                                                                           FILED
                                                                       Nov 01 2019, 8:40 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT
Alexander E. Budzenski
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the                                      November 1, 2019
Guardianship of:                                          Court of Appeals Case No.
Irma Elisabeth Avila Luis,                                19A-GU-1276
Ramiro Velasquez Avila,                                   Appeal from the Jackson Circuit
                                                          Court
Appellant-Petitioner
                                                          The Honorable Richard W.
                                                          Poynter, Judge
                                                          Trial Court Cause No.
                                                          36C01-1803-GU-9



Baker, Judge.




Court of Appeals of Indiana | Opinion 19A-GU-1276 | November 1, 2019                           Page 1 of 13
[1]   Irma Elisabeth Avila Luis (“Irma”) used to live with her mother in Guatemala.

      Irma’s mother did not have enough money to feed or provide healthcare for her

      daughter. When Irma was sixteen, Irma’s mother put her on a bus, alone, to

      travel to the United States. Eventually, Irma was placed in the care of her

      brother, Ramiro Velasquez Avila (“Avila”), who lives in Seymour, Indiana. He

      filed a petition to become her guardian, which the trial court granted, but it

      refused to make required findings as to her immigration status.


[2]   This case has been here before, after Avila appealed the first order. This Court

      ordered the trial court to make the required findings. Now, the case is here

      again, after the trial court refused to abide by this Court’s instructions in the

      first appeal. We now reverse in part and remand with instructions that the trial

      court enter an order, instanter, bearing the language contained at the end of this

      opinion.


                                                     Facts
[3]   The underlying facts were summarized by this Court as follows:


              Irma, born on May 20, 2000, in Chisec, Guatemala, is a native
              and citizen of Guatemala. Irma’s father, Hilario Velasquez de la
              Cruz, died when she was three years old. Until 2016, Irma lived
              with her mother, Julia Avila Luis (Mother), in Guatemala. In
              2016, Mother became unable to provide care for Irma. She no
              longer could afford to feed Irma, send her to school, and provide
              her with medical care. Mother put Irma on a bus to the United
              States.




      Court of Appeals of Indiana | Opinion 19A-GU-1276 | November 1, 2019        Page 2 of 13
        After several weeks of travelling alone to the Mexican-American
        border, Irma entered the United States and was detained by
        immigration officials and taken into federal custody. Eventually,
        the federal government released Irma into the custody of her
        brother, Avila, who resides in Seymour, Indiana. Since her
        release from federal custody, Irma has lived with her brother in
        Indiana. She is studying English and attending Seymour High
        School in the tenth grade. Avila meets Irma’s basic needs and
        supports her financially and emotionally.


        On March 2, 2018, Avila petitioned the trial court to appoint him
        as guardian of his sister and requested the trial court to make
        certain findings necessary for Irma to seek classification as a
        special immigrant juvenile before the United States Citizenship
        and Immigration Services (USCIS) in accordance with 8 U.S.C. §
        1101(a)(27)(J). On May 11, 2018, the trial court conducted a
        hearing on Avila’s petition. During the hearing, the trial court
        felt “very uncomfortable making those kinds of findings.”
        (Transcript p. 17). The court stated that it had “a real problem”
        because the federal government “[t]hrowing it on me to make
        factual findings for them [is] irritat[ing].” (Tr. p. 20). “It should
        be made by [f]ederal officials. They’re the one that makes the
        decision of who comes in the United States, who leave the
        United States, not me. And that’s why I have a problem with
        this . . . . Immigration [j]udges are [i]mmigration [j]udges for a
        reason. That’s their decision.” (Tr. pp. 21-22). On May 17,
        2018, the trial court issued its findings of facts and Order,
        appointing Avila as guardian of Irma . . . .


In re Guardianship of Luis, 114 N.E.3d 855, 856-57 (Ind. Ct. App. 2018). The

trial court entered findings, but it did not make the requested findings as to

whether Irma qualified for Special Immigrant Juvenile (SIJ) status. Avila

appealed.



