Vaidik, J.
Case Summary
Martin Sebastian was born in Guatemala and lived with his mother. Martin’s father, who died in 2021, never recognized or acknowledged him as his child and did not support him. In 2022, at age seventeen, Martin came to the United States and moved in with his half-brother in Indiana. His half-brother became his guardian. Martin later asked the trial court to make three findings necessary for him to seek classification as a Special Immigrant Juvenile (SIJ) under 8 U.S.C. § 1101(a)(27)(J) before the United States Citizenship and Immigration Services (USCIS), which is the federal agency that oversees lawful immigration to the United States. SIJ status would allow Martin to become a lawful permanent resident. The trial court made two of the findings but did not make the third, that is, that reunification with one or both of Martin’s parents is not viable due to abuse, neglect, abandonment, or similar basis under Indiana law. The court found that because Martin’s father died a year before he left Guatemala for the United States, his father did not abandon him.
Martin appeals, arguing the trial court should have found that reunification with Father is not viable due to abandonment. We agree and hold that when a parent, having abandoned a child, dies in that state of abandonment, the child’s inability to reunify with that parent is still due to abandonment for purposes of the SIJ statute. We therefore reverse and remand.
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Martin contends the trial court erred in failing to find that reunification with one or both of his parents is not viable due to abuse, neglect, abandonment, or similar basis under Indiana law, which is required for him to seek SIJ classification before USCIS.
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Martin argues the trial court should have found that reunification with Father is not viable due to abandonment under Indiana law. 1 Title 31 of the Indiana Code, which covers family and juvenile law, has a couple of definitions of “abandoned.” Indiana Code section 31-21-2-2 defines “abandoned” as “left without provision for reasonable and necessary care or supervision.” Indiana Code section 31-19-9-8(b) provides, “If a parent has made only token efforts to support or to communicate with the child the court may declare the child abandoned by the parent.” At the hearing, evidence was presented that Father never acknowledged or accepted Martin as his child, as Father had a different family. Father did not provide Martin with reasonable care in terms of adequate food, education, or supervision. Before his death, Father had not visited Martin for several years and had only seen him at a market. Despite this undisputed evidence, the trial court found that Martin had not been “abandoned” because when he left Guatemala for the United States in 2022 Father had been dead for a year.
But Father had abandoned Martin long before then. That Father died in 2021 did not change that….
Applying that holding here, it is undisputed that Father abandoned Martin at birth and that Martin was still abandoned when Father died in 2021. Accordingly, Martin’s inability to reunify with Father is due to Father’s abandonment. The trial court erred by not finding that reunification with Father is not viable due to abandonment.
The question then becomes what should we do? Normally, we would remand the case to the trial court with instructions to make the appropriate findings. See Luis II, 134 N.E.3d at 1076. But this is not a normal case. As Martin points out in his brief, the judge extensively questioned Martin about his manner of travel to the United States and signaled that he is unwilling to make the required SIJ findings whenever the evidence shows that a child has paid money to cross the border. But whether a child has paid money to cross the border has no discernible connection to whether reunification with one or both of their parents is not viable due to abuse, neglect, abandonment, or similar basis under Indiana law. As many courts have recognized, “The task of weeding out bad faith applications falls to USCIS, which engages in a much broader inquiry than state courts.”…
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Given the judge’s comments in this case, his actions in Luis I and Luis II, and Martin’s request that we remand this case to the trial court “with specific instructions and language for the required findings,” Appellant’s Br. p. 11, we follow the lead of the Luis II Court and order the trial court to do the following on remand:
1. Make edits to current findings 1 and 4 to reflect Martin’s current circumstances, such as his age and grade in school.
2. Remove current findings 9, 11, 13, 14, 16, and 17 and the last paragraph (discussed above) that begins, “This Court is aware that the findings this Court makes will be used in a subsequent immigration hearing.”
3. Keep all other findings.
4. Make these additional findings:
a. The evidence shows that the child’s biological father has abandoned him since birth. The biological father did not recognize or accept the child as his own and did not support him, financially or emotionally.
b. That the child’s biological father died in 2021 only cemented the abandonment that was in place.
c. The child’s reunification with his biological father is not viable due to abandonment.
As in Luis II, the judge must make the above edits to the order within one business day of the certification of this opinion.
Reversed and remanded.
Weissmann, J., and Foley, J., concur