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In re Guardianship of Luis J.

Supreme Court of Nebraska

July 27, 2018

In re Guardianship of Luis J., a minor child.
v.
State of Nebraska, appellee. Joaquin Tomas Joaquin Alberto, appellant.

         1. 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.

         2. 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.

         3. 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).

         4. 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.

         5. Guardians and Conservators: Child Custody. A guardianship is no more than a temporary custody arrangement established for the well-being of a child.

         6. 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.

          Appeal from the County Court for Douglas County: Thomas K. Harmon, Judge. Reversed and remanded for further proceedings.

          Roxana 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.

          MILLER-LERMAN, J.

         NATURE OF CASE

         Although 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.

         FACTS

         Luis 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 ...


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