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305 Nebraska Reports

SABINO v. OZUNA

Cite as 305 Neb. 176

Ariana Bernal Sabino, appellant, v. 

Juan Carlos Genchi Ozuna, appellee.

___ N.W.2d ___

Filed March 6, 2020. No. S-18-110.

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

2. Judgments: Appeal and Error. An appellate court independently 

reviews questions of law decided by a lower court.

3. Divorce: Appeal and Error. In a marital dissolution action, an appellate 

court reviews the case de novo on the record to determine whether there 

has been an abuse of discretion by the trial judge.

4. Evidence: Appeal and Error. In a review de novo on the record, an 

appellate court is required to make independent factual determinations 

based upon the record, and the court reaches its own independent conclusions with respect to the matters at issue.

5. Judges: Words and Phrases. A judicial abuse of discretion exists if the 

reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters 

submitted for disposition.

6. Statutes: Time. Amendments to Neb. Rev. Stat. § 43-1238(b) (Cum. 

Supp. 2018) were procedural and applicable to pending cases.

7. Courts: Minors. The role of state courts in the special immigrant juvenile status determination is to make the findings of fact necessary to the 

U.S. Citizenship and Immigration Service’s legal determination of the 

immigrant child’s entitlement to special immigrant juvenile status.

8. Courts: Federal Acts: Minors. Federal law affirms the institutional 

competence of state courts as the appropriate forum for child welfare 

determinations regarding abuse, neglect, and abandonment, as well 

as a child’s best interests. But it is not the role of the state court to 

make a determination as to whether a child will ultimately be eligible for special immigrant juvenile status; that is a determination 

reserved for the U.S. Citizenship and Immigration Service and the 

federal government.

Nebraska Supreme Court Online Library

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

05/08/2020 08:16 AM CDT
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SABINO v. OZUNA

Cite as 305 Neb. 176

9. Courts: Minors. That a court is requested to make special immigrant 

juvenile status findings does not mean that it must make findings favorable to the party seeking them.

10. Courts: Minors: Evidence. Courts asked to make special immigrant 

juvenile status findings may conclude that there was insufficient evidence or that the evidence was not credible.

Appeal from the District Court for Douglas County: Peter 

C. Bataillon, Judge. Reversed and remanded for further 

proceedings.

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

No appearance for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Heavican, C.J.

INTRODUCTION

The Douglas County District Court dissolved the marriage 

of Ariana Bernal Sabino and Juan Carlo Genchi Ozuna and 

awarded full custody of the parties’ child to Sabino. Sabino 

sought specific findings of fact for purposes of special immigrant juvenile (SIJ) status under federal law. The district court 

declined to make such findings, and Sabino appealed. We 

reverse, and remand for further proceedings.

FACTUAL BACKGROUND

According to an affidavit offered into evidence by Sabino at 

trial, she and Ozuna met in Cuatro Bancos, Guerrero, Mexico, 

in approximately 2000. Sabino was born in Cuatro Bancos, and 

she was 13 years old when she met Ozuna. A year later, she 

and Ozuna moved in together, and 5 months after that, Ozuna 

began to physically assault Sabino. Sabino became pregnant 

in May 2003, and she and Ozuna were married in November. 

Throughout this time, Ozuna continued to physically assault 

Sabino. In December, Sabino left Ozuna and returned to her 
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SABINO v. OZUNA

Cite as 305 Neb. 176

parents’ home. According to Sabino’s affidavit, just 1 week 

later, Ozuna moved in with another woman.

Sabino averred that Ozuna was aware of her pregnancy and 

of the due date of the baby. Sabino also averred that Ozuna 

was aware of where she was staying. Sabino stated that Ozuna 

never attempted to see her or the baby and provided no financial assistance.

According to her affidavit, Sabino was unable to provide 

for the couple’s son on her own and came to the United States 

when her son was 20 months old. Sabino left her son in 

Mexico with her mother and sent money to cover his expenses. 

She also spoke with him on the telephone frequently. In August 

2016, Sabino’s son and mother, who was also a victim of 

domestic violence at the hands of Sabino’s father, left Mexico 

for the United States.

In June 2017, Sabino filed a complaint in the Douglas 

County District Court for the dissolution of marriage. Ozuna 

entered a voluntary appearance in October, but did not personally appear. Trial was held on November 8. Sabino testified 

through a Spanish language interpreter that she was married to 

Ozuna and was seeking a divorce because Ozuna had hit her, 

that she had been separated from him for over 13 years, and 

that she did not believe the marriage could be saved. Sabino 

sought an award of all of the property in her possession and 

custody of the parties’ son.

