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In re Marcelina M.-G. (Anonymous)

Supreme Court of New York, Second Department

October 23, 2013

In the Matter of Marcelina M.-G. (Anonymous), petitioner-appellant,
v.
Israel S. (Anonymous), et al., respondents; Susy M.-G. (Anonymous), nonparty- appellant. Docket Nos. V-6881/11, G-17418/09, G-17420/09

APPEAL by Marcelina M.-G., and SEPARATE APPEAL by Susy M.-G., in a child custody proceeding and related guardianship proceedings pursuant to Family Court Act article 6, as limited by their respective briefs, from so much of an order of the Family Court (David Klein, J.), entered September 13, 2011, in Westchester County, as denied, without a hearing, the motion of Susy M.-G., in which Marcelina M.-G. joined, for the issuance of an order declaring that Susy M.-G. is dependent on the Family Court and making specific findings that she is unmarried and under 21 years of age, that reunification with one or both of her parents is not viable due to parental abuse, neglect, or abandonment, and that it would not be in her best interests to be returned to her previous country of nationality or last habitual residence, so as to enable her to petition the United States Citizenship and Immigration Services for special immigrant juvenile status pursuant to 8 USC § 1101(a)(27)(J). Helene Migdon Greenberg, Elmsford, N.Y., for petitioner-appellant.

Paul Hastings LLP, New York, N.Y. (Kevin Broughel and Shafiq R. Perry of counsel), for nonparty-appellant.

Stephen Kolnik, Yonkers, N.Y., for respondent Francisco G.

REINALDO E. RIVERA, J.P. THOMAS A. DICKERSON JOHN M. LEVENTHAL SHERI S. ROMAN, JJ.

OPINION & ORDER

ROMAN, J.

Introduction

In 1990, Congress enacted the special immigrant juvenile provisions of the Immigration and Nationality Act (see 8 USC § 1101[a][27][J]; Pub L 101-649, § 153, 104 U.S. Stat 4978 [101st Cong, 2d Sess, Nov 29, 1990]), which provide a gateway for undocumented children who have been abused, neglected, or abandoned to obtain lawful permanent residency in the United States. Prior to petitioning the relevant federal agency for special immigrant juvenile status, an immigrant juvenile must obtain an order from a state juvenile court making findings that the juvenile satisfies certain criteria. Among those findings is a determination that reunification with "1 or both" of the juvenile'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]). The principal issue presented on this appeal is whether a juvenile may satisfy this statutory reunification requirement when the juvenile court determines that reunification is not viable with just 1, as opposed to both, of the juvenile's parents. For the reasons that follow, we conclude that the "1 or both" language requires only a finding that reunification is not viable with 1 parent.

Factual and Procedural Background

Susy M.-G. was born in November 1994, in Honduras. As recounted in Susy's affidavit in support of her motion, she lived alone with her mother, Marcelina M.-G., until she was about six years old. At that time, the mother's boyfriend "Tony" began living with them part-time. Susy indicated that Tony was "mean and violent" toward her. Her mother "threw [Tony] out of [the] house" prior to the birth of Susy's half-brother Jason in November 2001.

When Susy was about 10 years old, her mother left Honduras to work in the United States. The mother had told Susy that "[s]he was leaving in three days, " and that Susy and Jason would be going to live with their aunt "Estella." Susy asserted that "[l]ife at Estella's was miserable." According to Susy, "Estella was physically violent and verbally abusive" toward her, as were Susy's cousins. "Estella would smack [Susy] with whatever she could find, for no good reason at all, " and called her names, including telling Susy that she was a "whore." Estella also used the money that Susy's mother sent for Susy for Estella's own family.

Susy averred that she had never lived with her father, Israel, whose last name she did not know. According to Susy, her mother said that the father was an alcoholic and violent toward the mother, and that they were "better off without him." Susy indicated that she did not think that her father had ever supported her or her mother financially, and that her father "never was present in [her] life." Although Susy indicated that she talked to her father "on the phone sometimes, " she stated that they were "not close."

In 2008, Susy arranged for herself and her younger brother to travel to the United States with the help of "coyotes" (smugglers), because "[l]ife with Estella was unbearable." When Susy told her mother about this plan, her mother was initially "not happy at all with us coming to the United States, " but eventually "relented and asked her boyfriend to help pay for the trip." Susy indicated that during the "very long trip, " they "traveled with different people and smugglers by bus and car, " and that they "had to sleep in strange places on the way." She explained that when they arrived at the United States-Mexico border, they tried crossing, but the coyotes saw border patrol and ordered them to run away back toward Mexico. They crossed the border into the United States on their next attempt, but were pursued by the border patrol. "Everyone started running" in different directions, and Susy lost sight of Jason. When Susy heard that Jason had been picked up, she back-tracked so that he would not be alone, and she was detained by border patrol.

Susy and Jason were taken to a group home where they remained for about three days, and were then transferred to a foster home in Texas. After approximately 80 days, Susy's uncle, Francisco G., arrived, and took Susy and her brother to New York to stay with Francisco and his family. Francisco enrolled Susy and Jason in school. With respect to her living situation, Susy explained as follows:

"At first it was hard adjusting to a new place and a new language but I now feel a lot more comfortable in the United States and I have friends. It is the first time I feel safe and taken care of as a child—it is a wonderful feeling to be provided for and be part of a loving family. I see my mother who lives close by with her boyfriend and their baby daughter but my ...

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