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03/13/2020 08:06 AM CDT




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                               Nebraska Supreme Court Advance Sheets
                                        305 Nebraska Reports
                                               SABINO v. OZUNA
                                               Cite as 305 Neb. 176




                                   Ariana Bernal Sabino, appellant, v.
                                  Juan Carlos Genchi Ozuna, appellee.
                                                  ___ N.W.2d ___

                                        Filed March 6, 2020.    No. S-18-110.

                 1. Statutes. Statutory interpretation presents a question of law.
                 2. Judgments: Appeal and Error. An appellate court independently
                    reviews questions of law decided by a lower court.
                 3. Divorce: Appeal and Error. In a marital dissolution action, an appellate
                    court reviews the case de novo on the record to determine whether there
                    has been an abuse of discretion by the trial judge.
                 4. Evidence: Appeal and Error. In a review de novo on the record, an
                    appellate court is required to make independent factual determinations
                    based upon the record, and the court reaches its own independent con-
                    clusions with respect to the matters at issue.
                 5. Judges: Words and Phrases. A judicial abuse of discretion exists if the
                    reasons or rulings of a trial judge are clearly untenable, unfairly depriv-
                    ing a litigant of a substantial right and denying just results in matters
                    submitted for disposition.
                 6. Statutes: Time. Amendments to Neb. Rev. Stat. § 43-1238(b) (Cum.
                    Supp. 2018) were procedural and applicable to pending cases.
                 7. Courts: Minors. The role of state courts in the special immigrant juve-
                    nile status determination is to make the findings of fact necessary to the
                    U.S. Citizenship and Immigration Service’s legal determination of the
                    immigrant child’s entitlement to special immigrant juvenile status.
                 8. Courts: Federal Acts: Minors. Federal law affirms the institutional
                    competence of state courts as the appropriate forum for child welfare
                    determinations regarding abuse, neglect, and abandonment, as well
                    as a child’s best interests. But it is not the role of the state court to
                    make a determination as to whether a child will ultimately be eli-
                    gible for special immigrant juvenile status; that is a determination
                    reserved for the U.S. Citizenship and Immigration Service and the
                    federal government.
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           Nebraska Supreme Court Advance Sheets
                    305 Nebraska Reports
                            SABINO v. OZUNA
                            Cite as 305 Neb. 176

 9. Courts: Minors. That a court is requested to make special immigrant
    juvenile status findings does not mean that it must make findings favor-
    able to the party seeking them.
10. Courts: Minors: Evidence. Courts asked to make special immigrant
    juvenile status findings may conclude that there was insufficient evi-
    dence or that the evidence was not credible.

  Appeal from the District Court for Douglas County: Peter
C. Bataillon, Judge. Reversed and remanded for further
proceedings.
   Roxana Cortes Reyes, of Immigrant Legal Center, an affili-
ate of the Justice For Our Neighbors Network, for appellant.
   No appearance for appellee.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
   Heavican, C.J.
                       INTRODUCTION
   The Douglas County District Court dissolved the marriage
of Ariana Bernal Sabino and Juan Carlo Genchi Ozuna and
awarded full custody of the parties’ child to Sabino. Sabino
sought specific findings of fact for purposes of special immi-
grant juvenile (SIJ) status under federal law. The district court
declined to make such findings, and Sabino appealed. We
reverse, and remand for further proceedings.
                 FACTUAL BACKGROUND
   According to an affidavit offered into evidence by Sabino at
trial, she and Ozuna met in Cuatro Bancos, Guerrero, Mexico,
in approximately 2000. Sabino was born in Cuatro Bancos, and
she was 13 years old when she met Ozuna. A year later, she
and Ozuna moved in together, and 5 months after that, Ozuna
began to physically assault Sabino. Sabino became pregnant
in May 2003, and she and Ozuna were married in November.
Throughout this time, Ozuna continued to physically assault
Sabino. In December, Sabino left Ozuna and returned to her
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         Nebraska Supreme Court Advance Sheets
                  305 Nebraska Reports
                        SABINO v. OZUNA
                        Cite as 305 Neb. 176

