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IN RE GUARDIANSHIP OF LUIS J.

Cite as 300 Neb. 659

In re Guardianship of Luis J., a mi

Joaquin Tomas Joaquin Alberto, a

v. State of Nebraska, appell

___ N.W.2d ___

Filed July 27, 2018. No. S-17-1142.

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 wellbeing 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 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

08/10/2018 09:08 AM CDT
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IN RE GUARDIANSHIP OF LUIS J.

Cite as 300 Neb. 659

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: Thoma

K. Harmon, Judge. Reversed and remanded for furth

proceedings.

Roxana Cortes Reyes, of Immigrant Legal Center, an affiliate of Justice For Our Neighbors Network, for appellant.

Heavican, C.J., Miller-Lerman, Cassel, Sta

Papik, JJ., and Johnson, District Ju

Miller-Lerma

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 
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IN RE GUARDIANSHIP OF LUIS J.

Cite as 300 Neb. 659

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 Immigration Services for SIJ status. 8 

U.S.C. § 1101(a)(27)(J). The record includes a sworn statement 

by Luis detailing the facts of his situation.

The petition and statement indicate that Luis’ homelife in 

Guatemala was troubled and that he fled because “[f]ood, 

shelter and safety are things [he] did not have in Guatemala.” 

He lived with his mother, father, and four siblings. His father 

is an alcoholic, and every time he was drunk, he beat up Luis’ 

mother in front of Luis and his siblings. He beat her with open 

and closed fists and with a belt. Luis would try to defend his 

mother during these attacks, but he was a child and lacked the 

bodily strength to do so. When Luis tried to defend his mother, 

his father would beat him in the same manner, leaving bruises 

all over Luis’ body. The beatings would end with Luis’ father 

kicking him and his mother out of the house. Luis also testified 

regarding the abuse.

Luis’ parents were unable to care for the five children. Luis 

stated that in Guatemala, he was forced to work in dangerous 

conditions and not allowed to go to school. Luis had to drop 

out of school when he was 11 years old to work full time to 

help his family. He first started working on his family’s land 
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IN RE GUARDIANSHIP OF LUIS J.

Cite as 300 Neb. 659

without pay. At the age of 14, he was required to work on other 

land doing hard labor for payment. The labor included preparing the land for planting, by hand, using a hoe; weeding; and 

carrying 100-pound sacks of crops. When he could not carry 

a sack, his father beat him. His parents required him to turn 

over all the money he made at his field jobs to pay for the family’s food.

Luis left Guatemala, where the money he made working 

was not enough to feed his family. Luis was expected to send 

money back to the family. Luis left without necessary financial or food resources to survive. Luis stopped and worked in 

Mexico multiple times to afford the next bus ticket to continue 

his journey.

Since arriving in the United States alone on or about 

September 26, 2016, Luis has not seen his parents, nor have 

they provided him any food, shelter, security, or education. 

Instead, his grandfather, Alberto, provides for Luis’ needs and 

sends him to school. Luis stated that he now lives in an environment free of violence. He stated that he needs Alberto’s 

help to continue with schooling, find a job, and build a life in 

the United States.

As noted, in addition to seeking to be appointed as Luis’ 

guardian, Alberto requested that the county court make special 

findings of fact contemplated in 8 U.S.C. § 1101(a)(27)(J). 

Alberto sought special findings of fact from the state court to 

potentially become eligible for SIJ status. SIJ status allows a 

juvenile immigrant to remain in the United States and apply for 

lawful permanent resident status. Obtaining the special findings 

is the first step in the process to achieve SIJ status. To achieve 

SIJ status under 8 U.S.C. § 1101(a)(27)(J), a state court must 

have made a predicate finding that (1) the minor is dependent 

on a juvenile court or has been “placed under the custody of 

. . . an individual . . . appointed by a State or juvenile court”; 

(2) “reunification with . . . the . . . parents is not viable due to 

abuse, neglect, [or] abandonment”; and (3) it would not be in 

the minor’s best interests to be returned to his or her country 
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IN RE GUARDIANSHIP OF LUIS J.

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of origin. Under 8 C.F.R. § 204.11(a) (2018), “[j]uvenile court 

means a court located in the United States having jurisdiction 

under State law to make judicial determinations about the custody and care of juveniles.” (Emphasis omitted.)

