2015 IL App (1st) 152223 THIRD DIVISION September 16, 2015 No. 1-15-2223
In re ESTATE OF NINA L., a Minor, by Terry Howerton ) Appeal from the and Richard Aleong, Coguardians, ) Circuit Court of ) Cook County Petitioners-Appellants. ) ) No. 15 P 1340 ) ) Honorable ) Susan Kennedy Sullivan, ) Judge Presiding.
PRESIDING JUSTICE MASON delivered the judgment of the court, with opinion. Justices Lavin and Hyman concurred in the judgment and opinion.
OPINION
¶1 Petitioners, Terry Howerton and Richard Aleong, were appointed by the circuit
court of Cook County to act as coguardians of Nina L., a nonrelative minor who was born
in Taiwan and came to this country with her mother when she was six years old. At the
time the petition was filed, Nina was 17 years old; she will turn 18 on September 23,
2015. Following their appointment, petitioners filed a motion requesting the trial court to
make certain findings that would enable Nina to apply for Special Immigrant Juvenile
(SIJ) status, an application that, if granted, could lead to permanent resident status and,
ultimately, citizenship. The court denied the motion and declined to make any findings, a
ruling from which petitioners appealed.
¶2 On August 25, 2015, we entered an order vacating the trial court's order and,
based on our de novo review of petitioner's brief and supporting record, made findings
that (i) Nina's reunification with one or both of her parents is not viable due to abuse, No. 1-15-2223
neglect or abandonment and (ii) return to Taiwan is not in Nina's best interest. We now
set forth the basis for our ruling.
¶3 BACKGROUND
¶4 We draw the facts from the affidavits and other materials filed in the trial court.
Nina was born in Taiwan in 1997 and for the past eight years has had virtually no contact
with her father, a native of Taiwan. Nina's mother, Maria L., a native of the Philippines,
came to this country in 2003 on a student visa. After Maria's visa expired, Maria and
Nina remained here and thus are considered undocumented immigrants and are subject to
deportation.
¶5 Until September 2014, Nina lived with her mother, most recently in Lincolnwood,
Illinois. She attends high school in the community. In September 2014, Maria left for
California without making any arrangements for Nina's care and left Nina alone in their
apartment.
¶6 Petitioners are a couple who were married in 2012. They reside with two of
Howerton's nieces who came to live with them after their mother, Howerton's sister, died.
Howerton has adopted the younger girl and has been appointed to act as guardian of the
older girl. The older girl and Nina have been friends for several years and attend the
same high school. Nina has also accompanied petitioners and the two girls on family
vacations. When petitioners learned of Nina's situation shortly after her mother left, they
insisted that Nina come to stay with them, and she has resided with them ever since.
¶7 After several months, petitioners decided to seek court appointment as Nina's
guardians in order to enable them to more formally arrange for Nina's care, including
placing her on their health insurance and having the authority to make decisions for her.
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Petitioners initiated guardianship proceedings on March 4, 2015. Maria was initially
served by publication, but after the court was advised that she had returned to Illinois and
Nina had been in contact with her, petitioners were directed to provide her proper notice.
Maria executed a consent to guardianship on June 18, 2015, in which she represented that
she was "unable and unwilling" to care for her daughter. The notary's attestation on the
consent reflects that Maria appeared in Illinois to execute it.
¶8 The court also appointed a guardian ad litem (GAL) for Nina. The GAL filed a
report with the court summarizing the results of his investigation into the guardianship
petition. In addition to the circumstances of Nina's situation, the GAL reported that
Maria had returned from California and was now living "on the north side of Chicago."
He further summarized a telephone conversation he had on July 9, 2015, with a person
identifying herself as Maria. This individual confirmed that she had left Nina alone while
she traveled to California and that she is "grateful" that petitioners have agreed to act as
her daughter's guardians but had no prior arrangement with them to do so. She believed
the guardianship was in her daughter's best interest, her consent to the guardianship was
voluntary, she did not expect Nina to return to live with her, and she was unwilling to
come to court.
¶9 According to petitioners and the GAL, none of the parties involved was aware at
the outset of the possible immigration benefits to Nina resulting from the guardianship
and that was not the motivation for Maria's "abandonment" of her daughter or petitioners'
efforts to be named her guardians.
