Ribeiro, G. v. Sousa, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
GERISKA THAMARA RIBEIRO ARRAIS : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
MARCONIO SALES SOUSA : No. 2518 EDA 2022
Appeal from the Order Entered September 7, 2022
In the Court of Common Pleas of Chester County Civil Division at No(s):
2022-04169-CU
BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.
MEMORANDUM BY McCAFFERY, J.: FILED AUGUST 1, 2023
Geriska Thamara Ribeiro Arrais (Mother) appeals from the order denying
her petition for special relief pursuant to Pennsylvania Rule of Civil Procedure
1915.131 and its local rule counterpart, Chester County Rule of Civil Procedure
1915.13.A. In the petition, Mother sought the issuance of an order containing
specific findings of fact regarding her minor son (Child or the Child), which
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1 Rule 1915.13 provides:
At any time after commencement of the action, the court may on
application or its own motion grant appropriate interim or special
relief. The relief may include, but is not limited to, the award of
temporary legal or physical custody; the issuance of appropriate
process directing that a child or a party or person having physical
custody of a child be brought before the court; and a direction
that a person post security to appear with the child when directed
by the court or to comply with any order of the court.
Pa.R.C.P. 1915.13.
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would permit Child to apply for special immigrant juvenile status (SIJ) under
federal law. For the following reasons, we vacate and remand.
I. Facts & Procedural History
Child was born in December 2009 and lived in Brazil with Mother, until
April 2021. See Mother’s Complaint For Custody (Custody Complaint),
6/15/22, at 1-2 (unpaginated). Mother and Child’s father, Marconio Sales
Sousa (Father),2 were married and subsequently divorced around 2017
because Father was purportedly physically aggressive towards Mother and
Child. See N.T., 8/19/22, at 5-6. Child indicated he no longer talks to Father.
Id. at 11.
In June 2017, Mother and Child moved to the United States, and
presently reside in Chester County, Pennsylvania, with Mother’s new husband.
See Custody Complaint at 2 (unpaginated); see also N.T. at 4.
A. Custody Complaint
On June 15, 2022, Mother filed a complaint, seeking sole physical and
legal custody of Child. See Custody Complaint at 1 (unpaginated).3 That
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2 Father is “a foreign national residing in Brazil.” See Trial Ct. Op., 10/31/22,
at 2 n.1.
3 In the complaint, Mother alleged, in relevant part:
12. Reunification with Father is not viable because Father is not
willing to support and provide for Child. Father has abandoned
and neglected the Child.
(Footnote Continued Next Page)
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same day, Mother also filed a petition for special relief, alleging: (1) Child was
under the age of 18 and unmarried; (2) Child had resided with Mother for the
past 12 years; (3) Father is in Brazil and no longer involved in Child’s life; (4)
Mother is Child’s sole parental figure, and provides for all of his needs and
wants; and (5) Child is eligible for SIJ status, as set forth in the Immigration
and Nationality Act (INA) at 8 U.S.C. § 1101(a)(27)(J). See Mother’s Petition
for Special Relief Pursuant to Pa.R.C.P. 1915.13 and C.C.R.C.P. 1915.13.A
(Mother’s Petition for Special Relief), 6/15/22, at 1-2 (unpaginated). Mother
indicated she was “seeking special relief in the form of a [c]ourt [o]rder that
enumerates the aforesaid additional findings of fact and grants her sole legal
and physical custody of . . . Child.” Id. at 2.
B. Federal Law — SIJ Statute & Classification
At this juncture, it is necessary to set forth the applicable federal law at
issue. “The SIJ statute, 8 U.S.C. § 1101(a)(27)(J), provides that a juvenile
who qualifies as an SIJ may apply for lawful permanent residency and thus
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13. The best interest and permanent welfare of the Child will be
served by granting the relief requested because the Child will be
in a safe and loving environment. [Mother] provides the Child
safety, protection and physical, mental and moral welfare. In
addition, it is not the Child’s best interest to return to Brazil
because there is no appropriate relative who can provide adequate
care or supervision.
Custody Complaint at 3 (unpaginated).
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relief from deportation.” Orozco v. Tecu, 284 A.3d 474, 476 (Pa. Super.
2022) (citation omitted). Section 1101(a)(27)(J) defines an SIJ as a juvenile:
(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[.]
