In the Matter
of a Guardianship Proceeding under Article 6 of the Family Court Act, Martha R. Y.,
Petitioner,
against
Antonio S., Respondent.
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XXXXXX
Petitioner Martha R. Y., is represented by Dawn Pipek Guidone, Esq.
Respondent Antonio S., is represented by Legal Aid Society of Nassau
County, Yury Sakharov, Esq.
Subject Child Ena S. Y., is represented by Maureen L. McLoughlin,
Esq.
Robin M. Kent, J.
On April 1, 2015 the petitioner mother Martha R.Y. (hereinafter, the mother) filed
for guardianship of her daughter Ena S.Y. (d.o.b. X/X/1994). Thereafter, the mother filed
a motion for an order making findings to support an application for special immigrant
juvenile (SIJ) status pursuant to 8 USC § 1101(a)(27)(J), alleging, among other
things, that reunification with Ena's father was not viable due to his abusive behavior. On
May 21, 2015, the respondent father (hereinafter, the father) consented to an order
granting the mother's petition for guardianship of the child, but opposed the motion for
SIJ findings. A hearing on the motion was held on June 15, 2015.
The Petitioner's Case:
The mother testified that she has 6 children with the father, ranging in ages
from 22 to 11 years old, and 4 grandchildren, one of which is the subject child Ena's five
year old son Kerlin. The father came from Honduras in 2000 when Ena was five years
old. The mother came to the United States in September of 2001. Ena remained in
Honduras in the care of her maternal grandmother. The mother returned to Honduras in
2006, and the father continued to support the mother and their children. The father
consistently sent $400 or $500 weekly, bi-weekly, or monthly, from 2000 to 2013. The
mother testified that he continued to send money after learning of Ena's pregnancy on the
condition that it was not to be shared with Ena. The mother gave the money indirectly to
Ena anyway, however, since it was sent in a lump sum. The mother testified that the
father said he would only be responsible for his minor children and that Ena was a
"bitch" and "had to work".
The mother returned to the United States in February 2013 and once again
lived with the father. She testified that there was some domestic violence in the home
against her in front of the younger children. She started working 3 days after arriving in
the United States and immediately began sending money to Honduras for her children. In
June or July of 2013, the father spoke to Ena on the phone and said he was capable of
getting someone to burn down the house down with Ena in it.
On May 8, 2014, Ena, her sister Martha, and Ena's son came to live with the
mother and father. The father knew they were coming and planned to live with them. The
mother testified, "I made the decision Ena is coming. He didn't say it was right or
wrong." From the time of Ena's arrival in May until December 2014, the father and Ena
"were together." The mother testified that for the the first twenty two days "they were a
normal family," but then the father mistreated her, and Ena was opposed to his abuse of
the mother. The mother also stated that the father would tell them that Ena was
prostituting herself by going into cars with people. Since Ena has been here the father
hasn't given Ena any money.
On December 31, 2014, the father came home drunk and violent. The father
hit and kicked the mother and Ena told him to leave. The father hit Ena and she fell to the
floor. A younger sibling called the police at the mother's direction, but the father left
before the police arrived. The father has not been back to the home since then.
On cross-examination, the mother testified that after she moved to the
United States in 2013, the father sent three money orders totaling $750.00 to Honduras,
which was insufficient to support the children who remained there. The father was
contributing to the household in the United States, but stopped sending money to
Honduras in 2013.
The mother stated that Ena supported herself from 2013 to 2014 with rental
income from a house in Honduras that was owned by the mother and father. When Ena
arrived in the United States in 2014, the father paid $400.00 for her taxi from Manhattan
to Long Island. The cost of the coyote for Ena, her son, and Martha was $9,000.00. The
parents owned a piece of land in Honduras which they sold to buy a car. The car was sold
for $4,000.00, which was used to pay for their travel. The mother testified that she and
Ena are paying the difference. The mother states that despite his estrangement from Ena,
the father has a relationship with some of their other children. Martha currently resides
with the father at this time.
