136 Nev., Advance Opinion 54 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

No. 79549 

FLE 

MARIELA EDITH LOPEZ, 

Appellant, 

vs. 

MANUEL DE JESUS SERBELLON 

PORTILLO, 

Respondent. 

AUG 0 5 2020 

ELI"' 

CLERI 

BY 

Bri.7.WN 

._WiREM COURT 

rliEF DEPUlY CLERK 

Appeal from a district court order in a child custody matter. 

Eighth Judicial District Court, Family Court Division, Clark County; 

Rebecca Burton, Judge. 

Affirmed in part, reversed in part, and remanded. 

Hamilton Law and Ryan A. Hamilton, Las Vegas, 

for Appellant. 

Manuel de Jesus Serbellon Portillo, La Paz, El Salvador, 

Pro Se. 

BEFORE PARRAGUIRRE, HARDESTY and CADISH, JJ. 

OPINION 

By the Court, HARDESTY, J.: 

Through a custody proceeding, appellant Mariela Edith Lopez 

asked the district court to make the predicate findings necessary to petition 

the federal government for Special Immigrant Juvenile (SIJ) status. The 

district court refused to find that the minor child's reunification with 

respondent Manuel de Jesus Serbellon Portillo was not viable. We take this 

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opportunity to address what the court should consider in determining 

whether reunification is viable for purposes of SIJ findings. Because the 

district court properly awarded Lopez custody but did not properly construe 

the controlling statute in determining whether reunification was not viable, 

we affirm in part, reverse in part, and remand for further adjudication 

consistent with this opinion.' 

BACKGROUND 

Lopez gave birth to K.M.L. in El Salvador in 2007. She had 

informed K.M.L.'s father, Serbellon Portillo, of her pregnancy. She also 

specifically informed Serbellon Portillo via phone of K.M.L.'s birth when 

K.M.L. was three months old. Serbellon Portillo has had no communication 

with K.M.L., has not sought any contact with K.M.L., and has provided no 

support for K.M.L. Serbellon Portillo resides in El Salvador and has Lopez's 

contact information or could contact her through her family there, but he 

has not done so. 

K.M.L. resided in El Salvador with Lopez's mother until 2017. 

At that point, Lopez's mother was no longer able to care for him. Lopez also 

feared for K.M.L.'s safety because of increased gang activity in his 

Salvadoran neighborhood. In particular, K.M.L.'s neighbors were killed by 

gang members. K.M.L. thus relocated to the United States to live with 

Lopez. 

Lopez filed the underlying custody action seeking primary 

physical and legal custody of K.M.L. and requesting the district court make 

the predicate findings necessary for K.M.L. to seek Special Immigrant 

Juvenile (SIJ) status from the federal government. Serbellon Portillo was 

'Pursuant to NRAP 34(f)(1), we have determined that oral argument 

is not warranted in this appeal. 

2 
personally served with a copy of the custody complaint in both English and 

Spanish. He did not file a responsive pleading. The district court heard 

testimony from. Lopez and awarded her primary physical and legal custody. 

In its order, the district court found that it was in K.M.L.'s best interest to 

remain with Lopez but stated it was "unable to find that reunification is not 

viable due to abandonment because this Court is unable to predict whether 

the father will seek to reunify with the child some time in the future." Lopez 

appeals. 

DISCUSSION 

As we have previously recognized, the federal government 

"provides a pathway for undocumented juveniles residing in the United 

States to acquire lawful permanent residency by obtaining SIJ status under 

8 U.S.C. § 1101(a)(27)(J)." Amaya v. Guerrero Rivera, 135 Nev. 208, 209, 

444 P.3d 450, 451 (2019). Before an applicant may file a petition with the 

federal government for SIJ status, the applicant must obtain a state 

juvenile court order with three findings: 

(1) the juvenile is dependent on a juvenile court, [or] 

the juvenile has been placed under the custody 

of . . . an individual appointed by the court 

(dependency or custody prong); (2) due to 

abandonment, abuse, neglect, or some comparable 

basis under state law, the juveniles reunification 

with one or both parents is not viable (reunification 

prong); and (3) it is not in the juveniles best 

interest to be returned to the country of the 

juvenile's origin (best interest prong). 

