In the Interest of Y.V., a minor 

child

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO 

FILE MOTION FOR REHEARING AND 

DISPOSITION THEREOF IF FILED

CASE NO. 1D14-5713

_____________________________/

Opinion filed April 9, 2015.

An appeal from the Circuit Court for Alachua County.

Hon. James P. Nilon, Judge.

Creighton P. Shafer of Diaz Shafer, P.A., Tampa, for Appellant.

No appearance for Appellee.

RAY, J.

This appeal is from the dismissal of a private petition for dependency filed 

on behalf of Y.V., a minor child living in Florida after illegally emigrating alone 

from Honduras to the United States. The trial court dismissed the petition because 

the events giving rise to the grounds for dependency occurred outside the State of 

Florida and the court viewed the petition as an attempt to circumvent federal 

immigration laws. Because the petition comports with Florida’s dependency laws

and Florida’s jurisdiction over this case has not been shown to be preempted, Y.V. 
is entitled to an adjudicatory hearing on the merits of the claim. Accordingly, we 

reverse. 

I. Facts

The petition alleges that Y.V. experienced abuse and abandonment at the 

hands of his parents in Honduras, which eventually left him with no parent or legal 

custodian capable of providing supervision and care. He crossed the MexicoUnited States border by himself and was picked up by “authorities,” who contacted 

his uncle. Y.V. now resides safely with his uncle, who does not seek any services 

from the State of Florida to assist with that arrangement. Y.V.’s parents have 

consented to an adjudication of dependency and waived further notice of the 

proceedings. The express purpose of the petition is to obtain an adjudication of 

dependency based on abuse, abandonment, or neglect, as a predicate to requesting 

special immigrant juvenile (“SIJ”) status for Y.V. so that he may seek lawful 

permanent residence in the United States. See 8 U.S.C. § 1101(a)(27)(J) (2012).

The trial court dismissed the petition because it does not allege that Y.V. has 

been abused, abandoned, or neglected while in the State of Florida or that he faces 

the imminent risk of such harms. In a second ground for dismissal, the court 

concluded that the petition is an attempt to circumvent federal immigration laws

and suggested that it lacks jurisdiction over the case for this reason. We address the 

two grounds in turn.

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II. Origination of the Dependency Grounds

The trial court relied on the intent section of chapter 39 to suggest that the 

Legislature did not intend for its protections to extend to children living in Florida 

who are not imminently at risk even though they have been abused, abandoned, or 

left without a parent or legal custodian capable of caring for them while living 

elsewhere. Section 39.01 provides a lengthy list of purposes, the first of which is 

“[t]o provide for the care, safety, and protection of children.” § 39.001(1)(a), Fla. 

Stat. (2013). Section 39.001(3) goes on to set out the chapter’s purpose to provide 

“the children of this state” with certain protections, including “[p]rotection from 

abuse, abandonment, neglect, and exploitation” and “[a] permanent and stable 

home.” Ultimately, section 39.001(12) provides that the chapter is to be “liberally 

interpreted and construed in conformity with its declared purposes.” We find no 

provision in chapter 39 requiring that the events giving rise to grounds for an 

adjudication of dependency occur in the State of Florida. Such a construction, 

absent express legislative intent, is inconsistent with the State’s parens patriae

interest in the welfare of children within its jurisdiction.

The form and contents of a petition for adjudication of dependency are 

prescribed in Florida Rule of Juvenile Procedure 8.310. See § 39.501(3)(b), Fla. 

Stat. (2013) (requiring the form and contents of the petition to be set out by rule). 

In addition to specific requirements concerning the identities of the child and 

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parents or legal custodians involved, the presentation of separate counts, and 

information regarding services that have been provided to the family, the rule 

requires that the petition “allege sufficient facts showing the child to be dependent 

based upon applicable law.” Fla. R. Juv. P. 8.310(a)(1). The applicable law, section 

39.01(15), Florida Statutes (2013), sets out seven independent grounds for 

adjudicating a child dependent. Two grounds were alleged in the petition to 

adjudicate Y.V. dependent: section 39.01(15)(a), which requires the child “[t]o 

have been abandoned, abused, or neglected by the child’s parent or parents or legal 

custodians,” and section 39.01(15)(e), which requires the child “[t]o have no parent 

or legal custodians capable of providing supervision and care.” These provisions 

do not require the child to be at imminent risk. Cf. § 39.01(15)(f) (setting forth a 

separate ground for dependency when the child is “at substantial risk of imminent 

abuse, abandonment, or neglect by the parent or parents or legal custodians”).

