                                                                               FILED
                                                                           Jun 05 2019, 8:32 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




ATTORNEYS FOR APPELLANT
Brian J. Paul
Erica K. Drew
Kayla D. Britton
Faegre Baker Daniels LLP
Indianapolis, Indiana



                                             IN THE
     COURT OF APPEALS OF INDIANA

In the Matter of the Paternity of                           June 5, 2019
Kevin Yafet Mendoza Bonilla                                 Court of Appeals Case No.
                                                            18A-JP-2488
Kevin Yafet Mendoza Bonilla
aka Kevin Yafeth Mendoza                                    Appeal from the Marion Circuit
Bonilla, a Minor, By his Next                               Court
Friend, Perla Maily Bonilla                                 The Honorable Sheryl L. Lynch,
Acosta,                                                     Judge

Appellant,                                                  The Honorable Marie L. Kern,
                                                            Magistrate
        v.                                                  Trial Court Cause No.
                                                            49C01-1607-JP-23926
Marco Tulio Mendoza
Maldonado,
Appellee.



Brown, Judge.




Court of Appeals of Indiana | Opinion 18A-JP-2488 | June 5, 2019                                   Page 1 of 11
[1]   Kevin Yafet Mendoza Bonilla aka Kevin Yafeth Mendoza Bonilla (“Kevin”)

      appeals the trial court’s paternity order and denial of an amended order. Kevin

      raises one issue which we revise and restate as whether the trial court had the

      authority and duty to make requisite findings on his special immigrant juvenile

      status in accordance with 8 U.S.C. § 1101(a)(27)(J). We reverse and remand.


                                        Facts and Procedural History

[2]   On July 6, 2016, Kevin by his next friend and mother, Perla Maily Bonilla

      Acosta (“Mother”), filed a verified petition to establish paternity in the Marion

      Circuit Court. The petition requested that the court issue findings of fact and

      conclusions of law regarding Kevin’s care including that “[i]t is not in Kevin’s

      best interests to return to his home country of Honduras because: (1) there are

      no suitable adults there who can provide for his care and (2) there are

      dangerous living conditions in that country,” and that Kevin cannot be reunited

      with his father, Marco Tulio Mendoza Maldonado (“Father”), due to Father’s

      abandonment of Kevin. Appellant’s Appendix Volume II at 9. On July 8,

      2016, Mother filed an “Affidavit of [Mother] Pursuant to Uniform Child

      Custody Jurisdiction Act.” Id. at 11 (capitalization omitted).


[3]   On November 16, 2017, Kevin by Mother as next friend filed a Motion for

      Court to Issue an Order Establishing Paternity or in the Alternative to Set a

      Hearing to Establish Paternity. That same day, Father filed a Consent to

      Jurisdiction in which he asserted that Kevin was born to him and Mother on

      January 26, 2000, and that he ceased contact with Kevin on the day Kevin was

      born, did not continue a parental relationship after that time, and did not
      Court of Appeals of Indiana | Opinion 18A-JP-2488 | June 5, 2019          Page 2 of 11
      dispute any of the factual allegations contained in the petition. On November

      30, 2017, Kevin by Mother as next friend filed a Motion for Expedited Hearing.


[4]   On March 27, 2018, the court held a hearing. The court stated: “My review of

      the file suggest[s] that you are attempting to get an order from this Court to

      establish special juvenile immigration status, counsel is that correct?”

      Transcript at 4. Mother’s counsel indicated that was correct. The court stated

      in part: “Yeah, unfortunately counsel this is not the first time this has come up

      here. This is an issue that we have looked at extensively and we believe that as

      the law is currently written in the State of Indiana, we have limitations in terms

      of what this Court’s ability to find and enter based upon the way the law is

      currently written.” Id. at 5. The court also stated that “[t]here is no language

      with regards to an abandonment finding that this Court can make it does not

      pertain to JP actions in any way.” Id. at 6. The court stated:


              [T]he federal law requires me to be able to make a finding that it
              is not viable for the child to be returned to one or both parents
              and their custody, well a. I have a problem that we are now
              dealing with an adult and b. again I do not know I can make that
              finding because under current Indiana law at most I can find that
              the child would be emotionally impaired or physically
              endangered if a parents’ parenting time was unrestricted.


      Id. The court further stated that it did not believe it had the legal authority to

      make certain findings.