In its September 27, 2017, order, the county court found 

it was in the best interests of Luis to have Alberto appointed 

as his legal guardian. However, because it concluded that the 

Douglas County Court’s probate division does not function as 

a “juvenile court,” it declined to make the requested special 

findings of fact that Luis could use in his immigration petition. 

In reaching its conclusion as to what constituted a “juvenile 

court” for SIJ findings purposes, the county court relied on 

Nebraska statutes, rather than the federal definition. Under 

the county court’s reasoning, the request for findings would 

require that the Douglas County Court find that (1) Luis was 

“dependent” on the Nebraska juvenile court system, (2) he was 

eligible for long-term foster care or kinship placement, and (3) 

it is not in Luis’ best interests to be returned to Guatemala to 

his parents. The court determined that such findings are “exclusive functions of and are determinations to be made solely by 

the Separate Juvenile Court of Douglas County Nebraska[,] 

or to those County Courts throughout greater Nebraska who 

exercise exclusive jurisdiction over juveniles.” The order concluded that immigration status should be determined by the 

U.S. government, not by the county court.

Alberto moved to alter or amend the county court’s 

September 27, 2017, order and again requested factual findings 

regarding Luis’ best interests for SIJ purposes. After briefing 

and another hearing, the county court denied the motion to 

alter or amend on October 17. In its order, the county court 

noted that pursuant to the population guidelines of Neb. Rev. 

Stat. § 43-2,111 (Reissue 2016), there are presently three counties with a separate juvenile court: Douglas, Lancaster, and 

Sarpy Counties. The county court acknowledged that under 

Neb. Rev. Stat. § 24-517(2) (Reissue 2016), the county court 

can have concurrent original jurisdiction over a child in need of 
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IN RE GUARDIANSHIP OF LUIS J.

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a guardian, but determined that making additional findings of 

fact would exceed its jurisdictional directives under state law. 

The county court stated that it “cannot and does not function 

as a juvenile court and the applicable statutes and regulations 

commit these specific issues to the Separate Juvenile Court of 

Douglas County, Nebraska.”

Alberto appeals.

ASSIGNMENTS OF ERROR

Alberto generally claims that the county court erred when 

it concluded that it is not a “juvenile court” for purposes 

of the federal SIJ process. Alberto specifically claims that 

although it found a need to appoint a permanent guardian, the 

county court erred (1) when it concluded that although the 

Douglas County Court has the power to appoint a guardian 

for a minor, it lacks the authority to make the special findings 

of fact for SIJ purposes, and (2) when it refused to make the 

requested findings of fact that (a) reunification with one or 

both parents is not viable due to abuse, neglect, or abandonment and (b) it would not be in Luis’ best interests to return 

to Guatemala.

STANDARD OF REVIEW

Statutory interpretation presents a question of law. In re 

Trust of Shire, 299 Neb. 25, 907 N.W.2d 263 (2018). We 

independently review questions of law decided by a lower 

court. Id.

ANALYSIS

[1,2] We recently considered the central issue in this case in 

In re Guardianship of Carlos D., ante p. 646, ___ N.W.2d ___ 

(2018), in which we held that a county court with a jurisdictional basis under § 43-1238(a) 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. In this case, the county court concluded 
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IN RE GUARDIANSHIP OF LUIS J.

Cite as 300 Neb. 659

that in Douglas County, only the separate juvenile court of 

Douglas County would have authority to make SIJ findings, 

and thus, it refused to make the special findings. During the 

pendency of this appeal, the Nebraska Legislature enacted 

2018 Neb. Laws, L.B. 670, which became effective on July 

19, 2018, and made clear, inter alia, that a county court making a guardianship determination also has authority to make 

the special findings for the ward to establish SIJ status. See 

§ 43-1238(b). As explained below, a county court properly 

taking jurisdiction over a guardianship and making an initial 

custody determination is not excluded from § 43-1238(b), even 

where there is a juvenile court in that county, and the county 

court may make special findings of fact where appropriate.

