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In re Domingo C.L.

Court of Appeals of Tennessee, Nashville

August 30, 2017

IN RE DOMINGO C.L.

          Assigned on Briefs August 1, 2017

         Appeal from the Chancery Court for Rutherford County No. 16CV-1308 M. Keith Siskin, Chancellor.

         Obispo 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed as Modified; Case Remanded.

          Sally M. Joyner, Memphis, Tennessee, for the appellant, Obispo C.L.

          D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which ANDY D. BENNETT and KENNY W. ARMSTRONG, JJ., joined.

          OPINION

          D. MICHAEL SWINEY, CHIEF JUDGE.

         Background

         The 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.

         In July 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.

         In 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.

         After 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, Tennessee.
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.

         The 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 Court.

         Discussion

         Although 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 ...

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