hearings held in the cases of abused or neglected children and PINS

juveniles (Fam. Ct. Act §§355.5; 756-a; 1089; see e.g., Matter of Robin G., 20 Misc 3d 328 [Fam

Ct 2008]). Additionally, the provisions of Social Services Law §384-b, which provide for the

involuntary termination of parental rights, are potentially applicable to juvenile delinquents who

are placed in the custody of OCFS, a local Department of Social Services, or authorized agency

(Fam. Ct. Act §355.5 [7] [d] [ii]).

Accordingly, because Mario had been placed by the Court in the care of OCFS which

placed him in the care of Lincoln Hall, an authorized agency, Mario was a dependent child

during the pendency of the placement order, including the period of conditional release where

he remained under OCFS supervision (Executive Law §§507-a; 510-a). Mario was also in state

custody at the time he filed this SIJ motion.

For purposes of 8 USC §1101 (a) (27) (J) and 8 CFR §204.11 (c), the Court finds that

Mario is under age 21, and that he is unmarried. While the current provisions of 8 USC §1101

(a) (27) (J) no longer require a judicial determination that the minor is eligible for long-term

foster care due to abuse, neglect, or abandonment (Erick M. at 346), it is noted that at the time the

motion was filed and granted, the juvenile was a dependent child under New York law as he was

a juvenile delinquent placed in the legal custody of a state agency and was under the continuing

jurisdiction of the Family Court (8 CFR §204.11 [c] [3], [5]).

ii

This Court must also determine whether respondent's reunification with one or both of

his parents is not viable due to parental abuse, neglect, or abandonment, or a similar basis found [*11]

under state law (8 USC §1101 [a] [27] [J] [i]). While Mario resided with his mother, Irma V. at

the time he was placed in state custody, and he has returned to her custody upon discharge by

OCFS, this Court finds that respondent's father has abandoned him under New York law

(Social Services Law §384-b [4] [c]; Domestic Relations Law §111 [2] [a]; see, Matter of Julius

P., 63 NY2d 477, 481 [1984]; Matter of Gabrielle HH., 1 NY3d 549, 550 [2003]; Matter of

Jamal B., 95 AD3d 1614, 1616 [2012], lv denied 19 NY3d 812 [2012]). The determination that

Mario has been abandoned by his father prevents and makes inappropriate the reunification of the

child with his father, who was deported to Mexico in 2008 (Social Services Law §384-b [4] [c];

Domestic Relations Law §111 [2] [a]; see, Matter of Julius P., 63 NY2d 477, 481 [1984]; Matter

of Gabrielle HH., 1 NY3d 549, 550 [2003]; Matter of Jamal B., 95 AD3d 1614, 1616 [2012], lv

denied 19 NY3d 812 [2012]).[FN6]

Respondent clearly resided with his mother and siblings at the time that the Family Court

obtained jurisdiction over him by reason of the juvenile delinquency proceeding, and his

permanency plan (now effected) was to return to his mother's custody and home. The relevant

portion of the statute provides that it must be shown that the child's "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" (8 USC §1101 [a] [27] [J] [i]). Although respondent was able to be

returned to the custody of his mother upon his discharge from agency custody and the jurisdiction [*12]

of the Family Court, he was both dependent upon the Family Court and abandoned by his

biological father at the time of the motion. The fact that respondent was returned to the care of

his mother should not be determinative of his application for SIJ findings. The information

presented to this Court suggests that respondent's mother is also present in the United States

illegally and she is therefore at risk of deportation, which would make her unavailable to

continue to care for Mario and his siblings.

As the Court has determined that Mario's reunification with his father was not possible

and, in fact, is contraindicated by the fact that the father has abandoned the child, and his

reunification with his mother is tenuous given her apparent immigration status, this Court

further finds that it would not be in Mario's best interest to be returned to Mexico. Mario was

brought to the United States from Mexico when he was six months old, and he has resided in

New York with his immediate family for his entire life. Aside from his father, who has

abandoned him, there is no information that there are other blood relatives in Mexico ready,

willing, and able to care for Mario were he to be returned there, nor any indication how the

child would complete his education or earn a living in Mexico. While a citizen of Mexico by

birth, Mario would indeed be a stranger in a foreign land were he to be forced to return there.

This Court therefore grants Mario's motion for the findings necessary to enable him to

make application to the USCIS for an adjustment of his status as a special immigrant juvenile.

iii

This Court would be remiss in not setting forth why it declines to follow the recent

opinion of the Supreme Court of Nebraska in Erick M. which, were it binding upon this Court,

would require that Mario's application for special findings be denied.

Under the Nebraska Supreme Court's interpretation of the SIJ provisions of the

immigration statute, Mario would be unable to meet the reunification component under 8 USC

§1101 (a) (27) (J) (Erick M. at 343). In the view of the Supreme Court, which was grounded

upon its interpretation of administrative decisions made by the USCIS, the administrative agency

"does not consider proof of one absent parent to be the end of the inquiry under the reunification

component [and] [a] petitioner must normally show that reunification with the other parent is

also not feasible" (Id. at 350). Thus, "[i]f a juvenile lives with only one parent when a juvenile

court enters a guardianship or dependency order, the reunification component under §1101

(a)(27)(a) is not satisfied if a petitioner fails to show that it is not feasible to return the juvenile to

the parent who had custody" (id.).

