Assigned on Briefs June 1, 2017
from the Chancery Court for Rutherford County No. 16CV-1115
Howard W. Wilson, Chancellor
M.V.C., 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).
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.,
Allison Wannamaker, Memphis, Tennessee, for the appellant,
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.
Charles D. Susano, Jr.
(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
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
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
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
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. §
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
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.
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)).
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)