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¶ 10 Petitioners were appointed to act as Nina's coguardians on July 14, 2015. On July
29, 2015, petitioners filed their motion seeking SIJ findings. In a supplemental report,
Nina's GAL supported the motion and urged the court to make the requested findings.
¶ 11 After a hearing, the court entered its August 7, 2015 order. The order recites that
petitioners requested "this Court to 'find that reunification with one or both of [Nina L.'s]
parents is not viable due to abuse, neglect, or abandonment or similar basis found under
state law.' " The order further recites that "[t]here has been no finding by this court that
reunification of the minor is not viable" and otherwise denied the petition. The court did
not address whether return to Taiwan was in Nina's best interest. Petitioners filed their
notice of appeal on August 12, 2015. There is no party opposing petitioners in this court.
¶ 12 ANALYSIS
¶ 13 We must first address whether we have jurisdiction over this appeal. The circuit
court's order denying petitioners' motion for SIJ findings is not a "final judgment" in the
traditional sense. Generally, in order to be considered "final" for purposes of appeal, an
order must dispose of the rights of the parties either on the entire case or on some definite
and separate part of the controversy. See Brentine v. DaimlerChrysler Corp., 356 Ill.
App. 3d 760, 765 (2005); In re Marriage of Gutman, 232 Ill. 2d 145, 151 (2008). In most
contexts, the denial of a motion does not satisfy this standard. See, e.g., Cabinet Service
Tile, Inc. v. Schroeder, 255 Ill. App. 3d 865, 868-69 (1993) (denial of motion to dismiss
was not a final and appealable order); Resurgence Financial, LLC v. Kelly, 376 Ill. App.
3d 60, 62 (2007) (denial of summary judgment motion was not final and appealable,
because " '[w]hen an order leaves a cause still pending and undecided, it is not a final
order' " (quoting Austin's Rack, Inc. v. Gordon & Glickson, P.C., 145 Ill. App. 3d 500,
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502 (1986))). But at least one court considering issues pertaining to SIJ predicate
findings has observed that the denial of the juvenile's motion effectively terminates the
juvenile's ability to pursue this avenue of immigration relief. See In re Interest of Luis
G., 764 N.W.2d 648, 654-55 (Neb. Ct. App. 2009). In Luis G., the trial court initially
made the requested SIJ findings, but later vacated them, an order from which the minors
appealed. Id. Concluding it had jurisdiction over the appeal, the court stated:
"[W]ithout the order of eligibility, including the required findings from the state
court, [the minors] would be barred from proceeding in the federal system with a
valid application for special immigrant juvenile status and would face deportation
to Guatemala. The order vacating that eligibility determination effectively
terminates the application for legal permanent residence, clearly affecting a
substantial right of both [minors]." Id.
We agree with this reasoning and therefore conclude we have jurisdiction to address the
merits of petitioners' appeal.
¶ 14 No reported decision in Illinois addresses the issues presented here. State courts
in a number of other jurisdictions have addressed issues relating to requests for predicate
findings required for SIJ applications and so we examine those authorities for guidance.
See Rhone v. First American Title Insurance Co., 401 Ill. App. 3d 802, 812 (2010)
("Although the decisions of foreign courts are not binding, 'the use of foreign decisions as
persuasive authority is appropriate where Illinois authority on point is lacking or
absent.' " (quoting Carroll v. Curry, 392 Ill. App. 3d 511, 517 (2009))). We begin by
discussing the history of SIJ status under federal law.
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¶ 15 The Immigration and Nationality Act of 1990 (Act) first established SIJ status as
a path for resident immigrant children to achieve permanent residency in the United
States. In re Israel O., 182 Cal. Rptr. 3d 548, 549 (Cal. Ct. App. 2015) (discussing
history of SIJ status); see 8 U.S.C. § 1101(a)(27)(J) (Supp. I 2014) (current version of
statute). The provisions for SIJ status, as applied to minors, were designed "to protect
abused, neglected, or abandoned children, who, with their families, illegally entered the
United States." Yeboah v. United States Department of Justice, 345 F.3d 216, 221 (3d
Cir. 2003). These provisions also apply to children who legally entered the country, but
who have fallen out of status and have elected to remain here. See In re Mohamed B.,
921 N.Y.S.2d 145 (N.Y. App. Div. 2011) (minor who overstayed visitor's visa entitled to
pursue SIJ findings).
