In re YV., 2015 WL 1578561 (Fla. 1st DCA)

This appeal follows dismissal of a private petition for dependency on behalf of a minor child who illegally emigrated alone from Honduras to the United States. Y.V. was abused and abandoned by his parents in Honduras. He crossed the Mexico-United States border alone, was picked up by “authorities,” who contacted his uncle in Florida. Uncle was not seeking services to care for Y.V. and the parents consented to adjudication. The express purpose of the petition was to obtain an adjudication order based on abuse, abandonment or neglect, which could be utilized in seeking special immigrant juvenile (SIJ) status and ultimately lawful permanent residence status.

The trial court dismissed the petition based on the fact that the events that gave rise to dependency occurred in Honduras and that the child was not facing imminent risk living with his uncle. The trial court also viewed the petition as an attempt to circumvent immigration laws.

Florida Statute Chapter 39 describes the purpose of the chapter as “to provide for the care, safety and protection of children” and to protect the “children of this state” from “abuse, abandonment, neglect and exploitation.”   The First District Court of Appeal (First DCA) found that nothing in the statute limits the protections contained in Chapter 39 to children where the events that led to dependency occurred inside the state of Florida.

The dependency petition alleged that Y.V. was a dependent child based on Florida Statute s. 39.01(15)(a) and (f), specifically that the child was abandoned, abused or neglected by his parents and that he had no parent or legal custodian capable of providing supervision and care. Neither paragraph requires that the child be at imminent risk of harm. The First DCA citied to several other DCA opinions where the children were found to be dependent because they were abandoned with no legal custodians even though they were being safely taken care of by other adults.

Next, the First DCA examined the interplay between Florida Dependency Law and Federal Immigration Law. Pursuant to 8 USC s. 1101 (a)(27)(j), the first step for a juvenile to obtain SIJ status, an immigrant classification that allows a child to apply to become a permanent resident of the United States, is for a state court to adjudicate the child dependent or issue a similar custody order. Florida Statute s. 39.5075(1)(b) sets forth the procedure to facilitate this process, in which the Department must consider whether the child might be eligible for SIJ status. The First DCA held that the ultimate decision of SIJ status is one for the federal immigration authorities. The motivation of a petitioner should not lead to rejection of a dependency petition by a Florida court.

Although 8 USC s. 1101 (a)(27)(J)(iii)(I), does provide that no juvenile court has jurisdiction to determine custody status or placement of an alien in the Custody of the Secretary of Health and Human Services without the Secretary’s consent, the instant case provided no information that the child was in the custody of the Secretary of Health and Human Services. The First DCA found that the trial court had jurisdiction without additional evidence showing the child be in the custody of the Secretary.

The First DCA reversed dismissal of the petition and remanded for determination of whether the petition establishes a prima facie case of dependency.

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