The petitioner, Delmi Y. (hereinafter referred to as "petitioner"), has filed a petition with this Court requesting that she be appointed as the guardian of her twelve-year-old nephew Orlin C. Y. (hereinafter referred to as "minor child"). The attorney for the minor child joins in the petitioner's application and requests that this Court additionally issue an Order of Special Findings which would enable the minor child to petition the Department of Homeland Security for Special Immigrant Juvenile Status pursuant to Immigration and Nationality Act §101(a)(27)(J) and 8 Code of Federal Regulations §204.11. The respondent Carmen Y. is the biological mother of the minor child. The respondent Juan C. is the biological father of the minor child. [*2]

In addition to the petition, the petitioner and the minor child's attorney have submitted the following: an affidavit from the minor child, a birth certificate for the minor child, a translated document signed by the minor child's mother consenting to the petitioner having custody of the minor child, an affidavit indicating the efforts made to locate the minor child's father, a document from the Ministry of the Public Attorney General of the Republic of El Salvador, and various other paperwork written in Spanish. Also provided was a Memorandum of Law, and a letter from the minor child's attorney indicating that Federal Immigration Removal Proceedings are currently pending against the minor child. This Court ordered an investigation by the Nassau County Department of Social Services (hereinafter referred to as "D.S.S.") regarding this matter. As part of their investigation, D.S.S. interviewed the minor child and the petitioner. D.S.S. provided this Court with a detailed report of the interviews and their findings.

The petitioner is the maternal aunt of the minor child. The petitioner currently resides in Mineola, Nassau County, State of New York. She has resided in the United States for the last nine years. The minor child currently resides with the petitioner in Mineola. He has resided with the petitioner since June 12, 2008. In his affidavit, the minor child indicates that he would like to continue living with the petitioner because she takes good care of him and he feels safe with her.

The minor child was born on January 2, 1997, in El Salvador, to Carmen Y. and Juan C. The minor child's father left the family when the minor child was only a few months old. The minor child grew up in El Salvador, living with his mother, stepfather, and two cousins. The minor child does not have any relationship with his biological father. Both parents of the minor child still live in El Salvador and are nationals of that Country.

In his affidavit, the minor child states that as he was growing up, his stepfather would punish him and his cousins regularly by hitting them with various objects and by withholding food from them. On occasion, his stepfather would require the minor child to miss school so that he could go to work with his stepfather. The minor child also reports that he was regularly threatened and beaten up by two groups of boys in El Salvador. He indicates that he would frequently stay with his grandparents in another village in order to get away from the boys.

The minor child alleges that he decided to run away from home to avoid any further discipline from his stepfather and to escape from getting beaten up by other boys. He discloses that he stole money from his mother and left home without the knowledge of his mother or anyone else in his household. The minor child states that he went to the local bus station and took a number of buses to Mexico. After arriving in Mexico, he claims that he saw people running towards the United States border and decided to go along with the strangers to enter the [*3]United States. He recalls swimming across two rivers and almost drowning.

Once the minor child arrived in the United States, he was immediately apprehended and detained by U.S. Customs and Border Patrol Officers. The minor child was eventually brought to a group home in Bronxville, Texas. During his stay in the group home, the minor child states that he was picked on by other kids and was involved in fights. The U.S. Customs and Border Patrol began Federal Immigration Removal Proceedings against the minor child in March of 2008. Thereafter, he was released into the custody of the petitioner, who volunteered to take care of him, pending the disposition of the removal proceedings.

Based on the above alleged facts, the petitioner and the minor child's attorney request that this Court appoint the petitioner as guardian of the minor child and issue an Order of Special Findings.