Florida courts have found children to be dependent under these provisions

even when the events satisfying the definition of this status did not pose an 

imminent risk of harm to the child. Specifically, in L.T. v. Department of Children 

and Families, 48 So. 3d 928 (Fla. 5th DCA 2010), and F.L.M. v. Department of 

Children and Families, 912 So. 2d 1264 (Fla. 4th DCA 2005), the courts 

determined that children were dependent because they were orphaned and had no 

legal custodians, even though responsible adults were voluntarily caring for them. 

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Similarly, in In the Interest of T.J., 59 So. 3d 1187, 1190 (Fla. 3d DCA 2011), a 

prima facie case of dependency existed where a child illegally immigrated to this 

country with her mother, her mother died years later, and the petition alleged that 

her father had left the family and could not be found after a diligent search. It made 

no difference that the child’s aunt was voluntarily taking care of her. T.J., 59 So. 

3d at 1189-90. Due to the lack of a legally compelled relationship between the 

children and their caretakers, they were not adequately protected from the harms 

chapter 39 is designed to prevent and remedy.

Y.V.’s situation is similar to that of the juveniles in T.J., L.T., and F.L.M.

Although Y.V. has locatable, living parents, the petition alleges grounds for

dependency under section 39.01(15)(a) and (e), and the only reason he is not at 

imminent risk is because a responsible adult is caring for him on a voluntary basis.

Therefore, we disagree with the trial court’s legal conclusion that the allegations of 

the petition do not satisfy the requirements of chapter 39.

III. Intent to Obtain Special Immigrant Juvenile Status

The circuit court’s concern that the petitioner is attempting to circumvent 

federal immigration laws by using the dependency action to obtain SIJ status for 

Y.V. has two facets. First, the court was concerned about the use of Florida’s 

dependency law as a method of obtaining permanent residency for a person who 

has crossed the border illegally. Second, the court signaled that it doubted its 

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jurisdiction over the case, by citing P.G. v. Department of Children and Families, 

867 So. 2d 1248 (Fla. 4th DCA 2004), which dealt with a specific exception to 

Florida’s jurisdiction over dependency proceedings involving immigrant children.

As explained more fully below, a petitioner’s intent to seek SIJ status does not 

invalidate a dependency petition, and the record establishes no basis for concluding 

that Florida lacks jurisdiction in this case.

A. Interplay between Florida Dependency Law and Federal 

Immigration Law

Although the trial court is not alone in its misgivings about the use of the 

dependency system as a conduit to achieving a favorable immigration status,

1 this 

motivation is consistent with the federal and state statutory scheme currently in 

place, which provides a pathway for undocumented children who have been 

abused, abandoned, or neglected to obtain lawful permanent residency in the 

United States. 8 U.S.C. § 1101(a)(27)(J); § 39.5075, Fla. Stat. (2013). While these 

laws may be vulnerable to misuse, the mere acknowledgement in a dependency

petition that the petitioner intends to seek their protections does not render the

petition invalid. In fact, as outlined briefly below, both federal and state statutes 

support the use of a dependency proceeding as a step toward legal residence.

1 See, e.g., T.J., 59 So. 3d at 1194-95 (Wells, J., concurring in part and dissenting 

in part).

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Federal law establishes SIJ status as an immigration classification that 

allows a child to apply to become a permanent resident of the United States. 

8 U.S.C. §§ 1101(a)(27)(J), 1255(a), (h)(1). The law defines this status in such a 

way as to envision findings from both state and federal officials. See 8 U.S.C. 

§§ 1101(a)(27)(J). As the term “special immigrant” relates to juveniles, federal law 

defines it as follows: 

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 . . . .

8 U.S.C. § 1101(a)(27)(J). As these statutory requirements reveal, a state court’s 

adjudication of dependency or other custody determination is the first step in the 

process of a juvenile’s obtaining SIJ status. See Ex Parte Burrus, 136 U.S. 586, 

593-94 (1890) (recognizing that regulation of parent-child relationships is a matter 

of state law). The definition then requires additional findings, which may come 

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from any judicial or administrative body, and concludes with the assurance that the 

ultimate decision on the child’s immigration status remains with the federal 

government through the required consent of the Secretary of Homeland Security. 

