Panel Paves Way for Children to Have Mother as Guardian

, New York Law Journal

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A family court judge can appoint the mother of three children who had lived under the constant threat of gang violence in their native El Salvador as their guardian, the first step toward obtaining lawful permanent residence in the United States for the juveniles, a Brooklyn appellate court has ruled.

The Appellate Division, Second Department, rejected the finding of a Nassau County Family Court judge that the guardianship declaration was unnecessary. The woman and her children live together in Nassau County.

The signed opinion in Matter of Marisol N.-H, 2013-06146, was amplified by four other similar, but unsigned, decisions from the Second Department on Feb. 5 which also overturned the dismissal of guardianship petitions by Nassau County Family Court judges. The Second Department in each instance ordered Family Court judges to hold hearings and to consider the petitions anew.

Under federal immigration laws, unmarried youth under 21 can apply for Special Immigrant Juvenile Status (SIJS), a pathway to a green card and citizenship. But the youth or someone on his or her behalf must first petition a state juvenile court—in New York, the Family Court—for special findings of fact that the minor is legally dependent on the court or legally committed to someone appointed by the state court, such as a guardian. The state court must determine whehter it is in the child's best interest to be returned to his or her home country.

"In determining whether it is in the best interests of a child to grant a guardianship petition, it is entirely consistent with the legislative aim of the SIJS statute to consider the plight the child would face if returned to his or her native country and placed in the care of a parent who had previously abused, neglected, or abandoned him or her," Justice Cheryl Chambers wrote for the 4-0 panel in Marisol.

Chambers said that the three children in Marisol—a 19-year-old male and 18- and 16-year-old females—would "face the prospect of having to protect themselves from violent gang members, which, cruelly, may be possible only by joining them" if they cannot gain SIJS status and face deportation to El Salvador.

In all five cases decided last week, guardianship was sought by biological mothers who maintained that their children's biological fathers had abandoned their families and are not a viable parental option in their native land.

In Marisol, lawyers at the Youth Advocacy Clinic at Hofstra University School of Law argued on behalf of the family that if returned to El Salvador the three children will face violence or death at the hands of gangs who tried to recruit them before they fled the country.

The mother said she came to the United States when she was threatened with rape by gang members if she did not allow her son to join the gang. The children's grandmother was killed by gang members because she attempted to protect the children from the gangs.

Given the threat the children faced in El Salvador, the Second Department said that Nassau County Family Court Judge Julianne Eisman erred in May 2013 when she denied the mother's petitions for guardianship.

"We disagree with the Family Court's conclusion that there is 'no reason' to appoint the mother as guardian of the children," Chambers wrote.

Citing the Surrogate's Court Procedure Act, the Family Court Act and Matter of Revis v. Marzan, 100 AD3d 1004 (2012), Chambers wrote that Family Courts are permitted to award guardianship of children to their natural parents.

The fact that there was no party opposing the guardianship designation should not be a factor in that appointment, Chambers wrote. She noted that Family Courts, for a variety of reasons, have granted custody of children to their biological parent where there is no opposition to the determination.

"There is no basis for treating an unopposed guardianship petition more restrictively than an unopposed custody petition," Chambers wrote. "The distinctions between guardianship and custody are elusive, as both forms of legal responsibility to a child have very similar attributes."

Justices William Mastro, Reinaldo Rivera and John Leventhal joined in Chambers' ruling.

The same Second Department panel reached the same conclusion unanimously in three other cases presenting facts similar to those in Marisol.

Those cases were Matter of Maria G.G.U. v. Pedro H.P, 2013-02947 (Judicial Hearing Officer Elaine Stack); Matter of Juana A.C.S. v. Dagoberto D., 2013-02945 (Family Court Judge Merik Aaron) and Matter of Maria E.S.G. v. Jose G.G.L, 2013-02779 (Eisman).

The panel in the Matter of Maura A.R.-R., 2013-08053 (Family Court Judge Conrad Singer) consisted of Justices L. Priscilla Hall, Robert Miller, Peter Skelos and Chambers.

The families in four of the cases were from El Salvador, in the fifth the family came from Honduras. In all of the cases, the father had abandoned the family.

Theo Liebmann, director of the Youth Advocacy Clinic at Hofstra law school in Hempstead, said he was assisted in representing Marisol and her family by Hofstra law students Jennifer Sullivan and Brent Weitzberg.

Liebmann said in an interview that Family Court judges have differed about the designation of a natural parent as a guardian.

He noted that the Second Department scheduled all five of the cases they decided on Feb. 5 for oral arguments on Nov. 14, 2013, for the apparent purpose of sending a statement to Family Court judges.

Bruno Joseph Bembi of Hempstead, who is not affiliated with the Hofstra Youth Advocacy Clinic, represented the petitioner families in other four cases.

Judge Eisman has changed her name to Janet Capetola since hearing the cases.

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