In re Parentage of Ervin C.-R.

2020 IL App (2d) 200236

Opinion

2020 IL App (2d) 200236 No. 2-20-0236 Opinion filed September 30, 2020 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

In re PARENTAGE OF ) Appeal from the Circuit Court ERVIN C.-R., ) of Du Page County. ) a minor ) ) ) No. 19-F-270 ) (Enriqueta A. R.-L., Petitioner-Appellant, ) Honorable v. Jasinto Santos C.-L., Respondent- ) Neal W. Cerne, Appellee). ) Judge, Presiding. ______________________________________________________________________________

JUSTICE HUTCHINSON delivered the judgment of the court, with opinion. Presiding Justice Birkett and Justice Brennan concurred in the judgment and opinion.

OPINION

¶1 This case presents questions regarding the state-court predicate findings for juvenile-

immigration status changes. In the circuit court of Du Page County, Enriqueta A. R.-L., filed a

petition to establish the parentage of Ervin C.-R., her son. Enriqueta sought an adjudication of

parentage, an order granting her sole decision-making responsibilities, and an order enabling Ervin

to apply for “Special Immigrant Juvenile” (SIJ) status under 8 U.S.C. 1101(a)(27)(J) (2018). The

trial court found that Ervin had been abandoned by his father, respondent, Jasinto Santos C.-L.,

and the court granted Enriqueta sole decision-making responsibility and parenting time; however,

the trial court found that Ervin was not abandoned for the purpose of issuing SIJ findings. We

reverse. 2020 IL App (2d) 200236

¶2 I. BACKGROUND

¶3 We present the facts as drawn from the affidavits and testimony presented in the trial court

at the hearing on the petition. Enriqueta was approximately 26 years old. Her son, Ervin, who was

born in August of 2006, was now 14. Jasinto was approximately 36 years old. All of the parties

are natives of Guatemala. Prior to the hearing, the court granted Enriqueta leave to serve by

publication; Jasinto failed to appear and was defaulted.

¶4 According to Enriqueta, she and Jasinto were engaged in a sexual relationship in

Guatemala from December 2005 to November 2006. As mentioned, Ervin was born in August

2006, and Jasinto was present when his son was born. Jasinto told his family that he was happy to

have a son, and he is acknowledged as Ervin’s father on Ervin’s birth certificate from Guatemala.

In November 2006, however, Jasinto left Guatemala and came to the United States. Enriqueta’s

last contact with Jasinto was a phone call in April 2007. Enriqueta and Ervin lived with Jasinto’s

mother in Huehuetenango, Guatemala, for a time.

¶5 In 2013, Enriqueta left Ervin with her parents, in Guatemala, and she came to the United

States. Leaving Ervin in Guatemala “wasn’t a permanent plan” and Enriqueta worked for three

years “to come up with the money to bring [Ervin] over here.” In November 2016, when Ervin

travelled to the United States, he was intercepted and taken into federal custody. The following

month, Ervin was released to Enriqueta by the Office of Refugee Resettlement (ORR). Since that

time, Enriqueta and Ervin have resided in Du Page County and she has provided for Ervin’s needs.

¶6 Enriqueta testified that it was not in Ervin’s best interest to return to Guatemala, because

her parents were elderly and could not care for him there. Enriqueta also stated that she could not

afford to care for or educate Ervin in Guatemala.

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¶7 Enriqueta testified that, in 2013, a coworker gave her an address for Jasinto in Bensenville,

but when Enriqueta went to the address, Jasinto was not there. Enriqueta also searched for Jasinto

online, but those efforts proved unsuccessful. In December 2019, Enriqueta enlisted her parents to

locate Jasinto’s parents in Huehuetenango, Guatemala, but learned that the family’s land had been

abandoned and that Jasinto’s mother had passed away.

¶8 In its oral ruling, the trial court stated that it did not find that Ervin was “dependent” on the

court “for anything” and questioned whether Ervin had been “abandoned,” stating, “How has he

been abandoned? He’s with his mom.” The court observed that its parentage adjudication would

merely preserve the status quo: “I’m not changing any relationships by any stretch. Mother is here.

