Robb, J.
Case Summary and Issue
Miguel Hernandez Jeronimo (“Hernandez”) filed a petition seeking to be appointed guardian of his niece, Shirla Gonzalez Xitumul (“Shirla”) and also seeking certain findings that could enable Shirla to seek Special Immigrant Juvenile (“SIJ”) status from the United States Citizen and Immigration Services (“USCIS”). At the time Hernandez filed the petition, he held a foreign power of attorney signed by Shirla’s parents allowing him to act on their behalf with respect to Shirla. The trial court made findings relevant to Shirla’s SIJ status but found it unnecessary to appoint Hernandez as her guardian because he already held the power of attorney. In this unopposed appeal, Hernandez raises the sole issue of whether the trial court erred in denying the petition. Concluding the trial court erred in finding the guardianship unnecessary, we reverse and remand.
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Congress created the special immigrant juvenile (“SIJ”) status “to protect abused, neglected, and abandoned immigrant youth through a process allowing them to become legal permanent residents” despite their unauthorized entry into or unlawful presence in the United States….
A state juvenile court determines whether the evidence supports the required findings, but the final decision regarding SIJ status rests with the federal government. 8 U.S.C. § 1101(a)(27)(J)(iii). Thus, the process for obtaining SIJ status is “a unique hybrid procedure that directs the collaboration of state and federal systems.” Luis, 114 N.E.3d at 858 (quoting In re Marisol N.H., 979 N.Y.S.2d 643, 645 (N.Y. App. Div. 2014)). The juvenile, or someone acting on his or her behalf, must first petition a state juvenile court to issue an order making the required findings. In re Marisol N.H., 979 N.Y.S.2d at 645. This is often accomplished by the filing of a guardianship petition or custody complaint. In re Dany G., 117 A.3d 650, 654 (Md. Ct. Spec. App. 2015). The state juvenile court, “as the appropriate forum for child welfare determinations regarding abuse, neglect, or abandonment, and a child’s best interests[,]” is then charged with making the factual inquiry relevant to SIJ status and entering an order regarding its findings. Luis, 114 N.E.3d at 858 (quoting In re J.J.X.C., 734 S.E.2d at 124). Upon obtaining such an order, the juvenile can submit his or her application for SIJ status to the USCIS. See id; see also 8 C.F.R. § 204.11(d). If the application is granted, the juvenile may become a lawful permanent resident who is eligible to become a United States citizen after five years. In re Estate of Nina L. ex rel. Howerton, 41 N.E.3d 930, 935 (Ill. App. Ct. 2015).
As Luis pointed out, “it is inescapable that a minor seeking SIJ status is dependent upon a state court to make the prerequisite findings in a predicate order for the minor to qualify for such status under the scheme established by federal immigration law.” 114 N.E.3d at 859. With this procedure in mind, we turn to the proceedings in this case.
III. Guardianship Petition
At the hearing and in its order, the trial court expressed concern over its ability to enter a guardianship order when the proposed guardian and the ward are both illegal immigrants. See Tr., Vol. 2 at 15-16 (trial court stating, “[W]e have a non-citizen of our country asking me to grant him relief under the laws of our country. . . . To grant guardianship over again, a non-citizen. . . . So I don’t know where I stand as a state court, in my ability to grant this[.]”); Appealed Order at 1 (“The Court has concerns as to whether it has the ability to grant a guardianship when no person involved is a United States citizen or has legal authority to reside in the United States.”).
We begin with the jurisdiction of the court in general. “Circuit courts are courts of general jurisdiction, empowered to hear all types of cases, including guardianship actions.” In re B.J.N., 19 N.E.3d 765, 768 (Ind. Ct. App. 2014). Indiana Code section 29-3-2-1(b) provides that the court has exclusive original jurisdiction with respect to a minor over all matters concerning guardians, with certain exceptions not applicable in this case. Therefore, the trial court has subject matter jurisdiction over this action for guardianship of a minor. Moreover, federal law defines a “juvenile court” able to make the requisite SIJ findings in a predicate order as a court “having jurisdiction under State law to make judicial determinations about the custody and care of juveniles.” 8 C.F.R. § 204.11(a). Because the care and custody of a child is determined in a guardianship action in Indiana, the trial court here qualifies as a “juvenile court” able to make SIJ findings.
As for the trial court’s specific concern about how Hernandez and Shirla’s citizenship status might affect its authority in this specific case, Indiana Code section 29-3-5-1 provides that “[a]ny person may file a petition for the appointment of a person to serve as guardian for an incapacitated person or minor[.]” Ind. Code § 29-3-5-1(a) (emphasis added). “Person” is defined as “an individual, an organization, an association, a nonprofit corporation, a corporation for profit, a limited liability company, a partnership, a financial institution, a trust, the division of family resources or other governmental entity, or other legal entity.” Ind. Code § 29-3-1-12 (emphasis added). The court “shall appoint as guardian a qualified person or persons most suitable and willing to serve[.]” Ind. Code § 29-3-5-4 (emphasis added). The only restrictions on who may be appointed to serve as a guardian based upon the status of that person are found in Indiana Code section 29-3-7-7, and all concern persons with criminal records. There is no restriction based on citizenship status. Cf. Ind. Code § 34-28-2-2.5 (when petitioning for a change of name, the person must include proof that the person is a United States citizen). In addition, a “minor” is simply defined as an “individual who is less than eighteen (18) years of age and who is not an emancipated minor.” Ind. Code § 29-3-1-10. Therefore, under the relevant statutes and definitions, neither the citizenship of the proposed guardian nor the citizenship of the minor impacts whether a petition for guardianship can be filed or granted. [Footnote omitted.]
