Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/21/2020 09:05 AM CST




                                                        - 969 -
                             Nebraska Court of Appeals Advance Sheets
                                  27 Nebraska Appellate Reports
                                        DE MATEO v. MATEO-CRISTOBAL
                                             Cite as 27 Neb. App. 969




                        Maura Alonzo-Baltazar De Mateo, appellant,
                           v. Mateo N. Mateo-Cristobal, appellee.
                                                    ___ N.W.2d ___

                                        Filed January 14, 2020.   No. A-19-351.

                 1. Statutes. Statutory interpretation presents a question of law.
                 2. Jurisdiction: Appeal and Error. Before reaching the legal issues
                    presented for review, it is the duty of an appellate court to determine
                    whether it has jurisdiction over the matter before it.
                 3. ____: ____. An appellate court has a duty to determine whether it has
                    jurisdiction over the matter before it irrespective of whether the issue of
                    jurisdiction was raised or considered by the district court.
                 4. Appeal and Error. Plain error is error plainly evident from the record
                    and of such a nature that to leave it uncorrected would result in damage
                    to the integrity, reputation, or fairness of the judicial process.
                 5. Courts: Jurisdiction: Child Custody: Federal Acts. Courts with juris-
                    diction over an “initial child custody determination” as that term is used
                    in Neb. Rev. Stat. § 43-1238(a) (Cum. Supp. 2018) also have jurisdic-
                    tion and authority to make special findings of fact similar to those con-
                    templated by 8 U.S.C. § 1101(a)(27)(J) (2018).
                 6. Child Custody: Words and Phrases. “Child custody proceeding” is
                    defined under Neb. Rev. Stat. § 43-1227(4) (Reissue 2016) as a proceed-
                    ing in which legal custody, physical custody, or visitation with respect
                    to a child is an issue and includes a proceeding for divorce in which the
                    issue of custody or visitation may appear.
                 7. Appeal and Error. An appellate court will not consider an issue on
                    appeal that was not passed upon by the trial court.

                 Appeal from the District Court for Douglas County: Duane
               C. Dougherty, Judge. Reversed and remanded for further
               proceedings.
                             - 970 -
        Nebraska Court of Appeals Advance Sheets
             27 Nebraska Appellate Reports
                 DE MATEO v. MATEO-CRISTOBAL
                      Cite as 27 Neb. App. 969

   William P. Crawford, of Kendall Law Office, P.C., L.L.O.,
for appellant.
  No appearance for appellee.
  Pirtle, Riedmann, and Welch, Judges.
  Riedmann, Judge.
                        INTRODUCTION
   Maura Alonzo-Baltazar De Mateo (De Mateo) appeals the
order of the district court for Douglas County which denied
her request to make certain special findings related to her chil-
dren’s eligibility to apply for special immigrant juvenile (SIJ)
status under 8 U.S.C. § 1101(a)(27)(J) (2018). As explained
below, we reverse, and remand for further proceedings.
                         BACKGROUND
   On June 13, 2018, De Mateo filed a complaint for dissolu-
tion of her marriage to Mateo N. Mateo-Cristobal and an order
awarding her custody of the parties’ children. The complaint
alleged that the parties had married in 2010 in Guatemala and
that at the time of filing, De Mateo was living in Douglas
County, Nebraska, and the whereabouts of Mateo-Cristobal
were unknown. De Mateo sought to serve Mateo-Cristobal by
publication and simultaneously filed an affidavit in support of
her motion for service by publication. She also moved for an
order of specific findings necessary to enable the minor chil-
dren to petition for SIJ status.
   De Mateo apparently served Mateo-Cristobal by publica-
tion, and the district court determined that service was proper.
Mateo-Cristobal never filed a responsive pleading or oth-
erwise participated in the proceeding. After holding a hear-
ing at which De Mateo was the only witness to testify, the
district court entered a decree on March 7, 2019, dissolving
the parties’ marriage and awarding custody of the children to
De Mateo. On March 12, the court entered an order denying
De Mateo’s request for specific findings, because the children
                              - 971 -
        Nebraska Court of Appeals Advance Sheets
             27 Nebraska Appellate Reports
                 DE MATEO v. MATEO-CRISTOBAL
                      Cite as 27 Neb. App. 969