Court of Appeals of Indiana | Opinion 19A-GU-1276 | November 1, 2019       Page 3 of 13
[4]   This Court explained the underpinnings of the requirement that SIJ findings be

      made:


              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. 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.” In the Interest of J.J.X.C., a Child, 318 Ga. App. 420,
              424, 734 S.E.2d 120 (Ga. Ct. App. 2012).


              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). 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 19A-GU-1276 | November 1, 2019          Page 4 of 13
        federal systems.’” In re Marisol N.H., 115 A.D. 3d 185, 188, 979
        N.Y.S.2d 643 (N.Y. App. Div. 2014). 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. “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.


Id. at 857-58 (some internal citations omitted). We reversed in part,

emphasizing 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.” Id. at

859. We remanded with instructions that the trial court consider the SIJ

factors, noting that “the trial court is authorized to conclude that the petitioner

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

Court of Appeals of Indiana | Opinion 19A-GU-1276 | November 1, 2019       Page 5 of 13
      evidence was not credible, [but] the court nevertheless has a duty to consider

      the SIJ factors and to make findings.” Id.


[5]   On remand following certification of the first appeal, on January 2, 2019, Avila

      filed a motion with the trial court to set a hearing. Initially, the trial court

      granted the motion and scheduled a hearing for February 15, 2019. On

      February 13, 2019, the trial court cancelled that hearing; the reason given for

      the cancellation was “Judicial Action.” Appellant’s App. Vol. II p. 5. The trial

      court then took no action on the case for three months, despite the urgency of

      the situation, given Irma’s age and tenuous immigration status. On May 14,

      2019, finally, the trial court entered an order that reads, in pertinent part, as

      follows:


               10.      It does appear to this Court that reunification with the
                        child’s mother is possible. While the Court previously
                        found the mother “abandoned” and “neglected” the child
                        by allowing her to travel from Guatemala to the United
                        States at the age of 16 alone, it does not appear to this
                        Court that the child was physically removed from her
                        residence and there has been no evidence presented to the
                        Court that the child cannot return home to Guatemala if
                        the child wanted to be reunited with her mother.


               11.      Whether the child, who is now 19[1] years-old [sic], can
                        financially support herself in Guatemala if the child’s



      1
        One might question whether this case is moot, inasmuch as Irma has reached the age of majority. We
      decline to find it to be moot, both because it relates to issues of great public importance that are likely to
      reoccur and because it may have significant implications for Irma’s immigration status, even now that she is
      a legal adult.

      Court of Appeals of Indiana | Opinion 19A-GU-1276 | November 1, 2019                               Page 6 of 13
                       mother refused to provide financial support to the child
                       and/or could not provide financial support, there has been
                       no evidence presented to this Court on whether or not that
                       is possible. This Court is not an expert on the state of
                       affairs in Guatemala. Whether it is in the child’s best
                       interests for the child to remain in the United States is
                       impossible for this court to decide. If the standard for
                       determining whether or not it is in the child’s best interest
                       to remain in the United States is based solely on financial
                       considerations, then it would appear the child’s best
                       interests would be to remain in the United States. This
                       Court is sure the child’s life in the United States is better in
                       many ways than when the child resided in Guatemala.
                       Whether the child’s desire to be with her brother and for a
                       better life financially is a basis for the child to remain in
                       the United States is for the United States Government to
                       decide.


      Appealed Order p. 2-3. In other words, the trial court failed to make a finding

      as to whether reunification between Irma and her parents is viable and refused

      to make a finding regarding whether it is in Irma’s best interests to remain in

      the United States. Avila now appeals.