“Juvenile Court” Under 8 U.S.C. § 1101(a)(27)

Encompasses Courts With Jurisdicti

Determinations About the Custody and 

Juveniles and Is Not Liited in Neb

the Separate Juvenile Courts: The 

Court Was a “Juvenile Court” 

8 U.S.C. § 1101(a)(27)(

The county court placed Luis in the custody of Alberto, a 

situation encompassed by 8 U.S.C. § 1101(a)(27)(J)(i). Federal 

provisions allow a juvenile immigrant to apply for SIJ status 

and seek lawful permanent residence if several prerequisites 

are met. 8 U.S.C. § 1101(a)(27)(J) provides, in pertinent part, 

that a “special immigrant” is

an immigrant who is present in the United States—

(i) who has been declared dependent on a juvenile 

court located in the United States or whom such a court 

has legally committed to, or placed under the custody of, 

an agency or department of a State, or an individual or 

entity appointed by a State or juvenile court located in 

the United States, and whose reunification with 1 or both 

of the immigrant’s parents is not viable due to abuse, 

neglect, abandonment, or a similar basis found under 

State law;
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IN RE GUARDIANSHIP OF LUIS J.

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(ii) for whom it has been determined in administrative 

or judicial proceedings that it would not be in the alien’s 

best interest to be returned to the alien’s or parent’s previous country of nationality or country of last habitual 

residence; and

(iii) in whose case the Secretary of Homeland Security 

consents to the grant of [SIJ] status[.]

(Emphasis supplied.)

Here, the county court concluded that it was not a “juvenile 

court” under Nebraska statutory provisions and that therefore, 

it could not make the findings required of a “juvenile court” 

in 8 U.S.C. § 1101(a)(27)(J)(i) and (ii). The county court 

erred as a matter of law when it concluded it was not a “juvenile court” as that term is defined for purposes of 8 U.S.C. 

§ 1101(a)(27)(J).

[3] In order to achieve SIJ status, the individual whose custody has been determined prior to age 21, 8 C.F.R. § 204.11, 

must have obtained the judicial determinations listed above 

in 8 U.S.C. § 1101(a)(27)(J)(i) and (ii) from a “juvenile 

court,” as that term is used in the federal provisions. In re 

Guardianship of Carlos D., ante p. 646, ___ N.W.2d ___ 

(2018). The Code of Federal Regulations defines “juvenile 

court” as “a court located in the United States having jurisdiction under State law to make judicial determinations about 

the custody and care of juveniles.” 8 C.F.R. § 204.11(a). As 

we explain below, a Nebraska county court which properly 

appoints a guardian for a juvenile makes a custody determination, and thus, the county court was considered a “juvenile 

court” for purposes of 8 U.S.C. § 1101(a)(27)(J)(i) and (ii). 

Courts have generally held that a guardianship over a juvenile 

renders the juvenile subject to 8 U.S.C. § 1101(a)(27)(J)(i). 

E.g., Jisun L. v. Young Sun P., 75 A.D.3d 510, 905 N.Y.S.2d 

633 (2010). Having made a “custody” determination, the 

county court was considered a “juvenile court” for purposes 

of 8 U.S.C. § 1101(a)(27)(J)(i) and (ii), and the county court’s 

conclusion to the contrary was error.
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IN RE GUARDIANSHIP OF LUIS J.

Cite as 300 Neb. 659

The County Court Made a Cust

Determination When it

a Guardian for L

[4,5] A Nebraska county court has exclusive original jurisdiction in all matters relating to the guardianship of a person with exceptions not applicable here. § 24-517(2). Under 

Nebraska statutes and jurisprudence, a guardianship of a child 

is a child custody determination. In re Guardianship of D.J., 

268 Neb. 239, 248, 682 N.W.2d 238, 246 (2004) (stating “[a] 

guardianship is no more than a temporary custody arrangement established for the well-being of a child”). See Neb. Rev. 

Stat. § 43-1227(4) (Reissue 2016) (concerning “a proceeding 

in which legal custody, physical custody, or visitation with 

respect to a child is an issue,” including a proceeding for 

guardianship in which the issue may appear). Elsewhere, the 

statutes provide that a “[c]hild custody determination means a 

judgment, decree, or other order of a court providing for the 

legal custody, physical custody, or visitation with respect to a 

child.” § 43-1227(3).