CONCLUSIONS OF LAW

I. FAMILY COURT JURISDICTION OVER GUARDIANSHIPS:

Both the Family Court and the Surrogate Court have authority to appoint a guardian regarding an infant (hereinafter referred to as "guardian of the person of an infant"). The jurisdiction of the Family Court to appoint guardians of the person of an infant is established in Family Court Act §661. Family Court Act §661, as modified as of November 3, 2008, provides as follows:

"When initiated in the family court, such court has like jurisdiction and authority to determine as county and surrogates courts in proceedings regarding the guardianship of the person of a minor or infant and permanent guardianship of a child. Such jurisdiction shall apply as follows:

(a) Guardianship of the person of a minor or infant. When making a determination regarding the guardianship of the person of a minor or infant, the provisions of the surrogate's court procedure act shall apply to the extent they are applicable to guardianship of the person of a minor or infant and do not conflict with the specific provisions of this act. For purposes of appointment of a guardian of the person pursuant to this part, the terms infant or minor shall include a person who is less that twenty-one years old who consents to the appointment or continuation of a guardian after the age of eighteen." [*4]

The jurisdiction of the Family Court to appoint a guardian of the person of an infant extends to any infant who is living in the County and State of that Court. New York Surrogate Court Procedure Act (hereinafter referred to as "S.C.P.A.") §1702, in relevant part, provides as follows:

"Where an infant has no guardian the court may appoint a guardian of his person...in the following cases:

1. Where the infant is domiciled in that county or has sojourned therein immediately preceding the application."

This language has been broadly interpreted to include all infants residing in a particular County and State regardless of their immigration status. The Appellate Division has held that the Family Court has jurisdiction to consider a petition for guardianship of a child who is a foreign national, despite the child's illegal entry into the United States, where the Family Court is located in the County where the child is domiciled or has sojourned therein immediately preceding the guardianship petition. (See Matter of Luis A.-S., 33 AD3d 793, 823 NYS2d 198 [App. Div. 2d 2006]).

S.C.P.A. §1701 permits the appointment of a guardian for an infant whether or not the parents of the infant are living. This section permits the appointment of someone other than the infant's parents as the guardian. The test which the Court must apply in making such determination is the "best interest of the child" test. However, before applying this test, the Court must make a finding that there has been abandonment, unfitness, or persistent neglect by the parents, or other extraordinary circumstances. (See Nancy C. v. Alison C., 57 AD3d 986, 871 NYS2d 255 [App. Div. 2d 2008]; see also Merritt v. Way, 85 AD2d 666, 445 NYS2d 205 [App. Div. 2d 1981], affirmed 58 NY2d 850, 446 NE2d 776, 460 NYS2d 20 [1983]; and Bennett v. Jeffreys, 40 NY2d 543, 387 NYS2d 821, 356 NE2d 277 [1976]).

In light of the foregoing, this Court has jurisdiction to hear and determine the guardianship petition herein. In the case at bar, since the petitioner is not one of the minor infant's parents, and both parents are living, in order to appoint the petitioner as the guardian this Court must find that there has been abandonment, unfitness, or persistent neglect by the parents, or other extraordinary circumstances. Since neither parents are before this Court, and are not within this Court's jurisdiction (both are El Salvador nationals), this Court is left to rely on the assertions in the petition, in the minor child's affidavit, and the other various annexed documents including the D.S.S. report.

Abandonment:

[*5]The petitioner alleges that there is no one else to take care of the minor child other than her, implying that the minor child was abandoned. It is alleged that the minor child's father abandoned him when the minor child was an infant. This Court accepts this assertion based on the fact that the minor child's biological father has absented himself from the minor child's life since birth. Regarding the minor child's mother, there has been no such abandonment. Based on the minor child's affidavit, he voluntarily ran away from his home and his mother. Hence, the minor child was not abandoned by his mother. In addition, the minor child asserts in his affidavit that his grandparents have previously taken care of him and that he liked living with his grandparents. There is no indication in the record that the minor child's mother or grandparents are unable to continue taking care of him. As such, the facts as alleged by both the petitioner and the minor child fail to establish that the minor child has been abandoned.

