Assigned on Briefs August 1, 2017
from the Chancery Court for Rutherford County No. 16CV-1308
M. Keith Siskin, Chancellor.
C.L. ("the Minor's Uncle") appeals the
determination of the Chancery Court for Rutherford County
("the Trial Court") finding that it lacked
jurisdiction to make a finding regarding whether it is in the
best interest of Domingo C.L. ("the Minor") to be
returned to his home country of Guatemala. We find and hold
that the Trial Court had jurisdiction to make this finding,
that the petition specifically requested a finding with
regard to this issue, and that it was error to refuse to make
a finding with regard to whether it was in the Minor's
best interest to be returned to Guatemala. We, therefore,
modify the Trial Court's October 31, 2016 Order
Appointing Guardian Of A Minor by remanding this case to the
Trial Court for a determination of whether it is in the
Minor's best interest to be returned to Guatemala. We
affirm the remainder of the Trial Court's order.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Affirmed as Modified; Case Remanded.
M. Joyner, Memphis, Tennessee, for the appellant, Obispo C.L.
MICHAEL SWINEY, C.J., delivered the opinion of the court, in
which ANDY D. BENNETT and KENNY W. ARMSTRONG, JJ., joined.
MICHAEL SWINEY, CHIEF JUDGE.
Minor was born in July of 2000, in Guatemala where he lived
in a two-room house with his mother, his maternal
grandfather, and his two younger sisters. The Minor's
father abandoned the family over four years ago. The
Minor's mother worked as a seamstress, but she struggled
to provide for the family. The Minor was forced to drop out
of school after the sixth grade because his mother was too
poor to pay for him to continue. After he dropped out of
school, the Minor worked in the corn fields. The Minor's
mother was unable to provide adquate food and clothing, and
the Minor's family ate only once or twice a day and
typically ate only the corn they grew.
of 2015, the Minor left Guatemala and traveled to the United
States where he was apprehended by U.S. Customs and Border
Protection after crossing the U.S. - Mexico border at
Hidalgo, Texas. In September of 2015, the Minor was placed
with his paternal uncle, the Minor's Uncle, who resides
in Rutherford County, Tennessee. The Minor has lived in
Rutherford County, Tennessee since that time. The Minor's
Uncle has provided the Minor with his own room and adequate
food, and the Minor has been enrolled in school in Tennessee.
August of 2016, the Minor's Uncle filed a Petition for
Appointment of Guardian for the Minor requesting, among other
things, a specific finding regarding whether it is in the
Minor's best interest to be returned to Guatemala. A
hearing was held and the Trial Court heard testimony from the
Minor who testified about the facts discussed above and also
testified that he desires to remain in his uncle's care.
The Minor further testified that the circumstances in
Guatemala had not improved, and if he were forced to return
to Guatemala, he would be subjected to the same conditions.
the hearing, the Trial Court entered its Order Appointing
Guardian Of A Minor ("Order Appointing Guardian")
on October 31, 2016. In the Order Appointing Guardian, the
Trial Court appointed the Minor's Uncle as guardian of
the Minor after finding and holding, inter alia:
Proper notice was given to the Minor and the Petitioner. The
biological father's location is unknown and he cannot
therefore cannot [sic] be notified of these proceedings nor
enter an appearance, and the biological mother executed a
document before a notary indicating her desire for the
Petitioner to be responsible for the care and custody of the
Minor. Further, the Court finds by clear and convincing
evidence that the Mother has abandoned the Minor.
The Minor's father abandoned the Minor and his
whereabouts are unknown. The Minor's mother resides in
Guatemala. The Minor and the Petitioner reside in La Vergne,
THE COURT FURTHER FINDS that reunification with the
Minor's father and mother are not viable due to the
abandonment, as the Minor's father has failed to
communicate with or support the Minor in any way for several
years and the Minor's mother has failed to support the
child for approximately one year. The Court affirmatively
finds that both parents willfully abandoned the child.
Trial Court refused to make a finding with regard to whether
it was in the best interest of the Minor to be returned to
Guatemala finding that it lacked jurisdiction to make such a
determination. The Minor's Uncle appeals the Trial
Court's refusal to make the requested finding to this
not stated exactly as such, the Minor's Uncle raises one
issue on appeal: whether the Trial Court erred in finding it
lacked jurisdiction to make a finding regarding whether it is
in the Minor's best interest to be returned to Guatemala.
In the absence of an order containing this finding, the Minor
cannot qualify to apply for special immigrant juvenile status
pursuant to 8 U.S.C.A. § 1101(a)(27)(J), which provides:
(27) The term "special immigant" means - -
(J) an immigrant who is present in the United States - -
(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; and
(iii) in whose case the Secretary of Homeland Security
consents to the grant of special immigrant juvenile ...