8 U.S.C. § 1101(a)(27)(J).4
“In order to obtain SIJ status, a petitioner must obtain determinations
from both the state and federal systems.” Orozco, 284 A.3d at 476. Under
8 C.F.R. § 204.11, SIJ classification requires the following, in pertinent part:
(b) Eligibility. A petitioner is eligible for classification as a special
immigrant juvenile under section 203(b)(4) of the Act as
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4 The statute was ratified for the following reasons:
The SIJ provisions of the INA were enacted in 1990 to protect
abused, neglected, or abandoned children who, with their families,
illegally entered the United States. Congress provided an
alternative to deportation for these children. Rather than being
deported along with abusive or neglectful parents, or deported to
parents who had abandoned them once in the United States, such
children may seek special status to remain in the United States.
Yeboah v. United States DOJ, 345 F.3d 216, 221 (3d Cir. 2003). “Although
not binding on us, we may cite federal authority for its persuasive value.”
Toppy v. Passage Bio, Inc., 285 A.3d 672, 690 n.7 (Pa. Super. 2022).
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described at section 1[1]01(a)(27)(J) of the Act, if they meet all
of the following requirements:
(1) Is under 21 years of age at the time of filing the
petition;
(2) Is unmarried at the time of filing and adjudication;
(3) Is physically present in the United States;
(4) Is the subject of a juvenile court order(s) that
meets the requirements under paragraph (c) of this
section; and
(5) Obtains consent from the Secretary of Homeland
Security to classification as a special immigrant juvenile.
For [United States Citizenship Immigration Services
(USCIS)] to consent, the request for SIJ classification must
be bona fide, which requires the petitioner to establish that
a primary reason the required juvenile court determinations
were sought was to obtain relief from parental abuse,
neglect, abandonment, or a similar basis under State
law. . . .
(c) Juvenile court order(s).
(1) Court-ordered dependency or custody and
parental reunification determination. The juvenile
court must have made certain judicial determinations
related to the petitioner’s custody or dependency and
determined that the petitioner cannot reunify with
their parent(s) due to abuse, neglect, abandonment,
or a similar basis under State law.
(i) The juvenile court must have made at least one of
the following judicial determinations related to the
petitioner’s custodial placement or dependency in
accordance with State law governing such
determinations:
(A) Declared the petitioner dependent upon the
juvenile court; or
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(B) Legally committed to or placed the
petitioner under the custody of an agency or
department of a State, or an individual or entity
appointed by a State or juvenile court.
(ii) The juvenile court must have made a judicial
determination that parental reunification with one or
both parents is not viable due to abuse,
abandonment, neglect, or a similar basis under State
law. The court is not required to terminate parental
rights to determine that parental reunification is not
viable.
(2) Best interest determination.
(i) A determination must be made in judicial or
administrative proceedings by a court or agency
recognized by the juvenile court and authorized by law
to make such decisions that it would not be in the
petitioner’s best interest to be returned to the
petitioner’s or their parent’s country of
nationality or last habitual residence.
(ii) Nothing in this part should be construed as
altering the standards for best interest determinations
that juvenile court judges routinely apply under
relevant State law.
(3) Qualifying juvenile court order(s).
(i) The juvenile court must have exercised its
authority over the petitioner as a juvenile and made
the requisite judicial determinations in this paragraph
under applicable State law to establish eligibility. . . .
8 C.F.R. § 204.11(b)-(c) (emphases added). “Under the federal SIJ scheme,
the state court does not render an immigration decision but rather makes
factual determinations predicate to [United States Citizenship Immigration
Services’] SIJ determination.” Orozco, 284 A.3d at 477 (citation omitted).
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C. Custody Hearing
On August 19, 2022, the trial court held a hearing but did not comment
as to whether it would hear both the custody issue and the petition for special
relief, or just the custody issue. See N.T. at 3. Mother and Child were both
present. Id. at 4, 11. Father did not appear in person or remotely.5 Mother’s
counsel requested the court consider both the custody and petition for special
relief issues. See id. at 3. Both Mother and Child testified. See id. at 4-12.
The court did not enter a decision that day but took the matter under
advisement. Id. at 13.
D. Trial Court Orders
On September 7, 2022, the trial court entered two separate orders. In
the first order, the court awarded Mother sole legal and physical custody of
Child. The trial court also stated: “This court is not sitting as a dependency
or juvenile court, as those terms are defined by Pennsylvania law. The court
decided this custody matter after consideration of the factors set forth in
23 Pa.C.S. § 5328.” See Order, 9/7/22, at 1 n.1 (unpaginated; emphases
added). The court attached a memorandum in support of its custody order,
with a complete analysis of the 16 custody factors set forth in Section 5328(a).
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5 Counsel for Mother offered into evidence a “declaration” and “acceptance of
service” submitted by Father. N.T. at 3. In the document, Father was in
agreement that Mother should take sole physical and legal custody of Child.
See id. at Exhibit P-1, “Declaration and Acceptance of Service,” 6/27/22, at
1 (unpaginated).
