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In re Ting C. (Anonymous)

Supreme Court of New York, Second Department

July 17, 2013

In the Matter of Hei Ting C. (Anonymous), appellant. (Proceeding No. 1) In the Matter of Wai C. (Anonymous), appellant. (Proceeding No. 2) Docket Nos. Z-25483/11, Z-25484/11

APPEALS by Hei Ting C. and Wai C., in related proceedings for the issuance of special findings, which relief originally was sought by motion in a related child support proceeding pursuant to Family Court Act article 4, (1) from two orders of the Family Court (Dennis Lebwohl, J.) (one as to each of them), dated December 20, 2011, and entered in Queens County, which, after a hearing, denied their petitions for the issuance of an order declaring that each of them is dependent on the Family Court, and making specific findings that each of them is unmarried and under 21 years of age, that reunification with one or both of their parents is not viable due to parental abuse, neglect, or abandonment, and that it would not be in each of their best interests to be returned to their previous country of nationality or last habitual residence, so as to enable each of them to petition the United States Citizenship and Immigration Services for special immigrant juvenile status pursuant to 8 USC § 1101(a)(27)(J), and (2), as limited by their brief, from so much of two orders of the same court (one as to each of them), dated January 4, 2012, which, in effect, upon reargument, adhered to its original determinations in the orders dated December 20, 2011.

Baker & Hostetler LLP, New York, N.Y. (Timothy S. Pfeifer, Seanna R. Brown and Jacqlyn R. Rovine of counsel), for appellants.

RANDALL T. ENG, P.J., MARK C. DILLON, PLUMMER E. LOTT, JEFFREY A. COHEN, JJ.

OPINION & ORDER

COHEN, J.

The assumption of responsibility for serving the best interests of a child by providing protection and guidance to a child appearing before the court goes to the very core of our legal system. Indeed, children have long enjoyed the benefit of their own assigned counsel in custody proceedings. We require our courts to review and approve settlements of infants' claims. We have a long-established juvenile system of justice that is specifically designed to protect and rehabilitate delinquent children. However, it was only fairly recently that some notion of distinguishing the status of children from that of adults was addressed in our immigration laws. Taking effect in 2009, a form of immigration status known as special immigrant juvenile status is now offered to a class of undocumented immigrant children, providing them with a gateway to lawful permanent residency in the United States. Before a child can petition the United States Citizenship and Immigration Services for special immigrant juvenile status, a state court must first acquire jurisdiction and make certain declarations with respect to the child. On this appeal, we are asked to determine whether the Family Court, after issuing a support order in a related child support proceeding, properly denied the petitions of a sister and brother for the issuance of orders declaring each of them to be dependent on the Family Court, and making the specific findings required to enable them to petition the United States Citizenship and Immigration Services for special immigrant juvenile status pursuant to 8 USC § 1101(a)(27)(J).

Specifically at issue in this case is whether a child becomes dependent on a juvenile court within the meaning of the federal statute when one of the child's parents files a petition for child support upon which the Family Court enters an order of support. Although several decisions of this Court and the Appellate Division, First Department, have addressed the questions of whether a guardianship petition and an adoption proceeding satisfy the dependency prong for special findings relative to special immigrant juvenile status, answering both questions in the affirmative (see Matter of Ashley W. [ Verdele F. ], 85 A.D.3d 807; Matter of Mohamed B., 83 A.D.3d 829; Matter of Sing W.C. [ Sing Y.C.-Wai M.C. ], 83 A.D.3d 84; Matter of Alamgir A., 81 A.D.3d 937; Matter of Jisun L. v Young Sun P., 75 A.D.3d 510; Matter of Emma M., 74 A.D.3d 968; Matter of Trudy-Ann W. v Joan W., 73 A.D.3d 793; Matter of Antowa McD., 50 A.D.3d 507), no appellate decisions in this State have addressed the question of whether an order issued by the Family Court that does not award or affect the custody of a child satisfies the dependency prong. For the reasons set forth below, we hold that a child support order does not satisfy the requirement for special immigrant juvenile status that a child be "dependent on a juvenile court" (8 USC § 1101[a][27][J][i]).

