# Third District Court of Appeal

State of Florida

Opinion filed December 28, 2016.

Not final until disposition of timely filed motion for rehearing.

________________

No. 3D16-1448

Lower Tribunal No. 16-15397

________________



### W.B.A.V., a minor child, et al.

,

Appellants,

vs.



### Department of Children and Families

,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Martin Zilber

, Judge.

Catholic Charities Legal Services and Felix A. Montanez, for appellants.

Karla Perkins, for appellee.

Before SUAREZ, C.J., and LAGOA, and SALTER, JJ.

PER CURIAM.

Affirmed.

SUAREZ, C.J., and LAGOA, J., concur.W.B.A.V., a minor child, et al., v. Departmentof Children and Families

Case No. 3D16-1448

SUAREZ, C.J. (concurring)

In light of prior case law from this Court and the absence of any ruling from

the Florida Supreme Court, I am compelled to join in the affirmance of this case.

See In the Interest of F.J.G.M

., 196 So.3d 534 (Fla. 3d DCA 2016); D.A.O.L. v.

Dep't of Children & Families

, 170 So.3d 927 (Fla. 3d DCA 2015); In re J.A.T.E

.,

170 So.3d 931 (Fla. 3d DCA 2015); M.J.M.L. v. Dep't of Children & Family

Servs.

, 170 So.3d 931, 932 (Fla. 3d DCA 2015); In re B.Y.G.M.

, 176 So.3d 290

(Fla. 3d DCA 2015); In re K.B.L.V.

, 176 So.3d 297 (Fla. 3d DCA 2015).

Nevertheless, I share the concerns of Judge Salter in his dissent and would

hope this matter will be looked at by the Florida Supreme Court. I wholeheartedly

agree with the policy and reasoning expressed by Judge Salter.

2W.B.A.V., a minor child, et al., v. Department of Children and Families

Case No. 3D16-1448

SALTER, J. (dissenting).

I respectfully dissent. In this case, four undocumented orphans from El

Salvador, W.B.A.V. (age 17 when the petition was filed), twins M.V.A.V. and

F.A.A.V. (each age 15 at that time), and J.E.A.V. (age seven at that time),

petitioned for an adjudication of dependency under section 39.01(15)(e), Florida

Statutes (2016). The petition was summarily denied “based on case law”

following a brief non-evidentiary hearing. 1 I would reverse and remand this case

to the trial court for an evidentiary hearing and individualized adjudication.

The Petition

With the assistance of a non-profit legal services provider, the four orphans

filed a petition for an adjudication of dependency in May 2016. They alleged that

their mother was murdered in their home in El Salvador on January 27, 2012, and

that their father died from complications of diabetes on June 6, 2014. They

attached official death certificates and certified translations to substantiate these

facts.

The four children further alleged that, after moving among various relatives’

homes following their mother’s death, they were the subject of a petition for

1 The transcript of the hearing indicates that the colloquy and ruling lasted 13

minutes.

3guardianship by their maternal aunt, Saira, which was granted by a family court in

El Salvador. Thereafter, Saira and the four children were threatened with death by

members of a violent gang, MS-13 or “Mara Salvatrucha,” 2 unless they paid

$2,000.00 apiece for protection; this incident was reported to the police (and the

report is attached to the petition), but to no avail. All five then fled to the United

States border, where the children were separated from Saira and detained at an

Office of Refugee Resettlement (ORR) shelter for unaccompanied children.

The petition alleges that the four children were released a month later to the

physical care of their maternal uncle, Rafael, in Miami, and that Saira was released

by an Immigration and Customs Enforcement detention center. The children

petitioned for an adjudication of dependency based on section 39.01(15)(e),

Florida Statutes (2016), applicable to children who “have no parent or legal

custodians capable of providing supervision and care.”

At the hearing on the petition in May 2016, the Department of Children and

Families (DCF) advised the trial court that the State was not objecting to a

determination of dependency. On appeal, however, DCF argues that the petition

for dependency was correctly denied because of the guardianship order in El

2 The U.S. Department of State “El Salvador Travel Warning” describes MS-13

and warns that “the current murder rate in El Salvador is among the highest in the

world, an annual rate of 103.1 murders per 100,000 citizens for 2015. In

comparison, the U.S. rate is 4.5 per 100,000.”

https://travel.state.gov/content/passports/en/alertswarnings/el-salvador-travelwarning.html (advisory last updated Jan. 15, 2016; site last visited Nov. 1, 2016).

