NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-1148
LUANA GONCALVES DE PAULA
vs.
RONALDO GONCALVES LEMOS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On October 13, 2023, Luana Goncalves de Paula, raised in
Brazil and currently residing in Winthrop, filed a complaint for
dependency pursuant to G. L. c. 119, § 39M, in the Probate and
Family Court, requesting declaratory and equitable relief in the
form of a decree of special findings that she was dependent on
the Probate and Family Court. Such findings are necessary to
establish Luana's eligibility to apply to the United States
Citizenship and Immigration Services for special immigrant
juvenile (SIJ) status under the Immigration and Nationality Act
(INA), 8 U.S.C. § 1101(a)(27)(J).1 Luana submitted an affidavit
1To be eligible to seek SIJ status, an alien juvenile must establish: (1) that he or she has been declared dependent on a detailing the neglect she suffered from her father in Brazil,
including that he was not involved in her upbringing, was not a
caring father, did not spend meaningful time with her, kicked
her out of his house when she turned eighteen years old, and
failed to provide her with any support -- financial, emotional,
or otherwise -- thereafter.2
On February 16, 2024, a Probate and Family Court judge held
a nonevidentiary hearing on Luana's complaint. On February 21,
2024, the judge entered a written order dismissing the complaint
after reasoning that "[a]lthough the Father was not an ideal
parent, his conduct does not rise to the level of neglect." The
judge did not find, pursuant to 8 U.S.C. § 1101(a)(27)(J)(i),
that "reunification with [one] or both of [Luana's] parents is
not viable due to abuse, neglect, abandonment, or similar basis
found under State law." Accordingly, the complaint was
dismissed by decree on March 4, 2024. Thereafter, Luana moved
"juvenile court"; (2) that reunification with one or both of the juvenile's "parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law"; and (3) that it would not be in the juvenile's best interests to return to his or her country of nationality. 8 U.S.C. § 1101(a)(27)(J)(i)-(ii). The State court's role is not "to engage in an immigration analysis or decision." Recinos v. Escobar, 473 Mass. 734, 738 (2016).
2 Luana's father was provided with a copy of Luana's filings in English and his native language, Portuguese. He assented to Luana's complaint for dependency against him by written filing dated December 14, 2023.
2 to vacate the judgment of dismissal and sought to file an
amended complaint for dependency, then moved for relief from
judgment under Mass. R. Dom. Rel. P. 60(b). The motion for
relief was denied, and Luana filed a motion for reconsideration.
On August 26, 2024, an order entered denying the motion for
reconsideration, and a supplemental order of dismissal issued.
The judge found that the behavior alleged does not meet the
standard for abuse, neglect, and abandonment, nor does it "rise
to the same level or magnitude to establish 'or similar
circumstance' (i.e., death of a parent) pre or post 18 years of
age." The judge further found that Luana made no allegation
that her father withheld food, shelter, or other necessities and
further noted that parents in another country are not obliged to
support their children after the age of eighteen. A timely
notice of appeal was filed on September 17, 2024. Luana was
twenty at the time the case was dismissed and will reach the age
of twenty-one on October 10, 2024.
"[T]he Probate and Family Court has jurisdiction, under its
broad equity power, over youth between the ages of eighteen and
twenty-one for the specific purpose of making the special
findings necessary to apply for SIJ status pursuant to the INA."
Recinos v. Escobar, 473 Mass. 734, 739 (2016). In addition,
"[i]n order to attain self-sufficiency, the plaintiff and other youth in [his or her] situation need the assistance of the Probate and Family Court in the form of special
3 findings applicable to SIJ status. If an immigrant child is able to show, for purposes of SIJ status eligibility, that he or she experienced abuse, neglect, or abandonment by one or both parents, it follows that the child is dependent on the Probate and Family Court for the opportunity to obtain relief. The child would be 'dependent' on the Probate and Family Court for the assistance that is available in applying successfully for the Federal relief, i.e., SIJ status."
Id. at 743.