had been awarded to a fit and proper parent, De Mateo, and
were in no immediate danger. De Mateo timely appeals to
this court.
                 ASSIGNMENTS OF ERROR
   De Mateo assigns that the district court erred in (1) apply-
ing the wrong standard to her request for findings regarding
the minor children’s eligibility for SIJ status and (2) failing to
find that the minor children had been abused or abandoned by
Mateo-Cristobal and that it was not in their best interests to be
returned to Guatemala.
                   STANDARD OF REVIEW
   [1] Statutory interpretation presents a question of law. In re
Guardianship of Carlos D., 300 Neb. 646, 915 N.W.2d 581
(2018). We independently review questions of law decided by
a lower court. Id.
                            ANALYSIS
    [2-4] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it. Mohr v. Mohr, 22 Neb.
App. 772, 859 N.W.2d 377 (2015). This is true irrespective of
whether the issue of jurisdiction was raised or considered by
the district court. Id. Plain error is error plainly evident from
the record and of such a nature that to leave it uncorrected
would result in damage to the integrity, reputation, or fairness
of the judicial process. Connelly v. City of Omaha, 284 Neb.
131, 816 N.W.2d 742 (2012).
    In Francisco v. Gonzalez, 301 Neb. 1045, 921 N.W.2d 350
(2019), the trial court found that service by publication was
improper under Neb. Rev. Stat. § 25-520.01 (Reissue 2016)
because the plaintiff failed to mail a copy of the published
notice to the defendant’s last known place of residence or file
a postpublication affidavit required by the statute. On appeal,
the Nebraska Supreme Court agreed that because the plaintiff
failed to comply with § 25-520.01, her constructive service
                              - 972 -
        Nebraska Court of Appeals Advance Sheets
             27 Nebraska Appellate Reports
                 DE MATEO v. MATEO-CRISTOBAL
                      Cite as 27 Neb. App. 969

was improper and the trial court lacked personal jurisdiction
over the defendant.
   In the present case, De Mateo attempted to effect service
by publication. Our record does not include evidence that she
mailed a copy of the published notice to Mateo-Cristobal’s last
known place of residence or filed a postpublication affidavit
required by § 25-520.01; however, at the conclusion of the
hearing before the district court, the court found that Mateo-
Cristobal had been properly served. Unlike in Francisco v.
Gonzalez, supra, where the trial court had the complete record
before it and could ascertain that the affidavits required by
§ 25-520.01 had not been filed, our record contains only select
portions of the transcript. In other words, whether De Mateo
complied with the service by publication requirements is not
apparent from our record; likewise, any failure to comply is
also not plainly evident from the record. Thus, we cannot find
plain error regarding service or the district court’s exercise of
jurisdiction. As such, we turn to the merits of the appeal.
   De Mateo argues that the district court erred in denying her
motion for specific findings such that her children could apply
for SIJ status. We agree to the extent that the court should
have either made the special findings she requested if there
was sufficient evidence to do so or found that the evidence
was insufficient to make the special findings. We express no
opinion as to whether De Mateo presented sufficient evidence
to satisfy the applicable statutory requirements for special find-
ings related to SIJ status.
   SIJ status allows a juvenile immigrant to remain in the
United States and apply for lawful permanent resident status.
In re Guardianship of Luis J., 300 Neb. 659, 915 N.W.2d 589
(2018). Obtaining the special findings is the first step in the
process to achieve SIJ status. Id. In pertinent part, 8 U.S.C.
§ 1101(a)(27)(J) provides that a “special immigrant” is
      an 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
                              - 973 -
        Nebraska Court of Appeals Advance Sheets
             27 Nebraska Appellate Reports
                 DE MATEO v. MATEO-CRISTOBAL
                      Cite as 27 Neb. App. 969

      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;
         (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 pre-
      vious country of nationality or country of last habitual
      residence; and
         (iii) in whose case the Secretary of Homeland Security
      consents to the grant of [SIJ] status[.]
In order to achieve SIJ status, the individual whose custody
has been determined must also obtain the judicial determina-
tions listed above from a “juvenile court,” as that term is used
in the federal provisions. See In re Guardianship of Carlos
D., 300 Neb. 646, 915 N.W.2d 581 (2018). Under 8 C.F.R.
§ 204.11(a) (2019), the term “juvenile court” means “a court
located in the United States having jurisdiction under State
law to make judicial determinations about the custody and care
of juveniles.”
   [5] The Nebraska Legislature amended Neb. Rev. Stat.
§ 43-1238(b) (Reissue 2016) in 2018 Neb. Laws, L.B. 670,
to clarify that courts with jurisdiction over initial child cus-
tody determinations under § 43-1238(a) (Cum. Supp. 2018)
also have “jurisdiction and authority” to make special find-
ings of fact similar to those contemplated by 8 U.S.C.
§ 1101(a)(27)(J). See In re Guardianship of Carlos D., supra.
Section 43-1238(a) generally deals with child custody determi-
nations which are appropriately raised in a court in Nebraska,
and § 43-1238(b) lists the factual findings which can be made
by a Nebraska state court with such initial child custody deter-
mination authority and the circumstances under which such
courts must make such findings. See In re Guardianship of
                             - 974 -
        Nebraska Court of Appeals Advance Sheets
             27 Nebraska Appellate Reports
                 DE MATEO v. MATEO-CRISTOBAL
                      Cite as 27 Neb. App. 969