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See Memorandum in Support of Custody Order, 9/7/22, at 1-5. The court
opined that after considering the Section 5328(a) factors, it gave “significant
weight to the stability of [Child]’s life provided by Mother, as well as the
educational opportunities afforded to him.” Id. at 5. It further relied on “the
lack of opposition to the proposed custody, as expressed by Father,” to
determine it was “in the best interests” of Child to grant Mother legal and
physical custody. Id.
As for the second order, the court denied Mother’s petition for special
relief and her request for specific findings of fact. The court filed a separate
decision, also dated September 7, 2022, regarding the petition for special
relief. The court noted:
Mother testified that Father was ‘physical’ with [Child] and that
she was required to obtain a restraining order against Father in
Brazil because of the abuse and his threat to kill her. [Child] has
lived with Mother since 2017 and she provides him with his daily
needs, including education opportunities. Mother also testified
that it would be safer for [Child] to remain in her custody. . . .
Decision, 9/7/22, at 2.
In denying relief, the court stated: “There is no provision in our statutes
or rules that address special relief for this purpose or permit a departure from
the requirement that the factors set forth in [Section] 5328(a) be addressed
by the court.” Decision at 3. Additionally, the court found the petition was
defective for two reasons: (1) special relief is limited to temporary orders
affecting custody; and (2) there is no emergency or other circumstance
present, which warrants special relief in this case, since Mother did not seek
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a protection from abuse order on behalf of Child. Id. The court also
determined: “There is no evidence of record that [Child] faces an imminent
threat nor that such issues will not be addressed by a final custody order. The
status quo in this instance favors Mother and there is no evidence of record
that [Child] would be put at risk or that there would be a change in
circumstance in the absence of special relief.” Id.
In addressing Mother’s request for special findings, the trial court
opined:
This court has no jurisdiction over immigration matters,
which are the province of the federal government. However, the
federal government has thrust upon state court the responsibility
to make findings of fact and issue an order in dependency and
custodial matters, which, under certain circumstances, may allow
an individual to be eligible for [SIJ status]. This is not such a case.
Decision at 4.
The trial court then reviewed state and federal law, as well as the USCIS
Policy Manual,6 regarding what type of court may assess a SIJ classification
and found the following:
The matter before the court is a custody case. The court is
not sitting as a juvenile court as defined by federal law. USCIS
POLICY MANUAL VOL. 6, PART J, CHAP. 2(C) (2022) (eligibility
requirements); Pa.R.J.C.P. 120[ ] (defining the term “juvenile”).
There is no dependency matter before the court regarding [Child],
and even if there were, the record is clear beyond question that
he has parental care and control provided by his Mother. There is
no evidentiary record upon which [Child] could be found
dependent. Matters of C.R.S., 696 A.2d 840 (Pa. Super. 1997).
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6 See Decision at 5-6.
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[Child] is also not a juvenile as defined by Pennsylvania law.
Pa.R.J.C.P. 120.
Mother seeks to have this court issue its custody order using
language specific to dependency and juvenile court proceedings.
It appears that if the court were to sign such an order it could then
be used to induce a federal agency or court, reviewing [Child]’s
application for [SIJ status], to rely on that order in concluding that
the statutory requirements of [Section] 1101(a)(27)(J) and
accompanying regulations have been met when that is not the
case. This court will not grant relief that may create the
temptation to misuse its order in such manner.
Decision at 6-7.
E. Appeal & Trial Court Opinion
On October 6, 2022, Mother filed a notice of appeal from the trial court’s
order denying her petition for special relief,7 and a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal.8 The trial court issued a
Pa.R.A.P. 1925(a) opinion on October 31, 2022.
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7 Mother did not file an appeal regarding the court’s custody order.
8 In the concise statement, Mother raised the following claims:
1. The [trial c]ourt abused its discretion and violated due process
of the law as guaranteed by the Fifth Amendment by denying
[Mother]’s request for special relief and specific findings of fact.
The [c]ourt erred in finding that “there is no provision in our
statutes or rules that address special relief for this purpose or
permit a departure from the requirement that the factors set forth
in [Section] 5328(a) be addressed by the court.” See Court’s
Decision, p. 3. In direct contrast, Explanatory Comment to Rule
1915.13 states that the Rule “contains a broad provision
empowering the court to provide special relief where appropriate.”
(Footnote Continued Next Page)
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In its Rule 1925(a) opinion, the trial court suggested that this Court
quash Mother’s appeal “for want of jurisdiction based on the failure to appeal
the final [c]ustody [o]rder in this matter.” Trial Ct. Op. at 2. The court first
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2. The [c]ourt erred and abused its discretion in finding that the
law “does not permit” the custody court to grant a final custody
order as a special form of relief. See Court’s Decision, p. 3.
