In re A.M.A. , 2023 Ohio 723 ( 2023 )

[Cite as In re A.M.A., 2023-Ohio-723.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In the matter of: :
[A.M.A.], :
No. 22AP-325
[D.A.A.], : (C.P.C. No. 22JU-5392)
Plaintiff-Appellant. : (REGULAR CALENDAR)
:
D E C I S I O N
Rendered on March 9, 2023
On brief: Advocating Opportunity, and Emily Dunlap, Law
Office of Karin L. Coble, and Karin L. Coble, for appellant.
Argued: Karin L. Coble.
APPEAL from the Franklin County Court of Common Pleas
Division of Domestic Relations, Juvenile Branch
BEATTY BLUNT, P.J.
{¶ 1} Plaintiff-appellant, D.A.A., appeals the June 2, 2022 judgment of the
Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch,
vacating its emergency custody order for A.M.A. with special findings issued the prior day,
and issuing a new emergency custody order without the requested special findings. We
reverse and vacate the June 2, 2022 order, thereby reinstating the June 1, 2022 order.
{¶ 2} This appeal stems from an unusual immigration status that is available to
noncitizen children who are found in the United States in the custody of persons other than
their parents. This "special immigrant juvenile" status is a legally protected resident status
that a noncitizen child can apply for if the child is in the custody of a legal resident or citizen
other than the child's own parents, if the child is placed in the legal custody of that legal
resident or citizen by the state juvenile court having jurisdiction over the case, and that
court issues particular required factual findings regarding that child's placement and need
for both custody and legal status.
No. 22AP-325 2
{¶ 3} A.M.A, (d.o.b. 6/4/2004) was born in Ghana, is a citizen of that country, and
was a minor at the time of the proceedings under review. A.M.A's parents are deceased, and
he was placed in the care of his brother-in-law, D.A.A. ("appellant"), in the United States
by the U.S. Office of Refugee Resettlement, Division of Children's Services, after he was
detained by I.C.E. A.M.A. does not have legal status in the U.S., but according to
documentation filed with the trial court, the Department of Health and Human Services
concluded that he had been "subjected to a severe form of trafficking in persons." (See
Eligibility Letter from Administration for Children and Families, Office on Trafficking in
Persons, attached to May 23, 2022 Mot. for Emergency Custody and Special Findings at Ex.
1.)
{¶ 4} Appellant filed a motion for legal custody of A.M.A. and requested "special"
findings of fact that "the minor child is unable to reunify with one or both of his parents due
to neglect, abandonment, or some similar basis under state law, and that it is not in his best
interests to be returned to Ghana." (Mot. at 1.) These findings would allow A.M.A. to apply
for "Special Immigrant Juvenile Status" under 8 U.S.C. 1101(a)(27)(J), which provides that
a "special immigrant" is:
(J) an immigrant who is present in the United States—
(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; and
(iii) in whose case the Secretary of Homeland Security consents
to the grant of special immigrant juvenile status, except that—
(I) no juvenile court has jurisdiction to determine the custody
status or placement of an alien in the custody of the Secretary
of Health and Human Services unless the Secretary of Health
No. 22AP-325 3
and Human Services specifically consents to such jurisdiction;
and
(II) no natural parent or prior adoptive parent of any alien
provided special immigrant status under this subparagraph
shall thereafter, by virtue of such parentage, be accorded any
right, privilege, or status under this chapter.
As the statute indicates, the findings made by a juvenile court under 8 U.S.C.
1101(a)(27)(J)(i) and (ii) do not automatically confer the status—it must be approved by the
Secretary of Homeland Security. But the judicial findings are a prerequisite to the
Secretary's grant of the status, and if special findings are not made, the minor is not eligible
to apply for relief.
{¶ 5} A.M.A. was placed in the emergency custody of appellant on May 23, 2022,
and the motion was heard on the merits on May 26 and June 1, 2022. D.A.A. testified on
May 26, and A.M.A. testified on June 1. A.M.A. testified that he was sexually trafficked in
Ghana since he was 14, but that he was eventually able to flee to Brazil, then Peru, then
Ecuador, then Columbia, then Panama, then Costa Rica, then Guatamala, then Honduras,
then Mexico, and finally the United States, that he engaged in sexual acts to pay for his way
to the United States, that there is no one in Ghana to take care of him or protect him, and
that he believes he will be killed if returned to Ghana because "what I'm doing is not
acceptable in the country" because he is gay. (See generally June 1, 2022 Tr. at 37-38.)
Notwithstanding this testimony, the trial court appeared concerned that—contrary to the
Department of Health and Human Services—A.M.A. was "not being trafficked."
THE COURT: So, you're saying if you'd go anywhere in the
country, you're gonna [sic in original] be killed?
A.M.A.: Yes, please.
THE COURT: Why is that?
A.M.A.: Because it's not - - because what I'm doing is not
acceptable in the country.
