[Cite as Gonzalez v. Rodriguez, 2018-Ohio-2410.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

Blanca Santos Gonzalez,                            :

                Plaintiff-Appellant,               :
                                                                     No. 17AP-136
v.                                                 :              (C.P.C. No. 16JU-0467)

Pedro Ovidio Rodriguez,                            :         (REGULAR CALENDAR)

                Defendant-Appellee.                :


                                           D E C I S I O N

                                      Rendered on June 21, 2018


                On brief: Advocates for Basic Legal Equality, Inc., and
                Jessica A. Ramos, for appellant. Argued: Jessica A. Ramos.

                  APPEAL from the Franklin County Court of Common Pleas,
                      Division of Domestic Relations, Juvenile Branch

HORTON, J.
          {¶ 1} Plaintiff-appellant, Blanca Santos Gonzalez, filed a complaint for allocation
of custody in the Franklin County Court of Common Pleas, Division of Domestic Relations,
Juvenile Branch, seeking "legal custody" of her minor child, E.S., and asking the trial court
to make findings of fact to allow E.S. to petition the federal government for status as a
Special Immigrant Juvenile under 8 U.S.C. 1101(a)(27)(j). She now appeals from the trial
court's decision declining to make the requested findings. For the following reasons, we
affirm.
          {¶ 2} Santos Gonzalez filed a complaint for allocation of custody on January 11,
2016, asking the court for "legal custody" of E.S., who was born on May 1, 2001. She
subsequently filed an amended complaint on May 23, 2016. Santos Gonzalez alleged that
E.S. was her biological child, and that he had resided with her in Columbus since
February 2015. Santos Gonzalez also alleged that E.S.'s biological father was Pedro Ovidio
Rodriguez, who was in El Salvador, had never supported E.S., and had not been in contact
No. 17AP-136                                                                                     2

with him since 2005. She claimed that E.S.'s father had "abandoned and neglected the child
within the meaning of O.R.C. § 3127.01(B)(1) and O.R.C. § 2151.03(A)(1)." (Jan. 11, 2016
Compl.) E.S. had come to the U.S. in January 2015 to escape the "extreme poverty and
widespread gang violence" in El Salvador, and "to reunify with his mother." Id. In the prayer
for relief, Santos Gonzalez asked the juvenile court to grant her legal custody of E.S. and to
"[m]ake findings of fact necessary for [E.S.] to petition for Special Immigrant Juvenile
Status." Id. Specifically, she asked for the juvenile court to make findings in accordance
with the definition of a Special Immigrant Juvenile under 8 U.S.C. 1101(a)(27)(J). (Jan. 11,
2016 Compl.; May 23, 2016 Am. Comp.)
       {¶ 3} At a hearing, the magistrate questioned Santos Gonzalez about E.S., her
parenting history, and her financial circumstances. She testified that it had been eight years
since E.S. had contact with his father and that E.S. had been living with her for the previous
year and one-half. Santos Gonzalez's attorney then asked the juvenile court to make "two
additional findings" not addressed by the questioning: "that reunification of the minor child
with his father is not viable due to abandonment and that it is not in the child's best interest
to return to El Salvador." (Aug. 31, 2016 Tr. at 11-12.)
       {¶ 4} The magistrate filed a decision on September 14, 2016, stating findings of fact
and conclusions of law. The magistrate found that E.S. had been born in El Salvador and
that his putative father had left when he was four; that Santos Gonzalez had supported E.S.
before his arrival in the U.S. and was currently supporting him; that Santos Gonzalez feared
for E.S.'s safety if he returned to El Salvador; and that it was "in the best interest of the child
to remain in the custody of the Mother." (Sept. 14, 2016 Decision at 3.) However, the
magistrate stated that she was "unable" to make the other additional findings that Santos
Gonzalez had requested. Id.
       {¶ 5} Santos Gonzalez filed an objection to the magistrate's failure to make the
additional findings. (Sept. 29, 2016 Objs. to Mag.'s Decision.) In a decision overruling the
objection, the trial court stated that it was "unable to make the requested findings" under 8
U.S.C. 1101(a)(27)(J) because:
               The minor child in this case has not been declared dependent
               by a juvenile court, and he has never been committed to or
               placed under the custody of an agency or department of a State.
               The Court finds that the minor child is not abandoned, abused
               or neglected, as he is currently in the custody of his mother.
No. 17AP-136                                                                                  3


              Finally, while the Court may agree that it is in the minor child's
              best interest to live in the United States and go to school as
              opposed to being returned to El Salvador, the fact that the
              federal statute is cumulative precludes the Court from making
              the findings requested by Plaintiff.

