In Re Guardianship of Mc ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re MC, Minor. August 17, 2023
No. 364989
Macomb Probate Court
LC No. 2022-242386-GM
Before: O’BRIEN, P.J., and CAVANAGH and MARKEY, JJ.
PER CURIAM.
Appellant, the guardian of the minor child, MC, appeals as of right the probate court’s order
denying appellant’s petition for special findings of fact to apply for Special Immigrant Juvenile
(SIJ) status for MC under 8 USC 1101(a)(27)(J) with the United States Citizenship and
Immigration Services (USCIS). On appeal, appellant argues that the probate court erred by
refusing to find that MC was abandoned or neglected by her parents. We vacate the probate court’s
order and remand for further proceedings consistent with this opinion.
I. BACKGROUND
MC is appellant’s younger sister. MC and her parents are Albanian citizens. In July 2022,
MC was placed in appellant’s custody after MC came to the United States as an unaccompanied
minor refugee and was admitted to a Texas immigration facility. Appellant commenced this case
by petitioning for appointment as MC’s guardian.
While appellant’s request for guardianship was pending, he also petitioned the court to
make predicate factual findings for MC to apply for SIJ status. This included asking the court to
find that (1) MC had “been neglected and abandoned” by her parents “[b]ased upon [their]
refusal . . . to care for, maintain, or provide for [MC’s] essentials, including food, clothing, shelter,
education, emotional support, and other basic needs,” and (2) “that it would not be in [MC’s] best
interest to be reunified with her parents.” Appellant supported these allegations with his own
affidavit.
After appellant’s SIJ-related petition was filed, the court appointed appellant as MC’s
guardian. Later, on November 2, 2022, the probate court held a hearing on appellant’s SIJ-related
petition. At that hearing, the probate court expressed concern because, while MC’s parents had
waived service for appellant’s petition to be appointed MC’s guardian, they had not waived service
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with respect to appellant’s SIJ-related petition. The court also noted that appellant needed to serve
the Albanian Consulate pursuant to MCR 5.125. Due to these “multiple deficiencies,” the court
allowed appellant to proceed, but made clear that those deficiencies needed to be remedied before
the court issued a decision. Appellant’s counsel then addressed the circumstances that led to
appellant’s SIJ-related petition. Counsel began by explaining that MC initially lived in Albania
with her parents but, because of the situation described in appellant’s petition, supporting brief,
and affidavit, MC’s father took her to live with one of her other brothers in Italy. According to
counsel, when that brother was no longer able to care for MC, “he made arrangements for the
minor child to come to the U.S. to stay with” appellant. Counsel said that, since that time, appellant
has been caring for MC—including enrolling her in school—with no assistance from MC’s
parents. After counsel concluded, the trial court asked if there would be any testimony, and
counsel asked the court if it “need[ed] to hear more testimony,” and, if not, appellant would merely
rely on the affidavit attached to his petition. The court responded, “That’s fine,” and scheduled a
second hearing to allow appellant time to remedy the issues related to service.
The hearing resumed two weeks later on November 16, 2022. At the start of the continued
hearing, the probate court noted that MC’s parents had waived service for appellant’s SIJ-related
petition, but the court did not have proof of service or a waiver from “the Consulate as
discussed . . . at the prior hearing, which is required under [MCR] 5.125.” Despite this deficiency,
the probate court addressed the substance of appellant’s petition. The court denied the petition,
reasoning as follows:
[T]he request that’s made before the Court is the request of abandonment by the
parents, and the Court received the pleading and the brief on the matter, but no
testimony was given to support that claim or allegation . . . . But the Court does
have waivers and consents signed by the parents just as recently as this past week,
indicating that the parents support of [sic] this request, which would lend the Court
to believe that there has not been abandonment because there is still contact with
the Court, or with the parents, and the parents are attempting to secure the
placement of the child, which is the evidence the Court has which does not support
the claim of abandonment in this regard. And so because the Court does not find
abandonment[,] it’s not necessary to move onto the second request that’s before the
Court regarding the best interest[s], as that, as both [findings] are required [and] the
Court doesn’t need to make a ruling on that.
So at this time I am not finding that there was abandonment beyond, again
we still, the petition further fails for improper service [under MCR 5.125]. I’m
going to sign an order that reflects the same and that will conclude this hearing.
Appellant’s counsel then said that, if the court needed more evidence, appellant was present and
could testify to establish “abandonment under the State law,” but the probate court declined the
invitation for additional testimony, explaining that it already made its ruling.
Appellant moved for reconsideration, arguing that the probate court palpably erred because
(1) MCR 5.125 is inapplicable to this case, and (2) the parents clearly abandoned or neglected MC
given the instant facts. The court denied this motion, reiterating that appellant presented no
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witnesses or testimony “to support the unverified statements contained in the Petition.” This
appeal followed.
