In re Guardianship of Carlos D., a minor child.
State of Nebraska, appellee. Eleany Esmerelda Zunun Gonzalez, appellant.
Statutes. Statutory interpretation presents
a question of law.
Courts: Jurisdiction: Guardians and
Conservators. A Nebraska county court has exclusive
original jurisdiction in all matters relating to the
guardianship of a person, subject to exceptions.
Guardians and Conservators: Child Custody.
Under Nebraska statutes and jurisprudence, a guardianship of
a child is a child custody determination.
Courts: Jurisdiction: Child Custody: Federal
Acts. The 2017 amendment to Neb. Rev. Stat. §
43-1238(b) (Reissue 2016) clarifies that courts with
jurisdiction over an "initial child custody
determination" as that term is used in § 43-1238(a)
also have jurisdiction and authority to make special findings
of fact similar to those contemplated by 8 U.S.C. §
1101(a)(27)(J) (Supp. V 2018).
Legislature: Statutes: Time. Generally,
legislation that is passed takes effect 3 calendar months
after the Legislature adjourns unless the Legislature
Statutes: Time. Procedural amendments to
statutes are ordinarily applicable to pending cases, while
substantive amendments are not.
Statutes: Words and Phrases. A substantive
right is one which creates a right or remedy that did not
previously exist and which, but for the creation of the
substantive right, would not entitle one to recover. A
procedural amendment simply changes the method by which an
already existing right is exercised.
Statutes: Child Custody: Time. A statutory
amendment to Neb. Rev. Stat. § 43-1238(b) (Reissue 2016)
which merely clarifies the authority and procedure for making
the factual findings in a case involving child custody is a
procedural amendment and applies to pending cases.
Neb. 647] Appeal from the County Court for Lancaster County:
Holly J. Parsley, Judge. Reversed and remanded for further
V. Chipman, of Monz6n, Guerra & Associates, for
Ruser and Morgan Nelson, Senior Certified Law Student, of
Immigration Clinical Law Program, University of Nebraska
College of Law, and Robert McEwen, Sarah Helvey, and Allison
Derr, Senior Certified Law Student, of Nebraska Appleseed
Center for Law in the Public Interest, for amici curiae
University of Nebraska Immigration Clinic and Nebraska
Appleseed Center for Law in the Public Interest.
Charles Shane Ellison, of Creighton Immigrant and Refugee
Clinic, Creighton University School of Law, for amici curiae
National Justice For Our Neighbors and Immigrant Legal
Center, an affiliate of Justice For Our Neighbors Network.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ., and Vaughan, District Judge.
the county court for Lancaster County appointed Eleany
Esmerelda Zunun Gonzalez as guardian of her juvenile nephew,
Carlos D., it declined to make special factual findings that
are necessary to apply for special immigrant juvenile (SIJ)
status under 8 U.S.C. § 1101(a)(27)(J) (Supp. V 2018).
Following a hearing on Gonzalez' motion to amend this
initial ruling, the county court stated in an order that
Carlos was "not dependent on this court" and that
Gonzalez had not satisfied 8 U.S.C. § 1101(a)(27)(J) and
therefore denied Gonzalez' motion to make specific
findings to be used in immigration proceedings. Gonzalez
appealed. During the pendency of this appeal, the Nebraska
Legislature amended Neb. Rev. Stat. § 43-1238(b) [300
Neb. 648] (Reissue 2016) in 2018 Neb. Laws, L.B. 670, to
clarify that courts with jurisdiction over initial child
custody determinations under § 43-1238(a) also have
"jurisdiction and authority" to make special
findings of fact similar to those contemplated by 8 U.S.C.
§ 1101(a)(27)(J). Amendments to § 43-1238(b) have
gone into effect, and because they are procedural rules, they
apply to pending cases. In this case, the county court made a
custody determination under § 43-1238(a), but it erred
when it concluded Gonzalez had not satisfied the dependency
or custody component of 8 U.S.C. § 1101(a)(27)(J) and
refused to make special findings on this basis. Accordingly,
we reverse the order of the county court and remand the cause
for further proceedings consistent with this opinion based on
the existing record.
was born in Guatemala in November 1998 and arrived in
Nebraska in 2015 at age 16 without any support or parental
supervision. On January 23, 2017, Gonzalez filed a petition
for the appointment of a permanent guardian for Carlos, her
minor nephew, in the county court for Lancaster County. The
following facts are taken from the petition and Carlos'
declaration, which the county court found to be credible:
traveled to the United States by foot and public
transportation and arrived on or about April 27, 2015. Before
reaching Nebraska, Carlos was detained at the border by U.S.
Customs and Border Protection, but he was released to his
aunt, Gonzalez, who, according to U.S. Department of Health