In re Guardianship of Carlos D. , 300 Neb. 646 ( 2018 )


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    IN RE GUARDIANSHIP OF CARLOS D.
    Cite as 
    300 Neb. 646
    In re Guardianship of Carlos D., a minor child.
    Eleany Esmerelda Zunun Gonzalez, appellant,
    v. State of Nebraska, appellee.
    ___ N.W.2d ___
    Filed July 27, 2018.     No. S-17-1056.
    1.	 Statutes. Statutory interpretation presents a question of law.
    2.	 Courts: Jurisdiction: Guardians and Conservators. A Nebraska
    county court has exclusive original jurisdiction in all matters relating to
    the guardianship of a person, subject to exceptions.
    3.	 Guardians and Conservators: Child Custody. Under Nebraska stat-
    utes and jurisprudence, a guardianship of a child is a child custody
    determination.
    4.	 Courts: Jurisdiction: Child Custody: Federal Acts. The 2017 amend-
    ment to Neb. Rev. Stat. § 43-1238(b) (Reissue 2016) clarifies that courts
    with jurisdiction over an “initial child custody determination” as that
    term is used in § 43-1238(a) also have jurisdiction and authority to
    make special findings of fact similar to those contemplated by 8 U.S.C.
    § 1101(a)(27)(J) (Supp. V 2018).
    5.	 Legislature: Statutes: Time. Generally, legislation that is passed takes
    effect 3 calendar months after the Legislature adjourns unless the
    Legislature evidences otherwise.
    6.	 Statutes: Time. Procedural amendments to statutes are ordinarily appli-
    cable to pending cases, while substantive amendments are not.
    7.	 Statutes: Words and Phrases. A substantive right is one which cre-
    ates a right or remedy that did not previously exist and which, but for
    the creation of the substantive right, would not entitle one to recover. A
    procedural amendment simply changes the method by which an already
    existing right is exercised.
    8.	 Statutes: Child Custody: Time. A statutory amendment to Neb. Rev.
    Stat. § 43-1238(b) (Reissue 2016) which merely clarifies the authority
    and procedure for making the factual findings in a case involving child
    custody is a procedural amendment and applies to pending cases.
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    IN RE GUARDIANSHIP OF CARLOS D.
    Cite as 
    300 Neb. 646
    Appeal from the County Court for Lancaster County:
    Holly J. Parsley, Judge. Reversed and remanded for further
    proceedings.
    David V. Chipman, of Monzón, Guerra & Associates, for
    appellant.
    Kevin Ruser and Morgan Nelson, Senior Certified Law
    Student, of Immigration Clinical Law Program, University of
    Nebraska College of Law, and Robert McEwen, Sarah Helvey,
    and Allison Derr, Senior Certified Law Student, of Nebraska
    Appleseed Center for Law in the Public Interest, for amici cur-
    iae University of Nebraska Immigration Clinic and Nebraska
    Appleseed Center for Law in the Public Interest.
    Charles Shane Ellison, of Creighton Immigrant and Refugee
    Clinic, Creighton University School of Law, for amici cur-
    iae National Justice For Our Neighbors and Immigrant Legal
    Center, an affiliate of Justice For Our Neighbors Network.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
    Papik, JJ., and Vaughan, District Judge.
    Miller-Lerman, J.
    NATURE OF CASE
    Although the county court for Lancaster County appointed
    Eleany Esmerelda Zunun Gonzalez as guardian of her juvenile
    nephew, Carlos D., it declined to make special factual find-
    ings that are necessary to apply for special immigrant juvenile
    (SIJ) status under 8 U.S.C. § 1101(a)(27)(J) (Supp. V 2018).
    Following a hearing on Gonzalez’ motion to amend this initial
    ruling, the county court stated in an order that Carlos was “not
    dependent on this court” and that Gonzalez had not satisfied 8
    U.S.C. § 1101(a)(27)(J) and therefore denied Gonzalez’ motion
    to make specific findings to be used in immigration proceed-
    ings. Gonzalez appealed. During the pendency of this appeal,
    the Nebraska Legislature amended Neb. Rev. Stat. § 43-1238(b)
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    (Reissue 2016) in 2018 Neb. Laws, L.B. 670, to clarify that
    courts with jurisdiction over initial child custody determina-
    tions under § 43-1238(a) also have “jurisdiction and authority”
    to make special findings of fact similar to those contemplated
    by 8 U.S.C. § 1101(a)(27)(J). Amendments to § 43-1238(b)
    have gone into effect, and because they are procedural rules,
    they apply to pending cases. In this case, the county court
    made a custody determination under § 43-1238(a), but it erred
    when it concluded Gonzalez had not satisfied the dependency
    or custody component of 8 U.S.C. § 1101(a)(27)(J) and refused
    to make special findings on this basis. Accordingly, we reverse
    the order of the county court and remand the cause for further
    proceedings consistent with this opinion based on the exist-
    ing record.