Id. at 210, 444 P.3d at 452. NRS 3.2203 provides district courts with 

jurisdiction to make the SIJ findings when requested in certain proceedings, 

such as custody proceedings. Here, the first SIJ finding was established by 

the order awarding Lopez custody of K.M.L. Amaya, 135 Nev. at 211, 444 

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P.3d at 452. We turn then to the second SIJ finding—the reunification 

prong. 

Lopez argues that the district court erred in interpreting the 

reunification prong as requiring a finding that reunification was not 

possible, instead of not viable. Reviewing that decision de novo, we agree 

with Lopez. See Amaya, 135 Nev. at 210, 444 P.3d at 452 (providing that 

this court reviews interpretation of statutes de novo). 

To satisfy the second SIJ predicate, the court must find that 

"reunification of the child with one or both of his or her parents [is not] 

viable because of abandonment, abuse or neglect or a similar basis under 

the laws of this State." NRS 3.2203(3)(b). In the termination-of-parentalrights context, abandonment of a child is established when the parent's 

conduct "evinces a settled purpose on the part of one or both parents to 

forego all parental custody and relinquish all claims to the child." NRS 

128.012(1). Additionally, a presumption that the parent has abandoned the 

child applies in that same context when the parent has not supported the 

child or communicated with the child for six months. NRS 128.012(2). 

While the district court may look to this definition and presumption of 

abandonment for guidance in determining the reunification prong of the SIJ 

findings, the SIJ findings do not require as high a burden of abandonment 

because the reunification prong only requires that reunification is not 

viable, instead of not possible. 8 U.S.C. § 1101(a)(27)(J)(i) (Supp. I 2014),2 

NRS 3.2203(3)(b). 

2We acknowledge that a definition included in 8 U.S.C. 

§ 1101(a)(43)(F) has been held unconstitutionally vague by other courts. 

See, e.g., Golicov v. Lynch, 837 F.3d 1065 (10th Cir. 2016); Shuti v. Lynch, 

828 F.3d 440 (6th Cir. 2016); Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 

4 
In addressing whether the trial court erred in refusing to make 

the predicate finding that reunification is not viable with a parent who 

allegedly abandoned a child, the District of Columbia Court of Appeals 

observed that a court should take "a realistic look at the facts on the ground 

in the country of origin and a consideration of the entire history of the 

relationship between the minor and the parent in the foreign country." J.U. 

v. J.c.P.c., 176 A.3d 136, 140 (D.C. 2018). Further, the J.U. court observed 

that the definition of "viable calls for a court to consider whether 

reunification is practicable or workable. Id. at 140 (citing Merriam-Webster 

New International Dictionary (3d ed. 2002) (defining viable as "capable of 

being put into practice: workable), American Heritage Dictionary of the 

English Language (3d ed. 1992) (defining viable as "capable of success or 

continuing effectiveness; practicable), and Random House Dictionary of the 

English Language (21st ed. 1987) (providing that viable means "practicable; 

workable)). Addressing the abandonment part of the inquiry, the J.U. 

court also reasoned that because the concept of abandonment for the 

purpose of SIJ findings is not one that leads to the termination of a parent's 

parental rights, a court need only "assess the impact of the history of the 

parent's past conduct on the viability, i.e., the workability or practicability 

of a forced reunification of parent with minor, if the minor were to be 

returned to the home country." Id. at 141. 

In J.U., the father had visited the child regularly in El Salvador 

when the child was young. Id. at 142. When the child's mother relocated 

to the U.S., however, the child resided in El Salvador with his paternal 

2016). Because this matter concerns a definition frorn another subsection 

of that statute, we conclude those opinions have no bearing on our decision 

in this matter. 