3. The [c]ourt erred and abused its discretion in finding that the
only time it may enter a special order for relief is when an
“emergency circumstance” is present. See Court’s Decision, p. 3.
4. The [c]ourt erred and abused its discretion by adopting the
narrow definition of “juvenile” as set forth under the Pennsylvania
Rules of Juvenile Court Procedure in [its] analysis. This is a
custody matter, not a delinquency matter. See Court’s Decision,
p. 5-6.
5. The [c]ourt erred in finding that it is not a “juvenile court” for
the purposes of SIJS classification. See Court’s Decision, p. 6.
6. The [c]ourt erred and abused its discretion in denying
[Mother]’s special request for relief and specific findings when it
had proper jurisdiction to do so.
7. The [c]ourt egregiously misapplied and misinterpreted both
Pennsylvania state law and SIJS federal law.
8. The [c]ourt violated [Mother]’s right to Due Process because it
deprived [her] and her minor child of a remedy for the minor’s
right to seek SIJ status.
9. [Mother] reserves the right to supplement and/or amend this
Statement of Errors, pursuant to Rule 1925(b)(2) and Pa.R.A.P.
902, as the hearing transcript has not been received to date.
Mother’s Concise Statement of Errors Complaint of on Appeal, 10/6/22, a 1-3
(unpaginated; footnote omitted).
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focused on the nature of the petition for special relief, stating that the
“objective of special relief is to allow for temporary modification of custody or
visitation[.]” Id. at 3 (citation omitted). The court pointed out that it “chose
to forego a temporary interim step and issued a final [c]ustody [o]rder on the
same day it denied [Mother]’s Petition[, and that t]he [c]ustody [o]rder
resolved more permanently the question of with whom the Child should
remain.” Id. (citations omitted). The court opined it was the custody order
that “decided all the issues of law and fact” and therefore, “[i]t was the
[c]ustody [o]rder [Mother] was required to appeal, but she did not file a timely
appeal.” Id. at 3-4.9
Next, the trial court determined “there was no basis for the grant of the
special relief requested[.]” Trial Ct. Op. at 6. The court stated the “custody
factor analysis provided the trial court with ample opportunity to address
allegations of abuse, neglect, or abandonment, provided there was enough
credible evidence, of sufficient weight to support such claims, but that was
not the case.” Id. The court then determined that SIJ status was not the
proper subject for special relief, stating it “was unable to find a single statutory
or procedural rule in the Commonwealth related to obtaining [SIJ status]
related relief in this context[.]” Id. at 7 (footnote omitted). The court noted
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9 Relatedly, the trial court found Mother lacked standing to appeal the custody
order because she received the relief she requested in her complaint, and
therefore, was the prevailing party. See Trial Ct. Op. at 5-6.
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that pursuant to 8 C.F.R. § 204.11(b)(5), a petitioner is required to establish
that the primary reason for the state juvenile court determination is “to obtain
relief from parental abuse, neglect, abandonment, or a similar basis under
State law.” Id. at 7 (citation omitted). The court surmised that based on her
counsel’s statements at the August 19, 2022, proceeding, Mother’s purpose
for the petition “was not primarily for the purpose of obtaining relief from
parental abuse, neglect, abandonment, but solely for purposes of obtaining”
SIJ status. Id. The court opined “it was not willing to engage in such
subterfuge by issuing an order leading the federal government or a court to
believe anything to the contrary.” Id. at 7-8.
The court further found Mother’s request for special relief was
“defective” as there “there was no allegation by [Mother] that there was an
emergency or apparent urgent need for court action to preserve the well-being
of Child.” Trial Ct. Op. at 8. Moreover, the court stated that “status quo . . .
favors” Mother, and “there is no evidence of record that Child would be put at
risk or that there would be a change in circumstance in the absence of special
relief.” Id.Third, the trial court determined there was insufficient credible evidence
to support Mother’s petition for special relief and specific findings of fact. See
Trial Ct. Op. at 9. The court stated it “observed the witnesses’ demeanor
during their testimony, considered their significant interest in having Child
qualify for [SIJ status], and found neither witness sufficiently credible nor the
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evidence of sufficient weight to support the requested findings.” Id. The
court further found: (1) no evidence Child had been abused by Father where
Mother “provided vague testimony about Father being ‘aggressive with [Child]
physically[;]’” (2) no credible evidence of sufficient weight that Father had
abandoned Child where Child “merely stated that he does not talk to Father[;]”
and (3) no credible evidence that it would be dangerous for Child to return to
Brazil to live with Father Id. at 9. Moreover, the court stated it was
“unconvinced that Child could not return to Brazil because of ‘the financial
situation’” where Mother “did not explain that situation, but to the extent Child
might return to live in poverty, that is not a basis to find child abuse or an
unsafe environment.” Id. at 10 (citation & quotation marks omitted).
