In the Interest of B.Y.G.m, a Minor

Third District Court of Appeal
State of Florida
Opinion filed July 15, 2015.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D14-2409
Lower Tribunal No. D14-15895
________________
In the Interest of:
B.Y.G.M., etc., A minor child,
Appellant.
An Appeal from the Circuit Court for Miami-Dade County, Maria I.
Sampedro-Iglesia, Judge.
Shook, Hardy & Bacon L.L.P., Daniel B. Rogers, Harold A. Arteaga and
Iain L. C. Kennedy; Mary M. Gundrum, Immigrant Children’s Justice Clinic, FIU
College of Law; Kristie-Anne Padron, Catholic Charities Legal Services, for
appellant.
Bernard P. Perlmutter for Americans for Immigrant Justice, Florida’s
Children First, University of Miami School of Law Children & Youth Law Clinic
and Immigration Clinic, as amicus curiae.
Before SHEPHERD, FERNANDEZ and LOGUE, JJ.
FERNANDEZ, J.
B.Y.G.M appeals the trial court’s denial of her private petition for
dependency in which she sought an adjudication of dependency based on
abandonment and neglect by her father. We affirm because the evidence is
insufficient to support a finding of abandonment or neglect.
B.Y.G.M. is a native of El Salvador who was seventeen years old when she
filed her petition. B.Y.G.M.’s father abandoned her when she was eight months
old. He never visited or contacted her. He never provided financial or emotional
support.
B.Y.G.M.’s mother left for the United States when B.Y.G.M. was three
years old. B.Y.G.M. lived with her grandparents in El Salvador. She has a close
relationship with them, but they were not able to protect her against alleged life
threats and harassment from local gang members. In 2014, B.Y.G.M. fled to the
United States where she lives with her mother.
The trial court heard B.Y.G.M.’s petition for dependency based on
abandonment and neglect by her father. B.Y.G.M. argued that she qualified for
Special Immigrant Juvenile Status or “SIJS.” See 8 U.S.C. § 1101 (a)(27)(J)(i).
SIJS is a visa that enables a child to apply for lawful permanent residency (a green
card) after which the child can seek citizenship. To be eligible for SJIS, a court
must declare an alien minor dependent. Id. The court must also find that it would
not be in the alien child’s best interest to be returned to their country of origin. Id.This finding is contained in what is commonly referred to as a “best interest order.”
2
B.Y.G.M. also argued that, if she is returned to El Salvador, she will have no one
there to care for her or protect her.
The trial court denied the petition, holding that B.Y.G.M. was not dependent,
pursuant to section 39.01(15)(e), Florida Statutes (2013). The court found that
B.Y.G.M. has a parent, her mother, who is capable of providing B.Y.G.M. with
supervision and care.
B.Y.G.M. moved for reconsideration. On rehearing, the department challenged
the petition.1 The court heard testimony from B.Y.G.M. and her mother. B.Y.G.M.
1 The department appeared for the first time on rehearing. But the department’s
appearance at this stage is certainly not a happenstance occurrence, or even an
impermissible one. Chapter 39 is silent as to whether the department is an
automatic party to all dependency proceedings. See Chapter 39, Florida Statutes
(2013). There is no Florida court that has so held, either.
The department, as most frequently occurs, is absent in proceedings that
involve private petitions. See, e.g., In re Y.V., 160 So. 3d 576, 577-81 (Fla. 1st
DCA 2015)(stating that Y.V. did not request any services from the state; reversing
the dismissal of a private petition and remanding for an adjudicatory hearing
because prima facie case of dependency was established); In re A.R., 143 So. 3d
449, 449-50 (Fla. 2d DCA 2014)(involving the mother’s private petition for
involuntary termination of an incarcerated father’s parental rights; reversing and
remanding for full evidentiary hearing); Fla. Dep’t of Children & Families v. Y.C.,
82 So. 3d 1139 (Fla. 3d DCA 2012)(stating that the department filed a limited
appearance in response to a request that the trial court order the department to file a
case plan and provide services, following the department’s determination that it did
not have to intervene in the mother’s petition filed against herself; granting
certiorari relief in department’s favor); In re T.J., 59 So. 3d 1187, 1188 n.1 (Fla. 3d
DCA 2011)(noting that the department did not brief or argue either side of the
issue below or on appeal; reversing the summary denial of an amended private
petition and remanding for further proceedings).