Unfitness:

Neither the petitioner nor the minor child allege that his mother is unfit to care for him. The petitioner asserts in her petition that the minor child's mother has "consistently been unable to provide adequate care for the minor child." This conclusion is made without a scintilla of factual context. There is no mention of any failure on the part of the minor child's mother to provide food, shelter, care or any other of the minor child's needs. Beyond the blanket assertion by the petitioner, the petition and accompanying documents are otherwise silent regarding the minor child's mother. As such, the petitioner has failed to establish that the minor child's mother is unfit to care for the minor child.

Persistent Neglect:

Neither the petitioner nor the minor child allege persistent neglect by the minor child's mother. The minor child does indicate that the mother was present and remained mute during times when the minor child was being physically punished by the stepfather. The petition and the minor child's affidavit fail to outline or detail the underlying facts or circumstances which precipitated these alleged incidents. The minor child indicates that on one occasion the mother spoke up against the discipline but was then herself struck by the stepfather. The minor child also asserts that his mother would send him to stay with his grandparents to avoid contact with his stepfather. The physical discipline by the stepfather, if substantiated, would be extremely troubling; however, there is no indication that any criminal or civil remedies were sought with respect to this alleged conduct in the minor child's native Country. There is no indication that any steps were taken by anyone to address the alleged conduct. This Court is left to rely on the bare uncorroborated statements of the minor child regarding the physical punishment by his stepfather. As such, the facts as alleged fail to establish persistent neglect by the minor child's mother.

Extraordinary Circumstances:

[*6]The petition and the moving papers do not allege extraordinary circumstances.The travel of the minor child to this Country does not constitute extraordinary circumstances necessitating the appointment of a guardian. The minor child's allegations of being bothered by other boys and gangs in El Salvador, although tragic, unfortunately occurs every day, in every Country, including in the United States. Notably, the minor child even reports being bothered by and fighting with other boys while in the group home here in the United States. Said allegations also do not constitute extraordinary circumstances warranting the appointment of a guardian.

In addition to the foregoing, there are glaring inconsistencies between the affidavit of the minor child and his statements to the D.S.S. representative. These inconsistencies lead this Court to doubt that the minor child arrived in the United States on his own by sheer happenstance. The minor child gives two incongruent reasons for his running away from home and subsequent travel to the United States. In his affidavit, the minor child states that he ran away from home to avoid punishment from his stepfather and being bothered by various groups of boys. He states that while in Mexico, he decided to run across the border into the Unites States because he saw other people doing so. However, in his interview with D.S.S., the minor child states that the reason he ran away from home and came to the United States was because he heard interesting stories about the United States from his uncle, who lives in Texas. Running away from home and ultimately traveling to the United States to avoid alleged punishment by his stepfather and being bothered by various groups of boys is dramatically different than intentionally coming to the United States because of hearing interesting stories. Nevertheless, this Court finds that neither explanation would justify the appointment of a guardian in this matter. In the first instance, assuming the minor child ran away from home to avoid punishment and the other boys, it is inexplicable why running away from home for these reasons would take him on a journey across two borders and two Countries. In the second instance, while hearing interesting stories about the United States is a valid justification for engaging in the appropriate legal immigration process, it is certainly not a valid justification for irresponsibly leaving home at the tender age of eleven, without the approval or knowledge of his mother, to embark upon a spontaneous voyage to a foreign land. Moreover, even if the minor child's unsubstantiated reports of corporal punishment by his stepfather and encounters with other boys are accurate, it is unclear and unstated why the minor child could not simply remain with his grandparents in El Salvador. No information was provided to this Court about any relief sought to remedy these complaints in El Salvador.