"Acting within the limits of this fact-finding role, the
judge must make the special findings even if he or she suspects
that the immigrant child seeks SIJ status for a reason other
than relief from neglect, abuse, or abandonment." Guardianship
of Penate, 477 Mass. 268, 275 (2017). "The immigrant child's
motivation is irrelevant to the judge's special findings. The
judge's obligation to make the special findings also applies
regardless of whether the child presents sufficient evidence to
support a favorable finding under each of the criteria set forth
in § 1101(a)(27)(J)." Id. The findings must also
"be limited to the parent with whom the child claims reunification is not viable due to abuse, neglect, or abandonment. Thus, where an immigrant child asserts in her or his motion for special findings that reunification is not viable with only one parent, the Probate and Family Court shall limit its findings to that parent." Id.
In the present case, the judge based her decision solely on
the documents presented to her. Accordingly, "we are in as good
a position as the probate judge to decide questions of fact."
Bluhm v. Peresada, 5 Mass. App. Ct. 766, 766 (1977). The facts
4 contained in Luana's affidavit are undisputed.3 As the evidence
is uncontested, and the relief requested is time-sensitive, we
choose to address the merits and in doing so, make the following
special findings and ruling based on the record before us:
1. The plaintiff, Luana Goncalves de Paula, was born on
October 10, 2003, in Brazil. Luana resides in the town
of Winthrop, Suffolk County, Massachusetts and under the
jurisdiction of the Probate and Family Court. Luana is
not married.
2.
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-1148
LUANA GONCALVES DE PAULA
vs.
RONALDO GONCALVES LEMOS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On October 13, 2023, Luana Goncalves de Paula, raised in
Brazil and currently residing in Winthrop, filed a complaint for
dependency pursuant to G. L. c. 119, § 39M, in the Probate and
Family Court, requesting declaratory and equitable relief in the
form of a decree of special findings that she was dependent on
the Probate and Family Court. Such findings are necessary to
establish Luana's eligibility to apply to the United States
Citizenship and Immigration Services for special immigrant
juvenile (SIJ) status under the Immigration and Nationality Act
(INA), 8 U.S.C. § 1101(a)(27)(J).1 Luana submitted an affidavit
1To be eligible to seek SIJ status, an alien juvenile must establish: (1) that he or she has been declared dependent on a detailing the neglect she suffered from her father in Brazil,
including that he was not involved in her upbringing, was not a
caring father, did not spend meaningful time with her, kicked
her out of his house when she turned eighteen years old, and
failed to provide her with any support -- financial, emotional,
or otherwise -- thereafter.2
On February 16, 2024, a Probate and Family Court judge held
a nonevidentiary hearing on Luana's complaint. On February 21,
2024, the judge entered a written order dismissing the complaint
after reasoning that "[a]lthough the Father was not an ideal
parent, his conduct does not rise to the level of neglect." The
judge did not find, pursuant to 8 U.S.C. § 1101(a)(27)(J)(i),
that "reunification with [one] or both of [Luana's] parents is
not viable due to abuse, neglect, abandonment, or similar basis
found under State law." Accordingly, the complaint was
dismissed by decree on March 4, 2024. Thereafter, Luana moved
"juvenile court"; (2) that reunification with one or both of the juvenile's "parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law"; and (3) that it would not be in the juvenile's best interests to return to his or her country of nationality. 8 U.S.C. § 1101(a)(27)(J)(i)-(ii). The State court's role is not "to engage in an immigration analysis or decision." Recinos v. Escobar, 473 Mass. 734, 738 (2016).
2 Luana's father was provided with a copy of Luana's filings in English and his native language, Portuguese. He assented to Luana's complaint for dependency against him by written filing dated December 14, 2023.
2 to vacate the judgment of dismissal and sought to file an
amended complaint for dependency, then moved for relief from
judgment under Mass. R. Dom. Rel. P. 60(b). The motion for
relief was denied, and Luana filed a motion for reconsideration.
On August 26, 2024, an order entered denying the motion for
reconsideration, and a supplemental order of dismissal issued.
The judge found that the behavior alleged does not meet the
standard for abuse, neglect, and abandonment, nor does it "rise
to the same level or magnitude to establish 'or similar
circumstance' (i.e., death of a parent) pre or post 18 years of
age." The judge further found that Luana made no allegation
that her father withheld food, shelter, or other necessities and
further noted that parents in another country are not obliged to
support their children after the age of eighteen. A timely
notice of appeal was filed on September 17, 2024. Luana was
twenty at the time the case was dismissed and will reach the age
of twenty-one on October 10, 2024.