[5]   Mother testified that Kevin was born on January 26, 2000, and that he came to

      the United States in 2015 because he had been threatened by gangs. She

      Court of Appeals of Indiana | Opinion 18A-JP-2488 | June 5, 2019           Page 3 of 11
      testified that Kevin was in high school, that Father was not involved in

      parenting and currently lives in Honduras and has not contributed any support,

      that Father abandoned Kevin and that it was not possible that Kevin be

      reunited with Father, that it was not in Kevin’s best interest to return to

      Honduras because he was threatened by a gang and Honduras is dangerous,

      and that she financially supported Kevin.


[6]   On May 4, 2018, Kevin by Mother as next friend filed a Supplemental Brief and

      Authorities in Support of and Request for Order Regarding Petitioner’s

      Eligibility for Special Immigrant Juvenile Status Under 8 U.S.C. §

      1101(a)(27)(J).


[7]   On July 23, 2018, the court entered an order establishing paternity of Kevin in

      Father, giving Mother sole legal and physical custody and finding that: “[f]or all

      intents and purposes, [Father] effectively abandoned the child at birth, leaving

      Mother as the sole care provider”; Father “effectively abandoned the child at

      birth, having provided no physical, emotional or financial support of the child

      in 18 years”; and “return to Honduras poses a risk of harm or injury to the

      minor child, and as such, [the court] does not find that it is in the child’s best

      interests to return to Honduras.” Appellant’s Appendix Volume II at 119-120.


[8]   On July 30, 2018, Kevin by Mother as next friend filed a Motion for

      Clarification of Final Order. He asserted that to be eligible to apply to U.S.

      Citizenship and Immigration Services for Special Immigrant Status, a “juvenile

      or State court” must first make several findings of fact, including that “[t]he


      Court of Appeals of Indiana | Opinion 18A-JP-2488 | June 5, 2019            Page 4 of 11
      child’s reunification with one or both parents is not viable due to abuse, neglect,

      abandonment, or similar basis found under State law within the meaning of 8

      U.S.C. § 1101(a)(27)(J).” Id. at 122. He also requested the court to clarify its

      final order to specify its authority to enter the order and that the child’s

      reunification with Father was not viable due to Father’s abandonment and to

      enter an order substantially similar to the court’s final order reflecting such a

      finding. He requested that the amended order include the following language:

      “Based on the record of this case and [Father’s] abandonment of this child,

      reunification with [Father] is not viable.” Id. at 123. On October 4, 2018, the

      court denied entry of an amended final order and stated: “The Court cannot

      make a finding based upon the application of federal law and there is no

      comparable basis for a finding of abandonment within the Indiana state

      paternity statutory authority.” Id. at 125.


                                                     Discussion

[9]   Before addressing the issue raised by Kevin, we note that Father did not file an

      appellee’s brief. When an appellee fails to submit a brief, we do not undertake

      the burden of developing arguments, and we apply a less stringent standard of

      review; that is, we may reverse if the appellant establishes prima facie error.

      Zoller v. Zoller, 858 N.E.2d 124, 126 (Ind. Ct. App. 2006). This rule was

      established so that we might be relieved of the burden of controverting the

      arguments advanced in favor of reversal where that burden properly rests with

      the appellee. Wright v. Wright, 782 N.E.2d 363, 366 (Ind. Ct. App. 2002).



      Court of Appeals of Indiana | Opinion 18A-JP-2488 | June 5, 2019               Page 5 of 11
       Questions of law are still reviewed de novo. McClure v. Cooper, 893 N.E.2d 337,

       339 (Ind. Ct. App. 2008).


[10]   “Federal law provides a path to lawful permanent residency in the United

       States to resident alien children who qualify for ‘special immigrant juvenile’

       (SIJ) status.” Matter of Guardianship of Luis, 114 N.E.3d 855, 857 (Ind. Ct. App.

       2018) (citing 8 U.S.C. § 1101(a)(27)(J); 8 C.F.R. § 204.11). “Congress created

       the SIJ classification to protect abused, neglected, and abandoned immigrant

       youth through a process allowing them to become legal permanent citizens.”

       Id. (quoting In the Interest of J.J.X.C., a Child, 318 Ga. App. 420, 424, 734 S.E.2d

       120 (Ga. Ct. App. 2012)).