Lastly, the court addressed the issues identified in Mother’s concise
statement. See Trial Ct. Op. at 10-16.
II. Statement of Questions Involved
Mother presents the following three issues on appeal:
1. Whether the trial court erred in denying [Mother]’s request for
an SIJ eligibility order because it deprived [her] and [Child] of a
remedy for [Child]’s right to seek SIJ status and violated their
right to due process?
2. Whether [the Superior] Court has jurisdiction to review the trial
court’s order as a final order under 42 Pa.C.S. § 742 and Pa.R.A.P.
341(a) & (b)(1) because it disposes of all of [Mother]’s claims
relating to her request for the issuance of an SIJ eligibility order?
3. In the alternative, whether the Superior Court has jurisdiction
to review the trial court’s order as a collateral order under
Pa.R.A.P. 313 because the issue of SIJ eligibility is separable from
and collateral to the custody proceeding, the right involved is too
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important to be denied, and the question presented is such that if
review is postponed until final judgment in the case, the claim will
be irreparabl[y] lost?
Mother’s Brief at 7-8.
Based on the nature of Mother’s arguments, we will address her second
and third issues first because they pertain to the jurisdiction of this Court.
I. Jurisdiction & Appealability
“[T]he appealability of an order directly implicates the jurisdiction of the
court asked to review the order.” Knopick v. Boyle, 189 A.3d 432, 436 (Pa.
Super. 2018) (citation omitted). We note because questions concerning the
appealability of an order go to jurisdiction, they may be raised sua sponte by
this Court. Capuano v. Capuano, 823 A.2d 995, 998 (Pa. Super. 2003).
“Jurisdiction is purely a question of law; the appellate standard of review is de
novo, and the scope of review plenary.” Kapcsos v. Benshoff, 194 A.3d
139, 141 (Pa. Super. 2018) (en banc) (citation omitted). Generally, “[f]or an
order to be appealable, it must be (1) a final order, Pa.R.A.P. 341-342; (2) an
interlocutory order appealable by right or permission, 42 Pa.C.S. § 702(a)-
(b); Pa.R.A.P. 311-312; or (3) a collateral order, Pa.R.A.P. 313.” Ashdale v.
Guidi Homes, Inc., 248 A.3d 521, 525 (Pa. Super. 2021).
Pursuant to the Pennsylvania Rules of Appellate Procedure, “a final order
is one that disposes of all claims and of all parties or is entered as a final order
pursuant to Pa.R.A.P. 341(c).” Situs Props., Inc. v. Jenkins Court Realty
Co., LP, 259 A.3d 993, 997 (Pa. Super. 2021) (citation & footnote omitted).
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A collateral order is an order [(1)] separable from and
collateral to the main cause of action [(2)] where the right
involved is too important to be denied review and [(3)] the
question presented is such that if review is postponed until final
judgment in the case, the claim will be irreparably lost. Pa.R.A.P.
313(b). If an order satisfies the three-pronged test set forth in
Rule 313(b), this Court may exercise appellate jurisdiction over
the order, even though it is not final.
The collateral-order rule is a specialized, practical
application of the general rule that only final orders are appealable
as of right. As such, this Court must stringently apply the
requirements of the collateral-order doctrine. If an order does not
meet all three prongs of the collateral-order test, this Court has
no jurisdiction to consider an appeal from that order.
Smith v. O’Brien, __ A.3d __, __, 2023 WL 309009, at *2 (Pa. Super. Jan.
19, 2023) (quotation marks & some citations omitted).
Here, Mother complains that in accordance with this Court’s recent
decision in Orozco, supra, she “has a right to seek an SIJ eligibility order in
the context of a custody proceeding.” Mother’s Brief at 12. She further
asserts the trial court’s September 7, 2022, order qualifies as either a final
order or a collateral order. See Mother’s Brief at 17. She states: “[T]he order
constitutes a final order . . . because it disposes of all of [her] claims relating
to [her] request for the issuance of an order to establish [Child]’s eligibility for
[SIJ] status pursuant to 8 U.S.C. § 1101(a)(27)(J) and 8 C.F.R. § 204.11.”