The Florida Legislature has specifically contemplated Florida’s participation 

in this process by enacting a statute to facilitate the federal law. When a child in 

Florida is adjudicated dependent, the Department of Children and Families or a 

community-based care provider must consider whether the child “may be eligible 

for [SIJ] status,” according to the following criteria: 

1. The child has been found dependent based on allegations of abuse, 

neglect, or abandonment;

2. The child is eligible for long-term foster care;

3. It is in the best interest of the child to remain in the United States; 

and 

4. The child remains under the jurisdiction of the juvenile court.

§ 39.5075(1)(b), Fla. Stat. (2013). When these criteria are met, the Department of 

Children and Families or a community-based care provider is required to petition 

the court for an order finding that the child meets the criteria for SIJ status and, if 

such an order is obtained, to apply for that status with the appropriate federal 

authorities on the child’s behalf. § 39.5075(4)-(5).

Neither Florida nor federal law directs a state court to reject dependency 

petitions when they are motivated by a desire to obtain SIJ status. In fact, this 

desire is supported by the federal and state statutory system when it serves the 

greater purpose of protecting the child from harm. When this greater purpose is not 

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the true motivation for a petition, federal officials have the discretion to reject the 

application for SIJ status. Yeboah v. U.S. Dep’t of Justice, 345 F.3d 216, 224-25 

(3d Cir. 2003) (noting broad discretion of immigration officials to refuse SIJ 

consent if dependency was part of a “deliberate design on the part of the father to 

create permanent residence status”); In re Erick M, 820 N.W.2d 639, 646 (Neb. 

2012) (observing that the federal government “will not consent to a petition for SIJ 

status if it was ‘sought primarily for the purpose of obtaining the status of an alien 

lawfully admitted for permanent residence, rather than for the purpose of obtaining 

relief from abuse or neglect or abandonment’” (citations omitted)). In contrast, the 

applicable statutes indicate that when a Florida court is presented with a 

dependency petition, the court’s concern should be whether the allegations made in 

support of an adjudication of dependency satisfy Florida’s statutory grounds for 

such an adjudication, not whether the juvenile hopes to obtain SIJ status. Accord

Eddie E. v. Superior Court of Orange Cty., 183 Cal. Rptr. 3d 773 (Cal. Ct. App. 

2015) (observing that it is the role of the appropriate officials in the federal 

government, not of state courts, to determine whether SIJ status is sought for the 

appropriate purpose). An intent to obtain SIJ status says nothing in and of itself 

regarding the facial sufficiency of the dependency allegations, F.L.M., 912 So. 2d 

at 1269, and the ultimate determination of whether SIJ status should be granted is a 

question for the federal immigration authorities. Therefore, a petition for 

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dependency should not be rejected in Florida based on the mere motivation of the 

petitioner.

B. Jurisdiction

Of course, in this case, the court was not concerned merely with the 

petitioner’s motivation, but with its own jurisdiction, which is a proper 

consideration. In conjunction with defining “special immigrant” as that 

classification pertains to juveniles, federal law provides that “no juvenile court has 

jurisdiction to determine the custody status or placement of an alien in the custody 

of the Secretary of Health and Human Services unless the Secretary of Health and 

Human Services specifically consents to such jurisdiction.” 8 U.S.C. § 

1101(a)(27)(J)(iii)(I). 

L.T. is instructive concerning the application of this exception to state-court 

jurisdiction over dependency proceedings. In L.T., the Department of Homeland 

Security rescued a child and released him to his uncle when his boat capsized off 

the coast of Florida. 48 So. 3d at 929. The subsequent petition for dependency 

revealed that the uncle filed it in an effort to establish a predicate for SIJ status. Id.

at 928. The exception to jurisdiction did not apply because the record did not 

contain “any of the details of [the child’s] release to [his uncle]” or otherwise 

“reveal the status of any removal proceedings involving [the child].” Id. at 930.

The petition in the instant case is similarly silent concerning the details of Y.V.’s

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release to his uncle by immigration authorities and the status of any removal 

proceedings or immigration enforcement custody. Therefore, unless and until 

information comes to light indicating that Y.V. is in the custody of the Secretary of 

Health and Human Services, the circuit court has jurisdiction over this case. 

Conclusion

In sum, neither the geographical setting of the events alleged in the petition 

nor the motivation for the petition precludes Y.V. from being adjudicated 

dependent under the laws of the State of Florida. The proper question before the 

circuit court at this stage of the case under review was whether the petition 

establishes a prima facie case of dependency under the Florida statutes. Because 

we conclude that it does, we reverse the dismissal and remand for further 

proceedings.

REVERSED and REMANDED.

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WOLF and BENTON, JJ., CONCUR.

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