                                   Discussion and Decision
[6]   As noted above, trial courts in this situation are required to consider and make

      findings on two statutory elements: (1) is reunification with one or both parents

      viable due to abuse, neglect, abandonment, or a similar basis found under State

      law; and (2) would it be in the special immigrant’s best interest to be returned to

      her previous country of nationality or country of last habitual residence? See

      8 U.S.C. § 1101(a)(27)(J)(i)-(ii).

      Court of Appeals of Indiana | Opinion 19A-GU-1276 | November 1, 2019            Page 7 of 13
                                            Viability of Reunification

[7]   While the trial court here found that it is possible for reunification between Irma

      and her mother to occur, it failed to consider whether that reunification is

      viable.2 This is not a meaningless distinction, as these two words have very

      different meanings.


          • “Possible” means, among other things, “being within the limits of ability,
            capacity, or realization,” or “being something that may or may not
            occur . . . .” Merriam-Webster Dictionary, at https://www.merriam-
            webster.com/dictionary/possible.

          • “Viable” means, in pertinent part, “having a reasonable chance of
            succeeding . . . .” Merriam-Webster Dictionary, at
            https://www.merriam-webster.com/dictionary/viable.

      In other words, to refuse to make this finding, a trial court must have evidence

      showing that there is a reasonable chance that reunification will succeed.


[8]   Here, in the order that was the subject of the first appeal, the trial court made

      the following relevant findings:


               5.       . . . Irma’s parents are unable and unwilling to care for or
                        supervise Irma.


               6.       . . . According to IC 31-21-2-2, “abandoned” means left
                        without provision for reasonable and necessary care or
                        supervision. Accordingly, Irma’s mother neglected and




      2
        It also failed to consider the viability of reunification between Irma and her father. It is undisputed that he
      is deceased, meaning that reunification with him is not viable.

      Court of Appeals of Indiana | Opinion 19A-GU-1276 | November 1, 2019                                 Page 8 of 13
                 abandoned Irma by allowing her to travel across several
                 countries alone.


                                                 ***


        11.      For the foregoing reasons, the Court further finds that:


                 a.      Irma has been abandoned and neglected by both of
                         her parents in that her father abandoned her before
                         birth and died, and her mother allowed her [to]
                         make a dangerous journey across several countries
                         alone . . . .


Appellant’s App. p. 34. And in the order at issue in this appeal, the trial court

made the following additional findings:


        3.       Sometime around November, 2016, the biological mother,
                 according to the sworn testimony of [Avila] and the child,
                 decided she could not financially support the child and the
                 mother wanted the child to travel to the United States to
                 be with [Avila].


        4.       While the child was living in Guatemala, the child resided
                 with her mother, grandparents and uncles and sometimes
                 they had nothing to eat as the mother was not employed
                 but the child did have shelter and did go to school until the
                 age of 16.


        5.       According to the sworn testimony of the child, on
                 November 15, 2016, the child left Guatemala alone on a
                 bus to travel from Guatemala to the border of the United
                 States . . . .



Court of Appeals of Indiana | Opinion 19A-GU-1276 | November 1, 2019           Page 9 of 13
       Appealed Order p. 1-2.


[9]    We can only conclude that the trial court’s own findings support a conclusion

       that reunification between Irma and her mother is not viable—not likely to

       succeed. When Irma lived with her mother, she did not have enough to eat,

       and her mother, being unable to provide for or take care of her daughter, put

       sixteen-year-old Irma on a bus, alone, to travel illegally to another country.

       Nothing in the record suggests that circumstances have changed for Irma’s

       mother. The trial court focused on whether there was evidence that Irma was

       physically removed from her residence, but this straw man of an analysis is not

       part of the statutory consideration of viability. Both the evidence in the record

       and the trial court’s own findings of fact lead to one inescapable conclusion:

       reunification with one or both parents is not viable due to abandonment and/or

       neglect.


[10]   Next, we must consider whether it would be in Irma’s best interest to be

       returned to Guatemala or to remain in the United States. Here, again, we turn

       to the trial court’s findings in the order at issue in this appeal. In addition to the

       above findings related to Irma’s living conditions in Guatemala, the trial court

       found that “[s]ince January 2017, the child has been residing with [Avila] at his

       home in Jackson County, Indiana and has been providing the child her

       nutritional needs, educational needs and other appropriate needs.” Appealed

       Order p. 2.