Carlos D., supra. Thus, if the district court in the present case
had jurisdiction to make an initial child custody determination,
it also had jurisdiction and authority to make the special find-
ings of fact requested by De Mateo.
   [6] “Child custody proceeding” is defined under Neb. Rev.
Stat. § 43-1227(4) (Reissue 2016) as “a proceeding in which
legal custody, physical custody, or visitation with respect
to a child is an issue.” The term “[c]hild custody proceed-
ing” includes a proceeding for divorce in which the issue of
custody or visitation may appear. Id. Under § 43-1238(a), a
Nebraska court has jurisdiction to make an initial child cus-
tody determination if Nebraska is the home state of the child
on the date of the commencement of the proceeding. “Home
state” is defined as “the state in which a child lived with a
parent or person acting as a parent for at least six consecu-
tive months immediately before the commencement of a child
custody proceeding.” § 43-1227(7). Here, De Mateo filed the
complaint in June 2018, and the complaint alleged that she
and the children had resided in Nebraska since January 2016.
Thus, Nebraska qualifies as the home state of the children,
and the district court had jurisdiction to make an initial child
custody determination.
   Section 43-1238(b) states:
         (b) Subsection (a) of this section is the exclusive
      jurisdictional basis for making a child custody deter-
      mination by a court of this state. In addition to having
      jurisdiction to make judicial determinations about the
      custody and care of the child, a court of this state with
      exclusive jurisdiction under subsection (a) of this section
      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,
                              - 975 -
        Nebraska Court of Appeals Advance Sheets
             27 Nebraska Appellate Reports
                 DE MATEO v. MATEO-CRISTOBAL
                      Cite as 27 Neb. App. 969

      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.
Section 43-1238(b) provides that when requested by one of
the parties or upon the court’s own motion, such a court “shall
issue” an order containing the enumerated findings where
there is sufficient evidence. See In re Guardianship of Carlos
D., 300 Neb. 646, 915 N.W.2d 581 (2018). In other words,
the court shall either make the special findings requested or
find that the evidence is insufficient to make the enumer-
ated findings.
   In the present case, the district court made an initial child
custody determination when it awarded custody of the children
to De Mateo. It then, however, denied her motion for specific
findings, concluding that “the minor children were awarded to
a fit and proper parent, that being [De Mateo,] and are in no
immediate danger.” This is not a basis for denying a motion for
factual findings under § 43-1238(b).
   Section 43-1238(b) requires a court to make factual find-
ings related to the abuse, abandonment, or neglect of a child;
the nonviability of reunification with at least one of the child’s
parents due to abuse, abandonment, or neglect; and whether
it would be in the child’s best interests to be removed from
the United States, if requested by a party to do so and suf-
ficient evidence is present to allow a court to make such find-
ings. De Mateo presented evidence related to each of these
factual findings at the hearing. The district court, therefore,
was required to issue an order making factual findings as to
each of the three elements if the evidence was sufficient or to
conclude that the evidence was insufficient to support making
such findings. Because the court denied the request for specific
findings for a reason other than insufficiency of the evidence,
we reverse the March 12, 2019, order and remand the cause for
further proceedings.
                             - 976 -
        Nebraska Court of Appeals Advance Sheets
             27 Nebraska Appellate Reports
                 DE MATEO v. MATEO-CRISTOBAL
                      Cite as 27 Neb. App. 969

   [7] De Mateo also argues that the evidence was sufficient
to support findings that Mateo-Cristobal had abused and aban-
doned the minor children, that the children’s reunification
with him is nonviable due to this abuse and abandonment,
and that it is not in the minor children’s best interests to be
returned to Guatemala. However, by denying De Mateo’s
motion for specific findings, the district court did not address
these issues. We therefore decline to address the merits of
De Mateo’s motion. An appellate court will not consider an
issue on appeal that was not passed upon by the trial court. In
re Guardianship & Conservatorship of Larson, 270 Neb. 837,
708 N.W.2d 262 (2006).
                         CONCLUSION
   The district court had jurisdiction under § 43-1238(a) to
make an initial child custody determination, and therefore,
it also had the authority under § 43-1238(b) to make factual
findings regarding the enumerated items where the evidence
is sufficient and where the court had been requested to do so.
Because the court failed to do so, we reverse the March 12,
2019, order and remand the cause for further proceedings con-
sistent with this opinion based on the existing record.
                               Reversed and remanded for
                               further proceedings.