"[T]he Probate and Family Court has jurisdiction, under its
broad equity power, over youth between the ages of eighteen and
twenty-one for the specific purpose of making the special
findings necessary to apply for SIJ status pursuant to the INA."
Recinos v. Escobar, 473 Mass. 734, 739 (2016). In addition,
"[i]n order to attain self-sufficiency, the plaintiff and other youth in [his or her] situation need the assistance of the Probate and Family Court in the form of special
3 findings applicable to SIJ status. If an immigrant child is able to show, for purposes of SIJ status eligibility, that he or she experienced abuse, neglect, or abandonment by one or both parents, it follows that the child is dependent on the Probate and Family Court for the opportunity to obtain relief. The child would be 'dependent' on the Probate and Family Court for the assistance that is available in applying successfully for the Federal relief, i.e., SIJ status."
Id. at 743.
"Acting within the limits of this fact-finding role, the
judge must make the special findings even if he or she suspects
that the immigrant child seeks SIJ status for a reason other
than relief from neglect, abuse, or abandonment." Guardianship
of Penate, 477 Mass. 268, 275 (2017). "The immigrant child's
motivation is irrelevant to the judge's special findings. The
judge's obligation to make the special findings also applies
regardless of whether the child presents sufficient evidence to
support a favorable finding under each of the criteria set forth
in § 1101(a)(27)(J)." Id. The findings must also
"be limited to the parent with whom the child claims reunification is not viable due to abuse, neglect, or abandonment. Thus, where an immigrant child asserts in her or his motion for special findings that reunification is not viable with only one parent, the Probate and Family Court shall limit its findings to that parent." Id.
In the present case, the judge based her decision solely on
the documents presented to her. Accordingly, "we are in as good
a position as the probate judge to decide questions of fact."
Bluhm v. Peresada, 5 Mass. App. Ct. 766, 766 (1977). The facts
4 contained in Luana's affidavit are undisputed.3 As the evidence
is uncontested, and the relief requested is time-sensitive, we
choose to address the merits and in doing so, make the following
special findings and ruling based on the record before us:
1. The plaintiff, Luana Goncalves de Paula, was born on
October 10, 2003, in Brazil. Luana resides in the town
of Winthrop, Suffolk County, Massachusetts and under the
jurisdiction of the Probate and Family Court. Luana is
not married.
2. The Probate and Family Court has jurisdiction pursuant to
G. L. c. 215, § 6, to make determinations about the
dependency, care, support, and well-being of youth under
the age of twenty-one. Cf. Eccleston v. Bankosky, 438
Mass. 428, 436-437 (2003). Luana Goncalves de Paula is
dependent upon the Probate and Family Court for her
health, safety, and welfare. Id.
3. Luana's father, the named defendant, neglected Luana.
Accordingly, Luana's reunification with her father,
Ronaldo Goncalves Lemos, is not viable. See 110 Code
Mass. Regs. § 2.00 (2008) (defining, inter alia,
caretaker, child, and neglect).
The defendant assented to Luana's complaint for dependency 3
and did not contest any of the allegations contained therein.
5 4. Having considered the health, educational, developmental,
physical and emotional interests of Luana, this court
determines that it is not in Luana's best interests to
return to her country of nationality, Brazil. See, e.g.,
Custody of Kali, 439 Mass. 834, 843-845 (2003) (in making
best interests determination, judge must identify and
weigh pertinent factors). In Brazil, Luana would lack
parental protection and support. In the United States,
Luana has found stability, safety, and opportunities she
could not access in Brazil. For these reasons, it is in
Luana's best interests to remain in the United States.
5. The above findings were made due to the neglect of Luana
by her father, the defendant, to provide for her safety
and well-being, and to protect Luana from future harm, in
accordance with the laws of the Commonwealth of
Massachusetts.
The order denying the motion for reconsideration and the
supplemental judgment of dismissal entered August 26, 2024, and
the judgment of dismissal entered March 4, 2024, are reversed.
The matter is remanded to that court for entry of a decree
incorporating the numbered findings recited above in this
memorandum and order. The First Justice of the Suffolk Division
of the Probate and Family Court shall direct the Register to
6 enter the decree forthwith, but in any event no later than
October 8, 2024. The rescript shall issue forthwith.
So ordered.
By the Court (Massing, Henry & Desmond, JJ.4),
Clerk.
Entered: October 4, 2024.
4 The panelists are listed in order of seniority.