In In re Guardianship of Carlos D., supra, we held that 

under a recent amendment to § 43-1238(b), courts with jurisdiction over “initial child custody determination[s]” as 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). Alberto sought a guardianship of the minor 

Luis in the county court, and the county court’s order declaring 

Alberto as guardian was an initial custody determination.

Section 43-1238(a) generally deals with child custody 

determinations which are appropriately raised in a court in 

Nebraska, and § 43-1238(b), as amended, lists the factual 

findings which can be made by a Nebraska state court with 

such initial child custody determination authority and the circumstances under which such courts must make such findings. 

Section 43-1238(b) now provides:

(b) Subsection (a) of this section is the exclusive jurisdictional basis for making a child custody determination 
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IN RE GUARDIANSHIP OF LUIS J.

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by a court of this state. In addition to having jurisdiction to make judicial determinations about the custody 

and care of the child, a court of this state with exclusive 

jurisdiction under subsection (a) of this section has jurisdiction and authority to make factual findings regarding 

(1) the abuse, abandonment, or neglect of the child, (2) 

the nonviability of reunification with at least one of the 

child’s parents due to such abuse, abandonment, neglect, 

or a similar basis under state law, and (3) whether it 

would be in the best interests of such child to be removed 

from the United States to a foreign country, including 

the child’s country of origin or last habitual residence. If 

there is sufficient evidence to support such factual findings, the court shall issue an order containing such findings when requested by one of the parties or upon the 

court’s own motion.

(Emphasis omitted.)

[6] As we noted in In re Guardianship of Carlos D., ante p. 

646, ___ N.W.2d ___ (2018), the amendment to § 43-1238(b) 

became operative on July 19, 2018, 3 calendar months after 

the adjournment of the legislative session on April 18. We held 

that § 43-1238(b) is a state court procedural amendment which 

applies to pending cases. In re Guardianship of Carlos D., 

supra. We also noted that § 43-1238(b), as amended, provides 

that when requested by one of the parties or upon the court’s 

own motion, a court making an initial custody determination 

“shall issue” an order containing the three enumerated factual 

findings if there is sufficient evidence. In re Guardianship of 

Carlos D., supra.

As explained above, the county court in this case made an 

initial child custody determination when it granted Alberto a 

guardianship over the minor Luis and was therefore a “juvenile court” for federal purposes of making special findings. As 

noted, a court with jurisdiction to make a custody determination under § 43-1238(a) has the authority to make the findings 

outlined in § 43-1238(b) as amended. In sum, in a guardianship 
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case, the county court is a court making a custody determination in satisfaction of 8 U.S.C. § 1101(a)(27)(J)(i) and (ii), 

and in this case, the county court erred when it concluded it 

was not a “juvenile court” under 8 U.S.C. § 1101(a)(27)(J)(i) 

and (ii) based on its erroneous reliance on Nebraska statutes 

rather than by reference to the federal provisions describing 

“juvenile court.” We reverse the court’s order of October 17, 

2017, which denied Alberto’s motion to alter or amend. The 

county court has the authority to make findings outlined in 

§ 43-1238(b). Although we reverse the county court’s order of 

October 17, we express no opinion of the impact upon remand 

of Neb. Rev. Stat. § 30-2614 (Reissue 2016), providing for the 

termination of a guardian’s authority upon the minor’s attainment of majority.

CONCLUSION

In this guardianship case, the suitability of appointing 

Alberto as guardian for Luis is not at issue in this appeal. 

The county court erred as a matter of law when it concluded 

it was not a “juvenile court” for purposes of making findings 

consistent with 8 U.S.C. § 1101(a)(27)(J)(i) and (ii). A county 

court with a jurisdictional basis under § 43-1238(a) and which 

has made an initial child custody determination, such as 

appointing a guardian, has authority under § 43-1238(b) to 

make factual findings regarding the enumerated items where 

the evidence is sufficient, and the court has been requested to 

do so. The enumerated items are similar to the immigrationrelated findings in 8 U.S.C. § 1101(a)(27)(J). Thus, we reverse 

the order of October 17, 2017, and remand the cause for 

further proceedings consistent with this opinion based on the 

existing record.

 Reversed and remanded

further proceedi