parents’ home. According to Sabino’s affidavit, just 1 week
later, Ozuna moved in with another woman.
   Sabino averred that Ozuna was aware of her pregnancy and
of the due date of the baby. Sabino also averred that Ozuna
was aware of where she was staying. Sabino stated that Ozuna
never attempted to see her or the baby and provided no finan-
cial assistance.
   According to her affidavit, Sabino was unable to provide
for the couple’s son on her own and came to the United States
when her son was 20 months old. Sabino left her son in
Mexico with her mother and sent money to cover his expenses.
She also spoke with him on the telephone frequently. In August
2016, Sabino’s son and mother, who was also a victim of
domestic violence at the hands of Sabino’s father, left Mexico
for the United States.
   In June 2017, Sabino filed a complaint in the Douglas
County District Court for the dissolution of marriage. Ozuna
entered a voluntary appearance in October, but did not person-
ally appear. Trial was held on November 8. Sabino testified
through a Spanish language interpreter that she was married to
Ozuna and was seeking a divorce because Ozuna had hit her,
that she had been separated from him for over 13 years, and
that she did not believe the marriage could be saved. Sabino
sought an award of all of the property in her possession and
custody of the parties’ son.
   Because Sabino had borne children from other relationships
while Sabino and Ozuna were married, the trial court contin-
ued the trial in order for Sabino to gather evidence rebutting
the statutory presumption that Ozuna was the father of those
children. The trial resumed on January 11, 2018, at which time
evidence rebutting that presumption was offered.
   In addition to the proof of paternity for her other children,
Sabino offered exhibit 4, which was a photocopy of materials
from the U.S. Citizenship and Immigration Services explaining
“Special Immigrant Juvenile Status.” According to this exhibit,
SIJ status is available to children who present in the United
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          Nebraska Supreme Court Advance Sheets
                   305 Nebraska Reports
                         SABINO v. OZUNA
                         Cite as 305 Neb. 176

States without legal immigration status because they have been
“abused, abandoned, or neglected by a parent.” As relevant to
this appeal, exhibit 4 notes: “Juvenile courts issue orders that
help determine a child’s eligibility for SIJ status. . . . The role
of the court is to make factual findings based on state law
about the abuse, neglect, or abandonment; family reunification;
and best interests of the children.”
   Following admission of this evidence, the court made cer-
tain inquiries of Sabino while she was on the witness stand.
Specifically, the court asked Sabino whether she or her mother
had “any legal authority to live in the United States.” Sabino’s
counsel objected on relevancy grounds, noting that it went
to neither “the best interest of the child [n]or the divorce
proceedings.”
   The court then made an oral pronouncement (with an accom-
panying written decree) granting the divorce and awarding
custody to Sabino, subject to Ozuna’s reasonable visitation at
Sabino’s reasonable discretion. Ozuna was also ordered to pay
$50 per month in child support.
   As relevant to this appeal, the court also stated:
         The Court makes no decision as to the other issues that
      [Sabino] has requested with regard to abandonment in
      Mexico, abuse in Mexico, and things of that nature, as the
      Court does not have adequate information as to why the
      child could not live safely in some part of Mexico.
         In addition, the Court does find that it’s relevant as
      to whether [Sabino] is legally in the United States, if
      her mother is legally in the United States, things of that
      nature. And if she refuses to answer those, then I’m not
      going to go any further with asking other questions in
      this matter.
         The Court’s also concerned as to whether it’s even
      within my purview to makes [sic] these determinations. If
      I do make these — if this is in my purview to make these
      determinations, then I need a lot more evidence to make
      that determination. For sure I need evidence as to how
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            Nebraska Supreme Court Advance Sheets
                     305 Nebraska Reports
                            SABINO v. OZUNA
                            Cite as 305 Neb. 176

      paragraph 7 [of Sabino’s affidavit, detailing her mother’s
      flight to the United States due to domestic violence,] was
      arrived at. . . . Sabino . . . doesn’t know how the informa-
      tion in paragraph 7 was obtained. If she doesn’t know,
      then that is somewhat of a crux of the information in
      this matter.
   The district court signed a decree prepared by Sabino’s coun-
sel that included the findings sought regarding abuse, neglect,
or abandonment; family reunification; and best interests of the
child. However, the court struck through those findings and
therefore did not make the findings requested by Sabino.
   Sabino appealed. In a prior opinion, we concluded that the
district court erred in not allowing Sabino to proceed in forma
pauperis.1 We are now presented with the merits of Sabino’s
appeal.