¶ 16 The criteria for eligibility for SIJ status have changed over time. As initially
drafted, a literal reading of the statute permitted juveniles admitted to the United States as
visiting students to apply for SIJ status. See Yeboah, 345 F.3d at 221. In 1997, the
statute was amended to require that the juvenile be committed to or placed under the
custody of a state agency or department and be found eligible for long-term foster care
due to parental abuse, neglect or abandonment. Id. at 221-22. The requirement of
eligibility for long-term foster care was modified in 2008 and, as presently formulated,
the statute now requires that a state or juvenile court place the minor in the custody of
either (i) a state agency or department or (ii) an individual or entity appointed by the
court and that the dependency determination be due to a finding that reunification with
one or both parents is not viable due to abuse, neglect or abandonment. 8 U.S.C. §
1101(a)(27)(J)(i) (Supp. I 2014). Separately, the court must also find that return to the
6 No. 1-15-2223
minor's country of nationality is not in the minor's best interest. 8 U.S.C. §
1101(a)(27)(J)(ii) (Supp. I 2014).
¶ 17 For SIJ purposes, the "appointment of a guardian constitutes the necessary
declaration of dependency on the juvenile court." (Internal quotation marks omitted.) In
the Matter of Trudy-Ann W. v. Joan W., 901 N.Y.S.2d 296, 299 (N.Y. App. Div. 2010);
see also In re Minor Children J.E. & J.C., 74 A.3d 1013, 1018 (N.J. Super. Ct. Ch. Div.
2013) ("As a result of the removal of the foster care requirement, state courts may now
make SIJ[] [status] findings whenever jurisdiction can be exercised under state law to
make care and custody determinations, and are no longer confined to child protection
proceedings alone."). " 'The SIJ statute affirms the institutional competence of state
courts as the appropriate forum for child welfare determinations regarding abuse, neglect,
or abandonment, and a child's best interests.' " In re Mario S., 954 N.Y.S.2d 843, 849
(N.Y. Fam. Ct. 2012) (quoting In re J.J.X.C., 734 S.E.2d 120, 124 (Ga. Ct. App. 2012)).
¶ 18 Implementing regulations require that an application for SIJ status attach an order
from a state juvenile court containing the findings as set forth in the statute. 8 C.F.R.
§ 204.11(b), (d)(2) (2014). Once an order containing the required findings is entered, the
juvenile may apply to the U.S. Department of Homeland Security, U.S. Citizenship and
Immigration Services (USCIS) for SIJ status. At the same time, the juvenile files an
application to become a lawful permanent resident. 3 Charles Gordon et al., Immigration
Law and Procedure § 35.09, at 35-46 to 35-47 (Matthew Bender rev. ed. 2015).
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The SIJ application must be filed before the juvenile's 18th birthday. 1 Approval of an
application for SIJ status requires the consent of the Secretary of the Department of
Homeland Security acting through the District Director of USCIS, which is "an
acknowledgement that the request for SIJ classification is bona fide." (Internal quotation
marks omitted.) Id. at 35-40 to 35-41.
¶ 19 If the application is granted, the juvenile may become a lawful permanent resident
who, after five years, is eligible to become a United States citizen. See Zheng v. Pogash,
416 F. Supp. 2d 550, 554 (S.D. Tex. 2006) (citing federal SIJ status petition guidelines).
Denial of SIJ status renders the applicant subject to deportation. Finally, SIJ status
benefits only the juvenile; a parent whose child is granted SIJ status may not obtain
immigration relief based on the child's status as a lawful permanent resident or United
States citizen. 8 U.S.C. § 1101(a)(27)(J)(iii)(II) (Supp. I 2014) ("no natural parent or
prior adoptive parent of any alien provided special immigrant status under this
subparagraph shall thereafter, by virtue of such parentage, be accorded any right,
privilege, or status under this Act").
¶ 20 Against this background, we examine the decisions from various foreign
jurisdictions that have addressed issues pertaining to requests for SIJ predicate findings.
