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IN RE GUARDIANSHIP OF CARLOS D.

Cite as 300 Neb. 646

In re Guardianship of Carlos D., a min

Eleany Esmerelda Zunun Gonzalez, ap

v. State of Nebraska, appellee

___ N.W.2d ___

Filed July 27, 2018. No. S-17-1056.

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.

Nebraska Supreme Court Online Library

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

08/24/2018 01:08 AM CDT
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Appeal from the County Court for Lancaster County: 

Holly J. Parsley, Judge. Reversed and remanded for furthe

proceedings.

David V. Chipman, of Monzón, 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

Papik, JJ., and Vaughan, District J

Miller-Lerman

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) 
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(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 

and Human Services Office of Refugee Resettlement information, lived in Lincoln, Nebraska.

Carlos’ declaration stated that he was born in Tacana de 

San Marcos, Guatemala, and that he grew up with his mother, 

stepfather, and three sisters. Carlos never knew his father and 

denied having any contact with him. Carlos’ stepfather drank 

almost every day and was verbally and physically abusive 

toward Carlos, his sisters, and his mother. The stepfather would 
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punch Carlos’ mother in the mouth with a fist and pull her hair. 

Two or three times a week, the stepfather hit Carlos and his 

sisters with a belt or whatever item he would find in his path. 

Verbal abuse happened daily. After 13 years, the stepfather 

decided to leave and abandoned the family.

After Carlos’ mother became separated from the stepfather, 

she began to reject Carlos. She would make comments to him 

such as, “‘You’re a mistake/error in my life’” and “‘I don’t 

want to see you and don’t care if you run away.’” Carlos’ 

mother would not feed him because she would be mad at him. 

He became the “‘man’” of the home at age 8 and had to work 

at a farm during the evenings after school to earn food for 

the family. When Carlos was 10 years old, his mother would 

not allow him to go to school, so that he could be employed 

full time in order to sustain his mother and sisters. The work 

that he was required to do was that of an adult man carrying 

“heavy sacks.”

When Carlos was 13 years old, he began to be approached 

by some members of the “‘MS 13’” gang. They would wait 

for him after work to try to recruit him. At first, they were 

friendly, but once he declined to join the gang, things changed. 

The gang verbally harassed Carlos and then, after the third 

encounter with the gang members, four or five gang members 

who were heavily armed “beat up” Carlos because he declined 

to join the gang. The assault included hitting Carlos with “big 

wooden sticks” on the stomach and face and kicking him while 

he was on the ground. One gang member used a knife and 

cut Carlos on his right arm and each of his index fingers. The 

members threatened Carlos that he would be killed if he did 

not join.

Carlos stated that he was in fear for his life after the gang 

had beaten him. He was anxious and always checking his surroundings. He would try to find a different route to work and 

to avoid the gang members. However, he would inevitably run 

into them, and each time, he would be verbally abused, beat 

up, “threatened with [his] life,” and robbed. He was robbed 
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approximately 10 times, and each time, he had either a gun to 

his head or a knife behind his back, or both.

Carlos fled Guatemala and was eventually united with 

his aunt, Gonzalez. Carlos stated that his aunt provides him 

with “all of [his] care and need, including food and a place 

to live.”

The petition for guardianship alleged that Carlos’ father 

abandoned him prior to birth and his mother had neglected 

him in Guatemala. In addition to seeking a permanent guardianship, the petition requested certain special findings that 

“unification with [Carlos’] parents is not viable due to abuse 

and neglect” and that “it would not be in [Carlos’] best 

interests to be returned to Guatemala.” There is no dispute 

that the county court had jurisdiction to hear the petition 

for guardianship.

The matter came before the county court for hearing on 

June 13, 2017. The county court received the declaration by 

Carlos with details of his life and conditions in Guatemala. 

At the hearing, the county court filed Gonzalez’ proof of 

service to Carlos’ mother in her village in Guatemala and by 

publication.

