Third District Court of Appeal
                                State of Florida

                         Opinion filed December 30, 2015.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                                 No. 3D15-962
                          Lower Tribunal No. 15-15232
                              ________________


                             In The Interest of:
                          B.R.C.M., a minor child,
                                 Appellant,



     An Appeal from the Circuit Court for Miami-Dade County, Cindy S.
Lederman, Judge.

      Immigrant Children’s Justice Clinic, FIU College of Law, and Ricardo
Rodriguez and Mary M. Gundrum; Baker & McKenzie LLP and Steven
Hadjilogiou and Angela C. Vigil, for appellant.

      Karla Perkins, Appellate Counsel for Department of Children & Families.


Before SHEPHERD, SALTER and LOGUE, JJ.

      SHEPHERD, J.

      This is another in a series of cases in which an unaccompanied minor, who

illegally crossed the border of the United States, seeks an order finding him or her
dependent under Chapter 39 of the Florida Statutes, for the sole purpose of helping

the child obtain legal residency in the United States. We previously have affirmed

trial court denials of dependency in six similar cases. See In the Interest of

F.J.G.M., 40 Fla. L. Weekly D1908 (Fla. 3d DCA Aug. 12, 2015); D.A.O.L. v.

Dep’t of Children & Families, 

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

(Fla. 3d DCA 2015); M.J.M.L. v. Dep’t of Children & Family

Servs., 

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

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

(Fla. 3d DCA 2015). We now

add one more to the list.

                            Procedural and Factual Background

      Like the petitioners in the prior cases, B.R.C.M. was born in Central

America, in this case, Guatemala. B.R.C.M. was abandoned by his father at birth

and his mother when he was four-years old. His grandmother then took him into

her house and cared for him until he turned age fourteen, when he and some

friends left Guatemala, travelled through Mexico, and entered the United States

illegally at Hidalgo, Texas.     B.R.C.M.’s stated reasons for taking this action,

according to the sworn petition filed in this case, are that his grandmother had

arrived at an age where she no longer was able to care for him, he did not have any

other family members in Guatemala, and he feared he would be assaulted and

forced to join a local gang. Upon crossing the border, B.R.C.M. turned himself in



                                          2
to the border patrol, and, before the month was out, the Office of Refugee

Resettlement of the United States Department of Health & Human Services placed

him with his godmother in Miami. Within days of his arrival in Miami, B.R.C.M.

heard from and received a visit from his father, allegedly for the first time since

birth. Although B.R.C.M.’s father has not provided any food or money for basic

necessities,1 he has maintained telephone contact with B.R.C.M. since that time.

    B.R.C.M.’s sole purpose for filing the Petition for Dependency in this case is

to facilitate an application for Special Juvenile Immigrant Status and seek lawful

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

As with every case of this type that has come before this court, B.R.C.M. does not

seek any services from the Florida Department of Children and Families. His

godmother is providing his every need.

                                     Analysis

      The case before us is distinguishable from all the others that have come

before this court in only one respect―the caretaker in this case is neither a parent

nor a legal guardian, but instead a godmother.        We nevertheless affirm the

dismissal of this case by the trial court. As counsel for the Department, whom the

court ordered to attend the oral argument in this matter,2 conceded, the purpose of

1 Nor has B.R.C.M.’s pro bono counsel sought an order requiring B.R.C.M.’s
father to contribute to his support.
2 Counsel for the Department admitted at oral argument in this case that section

39.051(51) of the Florida Statutes makes it a party to every private dependency

                                         3
the dependency provisions of Chapter 39 of the Florida Statutes, §§ 39.501-39.510,

Fla. Stat. (2015), is not to facilitate the pursuit of Special Juvenile Immigrant

Status, but rather to provide services to children who are truly abandoned, abused

or neglected:

      Court: The purpose of this statute is not what it is being used for in
             this case, the purpose of this statute, according to section
             39.001 is “to provide for the care, safety, and protection of
             children,” correct?

      DCF Counsel: Correct.

      Court: So this is not the purpose of the statute, correct?

      DCF Counsel: Correct, unless they are truly abandoned, abused or
                   neglected.

(Emphasis added.). It is plain on the face of the petition that B.R.C.M. is not

“truly” abandoned, abused or neglected within the meaning of Chapter 39 of the

Florida Statutes.