¶ 21 One theme that runs through several decisions is the state court's reluctance to
make the requested findings based on policy concerns. For example, in Leslie H. v.
1 But see Perez-Olano v. Holder, a case in which USCIS entered into a settlement agreement in a class action involving juveniles who filed for SIJ status on or after May 13, 2005. U.S. Citizenship and Immigration Services, Policy Memorandum (June 25, 2015), http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2015/2015-0625_Perez- Olano_Settlement_Agreement_PM_APPROVED.pdf. As part of the settlement, USCIS agreed to process SIJ applications for juveniles whose applications were denied, revoked or terminated based on the termination of the state dependency order due to the juvenile reaching the age of 18. Id. 8 No. 1-15-2223
Superior Court, 168 Cal. Rptr. 3d 729 (Cal. Ct. App. 2014), an immigrant minor was
adjudicated delinquent of assault and burglary after she and two friends attempted to steal
items from a liquor store. After her guilty plea, the minor was declared a ward of the
court and committed to a juvenile detention facility. She then applied to the court for the
necessary SIJ predicate findings. After a hearing at which evidence of the minor's abuse
and abandonment by her biological parents was presented, the court declined to make the
findings. The trial court concluded that Congress could not have intended to confer
immigration benefits on juveniles adjudicated delinquent of criminal offenses. Further,
the court determined that it was unable to find that (i) reunification was not viable
because it doubted the juvenile's credibility and (ii) return to Mexico was not in the
juvenile's best interest given her failure to attend school and criminal behavior while in
the United States. Reversing, the California Court of Appeal concluded that the trial
court had misapprehended its role in making the SIJ predicate findings:
"A state court's role in the SIJ process is not to determine worthy candidates for
citizenship, but simply to identify abused, neglected, or abandoned alien children
under its jurisdiction who cannot reunify with a parent or be safely returned in
their best interests to their home country." Id. at 737.
See also Mario S., 954 N.Y.S.2d at 852-53 ("The juvenile court need not determine ***
what the motivation of the juvenile in making application for the required findings might
be [citations]; whether allowing a particular child to remain in the United States might
someday pose some unknown threat to public safety [citation]; and whether the USCIS
*** may or may not grant a particular application for adjustment of status as a SIJ.").
9 No. 1-15-2223
¶ 22 Similarly, a court asked to make SIJ predicate findings need not discern a parent's
motivation in abandoning the child. In Eddie E. v. Superior Court, 183 Cal. Rptr. 3d 773,
782 (Cal. Ct. App. 2015), the court observed:
"Of course the SIJ statute was not designed to provide citizenship to petitioners
who are comfortably living with a loving, supportive parent. But it is USCIS's
role to determine whether the petitioner has applied for SIJ status primarily for the
purpose of obtaining relief from abuse, neglect, or abandonment, not the state
court's role."
In fact, in removal proceedings against a minor who sought SIJ status, the Board of
Immigration Appeals determined that she did not qualify given that although a state court
had ordered that her parents be removed as her guardians (by consent) and a family friend
be appointed as her guardian, the minor had not shown that reunification with her parents
was not viable due to abuse, neglect or abandonment. In re Blanca Rocio
Deleg-Vergara, No. A088 793 320, 2010 WL 4509733, (BIA Oct. 29, 2010)
(unpublished decision).