    FACTS
    Carlos was born in Guatemala in November 1998 and arrived
    in Nebraska in 2015 at age 16 without any support or parental
    supervision. On January 23, 2017, Gonzalez filed a petition for
    the appointment of a permanent guardian for Carlos, her minor
    nephew, in the county court for Lancaster County. The follow-
    ing facts are taken from the petition and Carlos’ declaration,
    which the county court found to be credible:
    Carlos traveled to the United States by foot and public
    transportation and arrived on or about April 27, 2015. Before
    reaching Nebraska, Carlos was detained at the border by U.S.
    Customs and Border Protection, but he was released to his
    aunt, Gonzalez, who, according to U.S. Department of Health
    and Human Services Office of Refugee Resettlement informa-
    tion, lived in Lincoln, Nebraska.
    Carlos’ declaration stated that he was born in Tacana de
    San Marcos, Guatemala, and that he grew up with his mother,
    stepfather, and three sisters. Carlos never knew his father and
    denied having any contact with him. Carlos’ stepfather drank
    almost every day and was verbally and physically abusive
    toward Carlos, his sisters, and his mother. The stepfather would
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    punch Carlos’ mother in the mouth with a fist and pull her hair.
    Two or three times a week, the stepfather hit Carlos and his
    sisters with a belt or whatever item he would find in his path.
    Verbal abuse happened daily. After 13 years, the stepfather
    decided to leave and abandoned the family.
    After Carlos’ mother became separated from the stepfather,
    she began to reject Carlos. She would make comments to him
    such as, “‘You’re a mistake/error in my life’” and “‘I don’t
    want to see you and don’t care if you run away.’” Carlos’
    mother would not feed him because she would be mad at him.
    He became the “‘man’” of the home at age 8 and had to work
    at a farm during the evenings after school to earn food for
    the family. When Carlos was 10 years old, his mother would
    not allow him to go to school, so that he could be employed
    full time in order to sustain his mother and sisters. The work
    that he was required to do was that of an adult man carrying
    “heavy sacks.”
    When Carlos was 13 years old, he began to be approached
    by some members of the “‘MS 13’” gang. They would wait
    for him after work to try to recruit him. At first, they were
    friendly, but once he declined to join the gang, things changed.
    The gang verbally harassed Carlos and then, after the third
    encounter with the gang members, four or five gang members
    who were heavily armed “beat up” Carlos because he declined
    to join the gang. The assault included hitting Carlos with “big
    wooden sticks” on the stomach and face and kicking him while
    he was on the ground. One gang member used a knife and
    cut Carlos on his right arm and each of his index fingers. The
    members threatened Carlos that he would be killed if he did
    not join.
    Carlos stated that he was in fear for his life after the gang
    had beaten him. He was anxious and always checking his sur-
    roundings. He would try to find a different route to work and
    to avoid the gang members. However, he would inevitably run
    into them, and each time, he would be verbally abused, beat
    up, “threatened with [his] life,” and robbed. He was robbed
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    approximately 10 times, and each time, he had either a gun to
    his head or a knife behind his back, or both.
    Carlos fled Guatemala and was eventually united with
    his aunt, Gonzalez. Carlos stated that his aunt provides him
    with “all of [his] care and need, including food and a place
    to live.”
    The petition for guardianship alleged that Carlos’ father
    abandoned him prior to birth and his mother had neglected
    him in Guatemala. In addition to seeking a permanent guard-
    ianship, the petition requested certain special findings that
    “unification with [Carlos’] parents is not viable due to abuse
    and neglect” and that “it would not be in [Carlos’] best
    interests to be returned to Guatemala.” There is no dispute
    that the county court had jurisdiction to hear the petition
    for guardianship.
    The matter came before the county court for hearing on
    June 13, 2017. The county court received the declaration by
    Carlos with details of his life and conditions in Guatemala.
    At the hearing, the county court filed Gonzalez’ proof of
    service to Carlos’ mother in her village in Guatemala and by
    publication.
    At the hearing, the county court stated it was not inclined to
    make special findings regarding Carlos’ best interests “based
    on a number of different things.” Gonzalez submitted a pro-
    posed order which included special findings consistent with
    8 U.S.C. § 1101(a)(27)(J). The county court denied Gonzalez’
    request for special findings. The county court entered a written
    order appointing Gonzalez as Carlos’ guardian.