(Jan. 20, 2017 Jgmt. Entry at 2.)
       {¶ 6} Santos Gonzalez has appealed and asserts three assignments of error:
              [I.] The trial court erred as a matter of law by denying and
              dismissing Appellant's objections.

              [II.] The trial court erred as a matter of law in determining
              [that] the child had not been abandoned by his father.

              [III.] The trial court erred as a matter of law by denying
              Appellant an opportunity to address the objections at the
              Hearing.

       {¶ 7} In the first assignment of error, Santos Gonzalez argues that the juvenile
court erred by denying and dismissing her objection. She argues that the juvenile court
failed to read 8 U.S.C. 1101(a)(27)(J) "in its entirety" when it failed to make the findings she
had requested. (Appellant's brief at 6.)
       {¶ 8} Special Immigrant Juvenile ("SIJ") status under 8 U.S.C. 1101(a)(27)(J)
"provides certain alien minors with a special immigration classification that may lead to
permanent residency." Young Zheng v. Pogash, 416 F.Supp.2d 550, 552 (S.D.Tex.2006).
To qualify for SIJ status, the juvenile must submit a petition to the United States Citizen
and Immigration Services ("USCIS") with a declaration from a juvenile court
demonstrating that the juvenile meets the statutory definition. Under 8 U.S.C.
1101(a)(27)(J), a SIJ is defined as:
              [A]n 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;
No. 17AP-136                                                                                4

              (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; and

              (iii) in whose case the Secretary of Homeland Security
              consents to the grant of special immigrant juvenile status.

       {¶ 9} The juvenile court's declaration must satisfy the first two prongs of 8 U.S.C.
1101(a)(27)(J) to constitute prima facie evidence of the juvenile's eligibility for SIJ
classification. 8 C.F.R. 204.11(d); Young Zheng at 554.
       {¶ 10} Santos Gonzalez argues that the trial court erred because it "truncated the
statutory definition" by ignoring the provision for "an individual or entity appointed by a
State or juvenile court located in the United States." (Appellant's brief at 8); 8 U.S.C.
1101(a)(27)(J)(i). Thus, she believes that trial court "erred by not reading the complete
language of the statute." (Appellant's brief at 8.)
       {¶ 11} Although the trial court did not expressly consider the statutory language
quoted by Santos Gonzalez, it was not error to do so because the evidence does not
demonstrate that E.S. met the definition under 8 U.S.C. 1101(a)(27)(J). The first prong
contains two requirements. The first requirement is a showing of dependency or custody
with or overseen by a state agency. This may be met if the juvenile has (1) "been declared
dependent on a juvenile court located in the United States," (2) the juvenile has been
"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." Here, E.S. has not been declared dependent in a juvenile court. Nor did the trial
court legally commit or place him under the custody of a state agency.
       {¶ 12} Santos Gonzalez argues that the definition applies because the trial court's
allocation of custody shows that E.S. was "placed under the custody of * * * an individual
or entity appointed by a State or juvenile court located in the United States." 8 U.S.C.
1101(a)(27)(J)(i). But Santos Gonzalez was not an individual "appointed by a State or
juvenile court." She came to the trial court and petitioned it for an allocation of custody.
Her interpretation of the language of the statute suggests that a juvenile need only be in the
custody of any "individual," but the plain language of the statute requires that an individual
or entity be "appointed" by a juvenile court.
No. 17AP-136                                                                                 5

