Judge Bernard J. Graham

KINGS COUNTY
Family Court 

DECISION / ORDER

The Decision/Order on this application is as follows:

In this guardianship proceeding, a petition has been filed by a maternal aunt, Christianne Celestin, to obtain guardianship of D J, a ten year old child born in Haiti. The petitioner through the assistance of legal counsel has filed a motion with the Family Court to make factual findings which are a necessary condition for an application for "Special Immigrant Juvenile Status" classification towards seeking lawful permanent residency for the child in the United States. (See Immigration and Nationality Act, Section 101 (a)27)(J), 8 USC, Sec. 1101(a)(27)(J)).

Factual Background

D J is currently ten (10) years of age. D J (hereinafter "D" ) was born in Haiti and, according to the facts set forth in the affidavit of Christianne Celestin, D's mother, Rose Elie, died in 2004. D's father, Josue Jean, became ill shortly thereafter. (See Celestin Affidavit annexed to the petition, par's. 11-14). D's father sent the child to live with a maternal relative due to his inability to care for a young girl. (Celestin Aff par. 15). In November 2006, Dj's father died and the child was sent by the mother's cousin to the United States without any legal documentation to the United States. The child was detained by immigration authorities in Miami, Florida and held for approximately one month. The petitioner alleges that a maternal grandmother was to meet Djanova, but the child was not retrieved and her whereabouts were unknown. Petitioner and her son, eventually located the child in Miami and eventually secured her release. (See Celestin Aff.par's. 27-34).

The motion includes copies of death certificates of both parents, to wit: death certificate of Rose Elie (Ex. "E") and death certificate of Josue Jean (Ex. "F") with certified translations of each. In addition the motion includes the affidavit of petitioner's adult son, Zacharie Celestin, who attests to his first-hand knowledge of the events leading to Djanova's arrival in the United States and to the appropriate care that the child has received since her release to the maternal aunt (see Z. Celestin Aff.,  par. 36.). Of additional relevance is the sworn statement of Zacharie Celestin that any relatives in Haiti are financially unsuited to care for the child and there is no other logical person to assume the care and custody of the child (See Z. Celestin Aff.,  par. 38).

The home study inspection ordered by the Family Court through the Administration of Children's Services also supports the contention that the child is being cared for in an appropriate manner. (See ACS Court Ordered Investigation dated April 11, 2008).

Special Immigrant Juvenile Status

Attorneys for the petitioner, the Lincoln Square Legal Services, Inc., have brought this motion for a finding by the Family Court to establish Special Immigration Juvenile Status ("SIJS"). The purpose of such a designation is to petition the United States Citizenship and Immigration Service ("CIS") for U.S. citizenship status. This process is set forth in the Immigration and Nationality Act ("INA"), Title 8 of the United State Code.

A Special Immigrant Juvenile is defined in the INA, Sect. 101(a)(27)(J), as an immigrant who is present in the United states and (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 and who has been deemed eligible by that court for long term foster care due to abuse, neglect or abandonment; (ii) for whom it has been determined in administration or judicial proceedings that it would not be in the alien's best interest to be returned to the previous country of nationality or country of last habitual residence; and (iii) in whose case the Attorney General (now Director of Homeland Security) expressly consents to the dependency order serving as a precondition to the grant of special immigrant juvenile status; except that no juvenile court has jurisdiction to determine the custody status or placement of an alien in the actual or constructive custody of the Attorney General unless the Attorney General specifically consents to such jurisdiction.

The INA Regulations additionally impose the requirement that the child be under twenty-one years of age; not married; has been declared dependent upon a state juvenile court while the child was in the United States and under the jurisdiction of the court; has been deemed eligible by the juvenile court for long term foster care; and has been the subject of judicial proceeding in which it has been determined that it would not be in the child's best interest to be returned to the country of nationality or last habitual residence of the child or his parents. 8 CFR Sec. 204.11(c)(1)-(6) (2005).

Questions Presented

The relevant questions raised by the motion before the Court are whether Djanova Jean, as a subject of a guardianship petition pursuant to Article VI of the Family Court Act can be considered dependent on the juvenile court; and, if so, is the subject child deemed eligible for long term foster care due to abuse, neglect or abandonment. A third aspect of the analysis is for the Court to determine whether it is not in the best interest of the juvenile to be returned to the country of nationality or country of last habitual address.

Discussion

Addressing the first question of whether the Kings County Family Court can make a determination that the subject child is dependent on the juvenile court, this Court finds that such a determination can be made in a guardianship proceeding, when supported by the requisite factual showing as has been shown in the petition filed by Christianne Celestin for the subject child, D. The Family Court serves as the "juvenile court" in New York for child related matters and Section 115 of the FCA confers jurisdiction of the Family Court in matters of guardianship and custody of children "by the reason of the death of or abandonment or surrender by the parent or parentsÉ" Sect 115(c) of the FCA. Once the Family Court has jurisdiction in a matter the "court is given a wide range of powers for dealing with the complexities of family life so that its action may fit the particular needs of those before it. The judges of the court are thus given a wide discretion and grave responsibilities". Sec. 141 FCA.

For an Article VI guardianship petition to proceed the Court must look to the best interests of the child. New York's courts, in a proceeding to appoint a guardian for the minor child must make a finding that there "has been a surrender, abandonment, unfitness, persistent neglect or other extraordinary circumstances". Bennett v. Jeffreys, 40 NY2d 543, 548, 387 NYS2d 821 (1976).