She can provide for the child. The child has not been abandoned.” Finally, the court stated, “I’m

not going to make [SIJ] findings because the child has not been abandoned and the child is not

dependent on this court for his care and custody.”

¶9 Enriqueta timely appealed. After her notice of appeal was filed, Enriqueta sought leave to

comply with the Illinois Supreme Court Rule regarding service of the notice of appeal (see Ill. S.

Ct. R. 303(c) (eff. July 1, 2017)) by publication. We granted leave and notice was published in a

local newspaper each week for three weeks. See generally Mobley v. Murray, 2015 IL App (1st)

134038-U, ¶ 12.

¶ 10 II. ANALYSIS

¶ 11 As this case is straightforward, we may decide this appeal without an appellee’s brief. See

First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976). In

addition, as the trial court did not decide this case based on witness credibility, we review de novo

its decision not to issue SIJ findings. See In re Estate of Nina L., 2015 IL App (1st) 152223, ¶¶ 13,

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33. Finally, this case presents a question of statutory interpretation, which we also review de novo.

Lewis v. Lead Industries Ass’n, 2020 IL 124107, ¶ 36.

¶ 12 SIJ findings enable a qualifying minor to petition the United States Citizenship and

Immigration Services (USCIS) for an adjustment of status to become a lawful permanent resident

(LPR). The Immigration and Nationality Act provides for these findings for an immigrant child

“(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; [and]

(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.” 8 U.S.C. § 1101(a)(27)(J)(i)-

(ii) (2018).

Federal regulations clarify that a “[j]uvenile court means a court located in the United States having

jurisdiction under State law to make judicial determinations about the custody and care of

juveniles.” 8 C.F.R. § 204.11(a) (2019). We note that state-court SIJ findings are merely a

predicate for the petition; whether to issue SIJ status is determined by the USCIS, after a more

thorough inquiry (see 8 C.F.R. § 204.11(c) (2019)).

¶ 13 As counsel noted in the trial court, our state legislature recently enacted provisions

mirroring federal law to provide for SIJ findings. See Pub. Act 101-121 (eff. Jan. 1, 2020); Pub.

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Act 101-592 (eff. Nov. 25, 2019) (modifying effective date of Public Act 101-121). Relevant here,

the Illinois Parentage Act of 2015 now provides as follows:

Ҥ 613.5. Special immigrant child findings.

(a) For the purpose of making a finding under this Section:

‘Abuse’ has the meaning ascribed to that term in subsection (1) of

Section 103 of the Illinois Domestic Violence Act of 1986 [(750 ILCS

60/103 (West 2018))].

‘Abandonment’ includes, but is not limited to, the failure of a parent

to maintain a reasonable degree of interest, concern, or responsibility for the

welfare of the child or when one or both of the child’s parents are deceased

or cannot be reasonably located.

‘Neglect’ includes the meaning ascribed to the term in paragraph (a)

of subsection (1) of Section 2-3 of the Juvenile Court Act of 1987 [(705

ILCS 405/2-3 (West 2018))] and the failure to perform caretaking functions

as defined in subsection (c) of Section 600 of the Illinois Marriage and

Dissolution of Marriage Act [(750 ILCS 5/600 (West 2018))].

(b) A court of this State that is competent to adjudicate parentage has jurisdiction

to make the findings necessary to enable a child, who is the subject of a proceeding to

adjudicate parentage, to petition the United States Citizenship and Immigration Services

for classification as a Special Immigrant Juvenile under Section 1101(a)(27)(J) of Title 8

of the United States Code.

(c) If a motion requests findings regarding Special Immigrant Juvenile Status under

Section 1101(a)(27)(J) of Title 8 of the United States Code, and the evidence, which may

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consist solely of, but is not limited to, a declaration by the child, supports the findings, the

court shall issue an order, that includes the following findings:

(1)(A) the child is declared a dependent of the court; or (B) the child

is placed under the custody of an individual or entity appointed by the court;

and

(2) that reunification of the child with one or both of the child’s

parents is not viable due to abuse, neglect, abandonment, or other similar

basis; and

(3) that it is not in the best interest of the child to be returned to the

child’s or parent’s previous country of nationality or last habitual

residence.” 750 ILCS 46/613.5 (West Supp. 2019).