    Gonzalez, on Carlos’ behalf, filed a motion to alter or amend
    the judgment, requesting that the county court make the special
    findings of fact contemplated in 8 U.S.C. § 1101(a)(27)(J).
    Gonzalez sought special findings of fact from the state court
    to potentially become eligible for SIJ status. SIJ status allows
    a juvenile immigrant to remain in the United States and apply
    for lawful permanent resident status. Obtaining the special
    findings is the first step in the process to achieve SIJ status.
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    To achieve SIJ status under 8 U.S.C. § 1101(a)(27)(J), a state
    court must have made a predicate finding that (1) the minor
    is dependent on a juvenile court or has been “placed under
    the custody of . . . an individual . . . appointed by a State or
    juvenile court”; (2) “reunification with . . . the . . . parents is
    not viable due to abuse, neglect, [or] abandonment”; and (3) it
    would not be in the minor’s best interests to be returned to his
    or her country of origin.
    At the hearing on the motion to alter or amend the judg-
    ment, the county court found Carlos’ declaration to be credible.
    However, on September 2, 2017, the county court denied the
    request for specific findings, stating in its order that Carlos is
    “not dependent on this court.”
    Gonzalez appeals.
    ASSIGNMENTS OF ERROR
    Gonzalez generally claims that the county court erred when
    it concluded that because Carlos was not dependent on the
    county court, it could not make the requested special find-
    ings. Gonzalez specifically claims that although it found a
    need to appoint a permanent guardian, the county court erred
    (1) when it failed to determine that Carlos was “declared
    dependent” on the county court or “legally committed to,
    or placed under the custody of, . . . an individual or entity
    appointed by a . . . juvenile court” as these terms are defined
    by 8 U.S.C. § 1101(a)(27)(J) and (2) when it refused to make
    the requested findings of fact that (a) reunification with one
    or both parents is not viable due to abuse, neglect, or aban-
    donment and (b) it would not be in Carlos’ best interests to
    return to Guatemala.
    STANDARD OF REVIEW
    [1] Statutory interpretation presents a question of law. In
    re Trust of Shire, 
    299 Neb. 25
    , 
    907 N.W.2d 263
    (2018). We
    independently review questions of law decided by a lower
    court. 
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    ANALYSIS
    As we read the challenged order, the county court believed
    that it did not have authority to make the special findings of
    fact requested by Gonzalez. However, during the pendency
    of this appeal, the Nebraska Legislature enacted 2018 Neb.
    Laws, L.B. 670, which became effective on July 19, 2018, and
    made clear, inter alia, that a county court making a guardian-
    ship determination also has authority to make the special find-
    ings necessary for the ward to establish a SIJ status. Below,
    we set forth the statutory provisions applicable to the analysis
    of this appeal.
    Federal Definition of SIJ
    Federal provisions allow a juvenile immigrant to apply
    for SIJ status and seek lawful permanent residence if several
    prerequisites are met. 8 U.S.C. § 1101(a)(27)(J) provides, in
    pertinent part, that a “special immigrant” is
    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 pre-
    vious country of nationality or country of last habitual
    residence; and
    (iii) in whose case the Secretary of Homeland Security
    consents to the grant of [SIJ] status[.]
    (Emphasis supplied.)
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    In this case, Carlos was placed in the custody of Gonzalez
    in fulfillment of 8 U.S.C. § 1101(a)(27)(J)(i). In order to
    achieve SIJ status, the individual whose custody has been
    determined prior to age 21, 8 C.F.R. § 204.11 (2018), must
    also obtain the judicial determinations listed above in 8 U.S.C.
    § 1101(a)(27)(J)(i) and (ii) from a “juvenile court,” as that
    term is used in the federal provisions. The Code of Federal
    Regulations defines “juvenile court” as “a court located in
    the United States having jurisdiction under State law to make
    judicial determinations about the custody and care of juve-
    niles.” 8 C.F.R. § 204.11(a). As we explain below, a guard-
    ianship of a child is a child custody determination, and
    thus, the county court was considered a “juvenile court” for
    purposes of 8 U.S.C. § 1101(a)(27)(J)(i) and (ii). Courts
    have generally held that a guardianship over a juvenile ren-
    ders the juvenile subject to 8 U.S.C. § 1101(a)(27)(J)(i).
    E.g., Jisun L. v. Young Sun P., 
    75 A.D.3d 510
    , 
    905 N.Y.S.2d 633
    (2010).