                  ASSIGNMENT OF ERROR
   Sabino assigns three assignments of error that can be con-
solidated as one: The district court erred in not making the
findings of fact requested by Sabino.

                  STANDARD OF REVIEW
   [1,2] Statutory interpretation presents a question of law.2
We independently review questions of law decided by a lower
court.3
   [3-5] In a marital dissolution action, an appellate court
reviews the case de novo on the record to determine whether
there has been an abuse of discretion by the trial judge.4 In a
review de novo on the record, an appellate court is required
to make independent factual determinations based upon the
record, and the court reaches its own independent conclusions
1
    See Sabino v. Ozuna, 303 Neb. 318, 928 N.W.2d 778 (2019).
2
    In Re Guardianship of Carlos D., 300 Neb. 646, 915 N.W.2d 581 (2018).
3
    Id.
4
    Burgardt v. Burgardt, 304 Neb. 356, 934 N.W.2d 488 (2019).
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          Nebraska Supreme Court Advance Sheets
                   305 Nebraska Reports
                        SABINO v. OZUNA
                        Cite as 305 Neb. 176

with respect to the matters at issue.5 A judicial abuse of discre-
tion exists if the reasons or rulings of a trial judge are clearly
untenable, unfairly depriving a litigant of a substantial right
and denying just results in matters submitted for disposition.6

                          ANALYSIS
   This appeal generally presents the question of whether the
district court had the authority to make the findings of fact
requested by Sabino and, if so, whether there was sufficient
evidence for the court to make those findings. Each issue will
be addressed in turn.

District Court’s Authority.
   [6] The district court in this case had the authority to make
the findings sought by Sabino. Neb. Rev. Stat. § 43-1238(b)
(Cum. Supp. 2018) provides:
      In addition to having jurisdiction to make judicial deter-
      minations about the custody and care of the child, a court
      of this state with exclusive jurisdiction under subsection
      (a) of this section [setting forth when a court has juris-
      diction to make an initial child custody determination]
      has jurisdiction and authority to make factual findings
      regarding (1) the abuse, abandonment, or neglect of the
      child, (2) the nonviability of reunification with at least
      one of the child’s parents due to such abuse, abandon-
      ment, neglect, or a similar basis under state law, and (3)
      whether it would be in the best interests of such child to
      be removed from the United States to a foreign country,
      including the child’s country of origin or last habitual
      residence. If there is sufficient evidence to support such
      factual findings, the court shall issue an order containing
      such findings when requested by one of the parties or
      upon the court’s own motion.
5
    Id.
6
    Id.
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            Nebraska Supreme Court Advance Sheets
                     305 Nebraska Reports
                             SABINO v. OZUNA
                             Cite as 305 Neb. 176

Although the amendments to § 43-1238 were not effective until
July 19, 2018, which was several months after the order was
issued in this case, we recently held in In re Guardianship of
Carlos D.7 that the change made to § 43-1238(b) was proce-
dural and thus applied to pending cases.
   The language of § 43-1238 provides that if a court has
jurisdiction to make an initial child custody determination,
it also has the jurisdiction and authority to make the factual
findings relevant to SIJ status. In this case, the record shows
that the child’s home state for purposes of § 43-1238(a)
was Nebraska, and, as such, the court had the jurisdiction to
make an initial child custody determination and to make the
requested findings.