At no time did B.Y.G.M. request any services from the State.
3
maintained that she had proven the grounds necessary for an adjudication of
dependency based on abandonment and neglect. She argued that there is no
remoteness limitation on a petition for dependency based on abandonment because
parents have an ongoing duty to care for their children. She further argued that
Florida law allows for a finding of dependency based on the abandonment of one
parent.
The department argued that, while the father had a duty to support B.Y.G.M.,
the purpose of chapter 39 was not the enforcement of child support but to ensure the
secure and safe custody of a child.2 The court denied the motion.
The department takes no position in this appeal. B.Y.G.M. has attained the age
of majority, and the department is no longer required to supervise her placement.
A de novo standard governs this Court’s review of the trial court’s denial of
B.Y.G.M.’s petition. See C.R. v. Dep’t of Children & Family Servs., 53 So. 3d 240,
2 Chapter 39, Florida Statutes (2013), states that its purpose is:
To provide for the care, safety, and protection of children
in an environment that fosters healthy social, emotional,
intellectual, and physical development; to ensure secure
and safe custody; to promote the health and well-being of
all children under the state’s care; and to prevent the
occurrence of child abuse, neglect, and abandonment.
See § 39.001(1)(a), Fla. Stat. (2013).
4
242 (Fla. 3d DCA 2010); G.C. & D.C. v. Dep’t of Children & Family Servs., 791 So.
2d 17, 19 (Fla. 5th DCA 2001).
We agree with the trial court’s determination that there is no support for an
adjudication of dependency. The father’s abandonment was, as the court correctly
found, too remote to serve as a basis for dependency and did not cause B.Y.G.M. any
harm. See, e.g., In re K.V., 939 So. 2d 200, 202 (Fla. 2d DCA 2006) (concluding
that instances of domestic violence in the presence of the child were too remote in
time to support an adjudication of dependency); B.C. v. Dep’t of Children and
Families, 846 So. 2d 1273, 1274 (Fla. 4th DCA 2003) (stating that “[i]n order to
support an adjudication of dependency, the parents’ harmful behavior must be a
present threat to the child”).3
Furthermore, chapter 39 defines a dependent child as a child who, consistent
with the trial court’s findings, has “been abandoned, abused, or neglected by the
child’s parent or parents or legal custodians”, or a child who is “at substantial risk of
imminent abuse, abandonment or neglect by the parent or parents or legal
custodians.” § 39.01(15)(a),(f), Fla. Stat. (2013). There is no evidence that
B.Y.G.M. is at substantial risk of imminent abuse, abandonment or neglect. She is
secure and safe in the custody of her mother who provides supervision and care.
3 The court also rejected the argument that dependency can turn on the actions of a
single parent. However, section 39.01 allows a court to find dependency as to one
parent. See § 39.01(15), Fla. Stat. (2013).
5
This is unlike the case, for example, of In re Y.V., 160 So. 3d 576 (Fla. 1st
DCA 2015). In that case, the petitioner lived with his uncle, his non-legal custodian.
Id. at 577. The trial court dismissed the petition because the events that gave rise to
the dependency grounds occurred outside the State of Florida, and the court found
that the petition was an attempt to circumvent federal immigration laws. Id. at 577-
80. The district court reversed and remanded for further proceedings, concluding that
the petition established a prima facie case of dependency. Id. at 581. B.Y.G.M.,
however, lives with her mother who is her legal custodian. Additionally, the trial
court conducted an adjudicatory hearing prior to the denial of B.Y.G.M.’s petition.
We recognize that the trial court’s denial of B.Y.G.M.’s petition
simultaneously denies B.Y.G.M. the ability to seek federal relief in the form of SJIS.
It is understood that B.Y.G.M. filed her petition to secure SJIS, and that she did not
do so in order to obtain relief from abuse, abandonment, or neglect. There is,
however, simply no basis for a declaration of dependency under these circumstances
where there is neither substantial risk of imminent abuse, abandonment or neglect,
nor the absence of a parent or legal custodian incapable of providing supervision and
care.