Ena testified that two years prior to coming to the United States, she lived
with her son and her sister Martha. Before that, her mother resided in Honduras with Ena
and her siblings. Ena attended school in the 12th grade in Honduras then, and now
attends high school locally and is in the 12th grade. When her son was born April 29,
2010, her relationship with her father changed. He told her during their phone
conversations that she had to look for a job and that he was not going to support her. In
2013, the father threatened to kill her and her son and told her that she was a "whore"
and "had to leave the house." When the mother returned to the United States in 2013,
Ena supported herself solely from rent she received from the house owned by her mother
and father.
Ena moved to the United States, with her sister Martha and son Kerlin, in
May of 2014, hoping that her relationship with her father would improve upon her
arrival. Ena moved into the apartment in which her mother and father resided. Things
went well for the first month but then the father would come home drunk and offend her
and her mother.
Ena testified that she got a job in the United States and is "now supporting
herself." With regard to the incident in December 2014, Ena testified that the father hit
her mother and when Ena told him to leave, he hit Ena in the head, then grabbed her hair
and she fell to the floor. The father was never physical with her before this incident. Ena
testified that she is no longer making payments for the cost of her transportation to the
United States, and that upon her arrival her father bought her clothing. The petitioner
rested.
The Respondent's Case:
The father then testified that he's been in the United States for 15 years,
leaving the mother with four children in the year 2000 in order to send money back to
them. He testified that he sent hundreds of dollars consistently. The mother came to the
United States in 2001 and stayed until 2005. During that time they lived together and
both sent money back for their children. In August of 2005 the mother went back to
Honduras and the father sent money for all six children. While the father was in the
United States he spoke very little to Ena between the years 2000 through 2006 because
the children lived in the mountains of Honduras during that period and there were no cell
phones. When they moved to the city and obtained a cell phone in 2008, he would speak
with them every Friday afternoon.
The father testified that he learned of Ena's pregnancy from the mother but
continued to send money, and he did not tell the mother how to allocate the money. The
father continued supporting the children in 2013. With regard to the incident on
December 31, 2014, after he returned to his apartment at 11:00 p.m. after drinking, he
had a fight with the mother and Ena which involved pushing each other. The father
showed the court a scar over his right eyebrow which he alleged was a result of being hit
with a chair by the mother. He testified that he did not remember if he hit the mother as
he was dizzy from the incident.
The father denied all the allegations by the mother and Ena with regard to
name calling, his threat that he would no longer support Ena upon learning of her
pregnancy, and his threat to burn the house down. He further denied calling Ena a
prostitute, and said that it was Ena who stated she was going to prostitute herself for
support.
The father testified that he is not hurt by Ena, but that she is hurt by him. The
father said that he is willing to go into therapy with her and undergo any evaluations and
or treatment she wanted if it was determined that he had an alcohol abuse problem.
[*2]Discussion:
Pursuant to 8 USC § 1101(a)(27)(J) and 8 CFR 204.11, a "special
immigrant" is a resident alien who is, among other things, under 21 years of age,
unmarried, and dependent on a juvenile court or legally committed to an individual
appointed by a state or juvenile court (see Matter of Trudy-Ann W. v Joan W., 73 AD3d 793 [2d
Dept 2010]). Additionally, for a juvenile to qualify for special immigrant juvenile status,
a court must find that reunification with one or both of the juvenile's parents is not viable
due to parental abuse, neglect, abandonment, or similar parental conduct defined under
State law (see 8 USC § 1101[a][27][J][i]; Matter of Trudy-Ann W. v
Joan W., 73 AD3d at 795).
Here, it is undisputed that Ena is under the age of 21, unmarried, and is
legally committed to an individual appointed by this court by virtue of this court's order
appointing the mother as Ena's guardian. In addition, both parents conceded that it would
not be in Ena's best interests to return to Honduras because both of her parents reside in
the United States and there is no one in Honduras to care for Ena were she to return
there.
