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In re Danely C.

Court of Appeals of Tennessee, Nashville

November 29, 2017

In re DANELY C.

          Assigned on Briefs June 1, 2017

         Appeal from the Chancery Court for Rutherford County No. 16CV-1115 Howard W. Wilson, Chancellor

         M.V.C.[1], the mother of Danely C., an undocumented minor born in Honduras, filed a petition in the trial court seeking an order appointing M.V.C. as guardian of her daughter. She further asked the court to make findings as mandated by 8 U.S.C.A. § 1101(a)(27)(J) (2014). Findings favorable to the petitioner are a prerequisite for Danely C. to apply under federal law for special immigrant juvenile status. The petitioner prayed "[t]hat sevice of process issue as necessary upon [Danely C]." The trial court, acting sua sponte, dismissed the petition, finding "no justiciable controversy in this cause." We vacate the judgment of the trial court and remand for a hearing with respect to the matters contemplated by 8 U.S.C.A. § 1101(a)(27)(J).

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

          Charles D. Susano, Jr., J., delivered the opinion of the court, in which W. Neal McBrayer and Arnold B. Goldin, JJ., joined.

          Allison Wannamaker, Memphis, Tennessee, for the appellant, M.V.C.

         The petition was not opposed in the trial court nor on this appeal. The case was submitted to the Court of Appeals on the appellant's brief only.

          OPINION

          Charles D. Susano, Jr.

         I.

         M.V.C. (Mother) filed her petition on July 25, 2016, stating that Danely C. was born on October 6, 2000, in Choluteca, Honduras. The petition further alleges, in pertinent part, as follows:

The Minor lived with the [Mother] in Honduras from 2000 until 2004. In 2004, the living conditions in Choluteca, Honduras were deplorable and dangerous. In order to support the Minor and provide her with a better future, the [Mother] made the difficult decision to leave the Minor with the [Mother]'s mother (now age 70) and grandmother (now age 91), while the [Mother] sought to support herself in the United States. This arrangement was difficult and grew worse as the [Mother]'s mother and grandmother aged. The Minor left to join her mother in the United States because her grandmother and great-grandmother had grown too old and ill to care for the Minor, and were unable to protect her from the dangerous conditions in Honduras.
The Minor's father, [M.A.R.], is believed to live in Honduras but his exact location is unknown. The Father has never taken any responsibility for the Minor, and they have no emotional attachment to each other. He has not provided financial or other material support for the Minor.
The Minor last saw her father in Honduras on or about March 12, 2014, as she was preparing to join her mother in the United States. Prior to this occasion, the Minor had last seen the Father approximately eight months earlier (in late 2013). The Minor and the Father occasionally saw each other around the town of Choluteca; the Father might give the Minor money to buy candy but no meaningful financial support.
On or about March 26, 2014, the Minor was apprehended by U.S. Customs and Border Protection ("CBP") after crossing the U.S.-Mexico border at Hidalgo, TX at age 13. CBP placed her in the custody of the Department of Health and Human Services Office of Refugee Resettlement. On April 11, 2014, ORR placed the Minor with the [Mother]. The Minor has resided in Rutherford County since that time, and this fall she will enroll in the 10th grade at Smyrna High School. The Minor is currently in removal proceedings before the Memphis Immigration Court; her next hearing is scheduled for November 29, 2016.

         (Numbering in original omitted, as are the citations to exhibits attached to the petition.) Mother further requested that the trial court make findings of fact required by federal immigration law as a prerequisite to Danely's application for special immigrant juvenile status. She alleges as follows:

The Minor will be applying for Special Immigrant Juvenile Status if this Court grants the guardianship. Therefore, [Mother] requests the following specific findings be made by the Court and included in the Court's order of Appointment:
a) That the Minor has been legally placed with a private person by this Court, which is a valid exercise of this Court's jurisdiction under Tenn. Code Ann. § 34-2-101(a).
b) That the Court has declared that reunification with the Minor's father is not possible due to abandonment, as abandonment is defined in Tenn. Code Ann. § 36-1-102.
c)That the court has declared that it is not in the best interest of the Minor to be returned to her home country of Honduras.

         The trial court denied Mother's request that "appointment of a Guardian Ad Litem be waived per Tenn. Code Ann. § 34-1-107(a)(2)(A)." Accordingly, the court appointed a GAL the day after the petition was filed. A hearing was scheduled for September 6, 2016. On that day, the trial court, acting sua sponte, entered the following order of dismissal, as quoted in its entirety:

This Cause came to be heard on September 6, 2016, before the Honorable Howard W. Wilson, Chancellor, upon the Petition for Appointment of Guardian filed in this matter. At the call of the docket counsel for [Mother] did not appear, but did, however, communicate with the Guardian ad litem in an effort to request the Court to waive her appearance in light of the issues necessitating counsels' agreed request for a continuance.
After a review of the Record, it appears that the Petitioner . . . is the natural mother of the minor child at issue in this guardianship proceeding. However, pursuant to Tenn. Code Ann. § 34-1-102, parents are the natural guardians of their minor children. Therefore, the mother's Petition fails to state a claim for which relief can be granted due to the fact that she already serves as the guardian of her daughter by operation of law. Accordingly, there is no justiciable controversy in this cause, and the same is hereby DISMISSED with prejudice. Court costs in this matter as well as the fees of the Guardian ad litem shall be taxed to [Mother]. The Guardian ad litem is instructed to submit an affidavit of fees along with a proposed order of approval for the Court's consideration.

(Capitalization and italics in original). Mother timely filed a notice of appeal.

         II.

         The issue presented is whether the trial court erred in dismissing Mother's petition for failure to state a claim upon which relief can be granted. In our review, we accept as true all factual allegations of the petition, and review de novo the trial court's legal conclusion regarding the adequacy of the petition. Moore-Pennoyer v. State, 515 S.W.3d 271, 275-76 (Tenn. 2017) (quoting Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011)).

         III.

         The federal statute at the heart of this case is 8 U.S.C.A. § 1101(a)(27)(J), which has been described as establishing "a unique hybrid procedure that directs the collaboration of state and federal systems." In re Marisol N.H., 115 A.D.3d 185, 188 (N.Y.App.Div. 2014) ...


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