LOPEZ VS. SERBELLON PORTILLO (CHILD CUSTODY)

136 Nev., Advance Opinion 54
IN THE SUPREME COURT OF THE STATE OF NEVADA
MARIELA EDITH LOPEZ, No. 79549
Appellant,
vs.
MANUEL DE JESUS SERBELLON
FLE
PORTILLO,
AUG 0 5 2020
Respondent.
ELI"' Bri.7.WN
CLERI ._WiREM COURT
BY
rliEF DEPUlY CLERK
Appeal from a district court order in a child custody matter.
Eighth Judicial District Court, Family Court Division, Clark County;
Rebecca Burton, Judge.
Affirmed in part, reversed in part, and remanded.
Hamilton Law and Ryan A. Hamilton, Las Vegas,
for Appellant.
Manuel de Jesus Serbellon Portillo, La Paz, El Salvador,
Pro Se.
BEFORE PARRAGUIRRE, HARDESTY and CADISH, JJ.
OPINION
By the Court, HARDESTY, J.:
Through a custody proceeding, appellant Mariela Edith Lopez
asked the district court to make the predicate findings necessary to petition
the federal government for Special Immigrant Juvenile (SIJ) status. The
district court refused to find that the minor child's reunification with
respondent Manuel de Jesus Serbellon Portillo was not viable. We take this
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opportunity to address what the court should consider in determining
whether reunification is viable for purposes of SIJ findings. Because the
district court properly awarded Lopez custody but did not properly construe
the controlling statute in determining whether reunification was not viable,
we affirm in part, reverse in part, and remand for further adjudication
consistent with this opinion.'
BACKGROUND
Lopez gave birth to K.M.L. in El Salvador in 2007. She had
informed K.M.L.'s father, Serbellon Portillo, of her pregnancy. She also
specifically informed Serbellon Portillo via phone of K.M.L.'s birth when
K.M.L. was three months old. Serbellon Portillo has had no communication
with K.M.L., has not sought any contact with K.M.L., and has provided no
support for K.M.L. Serbellon Portillo resides in El Salvador and has Lopez's
contact information or could contact her through her family there, but he
has not done so.
K.M.L. resided in El Salvador with Lopez's mother until 2017.
At that point, Lopez's mother was no longer able to care for him. Lopez also
feared for K.M.L.'s safety because of increased gang activity in his
Salvadoran neighborhood. In particular, K.M.L.'s neighbors were killed by
gang members. K.M.L. thus relocated to the United States to live with
Lopez.
Lopez filed the underlying custody action seeking primary
physical and legal custody of K.M.L. and requesting the district court make
the predicate findings necessary for K.M.L. to seek Special Immigrant
Juvenile (SIJ) status from the federal government. Serbellon Portillo was
'Pursuant to NRAP 34(f)(1), we have determined that oral argument
is not warranted in this appeal.
2
personally served with a copy of the custody complaint in both English and
Spanish. He did not file a responsive pleading. The district court heard
testimony from. Lopez and awarded her primary physical and legal custody.
In its order, the district court found that it was in K.M.L.'s best interest to
remain with Lopez but stated it was "unable to find that reunification is not
viable due to abandonment because this Court is unable to predict whether
the father will seek to reunify with the child some time in the future." Lopez
appeals.
DISCUSSION
As we have previously recognized, the federal government
"provides a pathway for undocumented juveniles residing in the United
States to acquire lawful permanent residency by obtaining SIJ status under
8 U.S.C. § 1101(a)(27)(J)." Amaya v. Guerrero Rivera, 135 Nev. 208, 209,
444 P.3d 450, 451 (2019). Before an applicant may file a petition with the
federal government for SIJ status, the applicant must obtain a state
juvenile court order with three findings:
(1) the juvenile is dependent on a juvenile court, [or]
the juvenile has been placed under the custody
of . . . an individual appointed by the court
(dependency or custody prong); (2) due to
abandonment, abuse, neglect, or some comparable
basis under state law, the juveniles reunification
with one or both parents is not viable (reunification
prong); and (3) it is not in the juveniles best
interest to be returned to the country of the
juvenile's origin (best interest prong).
Id. at 210, 444 P.3d at 452. NRS 3.2203 provides district courts with
jurisdiction to make the SIJ findings when requested in certain proceedings,
such as custody proceedings. Here, the first SIJ finding was established by
the order awarding Lopez custody of K.M.L. Amaya, 135 Nev. at 211, 444
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P.3d at 452. We turn then to the second SIJ finding—the reunification
prong.
Lopez argues that the district court erred in interpreting the
reunification prong as requiring a finding that reunification was not
possible, instead of not viable. Reviewing that decision de novo, we agree
with Lopez. See Amaya, 135 Nev. at 210, 444 P.3d at 452 (providing that
this court reviews interpretation of statutes de novo).
To satisfy the second SIJ predicate, the court must find that
"reunification of the child with one or both of his or her parents [is not]
viable because of abandonment, abuse or neglect or a similar basis under
the laws of this State." NRS 3.2203(3)(b). In the termination-of-parental-
rights context, abandonment of a child is established when the parent's
conduct "evinces a settled purpose on the part of one or both parents to
forego all parental custody and relinquish all claims to the child." NRS
128.012(1). Additionally, a presumption that the parent has abandoned the
child applies in that same context when the parent has not supported the
child or communicated with the child for six months. NRS 128.012(2).
While the district court may look to this definition and presumption of
abandonment for guidance in determining the reunification prong of the SIJ
findings, the SIJ findings do not require as high a burden of abandonment
because the reunification prong only requires that reunification is not
viable, instead of not possible. 8 U.S.C. § 1101(a)(27)(J)(i) (Supp. I 2014),2
NRS 3.2203(3)(b).
