O.I.C.L. v. Department of Children and Families, 2015 WL 4461164 (Fla. 4th DCA)

The Fourth District court of Appeal (Fourth DCA) addressed the issue of private dependency petitions that are clearly filed to assist a child in obtaining Special Immigration Juvenile Status (SIJS). O.I.C.L. filed a private petition alleging that he was abandoned by his father and neglected by his mother in Guatemala. When he was seventeen years old, his mother could no longer continue supporting him so he went to the United States, where he lived with his uncle. The trial court denied the petition finding that O.I.C.L. did not qualify as a dependent child as he was being well cared for by a “ready willing and able relative.”

The Fourth DCA noted that these petitions are becoming more common and guidance on handling them is necessary. Common elements are seen in these cases. The child/petitioner is almost eighteen years old and agrees not to seek any services from the State. The Department of Children and Families (Department) does not take a position in the trial or the appeal.   No contrary testimony is taken and at least one of the parents sign consent to entry of a dependency order. The Fourth DCA, citing Dep’t of Children and Families v. Y.C., 82 So. 3d 1139 (Fla. 3d DCA 2012) explains “at their core, these petitions are probably best described as ‘merely an unopposed request for the assistance of the court,’ for entry of orders to help a child obtain legal immigration status.

Although the Fourth DCA recognizes that a child’s motivation for seeking dependency status is irrelevant, it notes also that judicial resources are being misused to obtain dependency orders for children who are not abused, neglected, abandoned, endangered or in need of protection but because they are seeking special immigration status. Although a literal application of Florida Statute § 39.01(15)(a) allows for a child who had been abused, neglected, or by a parent or legal custodian at any time in the past and when not at risk of future abuse to be found dependent, the Fourth DCA did not believe the legislature intended such an expansive reading. To illustrate its position, the Fourth DCA described a situation where a seventeen year old could be adjudicated dependent based on abuse that happened when he was two by a parent that is now deceased.

The Fourth DCA warned against courts “rubber-stamping” these petitions and directed courts to consider the petitions carefully with critical review. It set forth a number of factors that trial courts should consider when evaluating these petitions:

1. The nature, severity and frequency of abuse.

2. The time that has elapsed between the abuse, neglect or abandonment.

3. Whether the child is presently at a continued, but not necessarily imminent, risk of harm before turning eighteen years old.

4. The availability of a caregiver capable of providing both supervision and care.

5. Any other relevant factors to the particular case.

O.I.C.L. was picked up by the Office of Refugee Resettlement and placed with his uncle pending immigration charges. The trial court found, and the Fourth DCA agreed, that the Office of Refugee Resettlement qualified as a caregiver pursuant to Florida Statute § 39.01(47) and their placement of the child with his uncle made him a relative caregiver.

Justice Forst filed a dissent in which he agreed with the legal analysis required for these types of private petitions but disagreed that the uncle was a legal caregiver.