Before the Court is an uncontested petition for guardianship of the person of KB and a request that this Court make the factual findings to enable KB to petition the United States Citizenship and Immigration Services for Special Immigration Juvenile Status pursuant to Immigration and Nationality Act 101(a)(27)(J); 8 U.S.C. 1101(a)(27)(J) and 8 C.F.R. 204.11 (2005). For the reasons set forth below, the petition is granted.

Factual Findings

KB was born in 1990, in Port of Spain, Republic of Trinidad and Tobago. She is 18 years of age, unmarried and is dependant on her maternal grandmother, A.D. For the first few years of her life, KB lived with both her mother and her father in Trinidad. KB's life with her family in Trinidad was tumultuous. She remembers her parents constantly arguing and physically fighting and her father becoming angry and aggressive with her older brothers. When KB was six years old her father abandoned the family. When she was about nine years old, KB's mother discovered she had breast cancer. Soon after, her mother left with her children for Brooklyn, New York to seek treatment for her illness. A.D., a legal permanent resident, provided the family with shelter and support. KB has resided with her grandmother ever since.

KB's mother died in New York on July 21, 2000. KB states that her grandmother "takes care of me and supports me in every possible way. She provides me with clothes, food and all of [*2]the financial support I need. She is also a big emotional support for me, and helped me get through the hard time since my mother died. She encourages me in my studies, and has helped me to accomplish all that I have." KB's grandmother avers that she has been KB's "sole care-taker and provider of financial and material support since [her mother's death]." KB's three brothers and many of her cousins also reside in the United States.

KB has not seen her father since he abandoned the family when she was six years old. KB states, "[m]y father my only surviving parent has abandoned me," and that "she has no way of contacting him." A.D. confirms that KB's "father abandoned her when she was only six years old. He has never sent either of us any money or ever tried to stay in touch with KB."

KB explained that although she is eighteen years old, she is still dependant on her grandmother for support: "I do not have a social security number and cannot work legally in the United States. Because of this, I am unable to support myself. Since I cannot apply for financial aid, I have no means of paying for any form of higher education without my grandmother's financial support." KB has thrived in her grandmother's home:

This past year, I graduated from Lafayette High School at the top of the class. At school, since my freshman year, I was involved in student government. I played volleyball since junior year and was captain of Varsity this past fall, and I was on the track and field team since my freshman year. I also spend a lot of time participating in activities at my church, as does my family. I love math and science (excluding biology) and I hoped to major in actuary science in college. I want to be an actuary with I'm older, forecasting financial events, or maybe a math teacher. Both of these careers require a college education.

Although KB has excelled academically and has received partial scholarships to several colleges, she cannot receive financial aid without a social security number. KB explains that she had hoped to attend Southern Adventist University in Tennessee, "because it is a religious school and [because] it has a department in my intended major, actuary science." She was however unable to attend because of the high cost of tuition and because her status prevented her from applying for financial aid. As a result, KB is "looking into community college options and hope to find a school that will still accept me for the fall semester." KB's grandmother explains that the cost of tuition at Southern Adventist is "more than I can pay on my salary as a child care employee" but that she hopes "KB will be able to attend a community college this fall instead, and hopefully transfer to a four-year university in the future."

A.D. explains that "[w]hile KB is over eighteen years old, she is still dependent on me for support. Since KB can neither work nor apply for financial aid, she would not be able to attend any kind of college community or four year university without my financial support. KB's education and well being are very important to me, and I want to remain her guardian for these purposes. For all of [these] reasons, I hope that the court will appoint me as guardian for my granddaughter, KB." KB avers "I hope that the court will appoint my grandmother, A.D., as my guardian. I consent to this appointment even though I am above the age of eighteen."

Finally, KB explains that return to Trinidad and separation from her grandmother and brothers at this juncture in her life would be untenable: "[i]f I had to return to Trinidad, I do not even know where I would live. My paternal grandmother still lives [there], but she is very old [*3]now. I have very little family there, and likely would not be able to go to school. If I had to return to Trinidad I also would be unable to visit the U.S. to see my family which would be very difficult for me and for them as well."

The Guardianship Petition

Statutory Authority and Nomenclature

The authority to grant guardianship over persons who are over the age of eighteen but

The term of office of a guardian of the person or property so appointed expires when the infant attains majority, unless the infant consents to the continuation of or appointment of a guardian after his or her eighteenth birthday, in which case such term of office expires on his or her twenty-first birthday, or after such other shorter period as the court establishes upon good cause shown; except that the term of office of a guardian of an infant expires upon the infant's marriage prior to attaining majority.

The Surrogate's Court Procedure Act ("SCPA") defines "infant" as "any person under the age of eighteen years; provided, however, that for purposes of appointment of a guardian of an infant, the term infant also shall include a person who is under the age of twenty-one years who consents to appointment of a guardian after the age of eighteen." (Emphasis added). As such, unmarried persons over the age of eighteen who have not reached their twenty-first birthday who consent to the appointment of a guardian are considered "infants" for the purposes of SCPA 1707(2). As KB is age eighteen, unmarried and consents to the appointment of a guardian, SCPA 1707(2) confers to this Court the authority to consider her grandmother's application for guardianship of KB. See In Re Vanessa D, 858 NYS2d 687 {51 AD3d 790} (2nd Dept. 2008) (SCPA 1707(2) was amended in 2006 to permit a guardianship until the infant's twenty-first birthday).