       Court of Appeals of Indiana | Opinion 19A-GU-1276 | November 1, 2019       Page 10 of 13
[11]   The evidence in the record is undisputed3 that Irma’s needs were not being met

       in Guatemala, and that they are being met in the United States. The trial court

       concluded that “[w]hether it is in the child’s best interests for the child to

       remain in the United States is impossible for this Court to decide.” Id. at 2-3.

       We are, frankly, perplexed by this statement. Trial courts make determinations

       regarding the best interests of children every day in this State, and they do so

       based on the evidence in the record before them. Nothing in an SIJ

       determination is any different than any other best interests determination,

       meaning that the determination “should be based on the totality of the

       circumstances” before the trial court. M.H. v. Ind. Dep’t of Child Servs., 981

       N.E.2d 75, 82 (Ind. Ct. App. 2012).


[12]   Therefore, in considering what is in Irma’s best interests, the trial court should

       have considered financial matters—which is the only thing it focused on—as

       well as, for example, education, housing, nutrition, and healthcare. While Irma

       did attend school and have housing in Guatemala, the record reveals that her

       nutritional needs were not being met and that her mother could not afford to

       send her to a doctor when needed. In the United States, however, all these

       needs are being met. At the time of the guardianship hearing, Irma was

       attending high school, had a comfortable home and a place to sleep, had




       3
         We note that the trial court did not find that the testimony of Irma or Avila was not credible or that they
       failed to present evidence to support the SIJ factors. Instead, it focused on the possibility—rather than
       viability—of reunification and declared it impossible to make a best interests determination.

       Court of Appeals of Indiana | Opinion 19A-GU-1276 | November 1, 2019                               Page 11 of 13
       enough food to eat, and had financial and emotional support from Avila, her

       brother.


[13]   While it is ultimately for the federal government to determine whether Irma

       may remain in the United States, it was incumbent upon the trial court to make

       SIJ findings, including a best interests determination. Here, it refused to do so,

       which was erroneous. We can only conclude, based on the evidence in the

       record, that it would not be in her best interest to return to Guatemala.


[14]   Normally, we would remand to the trial court to make the appropriate findings.

       But we have already done that once and the trial court refused to comply with

       our instructions on remand. There is a clock that is ticking for Irma, in that she

       must provide the federal government with an order containing the SIJ findings

       by December 28, 2019. Given that the trial court took an inordinate amount of

       time to issue its order following the first appeal and that it refused to make the

       required findings a second time, we will exercise our authority pursuant to

       Indiana Appellate Rule 66(C)(10) allowing us to grant any appropriate relief.


[15]   Based on the evidence in the record and the trial court’s findings of fact, we

       order the trial court to enter an order with the following findings:


               1.       Irma Elisabeth Avila Luis has been abandoned and
                        neglected by both of her parents in that her father
                        abandoned her before birth and died, and her mother
                        allowed her to make a dangerous journey across several
                        countries alone and was unable or unwilling to provide for
                        her basic needs, including food and healthcare;



       Court of Appeals of Indiana | Opinion 19A-GU-1276 | November 1, 2019      Page 12 of 13
               2.       Reuniting Irma Elisabeth Avila Luis with either her
                        mother or her father is not viable;


               3.       It is not in Irma Elisabeth Avila Luis’s best interest to be
                        returned to Guatemala; and


               4.       It is in Irma Elisabeth Avila Luis’s best interest to remain
                        in the United States and under the guardianship of her
                        brother, Ramiro Velasquez Avila.


       The trial court is ordered to include these findings, verbatim, and to enter this

       order within one business day of the certification of this appeal.


[16]   The judgment of the trial court is reversed and remanded with instructions.


       Kirsch, J., and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 19A-GU-1276 | November 1, 2019            Page 13 of 13