       {¶ 13} Even if the circumstances of E.S.'s custody had fulfilled the first requirement
of 8 U.S.C. 1101(a)(27)(J)(i), the second requirement of that provision was not met.
Evidence must show that the juvenile's "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." 8 U.S.C. 1101(a)(27)(J)(i). Thus, a child who is reunified with a parent will not
meet this definition. See Boyron v. Lynch, 604 F.Appx. 72, 74 (2d Cir.2015) (holding that
child did not "demonstrate prima facie eligibility" under 8 U.S.C. 1101(a)(27)(J) where the
state court order only granted the applicant's cousin a "voluntary conservatorship" and the
applicant did not "demonstrate that reunification with his mother was not viable—indeed,
[his] mother continued to live with him at his cousin's house in Connecticut"). Here, E.S.
and his mother were reunified, a circumstance that the trial court recognized. Because
neither requirement of 8 U.S.C. 1101(a)(27)(J)(i) was met, the trial court did not err by
dismissing the objection to the magistrate's refusal to make the requested findings.
Accordingly, the first assignment of error is overruled.
       {¶ 14} In the second assignment of error, Santos Gonzalez posits that the trial court
erred by not determining that E.S.'s father had abandoned him under either the definition
in R.C. 3127.01(B)(1) or 2151.011(C).
       {¶ 15} Santos Gonzalez filed a complaint for an allocation of custody, which is
governed by the standards of R.C. 3109.04. In particular, the custody determination is
governed by "the best interest" of the child. R.C. 3109.04(B)(1). The trial court fulfilled its
obligation to make a determination under this standard when it adopted the magistrate's
decision stating that it was in the "best interest" of E.S. to designate Santos Gonzalez the
residential parent and legal custodian, and noted that his putative father had "no contact
with the child for eight years." (Sept. 14, 2016 Decision at 3.) The trial court did not err
when it declined to expressly determine that the putative father had "abandoned" E.S.
Furthermore, the definition of "abandoned" in R.C. 3127.01(B)(1) only applies to the
Uniform Child Custody Jurisdiction and Enforcement Act codified in R.C. 3127.01 through
3127.53. R.C. 3127.01(B). In addition, the definition of an abandoned child under R.C.
2151.011(C) applies to the provisions of the juvenile code under Chapter 2151, such as
abandonment leading to a determination of neglect under R.C. 2151.03. The trial court did
not err in failing to apply these standards to a request for an allocation of custody under
R.C. 3109.04. Accordingly, the second assignment of error is overruled.
No. 17AP-136                                                                                 6

       {¶ 16} In her third assignment of error, Santos Gonzalez argues the trial court erred
by failing to allow her an opportunity to address the merits of her objections at the hearing
the trial court conducted on her objections. During the November 15, 2016 hearing, the
trial court expressed some concern that Santos Gonzalez had not provided an affidavit
adequately describing reasonable diligence to ascertain the putative father's whereabouts
before resorting to service by publication. The trial court engaged in a discussion with
Santos Gonzalez's counsel stating Santos Gonzalez could either withdraw her objections
and let the order stand as is, or she could continue with her objections but the trial court
would have to void the magistrate's order for lack of service. Counsel for Santos Gonzalez
declined to withdraw the objections. Thus, the trial court concluded the hearing without
hearing any arguments on the merits of the objections.
       {¶ 17} However, when the trial court issued its judgment entry on January 20, 2017,
the trial court did not void the magistrate's decision for lack of service but instead
considered the merits of Santos Gonzalez's objections before denying and dismissing the
objections. The trial court made no mention of any issue with service.
       {¶ 18} Santos Gonzalez now asserts it was error for the trial court to rule on her
objections without affording her a proper hearing. However, under Civ.R. 53(D)(4)(d), a
trial court is not required to hold a hearing prior to ruling on a party's objections to a
magistrate's decision; instead, a trial court has discretion to hold a hearing before ruling on
the objections. Civ.R. 53(D)(4)(d); Reed v. Turner, 10th Dist. No. 14AP-400, 2014-Ohio-
5109, ¶ 22; and Losey v. Diersing, 12th Dist. No. CA2012-06-048, 2013-Ohio-1108, ¶ 14.
Santos Gonzalez has not demonstrated that the trial court abused its discretion when it
ruled on her objections to the magistrate's decision without affording her a full hearing on
the substance of her objections. Accordingly, the third assignment of error is overruled.
       {¶ 19} Having overruled all three assignments of error, we affirm the decision of the
Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch.
                                                                         Judgment affirmed.

                     LUPER SCHUSTER and BRUNNER JJ., concur.
                              _________________