At the hearing, the county court stated it was not inclined to 

make special findings regarding Carlos’ best interests “based 

on a number of different things.” Gonzalez submitted a proposed order which included special findings consistent with 

8 U.S.C. § 1101(a)(27)(J). The county court denied Gonzalez’ 

request for special findings. The county court entered a written 

order appointing Gonzalez as Carlos’ guardian.

Gonzalez, on Carlos’ behalf, filed a motion to alter or amend 

the judgment, requesting that the county court make the special 

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

Gonzalez 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. 
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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 of origin.

At the hearing on the motion to alter or amend the judgment, the county court found Carlos’ declaration to be credible. 

However, on September 2, 2017, the county court denied the 

request for specific findings, stating in its order that Carlos is 

“not dependent on this court.”

Gonzalez appeals.

ASSIGNMENTS OF ERROR

Gonzalez generally claims that the county court erred when 

it concluded that because Carlos was not dependent on the 

county court, it could not make the requested special findings. Gonzalez specifically claims that although it found a 

need to appoint a permanent guardian, the county court erred 

(1) when it failed to determine that Carlos was “declared 

dependent” on the county court or “legally committed to, 

or placed under the custody of, . . . an individual or entity 

appointed by a . . . juvenile court” as these terms are defined 

by 8 U.S.C. § 1101(a)(27)(J) 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 Carlos’ best interests to 

return to Guatemala.

STANDARD OF REVIEW

[1] 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.
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ANALYSIS

As we read the challenged order, the county court believed 

that it did not have authority to make the special findings of 

fact requested by Gonzalez. However, 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 necessary for the ward to establish a SIJ status. Below, 

we set forth the statutory provisions applicable to the analysis 

of this appeal.

Federal Definitio

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;

(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.)
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In this case, Carlos was placed in the custody of Gonzalez 

in fulfillment of 8 U.S.C. § 1101(a)(27)(J)(i). In order to 

achieve SIJ status, the individual whose custody has been 

determined prior to age 21, 8 C.F.R. § 204.11 (2018), must 

also obtain 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. 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 guardianship of a child is a child 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).

State Law: L.B. 67

Child Custody Proce

[2,3] A Nebraska county court has exclusive original jurisdiction in all matters relating to the guardianship of a person, 

subject to exceptions not applicable here. Neb. Rev. Stat. 

§ 24-517(2) (Reissue 2016). 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 
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legal custody, physical custody, or visitation with respect to a 

child.” § 43-1227(3).

[4] As noted above, the recently enacted L.B. 670 amended 

§ 43-1238(b) and 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). Gonzalez sought a guardianship of 

the minor Carlos in the county court, see Neb. Rev. Stat. 

§ 30-2605 et seq. (Reissue 2016), and the county court’s 

order declaring Gonzalez 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.

L.B. 670 amended § 43-1238, which now provides, with the 

amended portion emphasized:

(a) Except as otherwise provided in section 43-1241, a 

court of this state has jurisdiction to make an initial child 

custody determination only if:

(1) this state is the home state of the child on the date 

of the commencement of the proceeding or was the home 

state of the child within six months before the commencement of the proceeding and the child is absent from this 

state but a parent or person acting as a parent continues 

to live in this state;

(2) a court of another state does not have jurisdiction 

under subdivision (a)(1) of this section, or a court of the 

home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate 

forum under section 43-1244 or 43-1245, and:

(A) the child and the child’s parents, or the child and 

at least one parent or a person acting as a parent, have 
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a significant connection with this state other than mere 

physical presence; and

(B) substantial evidence is available in this state concerning the child’s care, protection, training, and personal 

relationships;

(3) all courts having jurisdiction under subdivision 

(a)(1) or (a)(2) of this section have declined to exercise 

jurisdiction on the ground that a court of this state is the 

more appropriate forum to determine the custody of the 

child under section 43-1244 or 43-1245; or

(4) no court of any other state would have jurisdiction 

under the criteria specified in subdivision (a)(1), (a)(2), or 

(a)(3) of this section.

(b) Subsection (a) of this section is the exclusive jurisdictional basis for making a child custody determination 

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.) (Emphasis supplied.)