Because Sabino had borne children from other relationships 

while Sabino and Ozuna were married, the trial court continued the trial in order for Sabino to gather evidence rebutting 

the statutory presumption that Ozuna was the father of those 

children. The trial resumed on January 11, 2018, at which time 

evidence rebutting that presumption was offered.

In addition to the proof of paternity for her other children, 

Sabino offered exhibit 4, which was a photocopy of materials 

from the U.S. Citizenship and Immigration Services explaining 

“Special Immigrant Juvenile Status.” According to this exhibit, 

SIJ status is available to children who present in the United 
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SABINO v. OZUNA

Cite as 305 Neb. 176

States without legal immigration status because they have been 

“abused, abandoned, or neglected by a parent.” As relevant to 

this appeal, exhibit 4 notes: “Juvenile courts issue orders that 

help determine a child’s eligibility for SIJ status. . . . The role 

of the court is to make factual findings based on state law 

about the abuse, neglect, or abandonment; family reunification; 

and best interests of the children.”

Following admission of this evidence, the court made certain inquiries of Sabino while she was on the witness stand. 

Specifically, the court asked Sabino whether she or her mother 

had “any legal authority to live in the United States.” Sabino’s 

counsel objected on relevancy grounds, noting that it went 

to neither “the best interest of the child [n]or the divorce 

proceedings.”

The court then made an oral pronouncement (with an accompanying written decree) granting the divorce and awarding 

custody to Sabino, subject to Ozuna’s reasonable visitation at 

Sabino’s reasonable discretion. Ozuna was also ordered to pay 

$50 per month in child support.

As relevant to this appeal, the court also stated:

The Court makes no decision as to the other issues that 

[Sabino] has requested with regard to abandonment in 

Mexico, abuse in Mexico, and things of that nature, as the 

Court does not have adequate information as to why the 

child could not live safely in some part of Mexico.

In addition, the Court does find that it’s relevant as 

to whether [Sabino] is legally in the United States, if 

her mother is legally in the United States, things of that 

nature. And if she refuses to answer those, then I’m not 

going to go any further with asking other questions in 

this matter.

The Court’s also concerned as to whether it’s even 

within my purview to makes [sic] these determinations. If 

I do make these — if this is in my purview to make these 

determinations, then I need a lot more evidence to make 

that determination. For sure I need evidence as to how 
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SABINO v. OZUNA

Cite as 305 Neb. 176

paragraph 7 [of Sabino’s affidavit, detailing her mother’s 

flight to the United States due to domestic violence,] was 

arrived at. . . . Sabino . . . doesn’t know how the information in paragraph 7 was obtained. If she doesn’t know, 

then that is somewhat of a crux of the information in 

this matter.

The district court signed a decree prepared by Sabino’s counsel that included the findings sought regarding abuse, neglect, 

or abandonment; family reunification; and best interests of the 

child. However, the court struck through those findings and 

therefore did not make the findings requested by Sabino.

Sabino appealed. In a prior opinion, we concluded that the 

district court erred in not allowing Sabino to proceed in forma 

pauperis.1 We are now presented with the merits of Sabino’s 

appeal.

ASSIGNMENT OF ERROR

Sabino assigns three assignments of error that can be consolidated as one: The district court erred in not making the 

findings of fact requested by Sabino.

STANDARD OF REVIEW

[1,2] Statutory interpretation presents a question of law.2

We independently review questions of law decided by a lower 

court.3

[3-5] In a marital dissolution action, an appellate court 

reviews the case de novo on the record to determine whether 

there has been an abuse of discretion by the trial judge.4 In a 

review de novo on the record, an appellate court is required 

to make independent factual determinations based upon the 

record, and the court reaches its own independent conclusions 

1 See Sabino v. Ozuna, 303 Neb. 318, 928 N.W.2d 778 (2019).

2 In Re Guardianship of Carlos D., 300 Neb. 646, 915 N.W.2d 581 (2018).

3 Id.

4 Burgardt v. Burgardt, 304 Neb. 356, 934 N.W.2d 488 (2019).
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SABINO v. OZUNA

Cite as 305 Neb. 176

with respect to the matters at issue.5 A judicial abuse of discretion exists if the reasons or rulings of a trial judge are clearly 

untenable, unfairly depriving a litigant of a substantial right 

and denying just results in matters submitted for disposition.6

ANALYSIS

This appeal generally presents the question of whether the 

district court had the authority to make the findings of fact 

requested by Sabino and, if so, whether there was sufficient 

evidence for the court to make those findings. Each issue will 

be addressed in turn.

District Court’s Authority.

