Department of Children and Families v. S.A.E. Mother of A.A.A.-E. , 184 So. 3d 615 ( 2016 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
DEPARTMENT OF CHILDREN NOT FINAL UNTIL TIME EXPIRES TO
AND FAMILIES, FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appellant,
CASE NO. 1D15-3624
v.
S.A.E., Mother of A.A.A.-E.,
Appellee.
_____________________________/
Opinion filed February 2, 2016.
An appeal from the Circuit Court for Okaloosa County.
Mary Polson, Judge.
Dwight O. Slater, Children's Legal Services, Department of Children and Families,
Tallahassee, for Appellant.
Jennifer H. Copus of Copus & Copus, P.A., Shalimar, for Appellee.
BILBREY, J.
The Florida Department of Children and Families appeals the final order of
which adjudicated A.A.A.-E. dependent, on the ground that the trial court
misapplied section 39.01(15)(a), Florida Statutes, to the undisputed facts of the
case. We agree with DCF and reverse the final order.
This case commenced when A.A.A.-E.’s mother, S.A.E., filed her private
petition for dependency 1 in the circuit court. She sought to have A.A.A.-E.
declared a dependent child as defined in section 39.01(15), Florida Statutes,
because the child was abandoned by his father in their native country of Honduras,
approximately twelve years prior to the final hearing. The threat or risk to the
child, which the mother sought to remedy via her petition, was the possible
deportation of A.A.A.-E. by federal authorities due to his unauthorized entry into
the United States three years prior to the filing of the mother’s amended petition.
The mother asserted that A.A.A.-E. needed the court adjudication to support an
application for a Special Immigrant Juvenile Visa under the federal Immigration
and Naturalization Act, 8 U.S.C. § 1101 (a)(27)(J)(i)-(iii). 2
1
A petition filed by a person who has knowledge of the facts but is not filing on
behalf of the State is commonly referred to as a “private petition for dependency,”
to distinguish such a case from one initiated by the DCF. See § 39.501 Fla. Stat.
(petition to be filed by attorney for DCF or any other person with knowledge of the
facts).
2
8 U.S.C.A. § 1101(a)(27)(J) provides in pertinent part:
(27) The term “special immigrant” 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
2
The mother’s testimony at the final hearing supported her allegations and the
trial court’s findings of fact. A.A.A.-E.’s father knew of the child’s existence and
knew he was the father from the time the child was born, yet the father never
contributed to the child’s support or developed any relationship with the child.
A.A.A.-E. was left in the care of his maternal grandparents in Honduras while the
mother moved to the United States. When the grandparents were no longer able to
take care of A.A.A.-E., his father escorted the child through Mexico and then
turned him over to a smuggler to enter the United States. Immigration authorities
detained A.A.A.-E., and were then able to locate the mother in Florida and reunite
the child with her.
The mother testified that she was willing and able to continue to provide for
all of A.A.A.-E.’s needs. The trial court specifically found, and DCF agrees, that
“the safety, well-being, and physical, mental and emotional health of the Child is
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
status....
3
not endangered by the Child remaining in the custody of the Mother.” The only
risk of imminent harm to A.A.A.-E. proven at the hearing was the possibility of
deportation and return to Honduras by federal authorities, not any harm caused by
abuse, neglect, or abandonment by his mother, his father, or any other caregiver.
This case is factually similar to In re B.Y.G.M., 176 So. 3d 290 (Fla. 3d
DCA 2015), In re K.B.L.V., 176 So. 3d 297 (Fla. 3d DCA 2015), and other recent
cases where children residing in Florida or their caregivers sought to support
applications to the federal immigration authorities with Florida circuit court
adjudications of dependency. 3 As noted in In re B.Y.G.M. and In re K.B.L.V., this
Court reviews the trial court’s application of the statutes to the uncontroverted
facts de novo. This standard of review applies where the petitioners unsuccessfully
appeal denials of their petitions, as in In re B.Y.G.M. and In re K.B.L.V., and
where, as here, DCF appeals the trial court’s adjudication of dependency based on
undisputed facts. See § 39.510, Fla. Stat.
3
Even with the adjudication of dependency, A.A.A.-E. apparently would not fall
under Florida’s definition of a child who “may be eligible for special immigrant
juvenile status under federal law” since he resides with his mother and is therefore
not eligible for long-term foster care. See § 39.5075(1)(b)2, Fla. Stat. In re
S.A.R.D., ___ So. 3d ___, 2016 WL 145999 (Fla. 3d DCA Jan. 13, 2016), and In
re Y.V., 160 So. 3d 576 (Fla, 1st DCA 2015) provide excellent discussions of the
interplay between the state courts’ dependency systems and federal immigration
law, and explain why an adjudication of dependency would be sought to assist in
procuring special immigrant status.