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grandfather, who the child thought of as his father. Id. The father never 

provided financial support for the child, never showed the child affection or 

cared for the child, and never assumed any parental responsibility for the 

child other than signing the documents for the child to obtain a passport to 

travel to the U.S. Id. at 142. After the paternal grandfather died, leaving 

the child with no place to live in El Salvador, the father did not invite the 

child to live with him, and the father did not communicate with the child 

after the child then relocated to the U.S. Id. at 142-43. The trial court found 

that the mother must have been minimizing the father's involvement in the 

child's life, and thus, reunification was viable. Id. at 142. The Court of 

Appeals, however, concluded that "the trial court applied too demanding a 

standard of both 'viability and 'abandonment,'" as the father had only taken 

"spasmodic steps in his parental role" and "essentially outsourced all [his 

parental] duties to others." Id. at 142-43. Therefore, the Court of Appeals 

concluded that reunification was not viable as it was not practicable or 

workable to send a child "back to the care of a father who has never fulfilled 

any day-to-day role in the support, care, and supervision during the boy's 

lifetime." Id. at 143. 

While not many jurisdictions have had the opportunity to 

provide guidance on determining when abandonment renders reunification 

not viable for the purpose of SIJ findings, two jurisdictions have adopted 

the approach set forth in J.U. Romero v. Perez, 205 A.3d 903 (Md. 2019); 

Kitoko v. Salomao, 215 A.3d 698 (Vt. 2019). In fact, the Court of Appeals of 

Maryland expanded on J.U. and provided a nonexhaustive list of factors a 

court should consider in determining whether abuse, neglect, or 

abandonment indicate that reunification is not viable: 

(1) the lifelong history of the child's relationship 

with the parent (i.e., is there credible evidence of 

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past mistreatment); (2) the effects that forced 

reunification might have on the child (i.e., would it 

impact the child's health, education, or welfare); 

and (3) the realistic facts on the ground in the 

child's home country (i.e., would the child be 

exposed to danger or harm). 

Romero, 205 A.3d at 915. 

These cases provide an instructive legal framework for 

evaluating the SIJ reunification prong, and we therefore adopt the approach 

discussed in J.U., 176 A.3d at 140-43, and Romero, 205 A.3d at 915. While 

the district court may look to definitions of abandonment that apply in other 

contexts, we caution district courts to remember that because SIJ findings 

do not result in the termination of parental rights, the consideration of 

whether a parent has abandoned a child such that reunification is not viable 

is broader than the consideration of whether a parent's abandonment of a 

child warrants termination of the parent's parental rights. 

Because the district court here looked at whether reunification 

might be possible in the future instead of looking at the viability of 

reunifying K.M.L. with Serbellon Portillo after considering the history of 

the parent-child relationship, whether it would be practicable or workable 

to send K.M.L. back to Serbellon Portillo's care, and the facts on the ground 

in El Salvador, we conclude the district court erred in declining to make the 

predicate finding that reunification is not viable under NRS 3.2203(3)(b). 

Amaya, 135 Nev. at 210, 444 P.3d at 452. Because no party challenges the 

custody decision and the record on appeal does not indicate the district court 

abused its discretion by awarding Lopez primary physical and legal custody 

of K.M.L., we affirm the custody decision. 

7 
J. 

Parraguirre 

CONCLUSION 

For the purpose of SIJ findings, a district court addressing 

whether reunification is not viable should consider the history of the parentchild relationship, the conditions on the ground in the child's foreign 

country, and whether returning the child to the parent in the foreign 

country would be workable or practicable due to abandonment, abuse, or 

neglect. Because the district court did not apply the proper legal framework 

in concluding that it could not find that reunification was not viable, we 

reverse the district court's order insofar as it denied Lopez's motion for SIJ 

predicate findings, but we affirm the custody aspect of the order. We 

remand this case to the district court for further proceedings consistent with 

this opinion. 

 J. 

Hardesty 

We concur: 

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