¶ 23 There is a split among reported authorities on the issue of whether, when the
applicant shows that one parent has abused, neglected or abandoned the child, but the
other has not, the predicate of abuse, neglect or abandonment by "1 or both" parents has
been satisfied. 8 U.S.C. § 1101(a)(27)(J)(i) (Supp. I 2014). According to one line of
cases, if the minor has been abused, neglected or abandoned by one parent, but is living
with the other parent, an SIJ finding that reunification is not viable is not warranted. See
In re Erick M., 820 N.W.2d 639, 644 (Neb. 2012) (minor adjudicated delinquent for
possession of alcohol and committed to treatment facility; although minor had no contact
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with his father, he lived with his mother prior to the adjudication and wanted to return to
her; while court found minor's proposed construction of the statute was reasonable, it
nevertheless construed "1 or both" language as meaning that, depending on the minor's
circumstances, "either reunification with one parent is not feasible or reunification with
both parents is not feasible" (emphases in original)); H.S.P. v. J.K., 87 A.3d 255, 266
(N.J. Super. Ct. App. Div. 2014) (trial court awarded custody of 17-year-old immigrant
child to child's uncle, but refused to make SIJ findings; ruling affirmed where there was
no evidence that minor's mother, who lived in India, had willfully neglected him although
she was too poor to provide him sanitary living conditions, an education or medical care;
thus, although father had abandoned the minor at birth, court construed "1 or both"
language as requiring a showing that reunification with neither parent is viable). 2
¶ 24 But other courts have reached the opposite conclusion. The court in Eddie E., 183
Cal. Rptr. 3d 773, directly addressed and disagreed with the reasoning of Erick M. and
H.S.P. In Eddie E., the minor was a citizen of Mexico who came to this country with his
mother at the age of five to reunite with his father. The minor's mother ultimately left the
family and died several years later. The minor continued to live with his father and
although he lived a hard life, his father never abused him. After the minor was
adjudicated delinquent of several criminal offenses, he petitioned the court to make SIJ
findings. Id. at 776. The trial court declined to make the findings, determining that
because the minor's father never abused him, he could not establish that reunification
with his father was not viable due to abuse or neglect and that the minor's inability to
reunify with his mother was due to her death and not abandonment. Id. at 777. The court
2 The New Jersey Supreme Court has granted a petition for review in H.S.P. v. J.K., 95 A.3d 258 (N.J. 2014). 11 No. 1-15-2223
further declined to find that return to Mexico was not in the minor's best interest. Id. The
court of appeal reversed, finding that under the plain meaning of the statutory language,
the minor's abandonment by one parent—his mother—sufficed. Id. at 783.
¶ 25 Fundamentally, the Eddie E. court concluded that the courts in Erick M. and
H.S.P. misunderstood the role of state courts in making SIJ findings; state courts are not
gatekeepers, charged with weeding out motions for SIJ findings that they believe are not
bona fide:
"Certainly, petitioner has presented a case from which a reasonable USCIS field
director could conclude that petitioner has applied for SIJ status in good faith to
obtain relief from his mother's abandonment. On the other hand, a USCIS field
director may determine that is not the case. The problem with the Erick M. and
H.S.P. interpretation is that it completely forecloses the ability of USCIS to make
that determination. Ultimately, immigration decisions are the purview of the
federal government, not the state government. [Citation.] The Erick M. and
H.S.P. courts improperly usurped that role." Id.
See also Israel O., 182 Cal. Rptr. 3d at 556 ("We therefore conclude that an eligible
minor under section 1101(a)(27)(J) includes a juvenile for whom a safe and suitable
parental home is available in the United States and reunification with a parent in his or
her country of origin is not viable due to abuse, neglect or abandonment."); In the Matter
of Marcelina M.-G. v. Israel S., 973 N.Y.S.2d 714, 722 (N.Y. App. Div. 2013) (minor
placed in custody of her mother still eligible for SIJ findings where minor had been
abandoned by her father).
12 No. 1-15-2223
¶ 26 USCIS, the agency charged with administering the Act, including applications for
SIJ status, has taken the position that abuse, neglect or abandonment by one parent is
sufficient for purposes of SIJ predicate findings. See U.S. Citizenship and Immigration
Services, Immigration Relief for Abused Children, at 1 (Apr. 2014),
http://www.uscis.gov/sites/default/files/USCIS/Green%20Card/Green%20Card%20Thro
ugh%20a%20Job/Immigration_Relief_for_Abused_Children-FINAL.pdf (providing that
SIJ-eligible children may "[b]e living with a foster family, an appointed guardian, or the
non-abusive parent"); see also Marcelina M.-G., 973 N.Y.S.2d at 724 (referencing
USCIS approval of SIJ status applications even though reunification with one parent was
viable). The agency's position has not been the subject of rulemaking and notice and
comment and thus is not entitled to deference under Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984), but we nevertheless believe it is a
reasonable construction of the statute. Christensen v. Harris County, 529 U.S. 576, 587
(2000) (agency interpretations that are not the product of formal rulemaking are "entitled
to respect *** but only to the extent that those interpretations have the power to
persuade" (internal quotation marks omitted)).
