In re Guardianship of Luis J., a minor child.
State of Nebraska, appellee. Joaquin Tomas Joaquin Alberto, appellant.
Courts: Jurisdiction: Evidence: Child
Custody. A county court with a jurisdictional basis
under Neb. Rev. Stat. § 43-1238(a) (Reissue 2016) and
which has made an initial child custody determination, such
as appointing a guardian, has the authority to make
immigration-related factual findings where the evidence is
sufficient and the court has been requested to do so.
Courts: Juvenile Courts: Jurisdiction: Guardians and
Conservators: Child Custody. A county court properly
taking jurisdiction over a guardianship and making an initial
custody determination is not excluded from Neb. Rev. Stat.
§ 43-1238(b) (Reissue 2016), even where there is a
juvenile court in that county, and the county court may make
special findings of fact where appropriate.
Courts: Juvenile Courts: Guardians and Conservators:
Child Custody: Federal Acts. A Nebraska county court
which properly appoints a guardian for a juvenile makes a
custody determination, and thus, the county court is
considered a "juvenile court" for purposes of 8
U.S.C. § 1101 (a)(27)(J)(i) and (ii) (Supp. V 2018).
Courts: Jurisdiction: Guardians and
Conservators. Under Neb. Rev. Stat. § 24-517(2)
(Reissue 2016), 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. A
guardianship is no more than a temporary custody arrangement
established for the well-being of a child.
Courts: Child Custody: Evidence. Neb. Rev.
Stat. § 43-1238(b) (Reissue 2016), as amended in 2017,
provides that when requested by one of the parties or upon
the court's own motion, a court making an [300 Neb. 660]
initial custody determination "shall issue" an
order containing the three enumerated factual findings if
there is sufficient evidence.
from the County Court for Douglas County: Thomas K. Harmon,
Judge. Reversed and remanded for further proceedings.
Cortes Reyes, of Immigrant Legal Center, an affiliate of
Justice For Our Neighbors Network, for appellant.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ., and Johnson, District Judge.
the county court for Douglas County appointed Joaquin Tomas
Joaquin Alberto as guardian of his juvenile grandson, Luis
J., it declined to make special factual findings necessary
for Luis to apply for special immigrant juvenile (SIJ) status
under 8 U.S.C. § 1101(a)(27)(J) (Supp. V 2018).
Following a hearing on Alberto's motion to amend this
initial ruling, relying on Nebraska statutes, the county
court concluded that the county court for Douglas County
"does not function as juvenile court" and that the
issue of making specific findings to be used in immigration
proceedings is committed to "the Separate Juvenile Court
of Douglas County.'' Alberto appealed. During the
pendency of this appeal, the Nebraska Legislature amended
Neb. Rev. Stat. § 43-1238(b) (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 it was not a "juvenile
court" for purposes of 8 U.S.C. § 1101
(a)(27)(J)(i) and refused to make [300 Neb. 661] 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 San Pedro Soloma, Guatemala, in 1999 and arrived
in Nebraska in 2016 at age 17 without resources or parental
supervision. On July 21, 2017, Alberto filed a petition for
the appointment of a permanent guardian for Luis as a minor,
under Neb. Rev. Stat. § 30-2605 et seq. (Reissue 2016),
in the county court for Douglas County. He also sought
findings that "reunification with his parents is not
viable due to neglect, abandonment, and child abuse" and
that "it would not be in Luis [sic] best interests to be
returned to Guatemala." These special findings would
potentially allow Luis to apply to the U.S. Citizenship and