Id.In the alternative, Mother argues this Court has jurisdiction over the
matter pursuant to Pa.R.A.P. 313 because the September 7, 2022, order
constitutes a collateral order. See Mother’s Brief at 18. She states: (1) the
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order “relates to a claim that is conceptually distinct from the merits of the
main cause of action” because she is not seeking a modification of the custody
order but rather requesting relief “in the form of issuance of the findings of
fact required under [Section] 5323(d), solely for the purpose of establishing
[Child]’s eligibility for SIJ status before USCIS[;]” (2) the case involves a right
that is too important to be denied review because it “will enable [Child] to
avoid deportation from the United States” as Child “is seeking relief from
removal in the form of [an] adjustment of status based, prospectively, on an
approved [p]etition for SIJ status[;]” and (3) Mother’s right to pursue SIJ
status for Child “will be lost forever if the requested relief is not granted.” Id.
at 20-23.
With respect to this question, we are guided by this Court’s decision in
Orozco, supra.10 In Orozco, the appellant filed a petition seeking the
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10 We note that Orozco was decided after the trial court entered its September
7, 2022, order, but before it issued its Rule 1925(a) opinion. “[I]t is well
settled that Pennsylvania appellate courts apply the law in effect at the time
of the appellate decision. This means that we adhere to the principle that a
party whose case is pending on direct appeal is entitled to the benefit of
changes in law which occur before the judgment becomes final.” In re
Adoption of A.M.W., 289 A.3d 109, 115 n.6 (Pa. Super. 2023) (en banc)
(citation and quotation marks omitted). Moreover, we note that one three-
judge panel of this Court cannot overrule another. See Commonwealth v.
Taggart, 997 A.2d 1189, 1201 n.16 (Pa. Super. 2010); see also
Commonwealth v. Taylor, 649 A.2d 453, 455 (Pa. Super. 1994).
As will be discussed infra, the trial court discussed Orozco in its Rule
1925(a) opinion but found that it was distinguishable. See Trial Ct. Op. at 6
n.4, 7 n.5, & 14-16.
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issuance of an order containing specific factual findings regarding her minor
child that were necessary to petition the USCIS for SIJ status as to the child.
Orozco, 284 A.3d at 476. The appellant resided in Delaware County while
the child’s father resided in Guatemala. Id. The father was not involved in
the child’s life and did not participate in the proceeding at issue. Id. “Before
moving to the United States to live with [the appellant, the child] lived with
other relatives.” Id. In April 2020, the appellant filed a complaint for sole
physical and legal custody of the child. Id. In March 2021, the trial court
held a hearing on the matter, at which time, the appellant “asked the court to
issue findings of fact sufficient to petition USCIS for SIJ status.” Id. The court
stated that it would only consider the appellant’s custody issue. Id. at 477.
The appellant then requested the opportunity to amend her complaint to
include the SIJ findings request, to which the court indicated that it would take
the request “under advisement and issue an order. However, the court never
addressed [the appellant]’s request for leave to amend and instead . . . issued
only a temporary custody order granting [her] sole legal and physical custody
of [the child]. The order did not include the SIJ findings of fact.” Id. The
appellant then filed an emergency application, “requesting that the court issue
the findings of fact necessary to apply for SIJ status.” Id. The court again
declined her request and an appeal subsequently followed. Id.
The trial court found the order at issue was “not ripe for review because
it is a temporary order and thus interlocutory.” Orozco, 284 A.3d at 477. A
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panel of this Court disagreed, determining “the subject order is appealable as
of right as a collateral order.” Id. at 478. This Court analyzed the three
prongs of the collateral order doctrine, and determined:
[The appellant]’s emergency petition for an SIJ order is separable
from [her] main custody action because we can decide the
propriety of the denial of the SIJ motion without delving into the
merits of the underlying custody case. Further, the interest at
issue — a predicate order for [the child] to apply for SIJ status
and seek adjustment of his immigration status — is an “important
right” significant enough to outweigh the efficiency interests of the
court. Lastly, [the child]’s ability to obtain appellate relief will be
effectively foreclosed if we deny immediate review. [The
appellant] candidly informs us that deportation proceedings are
pending against [the child] and she sought the SIJ order so he
could obtain relief from deportation. Hence, we conclude that the
. . . order was immediately appealable as a collateral order.
Id. at 478-79 (citations & footnote omitted; emphasis added). Additionally,
this Court concluded that the trial court “abused its discretion” when it
declined to provide reasoning for its refusal on the record in any capacity,
stating: “The federal statutory scheme puts the factual determinations
necessary for SIJ status solely within the purview of state courts. Yet the
court flatly refused to issue the SIJ order. In this posture, the refusal was an
abuse of discretion.” Id. at 479.