2We acknowledge that a definition included in 8 U.S.C.
§ 1101(a)(43)(F) has been held unconstitutionally vague by other courts.
See, e.g., Golicov v. Lynch, 837 F.3d 1065 (10th Cir. 2016); Shuti v. Lynch,
828 F.3d 440 (6th Cir. 2016); Dimaya v. Lynch, 803 F.3d 1110 (9th Cir.
4
In addressing whether the trial court erred in refusing to make
the predicate finding that reunification is not viable with a parent who
allegedly abandoned a child, the District of Columbia Court of Appeals
observed that a court should take "a realistic look at the facts on the ground
in the country of origin and a consideration of the entire history of the
relationship between the minor and the parent in the foreign country." J.U.
v. J.c.P.c., 176 A.3d 136, 140 (D.C. 2018). Further, the J.U. court observed
that the definition of "viable calls for a court to consider whether
reunification is practicable or workable. Id. at 140 (citing Merriam-Webster
New International Dictionary (3d ed. 2002) (defining viable as "capable of
being put into practice: workable), American Heritage Dictionary of the
English Language (3d ed. 1992) (defining viable as "capable of success or
continuing effectiveness; practicable), and Random House Dictionary of the
English Language (21st ed. 1987) (providing that viable means "practicable;
workable)). Addressing the abandonment part of the inquiry, the J.U.
court also reasoned that because the concept of abandonment for the
purpose of SIJ findings is not one that leads to the termination of a parent's
parental rights, a court need only "assess the impact of the history of the
parent's past conduct on the viability, i.e., the workability or practicability
of a forced reunification of parent with minor, if the minor were to be
returned to the home country." Id. at 141.
In J.U., the father had visited the child regularly in El Salvador
when the child was young. Id. at 142. When the child's mother relocated
to the U.S., however, the child resided in El Salvador with his paternal
2016). Because this matter concerns a definition frorn another subsection
of that statute, we conclude those opinions have no bearing on our decision
in this matter.
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grandfather, who the child thought of as his father. Id. The father never
provided financial support for the child, never showed the child affection or
cared for the child, and never assumed any parental responsibility for the
child other than signing the documents for the child to obtain a passport to
travel to the U.S. Id. at 142. After the paternal grandfather died, leaving
the child with no place to live in El Salvador, the father did not invite the
child to live with him, and the father did not communicate with the child
after the child then relocated to the U.S. Id. at 142-43. The trial court found
that the mother must have been minimizing the father's involvement in the
child's life, and thus, reunification was viable. Id. at 142. The Court of
Appeals, however, concluded that "the trial court applied too demanding a
standard of both 'viability and 'abandonment,'" as the father had only taken
"spasmodic steps in his parental role" and "essentially outsourced all [his
parental] duties to others." Id. at 142-43. Therefore, the Court of Appeals
concluded that reunification was not viable as it was not practicable or
workable to send a child "back to the care of a father who has never fulfilled
any day-to-day role in the support, care, and supervision during the boy's
lifetime." Id. at 143.
While not many jurisdictions have had the opportunity to
provide guidance on determining when abandonment renders reunification
not viable for the purpose of SIJ findings, two jurisdictions have adopted
the approach set forth in J.U. Romero v. Perez, 205 A.3d 903 (Md. 2019);
Kitoko v. Salomao, 215 A.3d 698 (Vt. 2019). In fact, the Court of Appeals of
Maryland expanded on J.U. and provided a nonexhaustive list of factors a
court should consider in determining whether abuse, neglect, or
abandonment indicate that reunification is not viable:
(1) the lifelong history of the child's relationship
with the parent (i.e., is there credible evidence of
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past mistreatment); (2) the effects that forced
reunification might have on the child (i.e., would it
impact the child's health, education, or welfare);
and (3) the realistic facts on the ground in the
child's home country (i.e., would the child be
exposed to danger or harm).
Romero, 205 A.3d at 915.
These cases provide an instructive legal framework for
evaluating the SIJ reunification prong, and we therefore adopt the approach
discussed in J.U., 176 A.3d at 140-43, and Romero, 205 A.3d at 915. While
the district court may look to definitions of abandonment that apply in other
contexts, we caution district courts to remember that because SIJ findings
do not result in the termination of parental rights, the consideration of
whether a parent has abandoned a child such that reunification is not viable
is broader than the consideration of whether a parent's abandonment of a
child warrants termination of the parent's parental rights.
Because the district court here looked at whether reunification
might be possible in the future instead of looking at the viability of
reunifying K.M.L. with Serbellon Portillo after considering the history of
the parent-child relationship, whether it would be practicable or workable
to send K.M.L. back to Serbellon Portillo's care, and the facts on the ground
in El Salvador, we conclude the district court erred in declining to make the
predicate finding that reunification is not viable under NRS 3.2203(3)(b).
Amaya, 135 Nev. at 210, 444 P.3d at 452. Because no party challenges the
custody decision and the record on appeal does not indicate the district court
abused its discretion by awarding Lopez primary physical and legal custody
of K.M.L., we affirm the custody decision.
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CONCLUSION
For the purpose of SIJ findings, a district court addressing
whether reunification is not viable should consider the history of the parent-
child relationship, the conditions on the ground in the child's foreign
country, and whether returning the child to the parent in the foreign
country would be workable or practicable due to abandonment, abuse, or
neglect. Because the district court did not apply the proper legal framework
in concluding that it could not find that reunification was not viable, we
reverse the district court's order insofar as it denied Lopez's motion for SIJ
predicate findings, but we affirm the custody aspect of the order. We
remand this case to the district court for further proceedings consistent with
this opinion.
J.
Hardesty
We concur:
Parraguirre
J.
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