[11]   Kevin argues that the special immigrant status process directs the collaboration

       of state and federal systems. He contends that the trial court has authority to

       make all requisite SIJ findings and must consider the evidence and present

       findings for or against the juvenile. He cites Luis, 114 N.E.3d 855, and asserts

       that Luis is consistent with the decisions of other state appellate courts that have

       similarly ruled that state juvenile courts must entertain a request for SIJ findings

       and issue a ruling accordingly. He also argues that existing Indiana law

       provides ample authority for juvenile courts to issue SIJ findings in paternity

       cases. He points out that the concept of abandonment is addressed in Ind.

       Code § 31-9-2-0.3, which provides that “‘[a]bandoned’, for purposes of the

       Uniform Child Custody Jurisdiction Act under IC 31-21, has the meaning set

       forth in IC 31-21-2-2,” which provides that “‘[a]bandoned’ means left without

       provision for reasonable and necessary care or supervision.” Kevin cites Ind.

       Court of Appeals of Indiana | Opinion 18A-JP-2488 | June 5, 2019           Page 6 of 11
       Code § 31-14-13-2, which provides that a court shall consider all relevant factors

       in determining custody in a paternity action including “[t]he interaction and

       interrelationship of the child with . . . the child’s parents . . . .” He also cites

       Ind. Code § 31-14-5-2, which provides in part that “a child may file a paternity

       petition at any time before the child reaches twenty (20) years of age.”


[12]   This Court recently addressed a similar issue in Luis and discussed the process

       for petitioning the federal government for SIJ status as follows:


               To be eligible to petition the federal government for SIJ status,
               the resident alien must be under the age of 21 and unmarried. 8
               C.F.R. § 204.11(c). The child must have been declared
               dependent upon a state juvenile court “or whom the court . . .
               has legally . . . placed under the custody of . . . an individual[.]”
               8 U.S.C. § 1101(a)(27)(J). In addition, the juvenile court must
               make two additional findings: (1) “reunification with one or both
               of the immigrant’s parents is not viable due to abuse, neglect,
               abandonment, or a similar basis found under State law;” and (2)
               “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). The
               language of the first finding is designed to “prevent youths from
               using this remedy for the purpose of obtaining legal permanent
               resident status, rather than for the purpose of obtaining relief
               from abuse or neglect.” In re Erick M., 284 Neb. 340, 820
               N.W.2d 639, 645 (2012) (quoting 3 Charles Gordon et al.,
               Immigration Law and Procedure § 35.09(1) at 35-36 (rev. ed.
               2001), citing H.R. Rep. No. 105-405(1997) (Conf. Rep.)).
               Although the juvenile court determines whether the evidence
               supports the findings, the final decision regarding SIJ status rests
               with the federal government. 8 U.S.C. § 1101(a)(27(J)(iii).

               Accordingly, the process for obtaining SIJ status is “‘a unique
               hybrid procedure that directs the collaboration of state and
       Court of Appeals of Indiana | Opinion 18A-JP-2488 | June 5, 2019              Page 7 of 11
        federal systems.’” In re Marisol N.H., 115 A.D. 3d 185, 188, 979
        N.Y.S.2d 643 (N.Y. App. Div. 2014) (quoting In re Hei Ting C.,
        109 A.D. 3d 100, 104, 969 N.Y.S.2d 150 (N.Y. 2013)). In this
        hybrid proceeding, the state juvenile court is charged with
        making the factual inquiry relevant to SIJ status when an
        unmarried, resident alien child is found to be dependent on the
        court. “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 J.J.X.C., 318 Ga. App. at 425, 734
        S.E.2d 120. Therefore, courts in other states have held that a
        juvenile court errs by failing to consider a request for SIJ
        findings. See id.; In re Mohamed B., 83 A.D. 3d 829, 831, 921
        N.Y.S.2d 145 (N.Y.A.D. 2011) (child moved for SIJ findings
        during guardianship proceeding in family court); In re Interest of
        Luis G., 17 Neb.App. 377, 764 N.W.2d 648 (2009) (motions
        regarding SIJ status filed during juvenile cases addressing
        guardianship and foster care). “By making these preliminary
        factual findings, the juvenile court is not rendering an
        immigration determination.” H.S.P. v. J.K., 223 N.J. 196, 121
        A.3d 849, 858 (2015). The predicate order issued by a state court
        is merely a prerequisite that must be fulfilled before a juvenile can
        submit his or her application for SIJ status to USCIS in the form
        of an I-360 petition. Id. If USCIS approves the juvenile’s I-360,
        he or she will be granted SIJ status. Id.