For the foregoing reasons, we affirm the trial court’s denial of B.Y.G.M.’s
private petition for dependency.
Affirmed.
6
In the Interest of: B.Y.G.M., etc.
Case No. 3D14-2409
SHEPHERD, J., concurring
I concur in the opinion of the majority in this case. I write only to point out
the troubling fact that the Florida Department of Children and Families (DCF) has
elected not to participate in these proceedings. DCF has admitted both in the trial
court and here that it is a party. DCF trial counsel told the court below: “The
Department of Children and Families, as the statute indicates, is an automatic
party to all Dependency proceedings.” On appeal to this court, appellate counsel
for DCF identified the statute: “The Department’s position was based on the
legislative requirement, pursuant to §39.521(b)1(sic), Fla. Stat. (2014), to
provide protective supervision over the minor’s placement upon an
adjudication of dependency.”4 (Emphasis added). Before us now, DCF’s appellate
4 The majority paints an image of the court and DCF closing their files in these
cases after the dependency adjudication. That, of course, is not true. It is not the
action of B.Y.G.M. that defines the court’s and DCF’s obligations and continuing
responsibility for the well-being of a child declared dependent on the court under
Chapter 39 of the Florida Statutes. It is Florida law. Section 39.521(1)(b)(3) of
the Florida Statutes requires placement of all children adjudicated dependent by a
court “under the protective supervision of an authorized agent of the department . .
. until the court terminates it or until the child reaches the age of 18.” This section
7
counsel waxes apologetic about its participation below, explaining that it
participated there only grudgingly “at the request of the lower court.”
In these cases, the express purpose of the petition is to obtain an adjudication
of dependency, based on abuse, abandonment, or neglect, as a predicate to
requesting special immigrant status for the purpose of seeking lawful permanent
residence in the United States. See 8 U.S.C. § 1101(a)(27)(J) (2013). These
private petitions, specifically those that do not seek any state services, are almost
always uncontested. See In the Interest of M.A.S-Q & Y.E.S-Q, 22 Fla. L. Weekly
Supp. 213a (11th Cir. Ct. Oct. 22, 2013) (Judge Hanzman observing with palpable
discomfort, “DCF never challenges these cases.”). On those rare occasions where
it has taken a position, DCF has opposed the petition. See, e.g. L.T. v. Dep’t of
Children & Families, 48 So. 3d 928 (5th DCA 2010); see also F.L.M. v. Dep’t of
Children & Families, 912 So. 2d 1264, 1269 (Fla. 4th DCA 2005) (“[S]uch is not a
proper use of Florida’s laws, courts and resources devoted to helping truly-
dependent, truly needy children”). DCF may find it uncomfortable to oppose a
petition for dependency that will help a child obtain legal immigration status. It
may consider these cases to be too sensitive for its taste.5 However, as the agency
of the Florida Statutes details the requirements of that supervision, beginning with
judicial reviews at least every six months. See §39.521(c), Fla. Stat. (2014).
However safe a child may appear to be upon an adjudication, the courts and DCF
have become sadly aware of what can happen when they turn their backs.
5 This would not be the first time DCF has shied away from sensitive matters. See,
e.g., R.C. v. Dep’t of Children & Family Servs., 150 So. 3d 1277 n.1 (Fla. 3d DCA
8
charged with protecting children and families, DCF should have a keen interest in
the outcome of this case and how we interpret the applicable law.
DCF is the agency responsible for the administration of Chapter 39 of the
Florida Statutes. See § 20.19, Fla. Stat. (2013) (“There is created a Department of
Children and Families . . . [with the] mission of work[ing] in partnership with local
communities to protect the vulnerable, promote strong and economically self-
sufficient families, and advance personal and family recovery and resiliency.”);
Graham v. State, 40 Fla. L. Weekly D633, D636 n.3 (Fla. 3d DCA 2015)
(recognizing the authority granted to DCF under Chapter 39). In this highly
complex area of the law, we rely on DCF counsel and expertise. DCF has an
obligation to the court to provide its view of the law relevant to these petitions.
