In the Interest of R. E. Z. B., a Child ( 2023 )

FIFTH DIVISION
MCFADDEN, P. J.,
BROWN and MARKLE, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
December 12, 2023
In the Court of Appeals of Georgia
A23A1775. IN THE INTEREST OF R. E. Z. B., a child.
BROWN, Judge.
This appeal concerns R. E. Z. B., an El Salvadoran child who entered the
United States in 2021, unaccompanied by his parents or guardians, when he was
twelve years old. He was eventually released into the care of his maternal uncle, Mario
Morales, who lives in Cobb County. Following a hearing in a dependency case
initiated by Morales, the juvenile court found R. E. Z. B. to be dependent, and
Morales was awarded temporary custody of the child. In his unopposed appeal,
Morales contends that the juvenile court erred by failing to make specific findings
relevant to R. E. Z. B.’s special immigrant juvenile status, and asks that the case be
remanded for the juvenile court to enter an order that includes such findings. For the
reasons that follow, we affirm the juvenile court’s finding of dependency but remand
the case to the juvenile court to make specific written findings pertaining to all five of
the immigration factors at issue in light of the evidence and relevant law.
The record shows that on February 22, 2023, Morales petitioned the Juvenile
Court of Cobb County for a finding of dependency under OCGA § 15-11-2 (22),
alleging, inter alia, that R. E. Z. B.’s biological parents reside in El Salvador and were
unable to provide for him; that R. E. Z. B. had been a target of violent gang
recruitment and harassment in his hometown and had escaped to the United States;
and that R. E. Z. B. had been living with Morales and his family for nearly two years
and attending school. In his brief to the juvenile court, Morales requested that the
court make additional findings which would enable R. E. Z. B. to petition the United
States Citizenship and Immigration Services for Special Immigrant Juvenile (“SIJ”)
status and, if approved for SIJ status, for lawful permanent residence status. Morales
presented evidence showing that the federal government had attempted reunification,
but R. E. Z. B.’s parents refused. Morales also submitted various reports and studies
discussing gang violence in El Salvador, especially pertaining to minors.
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Following a hearing in March 2023, during which Morales testified, counsel for
Morales submitted a proposed order to the juvenile court. The juvenile court adopted
Morales’ order with “alterations.” The juvenile court found R. E. Z. B. dependent
and awarded temporary custody to Morales. As requested, the juvenile court found
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.” However, the
juvenile court declined to make a finding with regard to whether “it would not be in
the child’s best interest to be returned to the child’s or parents’ previous country of
nationality or country of last habitual residence.” The court concluded that it
“lack[ed] jurisdictional authority to decide whether a child may physically locate in
a particular geographical area.” We agree with Morales that the juvenile court erred
in this regard.
As this Court recognized in In the Interest of J. J. X. C., 318 Ga. App. 420 (734
SE2d 120) (2012):
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. 8 USC § 1101 (a) (27) (J); 8 CFR § 204.11.
Congress created SIJ classification to protect abused, neglected, and
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abandoned immigrant youth through a process allowing them to become
legal permanent residents.
(Citations and punctuation omitted.) Id. at 424. To apply for SIJ status, an immigrant
child must first obtain special findings from a state “juvenile court.” See 8 CFR §
204.11 (defining “juvenile court” as “a court located in the United States [having]
jurisdiction under State law to make judicial determinations about the . . . custody and
care of juveniles”). We explained these special findings as follows:
[T]he resident alien must be under age 21 and unmarried. 8 C.F.R. §
204.11 (c). The child must have been declared dependent upon a state
juvenile court. 8 U.S.C. § 1101 (a) (27) (J). And the juvenile court must
have made two additional findings: (1) that “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”; 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.” [Id. at (i), (ii).] See also 8 C.F.R. § 204.11.
In the Interest of J. J. X. C., 318 Ga. App. at 424. In this regard, “[t]he 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.” Id. at 425. “By making these preliminary factual findings, the juvenile
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court is not rendering an immigration determination.” H. S. P. v. J. K., 121 A3d 849,
858 (III) (N. J. 2015). That decision “rests squarely with the federal government.” Id.
at 858 (IV). Accord In the Interest of J. J. X. C., 318 Ga. App. at 424-425 (“Although
the juvenile court determines whether the evidence supports the findings, the final
decision regarding SIJ status rests with the federal government, and, as shown, the
child must apply to that authority.”).
Here, although Morales specifically requested findings as to the SIJ factors in
the dependency petition and again at the dependency hearing, the juvenile court failed
to make all of the requested findings. “Although the court was authorized to conclude
that [Morales] failed to present evidence to support the SIJ factors or that their
evidence was not credible, the court had a duty to consider the SIJ factors and make
findings.”1 In the Interest of J. J. X. C., 318 Ga. App. at 426.
1
The juvenile court apparently relied on In the Interest of M. J. H., 366 Ga. App.
872 (884 SE2d 559) (2023), in which a panel of this Court stated in a footnote that
“[t]his opinion should not be read to express any view on whether [the child] is
entitled to the SIJ findings.” Id. at 876, n.3. This footnote is dicta and does not alter
this Court’s precedent that the juvenile court has a duty to consider the SIJ factors
and to make findings regarding those factors. In the Interest of J. J. X. C., 318 Ga. App.
at 426. Indeed, this Court has reaffirmed the juvenile court’s duty to do so in a
subsequent, unpublished opinion. In the Interest of J. C., 344 Ga. App. XXVII (Case
No. A17A1496, unpublished) (Feb. 22, 2018).
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Accordingly, we affirm the juvenile court’s finding of dependency, which a
rational trier of fact could have found by clear and convincing evidence. We remand
the case to the juvenile court with instruction to make all findings pursuant to 8 USC
§ 1101 (a) (27) (J) (i), (ii).
Judgment affirmed in part and case remanded with direction. McFadden, P. J., and
Markle, J., concur.
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