Background

In 1990, Congress created special immigrant juvenile status (hereinafter SIJS) to address the issue of undocumented and unaccompanied children. These children, who lack a lawful immigration status, endure the continual threat of deportation, cannot work legally, and are constantly vulnerable to exploitation. As originally enacted, this legislation defined an eligible immigrant as being one who "has been declared dependent on a juvenile court located in the United States and has been deemed eligible by that court for long-term foster care" (Immigration Act of 1990, Pub L 101-649, 104 Stat 4978, 5005). It also required a determination by the court that it would not be in the immigrant's best interests to return to his or her native country (see Immigration Act of 1990, Pub L 101-649, 104 Stat 4978, 5005-5006). In 1997, Congress added the further requirement that the juvenile court find the child dependent upon the court "due to abuse, neglect, or abandonment, " which limited the beneficiaries of the provision "to those juveniles for whom it was created" (143 Cong Rec H10807 at 10815, 10844 [Nov 13, 1997]).

In 2008, Congress again amended the SIJS provision. In the "William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, " Congress expanded the definition of who qualified as a "special immigrant juvenile, " enabling more children to qualify for the status (Pub L 110-457, 122 Stat 5044 [Dec 23, 2008]). The amendments removed the requirement that the immigrant child had to be deemed eligible for long-term foster care due to abuse, neglect, or abandonment, and replaced it with a requirement that the juvenile court find 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" (Pub L 110-457, 122 Stat 5079 [Dec 23, 2008]). The amendments also expanded eligibility to include, in addition to children declared dependent on a juvenile court, those who had been placed in the custody of "an individual or entity appointed by a State or juvenile court" (id.). Following the 2008 amendments, the United States Department of Homeland Security issued a memorandum explaining, inter alia, that the new language added to the definition of "Special Immigrant Juvenile" meant that "a petition filed by an alien on whose behalf a juvenile court appointed a guardian may now be eligible" (Memorandum, Donald Neufeld and Pearl Chang, Trafficking Victims Protection Reauthorization Act of 2008; Special Immigrant Juvenile Status Provisions [Mar. 24, 2009]).

Pursuant to the 2008 amendments, a "special immigrant" is a resident alien who is under 21 years old, is unmarried, and has been either "declared dependent on a juvenile court" or legally committed to the custody of an individual appointed by a State or juvenile court (see 8 USC § 1101[a][27[J][i]; 8 CFR 204.11). 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, " 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 (8 USC § 1101[a][27][J][i]). "Under federal law, a person who is granted [SIJS] is able to achieve lawful permanent residency in the United States without first obtaining a visa" (Matter of Sing W.C. [ Sing Y.C.-Wai M.C. ], 83 A.D.3d at 86).

The enactment of the SIJS provision demonstrates Congress's intent to provide special protection to children who have experienced maltreatment in their families (see Wendi J. Adelson, The Case of the Eroding Special Immigration Juvenile Status, 18 J Transnational Law & Policy 65, 67 [Fall 2008]). The provision employs a unique hybrid procedure that directs the collaboration of state and federal systems, "recognizing that juvenile courts have particularized training and expertise in the area of child welfare and abuse, " which places them in the best position to make determinations on the best interests of the child and potential for family reunification (David B. Thronson, Kids Will Be Kids? Reconsidering Conceptions of Children's Rights Underlying Immigration Law, 63 Ohio St LJ 979, 1005 [2002]). However, it is the federal government that still retains control over the final immigration determination (see id. at 1007).

In New York, a child may request that the Family Court, recognized as a juvenile court (see 8 CFR 204.11[a]), issue an order making special findings and a declaration so that he or she may petition the United States Citizenship and Immigration Services for SIJS (see e.g. Matter of Jisun L. v Young Sun P., 75 A.D.3d 510). Specifically, the findings of fact must establish that: (1) the child is under 21 years of age; (2) the child is unmarried; (3) the child is dependent upon a juvenile court or legally committed to an individual appointed by a State or juvenile court; (4) reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis; and (5) it is not in the child's best interests to be returned to his or her home country (see 8 USC § 1101[a][27][J][ii]; 8 CFR 204.11[c]). With the declaration and special findings, the eligible child may then seek the consent of the Department of Homeland Security for SIJS (see 8 USC § 1101[a][27][J][iii]).

This case involves Hei Ting C. and Wai C., a sister and brother who were born in Hong Kong. Their parents were divorced in Hong Kong in 2006, and the father and Wai moved to New York in the summer of 2008. Although the father was awarded full custody of the children, Hei Ting remained in Hong Kong with her mother until she finished the school year. Her mother refused to care for her, and Hei Ting alleges that she had to support herself using a credit card provided to her by her father. After completing the school year, Hei Ting relocated to New York to join her father and brother. Hei Ting and Wai currently live in Queens with their father, and both children remain unmarried.

Both Hei Ting and Wai describe their mother as physically and verbally abusive. Although their mother also subsequently relocated to New York, they live exclusively with their father and have little or no contact with her. They have ...


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