DCF shirks its duty to this court and its stewardship obligation over scarce state
resources when it elects not to participate in significant proceedings to which it is
admittedly a party.6 DCF’s decision not to participate also endangers its own
credibility. See Rumph, 667 So. 2d at 999 n.5 (Schwartz, C.J., specially
concurring) (remarking “the disparate arguments presented by [DCF], and the
2014); Rumph v. V.D., 667 So. 2d 998 n.5 (Fla. 3d DCA 1996) (Schwartz, C.J.,
specially concurring).
6 The consequence of non-participation is well-illustrated by a casual perusal of In
re Y.V., 160 So. 3d 576 (Fla. 1st DCA 2015), a case similar to the one before us
where DCF also did not appear. In that case, the First District reached the opposite
conclusion we reach today. If the reasoning of the First District ultimately
prevails, DCF should not be heard to complain in the face of a similar private
petition where services are requested.
9
unprincipled manner in which it has apparently determined which side it will favor,
have caused me to distrust the reliability of any of its legal assertion in these
cases”). DCF’s responsibilities under Chapter 39 make them especially well-suited
to acquaint the court of the applicable laws and their ramifications.
I do not make this point as a matter of sport. If DCF had fulfilled its duty to
the court, we might have learned that as long ago as 1997 the United States
Congress registered its disapproval of using state dependency laws for the exact
purpose they are being used in this case and sought to correct it.7 See 8 U.S.C. §
1101 (a)(27)(J)(iii); 8 C.F.R. § 204.11(c)(6); Yeboah v. U. S. Dep’t of Justice, 345
F.3d 216, 221-222 (3rd Cir. 2003) (citing H.R. Rep. No. 105-405, at 130 (1997),
available at 1997 WL 712946 at *1) (explaining that the purpose of adding sub-
section (iii) to 8 U.S.C. 1101(a)(27)(J) in 1997 was to “limit the beneficiaries of
[Special Immigrant Juvenile Status or SIJS] to those juveniles for whom it was
created, namely abandoned, neglected, or abused children”); see also, M.B. v.
Quarantillo, 301 F.3d 109, 114 (3rd Cir. 2002) (stating the purpose for the
revisions was to “curtail the granting of [SIJS]”). We might also have been alerted
7 Our self-styled “Amicus Curiae” is no less culpable in this regard. The term
“amicus curiae” means friend of the court, not friend of a party. Although we are
beyond original meaning now, see Ryan v. CFTC, 125 F.3d 1062, 1063 (7th Cir.
1997) (citing United States v. Michigan, 940 F.2d 143, 164-65 (6th Cir. 1991)),
attorneys who file amicus briefs in this court labor under the same code of conduct
as all other counsel who appear here, including the obligation to make the court
aware of precedent that may be contrary to their interest. See R. Regulating Fla.
Bar 4-3.3.
10
to other state court authority germane to our decision in this case. See, e.g., H.S.P.
v. J.K., 87 A.3d 255 (Sup. Ct. N.J. 2014) (rejecting a petition for dependency
findings where “the express objective of the petition was for M.S. to obtain relief
for purposes of his immigration status, rather than for the purpose of obtaining
relief from abuse, neglect or abandonment, as his mother had not abused, neglected
or abandoned him”); State v. Erick M., 820 N.W. 2d 639, 648 (Neb. 2012 )
(“Although a literal reading of the statute would seem to permit a state court to
ignore whether reunification with an absent parent is feasible, in practice, courts
and USCIS officials normally consider whether the petitioner has shown that an
absent parent abused, neglected, or abandoned the juvenile.”).
One cannot blame these illegal immigrant children for exploring any lawful
means of remaining in the United States after arriving here. As Amicus itself
admits, “obtaining lawful permanent status will almost always be in the child’s
best interests.” However, B.Y.G.M. and others like her seek to stretch Chapter 39
and the provisions of the SIJS statute beyond their respective purposes. The
purpose of the SIJS law is a narrow one: to provide protection to those children
who, with their families, entered the United States illegally and who are in danger
of being deported along with abusive or neglectful parents or whose parents have
abandoned them once in the United States. See Yeboah, 345 F. 3d at 221(explaining the evolution of the SIJ provision). The purpose of Chapter 39 is to
11
protect families and children in need, not to serve those with a different agenda.