4Salvador (though that order has not been recognized by a court in Florida or any

other state).

After counsel for the children advised the trial court that all four children

were living with Saira and Rafael (the maternal aunt and uncle of all four children)

in Miami following their release by ORR, this colloquy ensued:

Court: Are the children in school?

Counsel: Yes, Your Honor.

Court: Doing well?

Counsel: I believe so, you can ask them.

Court: In need of any services or need anything at this time?

Counsel: Not at this time. What they are in need of is for

somebody, an adult, to have that legal custody document

available. As it is, Saira was unable to pick up the

children from school because they wouldn’t recognize

the document from El Salvador.

Court: Okay, and again, we’ve had a lot of these cases recently

and there’s been a lot of case law on it as well, and it’s

not that I don’t feel for what’s happened in these

countries but case law has been very specific that this is

not for immigration and/or other purposes.

The trial court ultimately concluded that “you can go to probate court and

get a legal custodian issued for the aunt or uncle,” and that an adjudication of

dependency would be denied “based on case law.” The court also denied an oral

motion by counsel for the children for a home study “to make sure that the home is

5an appropriate place.” Following a motion for rehearing by the four children and

the denial of that motion, a written order was entered denying the petition. This

appeal followed.

Analysis

In In re T.J.

, 59 So. 3d 1187 (Fla. 3d DCA 2011), this Court reversed an

order summarily denying a similar petition brought by an immigrant child whose

mother had died. T.J. was in the care of his aunt in Miami, but the record

established that his aunt was not a “parent or legal custodian capable of providing

supervision and care” under section 39.01(15)(e). Id. at 1190. The record in the

present case does not disclose whether the family court in El Salvador conferred

such rights on Sarai in Florida, and in fact the children’s petition in the Florida trial

court alleged that “[t]he children do not have a judicial order recognizing the

validity or legality of the foreign custody order in the United States, which is

necessary for medical, educational, and legal purposes.”

“We review the summary denial of the amended petition under a de novo

standard.” Id. at 1188. Applying that standard of review and our holding in In re

T.J. to the children’s petition in the present case, we should reverse and remand the

children’s prima facie case to the trial court for an evidentiary and adjudicatory

hearing.

6It also bears noting that many other cases involving unaccompanied

immigrant children

— frequently referred to as “special immigrant juvenile” or

“SIJ” cases because of the designation used in federal immigration law 3 and

recognized in a Florida statute 4

— have been filed throughout Florida and the

United States over the past few years. Appellate opinions regarding these cases

have illuminated the policy differences regarding immigration and whether state

dependency courts should “subordinate ourselves to the whim of the United States

Congress” when asked to consider such cases. 5 The Florida Supreme Court has

declined to decide one such case on grounds of mootness (the immigrant juvenile

became too old to be declared dependent during the pendency of the appellate

proceedings), 6 but other unaccompanied immigrant cases are pending before that

Court. 7

3 See 8 U.S.C. § 1101(a) (27)(J).

4 Section 39.5075, Florida Statutes (2016).

5 In re K.B.L.V.

, 176 So. 3d 297, 300 (Fla. 3d DCA 2015) (Shepherd, J., specially

concurring).

6 O.I.C.L. v. Fla. Dep’t of Children &Families

, 41 Fla. L. Weekly S405a, 2016

Fla. Lexis 2072 (Fla. Sept. 22, 2016). In an opinion dissenting from dismissal on

grounds of mootness, Chief Justice Labarga observed that approximately 2,908

unaccompanied immigrant minors were released to sponsors in Florida in fiscal

year 2015, and approximately 4,264 unaccompanied immigrant minors were

released to sponsors in Florida as of July 2016. Slip op. at 8-9.

7 In re B.R.C.M. v. Fla. Dep’t of Children and Families

, Case No. SC16-179; In re

E.P.N. v. Fla. Dep’t of Children and Families

, Case No. SC16-184; and In re

7For the sake of brevity, I will rely upon my dissent in In re B.R.C.M.

, 182

So. 3d 749 (Fla. 3d DCA 2015), as additional analysis applicable to the present

case and to this dissent. The order summarily denying the dependency petition

filed by these four immigrant children should be reversed and remanded for an

evidentiary hearing and the entry an adjudicative order containing specific

findings.

For these reasons, I respectfully dissent.

S.A.R.D. v. Fla. Dep’t of Children and Families

, Case No. SC16-285.

8