Standard of Adjudication

"The Surrogate, in appointing a guardian of an infant's person or property, must be satisfied that the interests of the infant will be promoted and the best interests of the infant will be served by the appointment." Amrhein v. Signorelli, 153 AD2d 28, 31 (2d Dept. 1989), citing to SCPA 1701(1). Clearly, on the facts presented, it is in the best interests of KB for her grandmother, A.D., to continue to act as her guardian. KB's father abandoned her without any emotional or financial support from the age of six and her mother died when KB was nine years old. KB's grandmother has cared for KB and supported her in every aspect of her life, raising [*4]her alone, since KB was ten years old. KB has thrived in the home of her grandmother, who has raised KB as her own daughter. KB has recently graduated from high school at the top of her class and is intent on attending college. KB continues to be emotionally supported and nurtured by her grandmother. In addition, as she resides with her grandmother and is without the legal authority to work, KB is dependant on her grandmother for food, lodging and a myriad of other day-to-day financial needs. In short, the Court finds that although KB is eighteen, she continues to be in every way as dependent on her grandmother as she was before she reached the age of eighteen. For these reasons, the Court finds that the interests of KB will be promoted by the appointment of a guardian and, as such, the petition of A.D. for letters of guardianship of the person of KB is granted.

Special Juvenile Immigrant Status

Statutory Authority

In 1990 the federal government enacted legislation as part of the Immigration and Nationality Act to give undocumented children under the jurisdiction of a juvenile court the ability to petition for "Special Juvenile Immigrant Status" and obtain permanent legal residence in the United States. Under 8 U.S.C. 1101(a)(27)(J) and 8 C.F.R. 204.11(a), a "special immigrant" is an immigrant who "has been declared dependent on a juvenile court" and "deemed eligible for long term foster care" and for whom a judicial determination has been made "that it would not be in the alien's best interests to be returned to the alien's or parent's previous country of nationality or country of last habitual residence."

A juvenile court is defined as a court located in the United States having jurisdiction under State law to make judicial determinations about the custody and care of juveniles. SCPA 1701 states that this "court has power over the property of an infant and is authorized and empowered to appoint a guardian of the person or of the property or of both of an infant whether or not the parent or parents of the infant are living." As such, Surrogate's Court is empowered to make factual findings that would enable an infant to petition for Special Juvenile Immigrant Status. See In Re Antowa McD., 50 AD3d 507 (1st Dept. 2008).

Standard for Adjudication

Under the federal regulations promulgated to implement the federal statute, a child is eligible for classification as a "special immigrant" when s/he has been declared dependent upon a juvenile court located in the United States in accordance with state law governing such declarations of dependency. 8 C.F.R. 204.11(a). The Appellate Division has recently held that the "appointment of a guardian constitutes the necessary declaration of dependency on a juvenile court." Antowa, 50 AD3d 507, citing to Matter of Menjivar, 29 Immigr L & Pro Rptr B2-37 (1994), construing, inter alia, 8 C.F.R. 204.11(a). Here, the Court's appointment of A.D. as KB's guardian works to automatically create a declaration of dependency upon this juvenile court for the purposes of 8 C.F.R. 204.11(a). [*5]

8 C.F.R. 204.11(a) provides: "for purposes of establishing eligibility for classification as a special immigrant juvenile, a child who has been adopted or placed in guardianship situation after having been found dependent upon a juvenile court in the United States will continue to be considered to be eligible for long-term foster care."Under this statute, the phrase

eligible for long-term foster' care means [only] that a determination has been made by the juvenile court that family reunification is no longer a viable option. Thus, the regulation at 8 C.F.R. 204.11(c)(5) does not require an applicant to directly establish that he meets all State requirements to be placed into a foster care program. An applicant may meet the foster care component of 8 C.F.R. 204.11(c)(5) by showing that the juvenile court on which he is dependant continues to find that it is not viable for him to be reunited with his family.

Finally, KB and her guardian have presented compelling evidence that repatriation would be detrimental to KB's best interests. KB left Trinidad at a tender age and has spent her formative years in Brooklyn, New York. Her only parental figure, her grandmother, lives in New York and her closest relatives, her brothers, all live in the United States. KB was educated in New York and has thrived here with friends and extended family. In Trinidad she would be alone and without any emotional or financial support. There are no family members in Trinidad to permit family reunification. Indeed, it would be wholly detrimental to KB's best intereststo be returned to Trinidad because family reunification is no longer an option. To be returned to her birth country would result in alienation from her family and disruption of her education and thus would be devastating to KB's well being.

Conclusion

In conclusion, the Court finds that KB's mother is deceased and that her father abandoned the family; that KB is eligible for guardianship under SCPA 1707(2) as she is over the age of eighteen, under the age of twenty-one, is unmarried and consents to the guardianship; that it is in the best interests of KB to have a guardian appointed for her and for her grandmother, A.D., to act as KB's guardian; that by virtue of the guardianship and the findings made therein, KB is considered dependant on a juvenile court and deemed eligible for long-term foster care and that it would not be in KB's best interests to be returned to her country of origin.

Accordingly, letters of guardianship of the person shall issue to A.D..

Dated: August 7, 2008

__________________________________

Hon. Margarita López Torres

Surrogate