There are multiple lawful avenues of redress in the immigration laws available to
these children, including U visas,8 T visas,9 waivers promoting family unity,
humanitarian reasons, or, even more generally, “the public interest.” See
Memorandum from Donald Neufeld, Acting Associate Director, Domestic
Operations, and Pearl Chang, Acting Chief, Office of Policy & Strategy, to Field
Leadership (March 24, 2009), available at
http://www.uscis.gov/sites/default/files/USCIAS/Laws/Memoranda/Static_Files_
Memoranda/2009/TVPRA_SIJ.pdf. There is no reason for this court to succumb to
those who would misuse our law.
B.Y.G.M. intimates there is no harm in interpreting Chapter 39 literally
because she does not seek services from DCF. She is incorrect. DCF is a party –
an indispensable party – in each of these cases. A declaration that a child is
dependent on the court triggers a host of post-disposition courses of action,
including frequent reviews of the child’s condition and status. See supra note 1.
8A U Visa is available to U.S. crime survivors. See Victims of Criminal Activity:
U Nonimmigrant Status, U.S. Citizenship & Immigr. Servs.,
http://www.uscias.gov/humanitarian/victims-human-trafficking-other-
crimes/victims-criminal-activity-u-nonimmigrant-status/victims-criminal-activity-
nonimmigrant-status (last updated Jan. 09, 2014).
9 A T Visa is available for trafficking survivors. See Victims of Human
Trafficking: T Nonimmigrant Status, U.S. Citizenship & Immigr. Servs.,
http://www.uscias.gov/humanitarian/victims-human-trafficking-other-
crimes/victims-human-trafficking-t-nonimmigrant-status (last updated Jan. 09,
2014).
12
As can be gleaned from the course of this case alone, both the trial courts and
appellate courts expend considerable resources on these cases. The processing of
these cases is not free to either the courts or the taxpayers of this state.
These cases are immigration cases, pure and simple. “The authority to
control immigration—to admit or exclude aliens—is vested solely in the Federal
Government.” Truax v. Raich, 239 U.S. 33 (1915); see also Galvan v. Press, 347
U.S. 522, 531 (1954) (“Policies pertaining to the entry of aliens and their right to
remain here are ... entrusted exclusively to Congress ....”). There has been an
increasing blurring of the lines between the federal and state governments and their
roles. B.Y.G.M.’s mother has done all she can for her daughter throughout her life
with the resources she has been able to obtain. Forced to flee El Salvador for her
life in 2004,10 she left her daughter in the care of grandparents. She faithfully
called her daughter at least weekly from the time she arrived in the United States,
and has provided her and her caregivers as much support as she has been able to
afford. When it became too dangerous for B.Y.G.M. to remain in El Salvador in
2014, B.Y.G.M. (then sixteen-years old) took it upon herself to cross the border.
Two weeks later, the Office of Refugee Resettlement delivered B.Y.G.M. to her
10She was involved in an abusive relationship with her husband, who it is alleged
has since moved to New York State to work as a farmworker. The father’s
whereabouts are unknown and he has nothing to do with B.Y.G.M.
13
mother in Miami-Dade County, where she was welcomed with open arms and has
since that time thrived in her home. Her every need is being met.
We correctly decline to declare B.Y.G.M. dependent on the courts of this
state for the sole purpose of assisting her to obtain a legal immigration status. We
are not empowered to promote or incent immigration outcomes in conflict with the
law and policies of our National Government. See U.S. v. Arizona, 132 S. Ct.
2492, 2498 (2012) (noting that this authority resides, in part, on the National
Government's constitutional power to “establish an uniform Rule of
Naturalization,” U.S. Const., Art. I, § 8, cl. 4, and its inherent power as sovereign
to control and conduct relations with foreign nations). B.Y.G.M.’s recourse in this
case is to the United States Congress, however cumbersome that route may be.
I join the opinion of the majority in this case.
14