THE COURT: What are you doing that's unacceptable? Are you
- - it is because you're gay?
A.M.A.: Yes, please.
No. 22AP-325 4
THE COURT: Then you're not being trafficked. Are you saying
you're not trafficked, you're just gay?
A.M.A.: I'm gay and I was beaten. They beat me.
Id. In response, D.A.A. and A.M.A.'s counsel pointed out that it was not necessarily crucial
to prove that A.M.A. was forced to engage in prostitution by another person:
ATTORNEY DUNLAP: Thank you. So, on page 22 of the
Country Conditions Report, it does state that the law prohibits
sex with a child younger than age 16. So regardless of whether
or not [A.M.A.] believed what he was doing was on his own
volition, it was a crime that was being committed against him
until he was age 16.
The definition of human trafficking does not require that
someone force, defraud or coerce someone into sex trafficking
if they are under the age of 18.
So again, while [A.M.A.] may have had an idea about what was
happening to him, human trafficking, very clearly would mean
a person engaging in commercial sexual activities under the age
of 18 it is human trafficking. That's the United States code for
human trafficking. Ohio recognizes the same thing where you
do not have to prove coercion if someone is engaged in
commercial sex as a minor.
So, as much as I understand that there are nuances in non—not
essentially engaging in survival sex to be able to survive in his
community, I do want to be clear that the law has clearly stated
that was illegal what was happening to him at age 13, 14, 15, and
human trafficking is largely recognized as commercial sex with
anyone under the age of 18 who is engaging in that commercial
sex.
Id. at 41-42. In accordance with this argument, at the conclusion of the hearing the trial
court signed and issued an order that included the special findings requested. (June 1, 2022
Order at 1.)
{¶ 6} But the following day, and without notice to appellant, A.M.A., or their
counsel, the trial court filed a new "Order to Vacate Emergency Custody Order" and a new
"Emergency Custody Order" ordering that "[D.A.A.] is hereby granted TEMPORARY
EMERGENCY CUSTODY of [A.M.A.]," but concluded that "Plaintiff's request for special
findings is not well taken." (June 2, 2022 Emergency Custody Order at 1.) The court
No. 22AP-325 5
referred the case to a magistrate and set a further hearing for August 2, 2022 and this appeal
followed.
{¶ 7} Appellant asserts a single assignment of error for the court's review:
The trial court violated appellant's and the child's rights to
procedural Due Process under the U.S. and Ohio Constitutions
by ignoring Juv.R. 14(C) and Civ.R. 52.
Appellant's argument is straightforward: the court speaks through its entries, therefore the
factual findings were in effect on June 2, 2022 so when the court vacated the findings
without a hearing it therefore violated Juv.R. 14(C) and appellant's right to due process.
The rule provides:
The court, upon its own motion or that of any party, shall
conduct a hearing with notice to all parties to determine
whether any order issued should be modified or terminated, or
whether any other dispositional order set forth in division (A)
should be issued. The court shall so modify or terminate any
order in accordance with the best interest of the child.
Id. Appellant contends that prior to vacating its order it should have held a hearing with
notice to the parties. See In re K.A.G.-M., 12th Dist. No. CA2012-10-101, 2013-Ohio-780 at
¶ 15-16, quoting In re B.L., 12th Dist. CA2008-05-013, 2008-Ohio-6385, ¶ 8 (" 'Procedural
due process requires the government to give reasonable notice and a meaningful
opportunity to be heard * * *.' The juvenile court's decision to sua sponte vacate the order
denied Father and Mother the opportunity to be heard.")
{¶ 8} We agree with the appellant's argument. The trial court vacated its prior
orders without a hearing and notice, in violation of Juv.R. 14(C). And given the fact that
the trial court's decision has the effect of denying A.M.A. eligibility for a legal immigration
status, it clearly violates the procedural due process rights of the parties. But given our
review of the record, we believe it is appropriate to go further. The uncontroverted evidence
in the record clearly establishes that A.M.A. is an "immigrant who is present in the United
States * * * who has been declared dependent * * * whose reunification with one or both of
the immigrant's parents is not viable * * * [and] that it would not be in [his] best interest to
be returned" to Ghana. Compare with 8 U.S.C. 1101(a)(27)(J). Moreover, the record does
not contain any factual or legal basis for the trial court's decision to vacate the special
No. 22AP-325 6
findings it issued on June 1, 2022—accordingly, we conclude that it was a clear abuse of the
trial court's discretion to do so.
{¶ 9} For the foregoing reasons, we reverse the trial court's June 2, 2022 "Order to
Vacate Emergency Custody Order," and vacate the June 2, 2022 "Emergency Custody
Order." Accordingly, the trial court's June 1, 2022 order, including the requested special,
findings remains in effect.
Orders vacated.
DORRIAN and LUPER SCHUSTER, JJ., concur.