Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Guardianship of Carlos D.

Supreme Court of Nebraska

July 27, 2018

In re Guardianship of Carlos D., a minor child.
v.
State of Nebraska, appellee. Eleany Esmerelda Zunun Gonzalez, appellant.

         1. Statutes. Statutory interpretation presents a question of law.

         2. 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.

         3. Guardians and Conservators: Child Custody. Under Nebraska statutes and jurisprudence, a guardianship of a child is a child custody determination.

         4. 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).

         5. Legislature: Statutes: Time. Generally, legislation that is passed takes effect 3 calendar months after the Legislature adjourns unless the Legislature evidences otherwise.

         6. Statutes: Time. Procedural amendments to statutes are ordinarily applicable to pending cases, while substantive amendments are not.

         7. 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.

         8. 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.

          [300 Neb. 647] Appeal from the County Court for Lancaster County: Holly J. Parsley, Judge. Reversed and remanded for further proceedings.

          David V. Chipman, of Monz6n, Guerra & Associates, for appellant.

          Kevin 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.

          Miller-Lerman, J.

         NATURE OF CASE

         Although 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.

         FACTS

         Carlos 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:

         Carlos 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.