Identical language was added to the Juvenile Court Act of 1987 (705 ILCS 405/2-4a (West Supp.

2019)), the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/603.11 (West Supp.

2019)), the Adoption Act (750 ILCS 50/17.01 (West Supp. 2019)), the Illinois Domestic Violence

Act of 1986 (750 ILCS 60/214.5 (West Supp. 2019)), and the Probate Act of 1975 (755 ILCS 5/11-

5.5 (West Supp. 2019)).

¶ 14 Returning to the questions presented in this case, first, we determine that the trial court

erred in its interpretation of what it meant to be “dependent” on the court. See 750 ILCS

46/613.5(c)(1)(A) (West Supp. 2019). After examining the record, we conclude that the trial court

apparently believed that it had to enter a finding of “dependency” (see 705 ILCS 405/2-4 (West

Supp. 2019)) and appoint a guardian for Ervin to meet that requirement. In addition, the trial court

read into the statute a requirement—that its order must “chang[e]” the “relationship[ ]” between

the parties—that simply does not exist. The plain language of the statute indicates that a child need

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not be placed in long-term foster care or have a nonparent guardian appointed in order to qualify

for SIJ findings. See 750 ILCS 46/613.5(c)(1)(A), (B) (West Supp. 2019); see also In re Estate of

Nina L., 2015 IL App (1st) 152223, ¶¶ 15-17 (discussing federal legislative history and removal

of long-term foster care requirements). Furthermore, the inclusion of this section under the

Parentage Act of 2015 indicates that the child need not be subject to child-protection proceedings

under the Juvenile Court Act. Rather, as under federal law, a child may be considered dependent

on the court when the court is required to make a “judicial determination[ ]” about the child’s

“custody and care.” 8 C.F.R. § 204.11(a) (2019); see also Perez v. Cuccinelli, 949 F.3d 865, 868

(4th Cir. 2020) (en banc) (holding that an emergency ex parte custody order qualified for SIJ

determination).

¶ 15 A judicial order allocating sole decision-making responsibility and parenting time is,

unquestionably, an order affecting a child’s custody and care. Accordingly, we determine that

Ervin was dependent on the trial court for an order regarding his custody and care.

¶ 16 The second issue is whether a child may be considered abused, neglected, or abandoned

when only one parent has abused, neglected, or abandoned the child, but the other has not. We

note that the “one or both”-parents language is the same in both the federal law and the state statute.

Moreover, this same issue was addressed in In re Estate of Nina L., where, in interpreting federal

law (8 U.S.C. § 1101(a)(27)(J)(i) (Supp. I 2014)), the court stated that:

“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 finding.” (Emphasis in original.) In re Estate of

Nina L., 2015 IL App (1st) 152223, ¶ 27.

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We find that the same reasoning applies to the state law at issue here, specifically, in both the

definition of abandonment (750 ILCS 46/613.5(a) (West Supp. 2019)) and the showing that

reunification is infeasible (750 ILCS 46/613.5(c)(2) (West Supp. 2019)). Accordingly, we

determine that abuse, neglect, or abandonment by one parent is sufficient for the purposes of SIJ

predicate findings.

¶ 17 III. CONCLUSION

¶ 18 We observe that the trial court made no best-interest finding, due to its findings on the first

two SIJ factors. On our review of the record, we find that Enriqueta presented sufficient evidence

for the trial court to determine whether it was in Ervin’s best interest to return to Guatemala or to

remain here with his mother. For the reasons stated, we reverse the judgment of the circuit court

of Du Page County and remand this case for the entry of an order consistent with this opinion.

¶ 19 Reversed and remanded.

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No. 2-20-0236

Decision Under Review: Appeal from the Circuit Court of Du Page County, No. 19-F-270; the Hon. Neal W. Cerne, Judge, presiding.

Attorneys David M. Gotzh, of Chicago, for appellant. for Appellant:

Attorneys No brief filed for appellee. for Appellee:

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