    State Law: L.B. 670 and
    Child Custody Proceedings
    [2,3] A Nebraska county court has exclusive original juris-
    diction in all matters relating to the guardianship of a person,
    subject to exceptions not applicable here. Neb. Rev. Stat.
    § 24-517(2) (Reissue 2016). Under Nebraska statutes and
    jurisprudence, a guardianship of a child is a child custody
    determination. In re Guardianship of D.J., 
    268 Neb. 239
    ,
    248, 
    682 N.W.2d 238
    , 246 (2004) (stating “[a] guardianship
    is no more than a temporary custody arrangement estab-
    lished for the well-being of a child”). See Neb. Rev. Stat.
    § 43-1227(4) (Reissue 2016) (concerning “a proceeding in
    which legal custody, physical custody, or visitation with
    respect to a child is an issue,” including a proceeding for
    guardianship in which the issue may appear). Elsewhere, the
    statutes provide that a “[c]hild custody determination means a
    judgment, decree, or other order of a court providing for the
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    legal custody, physical custody, or visitation with respect to a
    child.” § 43-1227(3).
    [4] As noted above, the recently enacted L.B. 670 amended
    § 43-1238(b) and clarifies that courts with jurisdiction over
    an “initial child custody determination” as that term is used
    in § 43-1238(a) also have jurisdiction and authority to make
    special findings of fact similar to those contemplated by 8
    U.S.C. § 1101(a)(27)(J). Gonzalez sought a guardianship of
    the minor Carlos in the county court, see Neb. Rev. Stat.
    § 30-2605 et seq. (Reissue 2016), and the county court’s
    order declaring Gonzalez as guardian was an initial custody
    determination.
    Section 43-1238(a) generally deals with child custody deter-
    minations which are appropriately raised in a court in Nebraska,
    and § 43-1238(b), as amended, lists the factual findings which
    can be made by a Nebraska state court with such initial child
    custody determination authority and the circumstances under
    which such courts must make such findings.
    L.B. 670 amended § 43-1238, which now provides, with the
    amended portion emphasized:
    (a) Except as otherwise provided in section 43-1241, a
    court of this state has jurisdiction to make an initial child
    custody determination only if:
    (1) this state is the home state of the child on the date
    of the commencement of the proceeding or was the home
    state of the child within six months before the commence-
    ment of the proceeding and the child is absent from this
    state but a parent or person acting as a parent continues
    to live in this state;
    (2) a court of another state does not have jurisdiction
    under subdivision (a)(1) of this section, or a court of the
    home state of the child has declined to exercise jurisdic-
    tion on the ground that this state is the more appropriate
    forum under section 43-1244 or 43-1245, and:
    (A) the child and the child’s parents, or the child and
    at least one parent or a person acting as a parent, have
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    a significant connection with this state other than mere
    physical presence; and
    (B) substantial evidence is available in this state con-
    cerning the child’s care, protection, training, and personal
    relationships;
    (3) all courts having jurisdiction under subdivision
    (a)(1) or (a)(2) of this section have declined to exercise
    jurisdiction on the ground that a court of this state is the
    more appropriate forum to determine the custody of the
    child under section 43-1244 or 43-1245; or
    (4) no court of any other state would have jurisdiction
    under the criteria specified in subdivision (a)(1), (a)(2), or
    (a)(3) of this section.
    (b) Subsection (a) of this section is the exclusive juris-
    dictional basis for making a child custody determination
    by a court of this state. In addition to having jurisdic-
    tion to make judicial determinations about the custody
    and care of the child, a court of this state with exclusive
    jurisdiction under subsection (a) of this section has juris-
    diction and authority to make factual findings regarding
    (1) the abuse, abandonment, or neglect of the child, (2)
    the nonviability of reunification with at least one of the
    child’s parents due to such abuse, abandonment, neglect,
    or a similar basis under state law, and (3) whether it
    would be in the best interests of such child to be removed
    from the United States to a foreign country, including
    the child’s country of origin or last habitual residence.
    If there is sufficient evidence to support such factual
    findings, the court shall issue an order containing such
    findings when requested by one of the parties or upon the
    court’s own motion.
    (Emphasis omitted.) (Emphasis supplied.)
    [5-7] Generally, legislation that is passed takes effect 3 cal-
    endar months after the Legislature adjourns, see Neb. Const.
    art. III, § 27, unless the Legislature evidences otherwise.