¶ 27 Although, for reasons we discuss below, the record supports a finding that Nina
has, in fact, been abandoned by both parents, we believe the position adopted by USCIS,
Eddie E., Israel O., and Marcelina M.-G. adheres to the plain language of the statute,
which is not ambiguous. If Congress meant that an applicant for SIJ status was required
to show that reunification with both parents was not viable due to abuse, neglect or
abandonment, it could easily have so provided. Use of the disjunctive indicates that
abuse, neglect or abandonment by one parent is sufficient to support the predicate
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finding. Whether it is sufficient to warrant consent to the application by the District
Director of USCIS is an entirely separate issue, which is reserved for federal immigration
authorities, not state courts.
¶ 28 In the context of this case, the fact of Nina's abandonment by her father is
particularly significant. As noted above, Nina's father is a native of Taiwan where Nina
was born. Nina is thus a citizen of Taiwan. Her mother is a native of the Philippines.
We do not know whether Nina, soon to be an adult citizen of Taiwan, can be deported to
the Philippines even if she maintains a relationship with her mother, who is presently
subject to deportation. We have no expertise in the laws of Taiwan or the Philippines
that would enable us to answer this question. And there is no indication in the record
that, apart from her father, Nina has had contact with her relatives, if any, in Taiwan over
the past 12 years. Thus, as a practical matter, Nina's abandonment by her father warrants
a finding that return to the country of her birth (Taiwan) is not in her best interest wholly
apart from the abandonment by her mother.
¶ 29 On the issue of Maria's abandonment of Nina, we understand the circuit court's
reluctance to make the requested findings based, as we assume it was, on the court's
skepticism regarding Maria's motives. But even if we assume that Maria's abandonment
was motivated solely by the desire to give her daughter the opportunity to seek SIJ status,
the fact is Maria did abandon Nina; Nina was placed under the coguardianship of
petitioners precisely because there was no one else available to care for and make
decisions for her. And just as Maria's motivation in abandoning her daughter was not
relevant in the context of appointing petitioners to act as her guardians, so too is it
irrelevant to the determination as to whether Nina has been abandoned for purposes of the
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SIJ predicate findings. Again, the bona fides of and reasons for the abandonment are not
our concern and will be addressed, to the extent that they are deemed relevant, in the
context of Nina's application for SIJ status.
¶ 30 Further, the trial court would not find the answers to these questions in any
evidentiary hearing. Again, it is undisputed that Nina has lived with petitioners for nearly
a year and, although Nina has been in contact with Maria, she is not residing with Maria
and Maria is not providing for her. There is no party opposing petitioner's motion for SIJ
findings and thus the adversary process will not work to ferret out the truth or shed light
on the reasons for Maria's conduct. And, given Maria's immigration status, her
unwillingness to come to court to testify or otherwise explain her conduct or whereabouts
is understandable.
¶ 31 We note that although the potential benefits associated with SIJ status are
substantial, Nina's decision to pursue SIJ status is not without risk. Relief is not
guaranteed and denial of the application renders Nina subject to deportation as an
undocumented immigrant. 3 Charles Gordon et al., Immigration Law and Procedure
§ 35.09, at 35-46 (Matthew Bender rev. ed. 2015). Given Nina's willingness to assume
that risk and in light of the facts disclosed in the record before us, we believe Nina's
opportunity to pursue SIJ status should not be thwarted by our refusal to make the
findings necessary to allow her application to proceed.
¶ 32 CONCLUSION
¶ 33 On this record, which we review de novo given the lack of any factual or
credibility determinations made by the trial court (see People v. Nielson, 187 Ill. 2d 271,
286 (1999) (de novo review appropriate where neither facts nor credibility of witnesses is
15 No. 1-15-2223
at issue)), we believe the trial court erred as a matter of law in refusing to make the
requested findings. We reiterate, as we found in our August 25, 2015 order, that (i)
reunification with one or both of Nina's parents is not viable due to abuse, neglect or
abandonment and (ii) return to Taiwan is not in Nina's best interest.
¶ 34 Order vacated.