4
A petitioner’s admitted intent to use an adjudication of dependency to
support federal immigration proceedings does not preclude a petitioner seeking
such an adjudication. See In re Y.V., 160 So. 3d at 578 (reversing dismissal of
minor orphan’s petition for adjudication since motivation for petition — to
facilitate immigration status — did not negate prima facie case for dependency); In
re T.J., 59 So. 3d 1187 (Fla. 3d DCA 2011) (reversing summary denial of minor
orphan’s petition seeking adjudication as dependent where petition stated prima
facie case and should have proceeded to adjudicatory hearing). In fact, courts have
repeatedly held that a petitioner’s immigration-related motivation for seeking an
adjudication of dependency is irrelevant to the determination of whether or not the
child is dependent due to abandonment. In re B.Y.G.M., 176 So. 3d at 293
(advancing immigration process without any need for relief from abuse,
abandonment or neglect was “no basis for a declaration of dependency under these
circumstances”); In re K.B.L.V., 176 So. 3d at 299-300 (sole need for adjudication
was to support certain immigration status; only threat to child’s well-being was
potential deportation; no valid basis to qualify for declaration of dependency);
O.I.C.L. v. Dep’t of Children and Families, 169 So. 3d 1244, 1249 (Fla. 4th DCA
2015), rev. granted, ___ So. 3d ___, 2015 WL 6854614 (Fla. Oct. 30, 2015)
(“determination of a child’s status as dependent should be made independent of his
motivations for seeking that status.”); F.L.M. v. Dep’t of Children & Families, 912
5
So. 2d 1264, 1269 (Fla. 4th DCA 2005) (orphan’s intent to use adjudication of
dependency to apply for immigration permit “is irrelevant”).
Because a petitioner’s immigration-related motivation for seeking an
adjudication of dependency is irrelevant to the determination of whether a child is
dependent, it follows that immigration considerations alone cannot constitute
sufficient grounds upon which a child may be adjudicated dependent. The use of
an abandonment by one parent in a child’s country of origin, which has little if any
present effect on the child, to support an adjudication of dependency under section
39.01(15), is a misapplication of that statute which leads to an absurd result. See
In re K.B.L.V., 176 So. 3d at 299-300. Where, as here, it was undisputed that the
child is receiving appropriate care in a single-parent home, a finding of
“abandonment” as the ground for an adjudication of dependency, with the
concomitant obligations for DCF to provide government supervision and services,
is contrary to the provisions of the pertinent statutes and the clear legislative intent
of chapter 39.4
Granted, it is possible to find a child dependent based on one parent’s
actions. But to construe the definition of dependency in section 39.01(15)(a) as
4
Section 39.001, Florida Statutes, sets out at length and in detail the legislative
purpose and intent of chapter 39. The “paramount concern” of the statutory
scheme is child safety, particularly safety from abuse, abandonment, and neglect.
§ 39.001(1)(b)&(3), Fla. Stat. A pathway to legal immigration is not one of the
enumerated protections to be afforded by DCF’s child protection system.
6
including every child living in a single parent household with adequate support and
care whose second parent is absent, would be contrary to the plain meaning of the
statute which provides very specific grounds for a finding of dependency. Our
precedent, consistent with In re B.Y.G.M., and In re K.B.L.V., requires that,
“[T]o support a finding of dependency, the parent's harmful behavior
must pose a present threat to the child based on current
circumstances.” C.W. v. Dep't of Children & Fams., 10 So.3d 136,
138 (Fla. 1st DCA 2009). “[I]n the absence of actual abuse,
abandonment, or neglect, a finding of dependency can be made if
prospective abuse, abandonment, or neglect is shown to be imminent.”
J.B.M. v. Dep't of Children & Fams., 870 So.2d 946, 951 (Fla. 1st
DCA 2004) (citations omitted). “The terms ‘prospective’ and
‘imminent’ are not defined in the statute. ‘Prospective’ simply means
likely to ‘happen,’ or ‘expected.’ ‘Imminent’ encompasses a narrower
time frame and means ‘impending’ and ‘about to occur’.” E.M.A. v.
Dep't of Children & Fams., 795 So.2d 183 n. 3 (Fla. 1st DCA 2001)
(internal citations omitted).
S.S. v. Dep't of Children & Families, 81 So. 3d 618, 621 (Fla. 1st DCA 2012). The
father’s harmful behavior — his abandonment of A.A.A.-E. in Honduras twelve
years ago — does not pose a present threat to A.A.A.-E. Furthermore, there is no
allegation of prospective or imminent abandonment to support a finding that
A.A.A.-E. is dependent.5
5
Our recent case In re Y.V., is distinguishable. There the child was residing safely
with his uncle, but it was alleged that both parents had abandoned the child and
that no parent was capable of providing supervision and care. In re Y.V., 160 So.
3d at 578, citing § 39.01(15)(a)&(f), Fla. Stat. We analyzed other cases and held
that going forward to hearing on the dependency petition was appropriate, “[d]ue
to the lack of a legally compelled relationship between the children and their
caretakers.” In re Y.V., 160 So. 3d at 579. We noted that the children in In re
7
However well-intentioned the adjudication of dependency was in this case,
and however beneficial it was to A.A.A.-E.’s immigration prospects under federal
law, the risk of potential deportation by federal authorities is not a danger Florida’s
child protective services system is intended or designed to address. Accordingly,
the trial court’s adjudication of dependency of A.A.A.-E. based on his father’s
abandonment which occurred in Honduras twelve years ago, despite the child’s
current beneficial situation with his mother, is REVERSED.
THOMAS and KELSEY, JJ., CONCUR.
Y.V. and the other cases allegedly “were not adequately protected from the harms
chapter 39 is designed to prevent and remedy” and therefore a hearing was
necessary on the dependency petition. Id.
8