Turning to the present matter, it is evident that Orozco is factually and
procedurally substantially similar to this present matter — both mothers filed
a custody action while also seeking the issuance of an order containing specific
factual findings regarding SIJ status for a minor child. Both trial courts held
a hearing on the custody issue, but failed to address the merits of the SIJ
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status requests and denied relief. Moreover, like the appellant in Orozco,
Mother contends that the court’s September 7, 2022, order qualifies as a
collateral order because: (1) it is separate from the custody action; (2) it
involves a right that is too important to be denied review since deportation
proceedings are pending against Child; and (3) her right to pursue SIJ status
for Child will be lost forever if the relief is not granted. See Mother’s Brief at
18-23. Accordingly, we disagree with the court’s suggestion that this appeal
should be quashed for lack of jurisdiction. Rather, this case is controlled by
Orozco, and the court’s September 7, 2022, order qualifies as a collateral
order that is immediately appealable.11
We now turn to Mother’s substantive argument regarding the court’s
denial of her petition seeking an SIJ order. She contends “there was nothing
improper with [her] request for the issuance of an SIJ eligibility order” because
“such a request can only be made within the context of a custody,
guardianship or dependency proceeding.” Mother’s Brief at 14. Mother states
that “8 U.S.C. § 1101(a)(27)(J) and 8 C.F.R. § 204.11 grant state juvenile
courts exclusive jurisdiction to make certain findings relating to SIJ eligibility.”
Mother’s Brief at 14. Moreover, she maintains the following:
Federal law requires the issuance of an SIJ eligibility order by a
state juvenile court as a prerequisite to pursuing SIJ status before
USCIS. By necessity, SIJ eligibility must be determined in a state
____________________________________________
11 Consequently, we need not reach the question of whether the order at issue
constitutes a final order.
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custody, guardianship, or dependency proceeding, applying state
law. [Mother]’s request for an SIJ eligibility order was proper and
appropriate in the context of the custody proceeding and the
denial of such relief violated Appellant’s fundamental right to due
process.
Id. at 15-16.
We may reverse a decision in an equity matter only for an
error of law or abuse of discretion. The findings of fact made by
the trial court will not be disturbed unless they are unsupported
by competent evidence or are demonstrably capricious. To the
extent that this appeal implicates statutory interpretation, our
standard of review is de novo, and our scope of review is plenary.
We review trial courts’ interpretations of statutes for error of law.
Orozco, 284 A.3d at 479 (citations & quotation marks omitted).
We note, at the outset, that the trial court was disinclined to consider
Mother’s petition based on several procedural nuances of the case, which it
set forth in its September 7, 2022, Decision and then subsequently relied on
in its Rule 1925(a) opinion — particularly, (1) the fact that it was not a juvenile
or dependency court,12 and (2) the fact that Mother filed a petition for special
relief, which it construed as not the proper vehicle for seeking this specific
relief.13 We disagree with these conclusions for several reasons.
First, the trial court in Orozco was not a juvenile or dependency court,
and there is no indication that the minor child was declared dependent upon
the court or legally committed to an agency/department of the
____________________________________________
12 See Decision at 4-6; Trial Ct. Op. at 11-12.
13 See Decision at 3; Trial Ct. Op. at 7-9.
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Commonwealth. Nevertheless, this Court still found that the lower court erred
by refusing to address the petition. See Orozco, 284 A.3d at 478-79. It
merits mention that the language of 8 C.F.R. § 204.11(c) refers to all three
terms — juvenile, dependency, and custody. We note the federal statute’s
language is intended to be all-encompassing, covering the 50 states as well
as the District of Columbia. The purpose of the law is to address issues of
abuse, abandonment, and neglect. See Yeboah, 345 F.3d at 221.
Accordingly, we cannot conclude Section 204.11 would restrict the SIJ
classification to only a juvenile court having administrative power. We point
out that in this Commonwealth, a court of common pleas is the proper judicial
body to review allegations of child abuse, and specifically, an orphans’ court
has the most fitting jurisprudence. Accordingly, the rationale of the trial court
in the present matter is erroneous.
Second, we note that while Mother may have filed her request as a
petition for special relief which may not have been the most appropriate
practice, the title of the document should not control where the substance of
the relief requested is clear — particularly where a child is the subject of the
underlying matter. Where there are allegations of abuse, neglect, or
abandonment regarding a child, a reviewing court should excuse the
misnomer and address the merits set forth in the filing.
Next, we point out that in its Rule 1925(a) opinion, the trial court opined
that Orozco is distinguishable from the case sub judice because, in Orozco,
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this Court “addressed [SIJ status] findings in the context of the lower court’s
failure to provide a rationale for its declining to make such findings[, which is]
not the case in the present matter.” Trial Ct. Op. at 7 n.5; see also id. at
15. Then, contrary to its statements in the September 7th Decision, the trial
court decided to address the SIJ status issue in its opinion, determining there
was insufficient credible evidence to support Mother’s requested relief and
specific findings. See Trial Ct. Op. at 15-16. The court analyzed the issue,
relying on the testimony of Mother and Child to find no evidence of abuse and
abandonment. Id. The court stated:
In the present matter, [it] provided [Mother] with a
meaningful opportunity to present her entire case, has now
discussed the reasons for its denial [o]rder, and is addressing the
alleged errors set forth by [Mother] as permitted by Rule 1925(a).
