Amaya v. Guerrero Rivera
Amaya v. Guerrero Rivera
Opinion of the Court
*451Although appellant Yesennia Esmeralda Amaya was granted sole physical custody over her daughter, the district court denied her motion to make the three predicate findings necessary to petition the federal government for Special Immigrant Juvenile (SIJ) status. See
BACKGROUND
Amaya gave birth to A.A. in El Salvador in November 2004. A.A.'s father, respondent Milton Orlando Guerrero Rivera,
When A.A. was 12 years old, she moved to the United States to avoid the harsh realities of her life in El Salvador. Since February 2017, A.A. has lived with her mother, stepfather, and two half siblings in Las Vegas. A.A. does not want to return to El Salvador. In December 2017, Amaya petitioned for sole physical custody of A.A. The district court entered a default against the nonresponsive Guerrero Rivera, granted joint legal custody to both parties and sole physical custody to Amaya, and ordered Guerrero Rivera to pay child support at $100 per month.
Following the district court's default against Guerrero Rivera but before a written order was entered, Amaya filed a motion for SIJ predicate findings. The district court declined to hold a hearing and denied Amaya's request. The district court concluded that it did not appoint Amaya to have custody over A.A. by granting Amaya's petition for custody and that Amaya did not prove that A.A. was unable to reunify with both parents, rather than with just her father.
DISCUSSION
Federal law provides a pathway for undocumented juveniles residing in the United States to acquire lawful permanent residency by obtaining SIJ status under
The Nevada Legislature enacted NRS 3.2203 in May 2017 to comport with federal law and codify the juvenile courts' existing authority to issue predicate findings for purposes of
A child custody order satisfies the dependency or custody prong for SIJ predicate findings
First, Amaya challenges the district court's conclusion that the district court did not place A.A. under her custody in granting Amaya's petition for custody,
Showing that reunification with one parent is not viable satisfies the reunification prong for SIJ predicate findings
Next, Amaya argues the district court erred in concluding the reunification prong *453required Amaya to demonstrate A.A. could not reunify with both parents. Amaya contends the plain language that "[t]he reunification of the child with one or both of [the juvenile's] parents was determined not to be viable" encompasses two scenarios: (1) reunification is not viable with one parent, or (2) reunification is not viable with both parents.
The district court did not explicitly rule as to this prong but denied Amaya's request, in part, because she could not show that reunification with both parents was not viable. In reaching this conclusion, the district court misreads this court's unpublished order in In re Guardianship of D.S.M ., Docket No. 72820 (Order of Affirmance, March 15, 2018). In D.S.M. , this court affirmed the district court's denial of a motion for SIJ findings because the appellant, D.S.M.'s aunt, did not show that D.S.M. was unable to reunify with his father due to abandonment or neglect where reunification was not possible because of the father's murder.
We conclude the plain language of "one or both of [the juvenile's] parents" is clear-the use of a disjunctive "or" signals the reunification prong is met where the juvenile cannot reunify with one parent or with both parents. In approving of one-parent SIJ cases, we join the majority of states that have considered this issue. See, e.g., Eddie E. v. Superior Court ,
Accordingly, we reverse the district court's custody order insofar as the court denied Amaya's motion for SIJ predicate findings, and we remand this case to the district court for further proceedings consistent with this opinion.
I concur:
Hardesty, J.
Guerrero Rivera did not file any answering brief in or otherwise respond to this fast-track appeal.
We note both Amaya and the district court refer to Assembly Bill 142, the bill that enacted NRS 3.2203 and went into effect in October 2017, before Amaya filed the underlying action. See 2017 Nev. Stat., ch. 212, § 1, at 1147. We apply NRS 3.2203 here.
"Juvenile court" is defined under federal law as "a court located in the United States having jurisdiction under State law to make judicial determinations about the custody and care of juveniles."
The dissent concludes that NRS 3.2203(2) 's lack of explicit enumeration of NRS Chapter 125C places these proceedings beyond the reach of NRS 3.2203. We disagree. District courts conducting proceedings pursuant to NRS Chapter 125C already have jurisdiction to make the types of findings that constitute SIJ findings, see, e.g., NRS 125C.003 (awarding physical custody of a child); NRS 125C.003(3) (determining if a parent has I abandoned a child); NRS 125C.0035(4)(j) (determining if a parent has abused or neglected a child); NRS 125C.0035(4) (setting forth considerations in evaluating a child's best interest). In resolving Amaya's petition for custody, the district court's jurisdiction encompassed making the SIJ findings that were material to A.A.'s custody and best interest. See Landreth v. Malik ,
Several other jurisdictions have adopted this approach. See, e.g., Simbaina v. Bunay ,
Dissenting Opinion
To pursue Special Immigrant Juvenile (SIJ) status, a child must first petition a state juvenile court to issue an order making special findings of fact that the child is dependent upon the court or legally committed to a court-appointed individual. In re Marisol N.H .,
In Nevada, NRS 3.2203 specifically details when a district court must make findings pursuant to the SIJ statutes: "during a proceeding held pursuant to chapter 62B, 125, 159, 159A or 432B of NRS." NRS 3.2203(2). If a statute is clear and unambiguous, we do not look beyond its plain language, and we strive to give effect to the plain meaning of its words and phrases. Davis v. Beling,
Not only is NRS 3.2203(2) clear in this regard, but subsection 3 of the statute, which requires the child to have been placed under the custody of a state agency, department, or person "appointed by the court," likewise does not create ambiguity. Importantly, the "appointed" language relates back to the statutes enumerated earlier in that same subsection. NRS 3.2203(3) ("A person may include in a petition filed or motion made pursuant to chapter 62B, 125, 159, 159A or 432B of NRS a request that the court make the ... finding[ ] ... [that] [t]he child had been ... placed under the custody o f ... a person appointed by the court." (emphasis added)); cf State v . Plunkett , 134 Nev. Adv. Op. 88,
Instead of filing under one of the chapters enumerated in the statute, Amaya petitioned the district court under NRS Chapter 125C. Yet, NRS Chapter 125C is specifically excluded from NRS 3.2203, and the plain language of NRS 3.2203 does not mandate that the district court make findings for purposes of the SIJ statutes. Because Amaya petitioned the district court pursuant to NRS Chapter 125C, instead of petitioning the juvenile court for guardianship pursuant to NRS Chapter 159A, I agree with the district court here. The district court was not required to make specific findings because pursuant to NRS 3.2203, the child had not been "placed under the custody o f ... a person appointed by the court" in either temporary or permanent guardianship proceedings, which seems to be what Amaya really desired.
However, I believe nothing precludes Amaya from petitioning for guardianship pursuant to NRS Chapter 159A and thereafter seeking special findings, especially where such a request is unopposed as it was below. Amaya's desire for "specific findings" for SIJ status by the district court was thwarted, in my view, because she used the wrong vehicle to obtain them. Because this case involved a default in a child custody proceeding filed under NRS Chapter 125C, NRS 3.2203 is not *455implicated. Therefore, I cannot say that under these particular facts the district court abused its discretion and should be reversed for failing to make the specific findings. Further, nothing would preclude Amaya from obtaining her desired result by petitioning again under a different statute encompassed by NRS 3.2203 even if we were to affirm the district court in this case. Accordingly, I respectfully dissent.
Reference
- Full Case Name
- Yesennia Esmeralda AMAYA v. Milton Orlando GUERRERO RIVERA
- Cited By
- 7 cases
- Status
- Published