The function of the juvenile court in deciding an application for special findings which

would permit a juvenile to file an application for adjustment of status as a special immigrant

juvenile is limited in scope. The juvenile court is simply called upon to determine whether, under

state law, the juvenile is under the age of 21, unmarried, dependent upon the court through an

order of placement or other court order, whether reunification with one or both of the juvenile's

parents is not possible due to abuse, neglect, or abandonment of the child, and whether it would

be contrary to the juvenile's best interest to be returned to his or her previous country of

nationality.

The statute and regulation commit these specific and limited issues to state juvenile

courts. The juvenile court need not determine any other issues, such as what the motivation of the [*13]

juvenile in making application for the required findings might be (In the Interest of T.J., 59 So3d

1187, 1191 [Fla Ct App 2011]; F.L.M. v. Department of Children and Families, 912 So2d 1264, 1269 [Fla Ct App 2005]; L.T. v. Department of Children and Families, 48 So23d 928, 931 [Fla

Ct App 2010]); whether allowing a particular child to remain in the United States might someday

pose some unknown threat to public safety (e.g., Shannon M. Ray, Note, The Breakdown of a

System: The Consequence of Permitting Dangerous Illegal Juvenile Aliens to Reside in Your

Community, 56 Wayne L Rev 819 [2010]); and whether the USCIS, the federal administrative

agency charged with enforcing the immigration laws, may or may not grant a particular

application for adjustment of status as a SIJ.[FN7]

Whether or not a juvenile's application constitutes a potential abuse or misuse of the SIJ

provisions of the immigration law is an issue to be determined by the USCIS. That issue is

beyond the scope of what a state juvenile court is required to decide upon a motion for special

findings which are a prerequisite to the filing of an application to adjust the juvenile alien's

immigration status. Nothing in 8 USC §1101 (a) (27) (J) or the regulation indicates that the

Congress intended that state juvenile courts pre-screen potential SIJ applications for possible

abuse on behalf of the USCIS.

As the Court's duty in this case is limited to a determination of the specific issues outlined

above (J.C.C.X. at *3), and the Court has made the findings necessary to enable the respondent to

file an application for permanent legal residence as a SIJ, this Court expresses no further opinion

with respect to any application which might by filed with the USCIS by Mario. [*14]

This constitutes the decision and opinion of the Court which serves to supplement the

previously issued order granting the motion for SIJ findings. Respondent is specifically

authorized to present this decision containing specific findings to USCIS in connection with any

application which he has filed or he may file in accordance with 8 USC §1101 (a) (26) (J).[FN8]

E N T E R:

____________________________________

JOHN M. HUNT

Judge of the Family Court

Dated: Jamaica, New York

November 21, 2012

Footnotes

Footnote 1:Respondent's motion was granted in summary form by order dated September 13, 2011, effective August 24, 2011. At the time that the motion was filed by respondent, July 11, 2011, he was still subject to the placement order issued by this Court on August 25, 2010.

Footnote 2:A juvenile delinquent is "a person over seven and less than sixteen years of age, who, having committed an act that would constitute a crime if committed by an adult, (a) is not criminally responsible for such conduct by reason of infancy, or (b) is the defendant in an action

ordered removed from a criminal court to the family court pursuant to article [725] of the criminal procedure law" (Fam. Ct. Act §301.2 [1]; see generally Matter of Raymond G., 93 NY2d 531, 535-536 [1999]).

Footnote 3:A copy of respondent's birth certificate is appended to the motion along with a translation. The certificate states that Mario S. was born in Tlapanala, Puebla, Mexico on March 1, 1994 to Mario S.C. and Irma V.P., both of whom are citizens of Mexico. The certificate further recites that all four of the respondent's grandparents are also citizens of Mexico.

Footnote 4:Social Services Law §371 (7) defines a "dependent child" as "a child who is in the custody of, or wholly or partly maintained by an authorized agency or an institution, society or other organization of charitable, eleemosynary, correctional, or reformatory character."

Footnote 5:For purposes of a judicial surrender of parental rights to effect a transfer of a child's

guardianship and custody and to facilitate the child's eventual adoption, "a child in foster care shall mean a child in the care and custody of an authorized agency pursuant to section [384-a] of this article or article three, seven or ten of the family court act."

Footnote 6:A child's abandonment by his or her parent is a grounds upon which the parent's rights

of guardianship and custody of a child may be permanently terminated by the state (Social

Services Law §384-b [4] [c]), as well as a basis to dispense with the parent's right to withhold his or her consent to the child's adoption (Domestic Relations Law §111 [2] [a]; Matter of Corey L. v. Martin L., 45 NY2d 383, 389-390 [1978]; Matter of Joshua II., 296 AD2d 646, 647 [2002], lv denied 98 NY2d 613 [2002]; Matter of Alyssa A., 79 AD3d 740, 742 [2010], lv denied 16 NY3d 704).

Footnote 7:Where the USCIS denies a juvenile alien's application for legal permanent residence as a special immigrant juvenile, the remedy is to seek review of the agency's decision in federal court (M.B. at 113; Yeboah at 221; Gao at 551).

Footnote 8:The Court's decision was edited for purposes of publication (see generally, Fam. Ct. Act

§166; 22 NYCRR §205.5; Matter of Schwahl v. Grant, 47 AD3d 698, 699 [2008]).



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