Opinion
No. 2-20-0236
08-18-2020
In re the PARENTAGE OF: ERVIN C.-R., a Minor. (Enriquetta A. R., Petitioner-Appellant v. Jasinto Santos C.-Lopez, Respondent-Appellee)
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Du Page County.
No. 19-F-270
Honorable Neal W. Cerne, Judge, Presiding.
JUSTICE HUTCHINSON delivered the judgment of the court.
Presiding Justice Birkett and Justice Brennan concurred in the judgment.
ORDER
¶ 1 Held: The trial court erred when it concluded petitioner's child was ineligible for SIJ findings under state and federal law; reversed.
¶ 2 This case presents questions regarding the state-court predicate for juvenile immigration findings. In the circuit court, Enriquetta A. R.-Lopez, filed a petition to determine the parentage of Ervin C.-R., her son. Enriquetta sought an adjudication of parentage, an order granting her sole decision-making responsibilities, as well as the entry of an order enabling Ervin to apply for Special Immigrant Juvenile (SIJ) status under 8 U.S.C. 1101(a)(27)(J). The trial court found that Ervin had been abandoned by his father and granted Enriquetta sole decision-making responsibility
and parenting time; however, the trial court found that Ervin was not abandoned for the purpose of issuing SIJ findings. We reverse.
¶ 3 I. BACKGROUND
¶ 4 We present the facts as drawn from the affidavits and testimony presented in the trial court. Enriquetta, is approximately 26 years old. Her son, Ervin, who was born in August of 2006, is now 14. Respondent, Jasinto Santos C.-Lopez, is approximately 36 years old. All of the parties are native of Guatemala. Prior to the hearing, the court granted Enriquetta leave to serve by publication; Jasinto failed to appear and was defaulted.
¶ 5 Per Enriquetta, she and Jasinto were engaged in a sexual relationship in Guatemala from December 2005 to November 2006. As mentioned, Ervin was born in August 2006, and Jasinto was present when his son was born. Jasinto told his family that he was happy to have a son, and is acknowledged as Ervin's father on Ervin's birth certificate from Guatemala. In November 2006, however, Jasinto left Guatemala and came to the United States. Enriquetta's last contact with Jasinto was a phone call in April 2007. Enriquetta and Ervin lived with Jasinto's mother in Huehuetenango, Guatemala, for a time.
¶ 6 In 2013, Enriquetta left Ervin with her parents, in Guatemala, and she came to the United States. Leaving Ervin in Guatemala "wasn't a permanent plan." Enriquetta worked for three years "to come up with the money to bring [Ervin] over here" and, in November 2016, Ervin travelled to the United States; he was intercepted and taken into federal custody. The following month, Ervin was released to Enriquetta by the Office of Refugee Resettlement (ORR). Since that time, Enriquetta and Ervin have resided in DuPage County, Illinois and she has provided for Ervin's needs.
¶ 7 Enriquetta testified that it was not in Ervin's best interest to return to Guatemala because her parents were elderly and could not care for him in Guatemala. Enriquetta also stated that she could not afford to care for or educate Ervin in Guatemala.
¶ 8 Enriquetta testified that, in 2013, a coworker gave her an address for Jasinto in Bensenville, but when Enriquetta went to the address, Jasinto was not there. Enriquetta also searched for Jasinto online, but those efforts proved unsuccessful. In December 2019, Enriquetta enlisted her parents to locate Jasinto's parents in Huehuetenango, Guatemala, but learned that the family's land had been abandoned and that Jasinto's mother had passed away.
¶ 9 In its oral ruling, the trial court stated that it did not find Ervin was "dependent" on the trial court for anything and questioned whether Ervin had been "abandoned," stating, "How has he been abandoned? He's with his mom." The court observed that its parentage adjudication would merely preserve the status quo; "I'm not changing any relationships by any stretch. Mother is here. She can provide for the child. The child has not been abandoned." Finally, the court stated, "I'm not going to make [SIJ] findings because the child has not been abandoned and the child is not dependent on this court for his care and custody."
¶ 10 Enriquetta timely appealed. After her notice of appeal was filed, Enriquetta sought leave to comply with the Supreme Court Rule regarding service of the notice of appeal (Ill. S. Ct. R. 303(c) (eff. July 1, 2017)) by publication. We granted leave and notice was published in a local newspaper each week for three weeks. See generally Mobley v. Murray, 2015 IL App (1st) 134038-U, ¶ 12.
¶ 11 II. ANALYSIS
¶ 12 As this case is straightforward, we may decide this appeal without an appellee's brief. See First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976). In
addition, as the trial court did not decide this case based on witness credibility, we review its denial of SIJ findings de novo. See In re Estate of Nina L. ex rel. Howerton, 2015 IL App (1st) 152223, ¶¶ 13, 33. Finally, this case presents a question of statutory interpretation, which we also review de novo. Lewis v. Lead Industries Association, 2020 IL 124107, ¶ 36
¶ 13 SIJ findings enable a qualifying minor to petition the United States Citizenship and Immigration Services (USCIS) for an adjustment of status to become a lawful permanent resident (LPR). The Immigration and Nationality Act provides for these findings for an immigrant child:
"(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 ***." 8 U.S.C. § 1101(a)(27)(J)(i)-(ii).
Federal regulations clarify that a "[j]uvenile court means a court located in the United States having jurisdiction under State law to make judicial determinations about the custody and care of juveniles." 8 C.F.R. § 204.11(a). We note that the question of whether to issue SIJ status is made by USCIS after a more thorough inquiry (see 8 C.F.R. § 204.11(c)); state court SIJ findings are merely a predicate for the application.