Finally, it is well established that the Family Court lacks jurisdiction over custody proceedings brought by aunts, uncles, and grandparents or any other persons seeking guardianship of a minor who resides with them so that they can enter such minor in school, or acquire insurance coverage for the minor, or have authority to sign for possible medical service on behalf of the minor, or for other matters for which proof of their authority to act on behalf of the minor is required. The Family Court may only appoint guardians when the subject children are already within the Court's jurisdiction due to a "justiciable dispute or custodial controversy." (See Matter of Rita and Michael, 122 Misc 2d 1, 467 NYS2d 998 [Fam. Ct. Queens County [*7]1983]). In the case at bar, the minor child's mother consents (in her translated affidavit) to the petitioner having "custody" of the minor child. The minor child's mother states that the reason for her consent is that she would like her sister to provide for the "legal, scholastic and medical costs" of her son. Aside from the failure of the minor child's mother to actually consent to the guardianship, the reasons stated by the minor child's mother for the guardianship are insufficient as a matter of law to justify the appointment of the minor child's aunt as a guardian; i.e., for legal, scholastic and medical concerns. Furthermore, notably missing from the mother's translated affidavit is any assertion that she is unable to care for the minor child. Neither is there any mention of the alleged physical discipline by the stepfather or the other grounds cited by the minor child for his unannounced and unexpected departure from her home and from El Salvador. The minor child's mother fails to corroborate any of the allegations of her son.

II. FAMILY COURT ISSUANCE OF AN ORDER OF SPECIAL FINDINGS:

In addition to the petitioner's request for guardianship, the minor child's attorney has requested that this Court issue an Order of Special Findings. As specifically indicated by the minor child's attorney in his letter to this Court, the purpose of the minor child's request for an Order of Special Findings is so that same may be used by the minor child in defense of Federal Immigration Removal Proceedings currently pending against him.

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 Code of Federal Regulations 204.11(a), a "special immigrant" is an immigrant who meets all of the following criteria:

1. has been declared dependent upon a juvenile court located in the United States in accordance with state law governing such declarations of dependency, while the alien was in the United States and under the jurisdiction of the court;

2. deemed eligible by the juvenile court for long term foster care;

3. 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;

4. where the subject is under 21 years of age;

5. where the subject is unmarried.

An Order of Special Findings by the Family Court is a prerequisite to a minor child receiving Special Juvenile Immigrant Status. Therefore, in order for this Court to grant the minor child's request for an Order of Special Findings the foregoing criteria must be satisfied. However, where Federal Immigration Removal Proceedings have been initiated prior to the application for a guardianship, the Family Court no longer has jurisdiction to hear, consider or [*8]grant an Order of Special Findings. (See Matter of Zaim R, 13 Misc 3d 180, 822 NYS2d 368 [Fam. Ct. Orange County 2006]; appeal dismissed 43 AD3d 824, 840 N.Y.S. 877 [App. Div. 2d 2007]). Otherwise, the Family Court would be improperly used as a last resort forum to defeat Federal Immigration Removal Proceedings.

The petition for guardianship in this matter was filed on September 22, 2008. The Federal Immigration Removal Proceedings against the minor child were initiated in March of 2008. Since the Federal Immigration Removal Proceedings were filed six months prior to the instant guardianship petition and request for an Order of Special Findings, this Court does not have jurisdiction to consider the minor child's request for an Order of Special Findings.

CONCLUSION

This Court finds that the petitioner has failed to establish the grounds required for her appointment as guardian of the minor child herein. As such, the minor child's request for the issuance of an Order of Special Findings is hereby rendered moot. Moreover, as discussed above, this Court does not have jurisdiction to entertain the minor child's request for an Order of Special Findings.

Accordingly, for the aforesaid reasons, it is

ORDERED that the petition for the appointment of a guardian and the request for an Order of Special Findings is hereby denied. This constitutes the opinion, decision and order of this Court.

Dated: April 14, 2009

Westbury, NY

/s/ Hon. Norman St. GeorgeHon. Norman St. George

Acting Supreme Court Justice

PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT. AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY [*9]APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.