Accordingly, the guardianship petition in New York includes the very component imposed by the INA, that there be a finding of an abandonment or abuse or neglect of the subject child.

This Court has not found New York appellate court determinations on the issue of whether SIJS has been determined through a guardianship petition filed through Article VI of the Family Court Act. The Court has considered the decision by this same Family Court, reaching a determination that guardianship may not qualify for SIJS. (See In re Guardianship of Vanessa D., 15 Misc 3d 819, 834 NYS2d 644 (Kings Family Ct. 2007). Judge Hepner carefully recited the various mechanisms for the Family Court to reach a "determination of dependency" and reached the conclusion that dependency on the Family Court is limited to an Article 10 neglect proceeding; a surrender proceeding involving a destitute or abandoned child under Sections 358-a and 384 of the Social Service Law; or in an adoption proceeding pursuant to Article VII of the Domestic Relations Law. The court in Vanessa D. also cited In Re Zaim, 13 Misc 3d 180 (Family Court Orange Co. 2006), 43 AD3d 824 (2d Dept. 2007), which declined to find subject matter jurisdiction for a finding of Special Immigration Juvenile Status in a guardianship matter.

While this Court is respectful of the few other Family Court determinations reached in this matter, this Court views the rulings in In re Guardianship of Vanessa D., and In Re Zaim as improperly narrow constructions of the New York Family Court Act, leading to an incorrect interpretation of the federal Immigration and Nationality Act. The holdings reached in the aforementioned cases would require that there could never be a determination of Special Immigration Juvenile Status when the matter is before the Family Court of New York as a guardianship proceeding.

This Court has determined that a proper guardianship petition, when supported by the facts of abandonment, abuse or neglect can comply with the federal requirement that the juvenile be "dependent upon the juvenile court". This conclusion was reached in a Department of Justice, Administrative Appeals Unit decision, which under similar factual circumstances noted that the juvenile court's placement of a minor in a guardianship situation in and of itself does not preclude a finding that the beneficiary is dependent upon the juvenile court. In re Menjivar, Dept. of Justice, Admin. Appeals Unit, Case No. A70 117 167 (A.A.U. Dec. 27, 1994).

It is also helpful to review the wording of the federal regulations adopted by the Citizenship and Immigration Service. Under the definitions section, eligibility for long term foster care is stated to mean that a determination "has been made by the juvenile court that family reunification is no longer a viable option. A child who is eligible for long-term foster care will normally be expected to remain in foster care until reaching the age of majority unless the child is adopted or placed in a  guardianship (emphasis added) situation. For the purpose of establishing and maintaining eligibility for classification as a special immigrant juvenile, a child who has been adopted or placed in  guardianship(emphasis added) situation after having been found dependent upon a juvenile court in the United States will continue to be considered to be eligible for long-term foster care". 8 C.F.R. Section 204.11.

Hence, to take a narrow view of what in fact constitutes dependency on the Family Court, to reach a conclusion that guardianship pursuant to the New York Family Court Act would never qualify as requisite jurisdiction in a motion to determine findings for Special Juvenile Immigration Status, would violate the federal act. It has been determined that the Immigration and Nationality Act enacted as federal law and its affect "touching the rights, privileges and obligations or burdens of aliens as suchÉthe statute is the supreme law of the land". Mejlinger v. Casino Contracting Corp., 25 AD3rd 14, 802 NYS2d 56 (2d Dept. 2005), (citing Hines v. Davidowitz, 312 US 52, 61 S.Ct. 399). To reach a conclusion which frustrates the plain reading of the federal act would also violate the Supremacy Clause of the United States Constitution (US Const. Art. VI Sec. 2).

Turning to the final prong of whether the alleged facts qualify for SIJS, the Court finds that it would not be in the child's interest to be returned to her country of nationality (ie. Haiti). The record is clear that the child's natural parents are deceased and the only party demonstrating the ability and initiative to care for the child is the petitioner who resides in New York. Furthermore, counsel for the petitioner has submitted supporting evidence that the economic and political climate in Haiti is unstable and kidnaping is a serious problem.(See Z. Celestin Aff par's. 39 and 40). The Court also takes judicial notice of the current upheaval in Haiti reported through the news media, reporting on food shortages and rioting cause by lack of food supplies (See "Across Globe, Empty Bellies Bring Rising Anger", New York Times, page 1, col. 2, April 18, 2008).

Conclusion

Having reached the conclusion that the subject child, due to the death of both parents and the facts supporting the alleged abandonment of the subject child, that a guardianship proceeding will be approved by the Family Court as being in the best interest of the child, the Court makes the following findings:

1. The subject minor, D J, is less than twenty-one years of age;

2. The subject minor, D J, is unmarried;

3. The subject minor, D J, is dependent upon the juvenile court;

4. The subject minor, D J, is eligible for long-term foster care based on the fact that she has been abandoned; and

5. It is not in the best interest of the subject minor, D J, to be returned to her country of origin, Haiti.

This Court finds no reason to oppose the subject child's application to the United States Citizenship and Immigration Service for Special Immigrant Juvenile Status pursuant to 8 USC Sec. 1101(a)(27)(J).

This shall constitute the decision and order of this Court.