    Smith v. Mark Chrisman Trucking, 
    285 Neb. 826
    , 829 N.W.2d
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    717 (2013). Thus, L.B. 670 became operative on July 19,
    2018, 3 calendar months after the adjournment of the legis-
    lative session on April 18. In considering whether to apply
    § 43-1238(b), as amended, to this case, we note that procedural
    amendments to statutes are ordinarily applicable to pending
    cases, while substantive amendments are not. Smith v. Mark
    Chrisman 
    Trucking, supra
    . This is because a substantive right
    is one which creates a right or remedy that did not previously
    exist and which, but for the creation of the substantive right,
    would not entitle one to recover. 
    Id. A procedural
    amendment,
    on the other hand, simply changes the method by which an
    already existing right is exercised. 
    Id. Put another
    way, a sub-
    stantive law commonly creates duties, rights, and obligations
    of a party, whereas a procedural law prescribes the means and
    methods through and by which substantive laws are enforced
    and applied. See In re Interest of Clifford M. et al., 
    261 Neb. 862
    , 
    626 N.W.2d 549
    (2001).
    [8] Section 43-1238(b), as amended, instructs a court with
    the jurisdictional basis of a child custody determination under
    § 43-1238(a) that it has the authority to also make fac-
    tual findings, where requested and where there is sufficient
    evidence to support the findings. Because this amendment
    merely clarifies the authority and procedure for making the
    factual findings in a case involving child custody, we con-
    clude that the addition to § 43-1238(b) in L.B. 670 is a state
    court procedural amendment and applies to pending cases.
    A statute requiring a court to make explicit findings of fact
    on the record is procedural. See, e.g., Zahl v. Zahl, 
    273 Neb. 1043
    , 
    736 N.W.2d 365
    (2007) (characterizing explicit findings
    regarding custody as procedural); In re Interest of J.S., A.C.,
    and C.S., 
    227 Neb. 251
    , 
    417 N.W.2d 147
    (1987) (characteriz-
    ing specific findings of fact supporting parental rehabilitative
    plan as procedural). Any substantive effect of these findings
    is a result of federal law in that these findings are a requi-
    site to SIJ status. But the fact that these findings may have
    some substantive effect as a matter of federal law does not
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    transform the state law before us into substantive legislation.
    For completeness, we note that making findings for SIJ sta-
    tus purposes has long been accepted by the Nebraska courts,
    and § 43-1238(b), as amended, codifies this practice. See,
    e.g., In re Interest of Erick M., 
    284 Neb. 340
    , 
    820 N.W.2d 639
    (2012); In re Interest of Luis G., 
    17 Neb. Ct. App. 377
    , 
    764 N.W.2d 648
    (2009).
    Statutory interpretation presents a question of law. In re
    Trust of Shire, 
    299 Neb. 25
    , 
    907 N.W.2d 263
    (2018). Section
    43-1238(b) as amended provides that when requested by one
    of the parties or upon the court’s own motion, such a court
    “shall issue” an order containing the enumerated findings
    where there is sufficient evidence. Given the language of the
    amendments, we conclude that under § 43-1238(b), a court
    with jurisdiction to make an initial child custody determination
    under § 43-1238(a) can make factual findings regarding the
    three factors enumerated in § 43-1238(b).
    As explained above, the county court in this case made an
    initial child custody determination when it granted Gonzalez
    a guardianship over the minor Carlos. Carlos had been placed
    in the custody of an individual—Gonzalez—in satisfaction
    of 8 U.S.C. § 1101(a)(27)(J)(i), and the county court’s deter-
    mination to the contrary was error. The county court has the
    authority to make findings outlined in § 43-1238(b). Although
    we reverse the county court’s order of September 2, 2017, we
    express no opinion of the impact upon remand of Neb. Rev.
    Stat. § 30-2614 (Reissue 2016), providing for the termina-
    tion of a guardian’s authority upon the minor’s attainment
    of majority.
    CONCLUSION
    In this guardianship case, the suitability of appoint-
    ing Gonzalez as guardian for Carlos is not at issue in this
    appeal. The evidence submitted by Carlos has been deemed
    credible. The county court erred when it concluded it had
    not made a custody determination for purposes of 8 U.S.C.
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    § 1101(a)(27)(J)(i). Section 43-1238(b), as amended, applies
    to pending cases. A county court with a jurisdictional basis
    under § 43-1238(a) and which has made an initial child cus-
    tody determination, such as appointing a guardian, has author-
    ity under § 43-1238(b) to make factual findings regarding
    the enumerated items where the evidence is sufficient and
    the court has been requested to do so. The enumerated items
    are similar to the immigration-related findings in 8 U.S.C.
    § 1101(a)(27)(J). Thus, we reverse the order of September 2,
    2017, and remand the cause for further proceedings consistent
    with this opinion based on the existing record.
    R eversed and remanded for
    further proceedings.