II. STANDARD OR REVIEW
As this Court recently explained in In re Velasquez, ___ Mich App ___; ___ NW2d ___
(2022) (Docket No. 360057); slip op at 3:
We review for an abuse of discretion a probate court’s dispositional rulings and
review for clear error the factual findings underlying its decision. A court abuses
its discretion if it chooses an outcome outside the range of reasonable and principled
outcomes. The probate court necessarily abuses its discretion when it makes an
error of law. A probate court’s finding is clearly erroneous when a reviewing court
is left with a definite and firm conviction that a mistake has been made, even if
there is evidence to support the finding. This Court defers to the probate court on
matters of credibility and gives broad deference to findings of fact made by the
probate court because of its unique vantage point regarding witnesses, their
testimony, and other influencing factors not readily ascertainable to the reviewing
court. [Quotation marks and citations omitted.]
III. ANALYSIS
Appellant argues that the probate court erred by refusing to find that MC was abandoned
or neglected by her parents. We agree.
A. SIJ STATUS OVERVIEW
The Immigration and Nationality Act of 1990 “established SIJ status as a path for resident
immigrant children to achieve permanent residency in the United States.” In re LFOC, 319 Mich
App 476, 481; 901 NW2d 906 (2017). “In short, 8 USC 1101(a)(27)(J) and 8 CFR 204.11 afford
undocumented children, under the jurisdiction of a juvenile court, the ability to petition for special
immigrant juvenile status in order to obtain lawful permanent residence in the United States.” Id.
at 484 (quotation marks and citation omitted).
There is a two-step process for obtaining SIJ status, entailing a unique
hybrid procedure that directs the collaboration of state and federal systems. First,
the state court makes predicate factual findings concerning the juvenile’s SIJ status.
The state court must find that an individual who seeks SIJ status is under the age of
21, unmarried, and (1) dependent on the juvenile court, (2) cannot viably be
reunified with one or both of their parents due to neglect, abandonment, or a
similar basis found under state law, and (3) the juvenile’s best interests would not
be served by returning to their country of origin. 8 USC 1101(a)(27)(J). The
findings made by the state court only relate to matters of child welfare, a subject
traditionally left to the jurisdiction of the states, and are made according to state
law. . . . [T]he state court is not to engage in an immigration analysis or decision.
Although the juvenile court determines whether the evidence supports the findings,
the final decision regarding SIJ status rests with the federal government . . . . After
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the state court makes the predicate findings, the juvenile applies to the USCIS for
SIJ status. The USCIS engages in a much broader inquiry than state courts, and
makes the ultimate decision as to whether or not the juvenile’s application for SIJ
status should be granted. [In re Velasquez, ___ Mich App at ___; slip op at 3-4
(emphasis added; quotation marks and citations omitted; second omission in
original).]
Predicate factual findings for SIJ status must be established by a preponderance of the evidence.
Id. at ___; slip op at 6.
B. APPLICABLE MICHIGAN LAW
Under the Child Abuse and Neglect Prevention Act, MCL 722.601 et seq., MCL
722.602(d)1 provides:
“Neglect” means harm to a child’s health or welfare by a person responsible
for the child’s health or welfare that occurs through negligent treatment, including
the failure to provide adequate food, clothing, shelter, or medical care, though
financially able to do so, or the failure to seek financial or other reasonable means
to provide adequate food, clothing, shelter, or medical care. [See also In re
Velasquez, ___ Mich App at ___; slip op at 8 (relying on MCL 722.602(d) in SIJ
proceeding).]
Under MCL 722.622(k) of Michigan’s Child Protection Law, MCL 722.621 et seq., “child
neglect” is defined as:
harm or threatened harm to a child’s health or welfare by a parent, legal guardian,
or any other person responsible for the child’s health or welfare that occurs through
either of the following:
(i) Negligent treatment, including the failure to provide adequate food,
clothing, shelter, or medical care, though financially able to do so, or by the failure
to seek financial or other reasonable means to provide adequate food, clothing,
shelter, or medical care.
(ii) Placing a child at an unreasonable risk to the child’s health or welfare
by failure of the parent, legal guardian, or other person responsible for the child’s
health or welfare to intervene to eliminate that risk when that person is able to do
so and has, or should have, knowledge of the risk. [See also In re Velasquez, ___
Mich App at ___; slip op at 8 (relying on MCL 722.622(k) in SIJ proceeding).]
1
Michigan’s Probate Code of 1939, MCL 712A.2(b)(1)(B), incorporates the definition of neglect
as used in MCL 722.602.