[5-7] Generally, legislation that is passed takes effect 3 calendar months after the Legislature adjourns, see Neb. Const. 

art. III, § 27, unless the Legislature evidences otherwise. 

Smith v. Mark Chrisman Trucking, 285 Neb. 826, 829 N.W.2d 
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717 (2013). Thus, L.B. 670 became operative on July 19, 

2018, 3 calendar months after the adjournment of the legislative session on April 18. In considering whether to apply 

§ 43-1238(b), as amended, to this case, we note that procedural 

amendments to statutes are ordinarily applicable to pending 

cases, while substantive amendments are not. Smith v. Mark 

Chrisman Trucking, supra. This is because 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. Id. A procedural amendment, 

on the other hand, simply changes the method by which an 

already existing right is exercised. Id. Put another way, a substantive law commonly creates duties, rights, and obligations 

of a party, whereas a procedural law prescribes the means and 

methods through and by which substantive laws are enforced 

and applied. See In re Interest of Clifford M. et al., 261 Neb. 

862, 626 N.W.2d 549 (2001).

[8] Section 43-1238(b), as amended, instructs a court with 

the jurisdictional basis of a child custody determination under 

§ 43-1238(a) that it has the authority to also make factual findings, where requested and where there is sufficient 

evidence to support the findings. Because this amendment 

merely clarifies the authority and procedure for making the 

factual findings in a case involving child custody, we conclude that the addition to § 43-1238(b) in L.B. 670 is a state 

court procedural amendment and applies to pending cases. 

A statute requiring a court to make explicit findings of fact 

on the record is procedural. See, e.g., Zahl v. Zahl, 273 Neb. 

1043, 736 N.W.2d 365 (2007) (characterizing explicit findings 

regarding custody as procedural); In re Interest of J.S., A.C., 

and C.S., 227 Neb. 251, 417 N.W.2d 147 (1987) (characterizing specific findings of fact supporting parental rehabilitative 

plan as procedural). Any substantive effect of these findings 

is a result of federal law in that these findings are a requisite to SIJ status. But the fact that these findings may have 

some substantive effect as a matter of federal law does not 
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transform the state law before us into substantive legislation. 

For completeness, we note that making findings for SIJ status purposes has long been accepted by the Nebraska courts, 

and § 43-1238(b), as amended, codifies this practice. See, 

e.g., In re Interest of Erick M., 284 Neb. 340, 820 N.W.2d 

639 (2012); In re Interest of Luis G., 17 Neb. App. 377, 764 

N.W.2d 648 (2009).

Statutory interpretation presents a question of law. In re 

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

43-1238(b) as amended provides that when requested by one 

of the parties or upon the court’s own motion, such a court 

“shall issue” an order containing the enumerated findings 

where there is sufficient evidence. Given the language of the 

amendments, we conclude that under § 43-1238(b), a court 

with jurisdiction to make an initial child custody determination 

under § 43-1238(a) can make factual findings regarding the 

three factors enumerated in § 43-1238(b).

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

initial child custody determination when it granted Gonzalez 

a guardianship over the minor Carlos. Carlos had been placed 

in the custody of an individual—Gonzalez—in satisfaction 

of 8 U.S.C. § 1101(a)(27)(J)(i), and the county court’s determination to the contrary was error. The county court has the 

authority to make findings outlined in § 43-1238(b). Although 

we reverse the county court’s order of September 2, 2017, 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 Gonzalez as guardian for Carlos is not at issue in this 

appeal. The evidence submitted by Carlos has been deemed 

credible. The county court erred when it concluded it had 

not made a custody determination for purposes of 8 U.S.C. 
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§ 1101(a)(27)(J)(i). Section 43-1238(b), as amended, applies 

to pending cases. 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 immigration-related findings in 8 U.S.C. 

§ 1101(a)(27)(J). Thus, we reverse the order of September 2, 

2017, and remand the cause for further proceedings consistent 

with this opinion based on the existing record.

 Reversed and remanded

further proceedi