[6] The district court in this case had the authority to make 

the findings sought by Sabino. Neb. Rev. Stat. § 43-1238(b) 

(Cum. Supp. 2018) provides:

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 [setting forth when a court has jurisdiction to make an initial child custody determination] 

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.

5 Id.

6 Id.
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SABINO v. OZUNA

Cite as 305 Neb. 176

Although the amendments to § 43-1238 were not effective until 

July 19, 2018, which was several months after the order was 

issued in this case, we recently held in In re Guardianship of 

Carlos D.7 that the change made to § 43-1238(b) was procedural and thus applied to pending cases.

The language of § 43-1238 provides that if a court has 

jurisdiction to make an initial child custody determination, 

it also has the jurisdiction and authority to make the factual 

findings relevant to SIJ status. In this case, the record shows 

that the child’s home state for purposes of § 43-1238(a) 

was Nebraska, and, as such, the court had the jurisdiction to 

make an initial child custody determination and to make the 

requested findings.

Sufficient Evidence.

Section 43-1238 provides that “[i]f 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.”

[7,8] Having concluded that the court has the authority to 

make these findings, we turn to an examination of what these 

factfinding courts should consider when doing so. The role of 

state courts in the SIJ status determination is to make the findings of fact necessary to the U.S. Citizenship and Immigration 

Service’s legal determination of the immigrant child’s entitlement to SIJ status.8

 Federal law affirms the institutional competence of state courts as the appropriate forum for child 

welfare determinations regarding abuse, neglect, and abandonment, as well as a child’s best interests.9

 But it is not the 

role of the state court to make a determination as to whether 

7 In re Guardianship of Carlos D., supra note 2.

8 8 U.S.C. § 1101(a)(27)(J)(iii) (Reissue 2018).

9 See, Guardianship of Penate, 477 Mass. 268, 76 N.E.3d 960 (2017); 

H.S.P. v. J.K., 223 N.J. 196, 121 A.3d 849 (2015); Kitoko v. Salomao, 215 

A.3d 698 (Vt. 2019); In re Y.M., 207 Cal. App. 4th 892, 144 Cal. Rptr. 3d 

54 (2012); Simbaina v. Bunay, 221 Md. App. 440, 109 A.3d 191 (2015).
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SABINO v. OZUNA

Cite as 305 Neb. 176

a child will ultimately be eligible for SIJ status; that is a 

determination reserved for the U.S. Customs and Immigration 

Service and the federal government.10

[9,10] That a court is requested to make findings for purposes of SIJ status does not mean that it must make findings 

favorable to the party seeking them.11 Courts asked to make 

these findings may conclude that there was insufficient evidence or that the evidence was not credible.12

Federal law provides:

Applications for asylum and other forms of relief from 

removal in which an unaccompanied alien child is the 

principal applicant shall be governed by regulations which 

take into account the specialized needs of unaccompanied 

alien children and which address both procedural and 

substantive aspects of handling unaccompanied alien children’s cases.13

Courts in other jurisdictions have interpreted this language 

as a caution to courts to not place insurmountable evidentiary 

burdens on SIJ petitioners, because those seeking that status 

will have limited abilities to corroborate testimony with additional evidence.14

In this case, the district court questioned both the record 

before it and its authority, before concluding that it was not 

“even within [its] purview” to make the findings sought by 

Sabino. We conclude that although the court can and should 

entertain a request for findings, the court’s powers as a fact 

10 See, J.U. v. J.C.P.C., 176 A.3d 136 (D.C. 2018); Romero v. Perez, 463 Md. 

182, 205 A.3d 903 (2019); Guardianship of Penate, supra note 9; Kitoko v. 

Salomao, supra note 9.

11 See, J.U. v. J.C.P.C., supra note 10; Romero v. Perez, supra note 10; 

Kitoko v. Salomao, supra note 9; In re J.J.X.C., 318 Ga. App. 420, 734 

S.E.2d 120 (2012).

12 See id.

13 8 U.S.C. § 1232(d)(8) (2018).

14 See, J.U. v. J.C.P.C., supra note 10; Romero v. Perez, supra note 10; 

Kitoko v. Salomao, supra note 9.
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finder to assess the credibility of a witness or judge the sufficiency of evidence remain in effect. But nothing in this opinion 

should be read to suggest what findings the court should make 

on remand.

Because in this case the district court concluded that it 

lacked the authority to make the requested findings, we accordingly reverse the decision of the district court and remand the 

cause for further proceedings.

CONCLUSION

The decision of the district court is reversed and the cause is 

remanded for further proceedings.

Reversed and remanded for 

further proceedings.