The remaining issue to resolve is whether Ena's reunification with her father
is not viable due to abuse, neglect, or abandonment by the father. As the trier of fact, the
court has the unique ability to judge the credibility and demeanor of witnesses when they
testify. The credible testimony leads the court to believe that although the father was
upset upon learning his then-14-year-old daughter was pregnant and that it appeared as
though he would not continue to support her, he did in fact continue to provide financial
support, albeit indirectly. Moreover, the father was aware of Ena's plan to come to the
United States with her son a month before her arrival, he paid for her taxi from
Manhattan to their apartment, and he took them shopping for clothing after they arrived,
all of which demonstrated an effort toward continuing their relationship. The father's
testimony seemed credible and sincere with regard to the amounts of money he
contributed to the support of Ena over the years, and any inconsistencies might
reasonably have the result of confusion stemming from the large span of time (from 2000
to 2014) to which he testified. The testimony indicated that the father spent frugally on
himself on such expenses as haircuts, meals, and laundry, and that he did not own a cell
phone. Regarding her current financial situation, Ena testified she is "now supporting
herself," suggesting that neither parent is currently supporting her.
The court does not give great weight to testimony that the father threatened
to burn down Ena's house, considering the fact that Ena's sister Martha, who is currently
residing with the father, also resided in the house with Ena at the time of the alleged
threat. Moreover, Ena testified that the father never used corporal punishment of any
kind. As to the events of New Year's Eve in 2014, the father displayed the scar from an
injury he received that night, unlike the [*3]mother or
Ena. In addition, no other siblings testified as to the alleged domestic violence despite the
mother's testimony that they witnessed it.
There is no doubt that Ena's relationship with her father is in a state of
tumult, likely due to a combination of the father's reaction to Ena's pregnancy and their
argument on New Year's Eve. As to the former, the father's angry response toward his
daughter for becoming pregnant at the age of 14 was not unreasonable, and his desire for
her to have an education is commendable. Moreover, Ena resided in the same home as
the father for more than seven months in 2014, until the New Year's Eve argument which
resulted in the father leaving the home and residing elsewhere. The testimony indicates
that the argument on New Year's Eve was the only time the father used any physical
force with Ena. In light of evidence indicating that the father was the only family
member to walk away from the incident with a scar, responsibility for the altercation is
not easily laid solely at the father's feet. Although the evidence was insufficient for the
court to determine that the father has a substance abuse problem, the father testified that
he would be willing to undergo any substance evaluations and recommended treatment
or participate in therapy with Ena in order to address whatever issue lies at the core of
Ena's discomfort in being reunited with him. However damaged the father's relationship
with Ena may be, the court is not convinced that reunification with the father is not
viable due to abuse or neglect by the father, and Ena's resistance to reunification does not
warrant such a finding (see
Matter of Miguel A.G.G., 127 AD3d 858 [2d Dept 2015]; see also Matter of Marvin E.M. de
P. [Milagro C.C.-Mario Enrique M.G.], 121 AD3d 892 [2d Dept 2014]; Matter of Mira v Hernandez,
118 AD3d 1008 [2d Dept 2014]; Matter of Maria S.Z. v Marta M.A., 115 AD3d 970 [2d
Dept 2014]; Matter of Nirmal S.
v Rajinder K., 101 AD3d 1130 [2d Dept 2012]). For the foregoing reasons, the
court determines that the mother failed to prove by a preponderance of the evidence that
Ena's reunification with the father is not viable due to either Family Court Act
§1012(f) or abandonment as defined in the Social Services Law §384(b)(5).
Petitioner's attorney, in summation, accused the father of being punitive in
objecting to the court making special findings to support Ena's application for SIJ status.
Given the possible stigma that could result from a finding that reunification with the
father is not viable due to neglect, abuse, or abandonment (see, e.g., Matter of Heaven
A.A., —- AD3d —-, 2015 Slip Op. 03833 [2d Dept 2015]), the court
cannot fault the father for refusing to consent to such a finding.
Accordingly, it is
ORDERED that the petitioner's motion for findings in support of an application for
[*4]special immigrant juvenile status is denied.
This constitutes the decision and order of the court.
IF THIS ORDER IS ENTERED BY A JUDGE, 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
APPELLANT IN COURT, 30 DAYS AFTER SERVICE BY A PARTY OR THE
ATTORNEY FOR THE CHILD UPON THE APPELLANT OR 35 DAYS FROM THE
DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF
COURT, WHICHEVER IS EARLIEST.
ENTER
________________________________
HON. ROBIN M. KENT
Dated: July 1, 2015