In its order, the trial court stated, “No mention was made in the pleadings or at the hearing that [Shirla] was seeking ‘special immigrant juvenile’ status under Federal Law” and indicated Hernandez “should have been more forthcoming as to the purpose of this litigation if the true purpose was to obtain findings in furtherance of [Shirla’s] ‘special immigrant juvenile’ status.” Appealed Order at 2. Hernandez contends that he was “sufficiently forthcoming about seeking special-immigrant-juvenile findings” because he requested those findings in his petition and cited Luis both at the hearing and in his post-hearing brief. Brief of Appellant at 14. We agree Hernandez’s petition sought findings on the predicate facts required for Shirla to apply for SIJ status. However, Hernandez never clearly articulated that purpose to the court. The petition never mentions special immigrant juvenile status, and at the conclusion of the hearing, Hernandez’s counsel simply agreed without elaboration when the trial court stated, “So basically, you’re asking that I grant guardianship.” Tr., Vol. 2 at 15. When citing Luis to the trial court at the hearing, counsel only said the case “addresses the state court’s role in adjudicating these – these sorts of petitions.” Id. at 16. Citation to “pertinent authority” in a guardianship petition or specific invocation of SIJ status at a hearing may not be required. See Appellant’s Brief at 14; see also Simbaina v. Bunay, 109 A.3d 191, 200 (Md. Ct. Spec. App. 2015) (noting the federal statute has no specific pleading requirements). However, it is certainly not prohibited. And indeed, it is likely a good idea to be forthcoming in order to avoid situations such as this, where the relief requested was oblique at best and the lack of clarity likely contributed to the order failing to meet the requirements of an SIJ predicate order. See Simbaina, 109 A.3d at 201 (“When pleading this issue before the . . . court, a moving party should ensure that the court is on notice of the request for these factual findings.”). Nonetheless, the issue was before the trial court.
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With respect to Shirla’s dependency or custody, the trial court found that a guardianship was not necessary because Hernandez already had a power of attorney entitling him to act on Shirla’s behalf. However, a guardian appointed by a court to have the care and custody of the person or property of a minor, see Ind. Code § 29-3-1-6, and an attorney in fact designated to act for a principal under a power of attorney, see Ind. Code § 30-5-2-2, are not interchangeable and the existence of one does not preclude the other. Cf. Ind. Code § 29-3-5- 5(a)(6)(B) (stating a person nominated by a power of attorney of a living parent is entitled to consideration as a guardian). And in a case seeking an SIJ predicate order, the “appointment of a guardian constitutes the necessary declaration of dependency on the juvenile court.” In re Estate of Nina L., 41 N.E.3d at 934 (emphasis added). Whether or not Hernandez must have the status of guardian to enroll Shirla in school or seek medical treatment for her, it is necessary that he be named her guardian so that she can apply for SIJ status. Thus, it appears the trial court considered the question of the “necessity” of this guardianship through the wrong lens and erred in declaring the guardianship unnecessary because of the power of attorney.
We do note, however, that even when considering the necessity of the guardianship for federal SIJ status, the appointment of a guardian is guided by state statute….
As for the remaining two findings required in an SIJ predicate order, the trial court “reluctantly” made findings about reunification and Shirla’s best interests, essentially tracking the language of federal law about SIJ findings….Therefore, the trial court’s “reluctant” findings using only the basic language found in the United States Code are likely insufficient to support an SIJ application.
As the Illinois Appellate Court has noted, “the potential benefits associated with SIJ status are substantial, [but a minor’s] decision to pursue SIJ status is not without risk. Relief is not guaranteed and denial of the application renders [the minor] subject to deportation as an undocumented immigrant.” In re Estate of Nina L., 41 N.E.3d at 938-39. When a minor is willing to assume that risk, the “opportunity to pursue SIJ status should not be thwarted by [a court’s] refusal to make the findings necessary to allow [the] application to proceed.” Id. at 939. Here, the trial court has already found that Shirla has met two of the three requirements to apply for SIJ status, though without the specificity required of a predicate order. Accordingly, we remand to the trial court with instructions to reconsider the request for guardianship in light of Indiana law and the request for SIJ findings and, if the guardianship is granted, to issue a predicate order with the appropriate findings.
Conclusion
The trial court erred in concluding the guardianship was unnecessary based on the existence of a power of attorney. Accordingly, the trial court did not make a proper dependency determination and made only the most basic findings regarding the SIJ factors. We therefore reverse and remand for further proceedings consistent with this opinion.
Reversed and remanded.
Mathias, J., and Pyle, J., concur.