Maryland Court of Special Appeals Clarifies Neglect Standard for Special Immigrant Juvenile Status Factual Assessments | CLINIC

Maryland Court of Special Appeals Clarifies Neglect Standard for Special Immigrant Juvenile Status Factual Assessments

Michelle Mendez

Jennifer Girard, Attorney
Catholic Charities of the Archdiocese of Washington Immigration Legal Services

On July 6, 2015, the Court of Special Appeals of Maryland issued the first reported decision in Maryland, In re: Dany G., confirming once and for all the standard of neglect applicable to cases seeking a Special Immigrant Juvenile Status (SIJS) factual predicate order. Catholic Charities of the Archdiocese of Washington Immigration Legal Services (ILS) paved the way for this decision favorable to minors who have been neglected.

Catholic Charities ILS attorney Jennifer Girard represented Dany, a minor from Guatemala, before the Circuit Court for Montgomery County on a guardianship petition and request for SIJS factual findings. In the record before the court, Ms. Girard documented that Dany was forced to quit school at the age of twelve to work in the fields because his parents were sickly and unable to provide for him, and that his agricultural work exposed him to herbicides. Comparing Dany’s life in Guatemala to his life in the United States, Ms. Girard was able to demonstrate that Dany was greatly benefitting from the support of his family and his ability to attend high school.  Nonetheless, the Judge held that the minor had not been neglected under Maryland law and refused to find that it was in Dany’s best interest to not return to Guatemala. The trial court stated, “I can’t say that because his father has arthritis and [Dany’s] been working, that that amounts to neglect. Certainly he was young when he started working. But I haven’t heard anything that amounts to these parents going off and leaving their child to fend for himself. … I can’t make that finding based on what I’ve heard today.” 

Ms. Girard felt that the Court had not appropriately applied the standard of neglect to this case, and was distressed at the thought that Dany who was thriving in the United States, would be forced to return to situation where had to perform hard labor and could not obtain an education. With the help of ILS Pro Bono Coordinator Jim Feroli, Ms. Girard was able to recruit pro bono counsel to appeal the decision to the Court of Special Appeals. On appeal, pro bono counsel Michelle Moodispaw raised two issues: (1) Did the trial court err in determining that the child had not been neglected under Maryland law, and (2) Did the trial court err in declining to find it would be in the child’s best interest not to return to Guatemala. The Court began the case analysis by embarking on a thorough discussion of the history and purpose of this immigration benefit. The Court stated that the state juvenile court does not grant SIJS status and instead makes factual findings that the minor meets certain eligibility requirements. Tellingly, the Court also noted that “Imposing insurmountable evidentiary burdens of production or persuasion is therefore inconsistent with the intent of the Congress. See William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (“TVPRA”), H.R. Res. 7311, 110th Cong. (2008) (enacted).”

The Court then discussed SIJS in Maryland courts noting that federal law does not define “abuse,” “neglect,” “abandonment,” “similar basis under state law,” and “best interest of the child” so the trial court must apply the Maryland definitions “without taking into account where the child lived at the time the abuse, neglect, or abandonment occurred.” Reviewing the trial court’s application of the neglect standard to this case, the Court found that the trial court had erred in its application of the standard and that alone warranted reversal of the trial court and remanding for further findings. The Court further suggested to the trial court that “We are also mindful that if parents in Maryland allow or force their child to leave school at the age of 12, this factor would lead to a finding that the child was neglected” especially when coupled with full-time dangerous employment and in light of compulsory public education in Maryland until the age of 17. As to the best interest finding that the trial court failed to make, “The trial court must decide whether [the minor’s] interests would be better served by remaining in Maryland, living with his aunt and cousins, and attending high school or if [the minor’s] interests would be better served by being returned to the same conditions he fled, namely, working long hours in dangerous conditions with little chance for obtaining an education.” The case is now pending as it awaits scheduling before the Circuit Court for Montgomery County.

In re: Dany G. is the first precedential decision in Maryland on this SIJS issue. In 2011, however, the Court of Special Appeals issued an unreported decision, In the Matter of Jimmy E., A Minor, in which it stated that “The appropriate standard to remember whether Jimmy was neglected while living in Honduras is whether, under the same facts, he would be considered neglected under Maryland law.” Whether it is In re: Dany G. or its predecessor, there is no doubt that the Maryland neglect standard applies to SIJS cases no matter where the neglect took place and that Maryland judges should not engage in cultural and country comparison assessments of the facts. “By issuing a published decision, the Court of Special Appeals has affirmed that abused, abandoned, and neglected immigrant children deserve the full protection of the child welfare laws of the state of Maryland,” said Ms. Girard.

Without the representation and escalation of this issue by Catholic Charities ILS, child welfare and immigrant rights advocates in Maryland would be limited to the unreported decision of In the Matter of Jimmy E., A Minor, which would result in inconsistent decisions among judges. This is not the first time that Catholic Charities ILS has spearheaded positive changes on behalf of immigrant minors in Maryland; the agency led the advocacy efforts to add a definition of a child as “an unmarried individual under the age of 21 years” meaning that Maryland Circuit Courts that have jurisdiction over custody and guardianship can make the necessary predicate order findings until the child reaches the age of 21 rather than the jurisdiction ending at the age of 18. See Md. FAMILY LAW Code Ann. § 1-201(a).