Finally, the trial court may make findings that would permit a
litigant primarily seeking relief from abuse or neglect to apply for
[SIJ status], if the evidence supports such findings. There is no
legal requirement that a trial court make such findings, especially
where, as here, the evidence does not warrant it. Neither Orozco
nor federal law requires a court to turn a blind eye to the evidence
of record in order to make findings that would support an [SIJ
status] application.
Id. at 15-16 (italics in original; citation omitted).
We find that the trial court’s analysis is misplaced. As evidenced by the
court’s statements in its September 7th Decision, it is clear the trial court did
not believe it was the proper judicial body to review the matter, nor did it
believe Child could be considered dependent and a juvenile under
Pennsylvania law. See Decision at 5-7. Thus, when it issued its September
7th orders, it was only looking at that testimony through the lens of the
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custody complaint at the time it entered the order awarding Mother legal and
physical custody of Child. See Memorandum in Support of Custody Order at
1-5. Mother was not provided with the opportunity to make the case
concerning allegations of abuse, neglect, and abandonment in the context of
an SIJ classification. Now, in its Rule 1925(a) opinion, the court is trying to
apply a different lens to the same testimony and address the SIJ status issue.
The court’s actions amounted to an abuse of discretion. A reasonable
person would not agree that Mother was given a full opportunity to present
her case regarding Child’s SIJ status. Moreover, based on the inadequate
testimony, the court cannot retroactively make specific findings as to the SIJ
determination.14 As such, we disagree with the court’s determination that
there was insufficient credible evidence to support Mother’s requested relief
and specific findings. See Trial Ct. Op. at 9-10. We conclude the court abused
its discretion in refusing to address Mother’s petition for special relief.
Accordingly, we vacate the trial court’s order and remand for a new hearing
to address factual findings with respect to Child that are predicate to the SIJ
____________________________________________
14 We recognize there was testimony as to the purported abuse and lack of
involvement regarding Father. See N.T. at 6-8, 11. However, this testimony
was asked in the context of the custody issue, not an SIJ determination.
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status determination regarding evidence of abuse, abandonment, or neglect.15
See Orozco, 284 A.3d at 479.16
Order vacated. Case remanded for further proceedings consistent with
this memorandum. Jurisdiction relinquished.
____________________________________________
15 It merits mention that this trial court held a proceeding on the same day as
the present case in a similar, but unrelated, matter that involved a
grandmother appellant and child seeking SIJ status special findings. See
Rivas v. Villegas/Landaverde, __ A.3d __, 2517 EDA 2022 (Pa. Super.
2023). It also denied relief on the same bases as the case sub judice, finding:
(1) the grandmother should have appealed the custody order and not the
denial of the petition for special relief; (2) there was no basis for granting
special relief; (3) the request for special relief was defective; and (4) in any
event, there was insufficient credible evidence to support the petition for
special relief. See id. Notably, like Mother and Child here, the court found
neither the grandmother nor the child credible. Id. On appeal, the
grandmother raised identical issues to the present appeal.
Like herein, this writer authored the Majority Opinion in Rivas, reversing
the trial court’s decision in light of Orozco.
16 We take this moment to acknowledge that the law in this area has not been
fully developed. While the statute was enacted in 1990, its interpretation and
application in this Commonwealth has been limited until very recently. See
Orozco; see also Velasquez v. Miranda, ___ A.3d ___, 2023 WL 4069151(Pa. Super. June 20, 2023).
Moreover, the statute creates a unique procedural caveat where the ultimate
determination is of the federal immigration nature, but preliminary factual
determinations are made by state courts. See Orozco, 284 A.3d at 477
(citation omitted). Since the statute’s enactment, no settled interpretation or
application of the SIJ statute has been developed among the states, and there
is no unified body of law for considering what evidence will be sufficient to
support SIJ findings. As such, the courts of this Commonwealth may face
confusion and produce inconsistent results in future proceedings as we see
this type of case occurring often in the future. Consequently, we note that
further guidance from the Pennsylvania Supreme Court and General Assembly
may help to clarify those problems that will continue to challenge our orphans’,
juvenile, and family courts.
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Judge Bowes joins the memorandum.
Judge Sullivan files a concurring statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/1/2023
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