¶ 14 As counsel noted in the trial court, our state legislature recently enacted provisions mirroring federal law to provide for SIJ findings. See Public Act 101-121 (eff. Nov. 25, 2019); Public Act 101-592 (modifying effective date of Public Act 101-121) (eff. Jan. 1, 2020). Relevant here, the Illinois Parentage Act (750 ILCS 46/101 et seq.) now provides as follows:
"§ 613.5. Special immigrant child findings.
(a) For the purpose of making a finding under this Section:
'Abuse' has the meaning ascribed to that term in subsection (1) of Section 103 of the Illinois Domestic Violence Act of 1986 [(750 ILCS 60/103 (West 2020))].
'Abandonment' includes, but is not limited to, the failure of a parent to maintain a reasonable degree of interest, concern, or responsibility for the welfare of the child or when one or both of the child's parents are deceased or cannot be reasonably located.
'Neglect' includes the meaning ascribed to the term in paragraph (a) of subsection (1) of Section 2-3 of the Juvenile Court Act of 1987 [705 ILCS 405/2-3 (West 2020))] and the failure to perform caretaking functions as defined in subsection (c) of Section 600 of the Illinois Marriage and Dissolution of Marriage Act [(705 ILCS 5/600 (West 2020))].
(b) A court of this State that is competent to adjudicate parentage has jurisdiction to make the findings necessary to enable a child, who is the subject of a proceeding to adjudicate parentage, to petition the United States Citizenship and Immigration Services for classification as a Special Immigrant Juvenile under Section 1101(a)(27)(J) of Title 8 of the United States Code.
(c) If a motion requests findings regarding Special Immigrant Juvenile Status under Section 1101(a)(27)(J) of Title 8 of the United States Code, and the evidence, which may consist solely of, but is not limited to, a declaration by the child, supports the findings, the court shall issue an order, that includes the following findings:
(1)(A) the child is declared a dependent of the court; or (B) the child is placed under the custody of an individual or entity appointed by the court; and
(2) that reunification of the child with one or both of the child's parents is not viable due to abuse, neglect, abandonment, or other similar basis; and
(3) that it is not in the best interest of the child to be returned to the child's or parent's previous country of nationality or last habitual residence." 750 ILCS 46/613.5 (West 2020).
Identical language was added to the Juvenile Court Act (705 ILCS 405/2-4a (West 2020)), the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/603.11 (West 2020)), the Adoption Act (750 ILCS 50/17.01 (West 2020)), the Illinois Domestic Violence Act (750 ILCS 60/214.5 (West 2020)), and the Probate Act (755 ILCS 5/11-5.5 (West 2020)).
¶ 15 Returning to the questions presented in this case, first, we determine that the trial court erred in its interpretation of what it meant to be "dependent" on the court. See 750 ILCS 46/613.5(c)(1)(A). After examining the record, it appears that the trial court believed it had to enter a finding of "dependency" (see 705 ILCS 405/2-4 (West 2020))—which is often synonymous with disabled—for Ervin to meet that requirement. In addition, the trial court read into the statute a requirement—that its order must "chang[e]" the "relationship[ ]" between the parties—that simply
does not exist. The plain language of the statute indicates that a minor need not be placed in long-term foster care or have a non-parent guardian in order to qualify. Compare 750 ILCS 46/613.5(c)(1)(A) with 750 ILCS 46/613.5(c)(1)(B); see also In re Estate of Nina L., 2015 IL App (1st) 152223, ¶¶ 15-17 (discussing federal legislative history and removal of long-term foster care requirements). Furthermore, the inclusion of this section under the Parentage Act indicates that the child need not be disabled so as to render the child subject to child-protection proceedings. Rather, as under federal law, a child may be considered dependent on the court when the court is required to make a "judicial determination[ ]" about the child's "custody and care." 8 C.F.R. § 204.11(a); see also Perez v. Cuccinelli, 949 F.3d 865, 868 (4th Cir. 2020) (en banc) (holding that an emergency ex parte custody order qualified for SIJ determination).
¶ 16 A judicial order allocating sole decision-making responsibility and parenting time is, unquestionably, an order affecting a child's custody and care. Accordingly, we determine that Ervin was dependent on the trial court for an order regarding his custody and care.
¶ 17 The second issue is whether a child may be considered abused, neglected, or abandoned where only one parent has abused, neglected, or abandoned the child, but the other has not. We note that the "one or both"-parents language is the same in both the federal law and the state statute. Moreover, this same issue was addressed in In re Estate of Nina L., where, in interpreting federal law (8 U.S.C. § 1101(a)(27)(J)(i)), the court stated that:
"If Congress meant that an applicant for SIJ status was required to show that reunification with both parents was not viable due to abuse, neglect or abandonment, it could easily have so provided. Use of the disjunctive indicates that abuse, neglect or abandonment by one parent is sufficient to support the predicate finding." (Emphasis added.) In re Estate of Nina L., 2015 IL App (1st) 152223, ¶ 27.
We find that the same reasoning is applicable to the state law at issue here, specifically, in both the definition of abandonment (750 ILCS 46/613.5(c)(1)(A)) and the showing that reunification is infeasible (750 ILCS 46/613.5(c)(2)). Accordingly, we determine that abuse, neglect, or abandonment by one parent is sufficient for purposes of SIJ predicate findings.
¶ 18 III. CONCLUSION
¶ 19 We observe that the trial court made no best-interests finding due to its findings on the first two SIJ factors. On our review of the record, we find that Enriquetta presented sufficient evidence for the trial court to determine whether it was in Ervin's best interest to return to Guatemala or to remain here with his mother. For the reasons stated, we reverse the judgment of the Circuit Court of Du Page County and remand this case for the entry of an order consistent with this decision.
¶ 20 Reversed and remanded.