        Thus, 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. As aptly observed by the court in
        Mario S., the SIJ statute and accompanying regulations

                 commit . . . specific and limited issues to state
                 juvenile courts. The juvenile court need not
                 determine any other issues, such as what the
                 motivation of the juvenile in making application for

Court of Appeals of Indiana | Opinion 18A-JP-2488 | June 5, 2019           Page 8 of 11
                 the required findings might be; whether allowing a
                 particular child to remain in the United States might
                 someday pose some unknown threat to public safety;
                 and whether the USCIS, the federal administrative
                 agency charged with enforcing the immigration laws,
                 may or may not grant a particular application for
                 adjustment of status as a SIJ.

        In re Mario S. 38 Misc.3d 444, 954 N.Y.S.2d 843, 852-53 (N.Y.
        Fam. Ct. 2012) (internal citations omitted). Mario S. further
        explained that if “the USCIS denies a juvenile alien’s application
        for legal permanent residence as a [SIJ],” the juvenile’s remedy
        lies not in state court, but instead the juvenile must “seek review
        of the agency’s decision in federal court.” Id. State courts play
        no role in the final determination of SIJ status, or ultimately,
        permanent residency or citizenship, which are federal questions.
        Nothing in 8 U.S.C. § 1101(a)(27)(J) indicates that Congress
        intended state juvenile courts to pre-screen potential SIJ
        applications. Rather, “[t]he juvenile court is simply called upon
        to determine” discrete factual issues, including “whether, under
        state law, the juvenile is under the age of 21, unmarried,
        dependent upon the court through an order of placement or other
        court order, whether reunification with one or both of the
        juvenile’s parents is not possible due to abuse, neglect, or
        abandonment of the child, and whether it would be contrary to
        the juvenile’s best interest to be returned to his or her previous
        country of nationality.” Id. at 852.

        Thus, although state courts do not make immigration decisions,
        it is inescapable that a minor seeking SIJ status is dependent
        upon a state court to make the prerequisite findings in a predicate
        order for the minor to qualify for such status under the scheme
        established by federal immigration law.


Luis, 114 N.E.3d at 857-859.



Court of Appeals of Indiana | Opinion 18A-JP-2488 | June 5, 2019          Page 9 of 11
[13]   In Luis, the Court observed that the trial court’s order was silent regarding any

       decision on the SIJ factors despite the petitioner’s request and that the trial

       court did not state a basis for declining to make SIJ findings or that it had

       considered the SIJ findings and rejected them. Id. at 859. We held that,

       “[a]lthough the trial court is authorized to conclude that the petitioner failed to

       present evidence to support the SIJ factors or that the presented evidence was

       not credible, the court nevertheless has a duty to consider the SIJ factors and to

       make findings.” Id. The Court also held that, “[i]n this unusual setting, where

       a state court is charged with addressing an issue relevant only to federal

       immigration law, we cannot affirm the trial court’s Order without some positive

       indication that the court actually addressed [the petitioner’s] request.” Id. We

       concluded that the trial court erred when it failed to make findings on the

       petitioner’s immigrant juvenile status pursuant to 8 U.S.C. § 1101(a)(27)(J) and

       remanded to the trial court with instructions to consider the request for SIJ

       findings in light of the evidence presented and articulate the relevant

       determinations pursuant to 8 U.S.C. § 1101(a)(27)(J). Id.


[14]   In the present case, while the trial court stated in its October 4, 2018 order

       denying the entry of an amended order that it “cannot make a finding based

       upon the application of federal law and there is no comparable basis for a

       finding of abandonment within the Indiana state paternity statutory authority,”

       the court had already found in its July 23, 2018 order that, “[f]or all intents and

       purposes, [Father] effectively abandoned the child at birth, leaving Mother as

       the sole care provider” and that Father “effectively abandoned the child at


       Court of Appeals of Indiana | Opinion 18A-JP-2488 | June 5, 2019          Page 10 of 11
       birth, having provided no physical, emotional or financial support of the child

       in 18 years.” Appellant’s Appendix Volume II at 119, 125.


                                                      Conclusion

[15]   Based upon the record, Indiana statutory law, and in light of Luis, we conclude

       that Kevin has established prima facie error and we remand for the trial court to

       consider the request for SIJ findings and articulate the relevant determinations

       pursuant to 8 U.S.C. § 1101(a)(27)(J).


[16]   For the foregoing reasons, we reverse and remand with instructions.


[17]   Reversed and remanded.


       May, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 18A-JP-2488 | June 5, 2019        Page 11 of 11