Sufficient Evidence.
   Section 43-1238 provides that “[i]f there is sufficient evi-
dence to support such factual findings, the court shall issue an
order containing such findings when requested by one of the
parties or upon the court’s own motion.”
   [7,8] Having concluded that the court has the authority to
make these findings, we turn to an examination of what these
factfinding courts should consider when doing so. The role of
state courts in the SIJ status determination is to make the find-
ings of fact necessary to the U.S. Citizenship and Immigration
Service’s legal determination of the immigrant child’s entitle-
ment to SIJ status.8 Federal law affirms the institutional com-
petence of state courts as the appropriate forum for child
welfare determinations regarding abuse, neglect, and aban-
donment, as well as a child’s best interests.9 But it is not the
role of the state court to make a determination as to whether
7
    In re Guardianship of Carlos D., supra note 2.
8
    8 U.S.C. § 1101(a)(27)(J)(iii) (Reissue 2018).
9
    See, Guardianship of Penate, 477 Mass. 268, 76 N.E.3d 960 (2017);
    H.S.P. v. J.K., 223 N.J. 196, 121 A.3d 849 (2015); Kitoko v. Salomao, 215
    A.3d 698 (Vt. 2019); In re Y.M., 207 Cal. App. 4th 892, 144 Cal. Rptr. 3d
    54 (2012); Simbaina v. Bunay, 221 Md. App. 440, 109 A.3d 191 (2015).
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             Nebraska Supreme Court Advance Sheets
                      305 Nebraska Reports
                              SABINO v. OZUNA
                              Cite as 305 Neb. 176

a child will ultimately be eligible for SIJ status; that is a
determination reserved for the U.S. Customs and Immigration
Service and the federal government.10
   [9,10] That a court is requested to make findings for pur-
poses of SIJ status does not mean that it must make findings
favorable to the party seeking them.11 Courts asked to make
these findings may conclude that there was insufficient evi-
dence or that the evidence was not credible.12
   Federal law provides:
         Applications for asylum and other forms of relief from
      removal in which an unaccompanied alien child is the
      principal applicant shall be governed by regulations which
      take into account the specialized needs of unaccompanied
      alien children and which address both procedural and
      substantive aspects of handling unaccompanied alien chil-
      dren’s cases.13
   Courts in other jurisdictions have interpreted this language
as a caution to courts to not place insurmountable evidentiary
burdens on SIJ petitioners, because those seeking that status
will have limited abilities to corroborate testimony with addi-
tional evidence.14
   In this case, the district court questioned both the record
before it and its authority, before concluding that it was not
“even within [its] purview” to make the findings sought by
Sabino. We conclude that although the court can and should
entertain a request for findings, the court’s powers as a fact
10
     See, J.U. v. J.C.P.C., 176 A.3d 136 (D.C. 2018); Romero v. Perez, 463 Md.
     182, 205 A.3d 903 (2019); Guardianship of Penate, supra note 9; Kitoko v.
     Salomao, supra note 9.
11
     See, J.U. v. J.C.P.C., supra note 10; Romero v. Perez, supra note 10;
     Kitoko v. Salomao, supra note 9; In re J.J.X.C., 318 Ga. App. 420, 734
     S.E.2d 120 (2012).
12
     See id.
13
     8 U.S.C. § 1232(d)(8) (2018).
14
     See, J.U. v. J.C.P.C., supra note 10; Romero v. Perez, supra note 10;
     Kitoko v. Salomao, supra note 9.
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         Nebraska Supreme Court Advance Sheets
                  305 Nebraska Reports
                        SABINO v. OZUNA
                        Cite as 305 Neb. 176

finder to assess the credibility of a witness or judge the suffi-
ciency of evidence remain in effect. But nothing in this opinion
should be read to suggest what findings the court should make
on remand.
   Because in this case the district court concluded that it
lacked the authority to make the requested findings, we accord-
ingly reverse the decision of the district court and remand the
cause for further proceedings.
                       CONCLUSION
  The decision of the district court is reversed and the cause is
remanded for further proceedings.
                               Reversed and remanded for
                               further proceedings.