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Under Michigan’s Uniform Child-Custody Jurisdiction and Enforcement Act, MCL 722.1101 et
seq., MCL 722.1102(a) defines the term “abandoned” as used in this Act as “left without provision
for reasonable and necessary care or supervision.”2
C. APPLICATION
At the outset, we note that, when reviewing the probate court’s reasons for denying
appellant’s petition, it is apparent that the court only addressed whether MC had been abandoned,
even though appellant’s petition claimed that MC was both abandoned and neglected. It is also
apparent, however, that the probate court made its ruling at least in part on the basis that it
“received no testimony or support for the claim of abandonment,” and the evidence that appellant
relied upon in support of his assertion of abandonment was the same evidence he relied upon in
support of his assertion that MC was neglected. It therefore seems that the probate court’s reasons
for denying appellant’s assertion of abandonment would at least partially apply to appellant’s
assertion that MC was neglected—appellant failed to properly support the assertion. We therefore
begin by addressing the probate court’s reasoning that appellant failed to present evidence
supporting his claim.
While the probate court was correct that appellant provided no testimony to support SIJ
findings in this case, appellant’s petition included a notarized affidavit in which appellant provided
sworn statements about the factual basis for his request that the trial court make findings for SIJ
status. In that affidavit, appellant averred that MC’s family in Albania faced threats of violence
and danger from political and social unrest in the community, with the family home burning down
and MC’s parents ultimately abandoning her. According to appellant, the parents feared for MC’s
safety and could not care for her. Appellant averred that MC’s parents failed to provide her
necessities like housing, clothing, monetary support, and school supplies when she was in Albania,
preventing MC from attending school there. Appellant averred further that MC’s parents provided
no financial, educational, physical, or emotional support to him or MC since the child came to the
United States, and that he was currently addressing MC’s needs.
On the basis of this affidavit, there was evidence that could support a finding that MC was
either abandoned or neglected by her parents under Michigan law. The probate court,
unfortunately, failed to consider this evidence, instead concluding that there was no support for
appellant’s petition because he failed to submit testimony. We accordingly vacate the probate
court’s order and remand for the probate court to reconsider appellant’s petition and decide
whether the affidavit sufficiently supports a finding that MC was abandoned or neglected under
state law. If the probate court believes that the affidavit is insufficient to support such a finding
absent additional testimony, or if the court otherwise believes that additional testimony is
2
Appellant’s brief cites a practically similar provision from the Michigan Penal Code, MCL 750.1
et seq., defining felony desertion and abandonment as “[a] person who deserts and abandons his
or her . . . children under 17 years of age, without providing necessary and proper shelter, food,
care, and clothing for them . . . .” MCL 750.161(1).
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necessary to properly render a decision in this case, the court shall order that such testimony be
taken.3
Briefly addressing the probate court’s reason for declining to find that MC’s parents
abandoned her, the probate court explained that, because MC’s parents continued to have contact
with her and appellant as evidenced by their waivers and consents to the SIJ petition, the court
could not conclude that MC’s parents abandoned her. We question whether this minimal contact
is sufficient to conclude that MC’s parents did not abandon her under Michigan law, but even if it
was, it would not foreclose a finding of neglect. In In re Velasquez, this Court held that the fact
that the minor child’s mother was involved with the minor child’s “transition to this country” did
not nullify other facts showing neglect. In re Velasquez, ___ Mich App at ___; slip op at 10.
Lastly, while not addressed by appellant, the probate court also concluded that the SIJ-
related petition was deficient for improper service, particularly because appellant never effectuated
any consular service as required by MCR 5.125. In his motion for reconsideration, appellant
argued that this requirement was not applicable to this case, and when the trial court denied
appellant’s motion, it never addressed this argument. Therefore, it seems whether service to the
foreign consular was necessary under MCR 5.125 is an open question that must be addressed on
remand. Notably, the probate never reasoned that the lack of service under this MCR 5.125 was
an independent basis to deny appellant’s petition. This is reinforced by the probate court’s denial
of appellant’s motion for reconsideration in which the probate court focused exclusively on the
lack of evidence supporting the “circumstances alleged in the Petition,” not on the lack of service
under MCR 5.125. On remand, if the probate court believes that the lack of service on the foreign
consulate is an independent ground to deny appellant’s petition, it is free to do so and place its
reasoning on the record.4
Vacated and remanded. We do not retain jurisdiction.
/s/ Colleen A. O’Brien
/s/ Mark J. Cavanagh
/s/ Jane E. Markey
3
In light of this holding, we decline appellant’s request to independently rule on the best-interests
issue, and instead leave that matter for the probate court to address, if necessary.
4
We note, however, that appellant is free (or otherwise shall be given the opportunity) to
preemptively resolve this issue—and assuage any of the probate court’s lingering concerns—by
simply serving the consulate.
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