      As to abandonment, section 39.01 of the Florida Statutes states:

petition filed in the circuit court. Counsel also announced that as a result of the
issuance of our opinion in B.Y.G.M. on July 15, 2015, the Department had
abandoned its policy of not participating in these cases. Recent filings in this court
indicate that the Department has resumed its practice of opposing these petitions.
See Appellee’s Answer Brief at 5-6, W.A.Z.R. v. Dep’t of Children & Families,
No. 15-1577 (Fla. 3DCA Dec. 2, 2015) (explaining that Chapter 39 “focuses on the
lack of care a child is experiencing because the person responsible for the child – a
parent or caregiver – has failed in their parental duties toward the child” as
distinguished from some remote harm) (emphasis added); Appellee’s Answer Brief
at 4, S.F.A.C. v. Dep’t of Children & Families, No. 15-2120 (Fla. 3DCA Nov. 16,
2015) (denying petition for dependency where petitioner’s proffered evidence is
insufficient to support an adjudication of dependency).

                                          4
       (1) “Abandoned” or “abandonment” means a situation in which the
      parent or legal custodian of a child or, in the absence of a parent or
      legal custodian, the caregiver, while being able, has made no
      significant contribution to the child's care and maintenance or has
      failed to establish or maintain a substantial and positive relationship
      with the child, or both. For purposes of this subsection, “establish or
      maintain a substantial and positive relationship” includes, but is not
      limited to, frequent and regular contact with the child through
      frequent and regular visitation or frequent and regular communication
      to or with the child, and the exercise of parental rights and
      responsibilities. Marginal efforts and incidental or token visits or
      communications are not sufficient to establish or maintain a
      substantial and positive relationship with a child.


“Caregiver” is defined to mean “the parent, legal custodian, permanent guardian,

adult household member, or other person responsible for a child’s welfare as

defined in subsection (47).” See § 39.01(10), Fla. Stat. (Emphasis added.).

Subsection 47 provides in pertinent part:

      (47) “Other person responsible for a child's welfare” includes the
      child's legal guardian or foster parent; an employee of any school,
      public or private child day care center, residential home, institution,
      facility, or agency; a law enforcement officer employed in any
      facility, service, or program for children that is operated or contracted
      by the Department of Juvenile Justice; or any other person legally
      responsible for the child's welfare in a residential setting; and also
      includes an adult sitter or relative entrusted with a child's care.

(Emphasis added.)     Although a “godmother” is not expressly included in the

enumeration of other persons responsible for a child’s welfare in subsection 47, the

definition by its terms is not exclusive. See Include, Black’s Law Dictionary

(10th ed. 2014) (“include vb. (15c) To contain as a part of something. • The



                                            5
participle including typically indicates a partial list….”); see also Antonin Scalia &

Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 132 (2012)

([T]he word include does not ordinarily introduce an exhaustive list….).

Especially considering the purpose of the statute is to assist families and children

who are truly needy, we decline to accept the crabbed interpretation of “other

persons” sought by the petitioner in this case.

      On this measure, the case before us is indistinguishable from In re

. B.Y.G.M. was a native of El Salvador. His father

abandoned him when he was eight-months old, and his mother left for the United

States when B.Y.G.M. was three-years old. After he illegally entered the United

States, the Office of Refugee Resettlement placed him with his mother in the

United States. Just as with B.R.C.M., B.Y.G.M.’s every need was met at the time

he filed his petition for dependency. In B.Y.G.M., we concluded that the “father’s

abandonment was . . . too remote to serve as the basis for dependency and did not

cause B.Y.G.M. any harm.”        

(citing B.C. v. Dep’t of Children &

Families, 

, 1274 (Fla. 4th DCA 2003) ( stating that “[i]n order to

support an adjudication of dependency, the parents’ harmful behavior must be a

present threat to the child”)). The same conclusion obtains, a fortiori, in this case.

      B.R.C.M.’s claim of abuse under Chapter 39 fails for the same reason.

Section 39.01(2) of the Florida Statutes defines “Abuse” as follows:



                                           6
      (2) “Abuse” means any willful act or threatened act that results in any
      physical, mental, or sexual abuse, injury, or harm that causes or is
      likely to cause the child's physical, mental, or emotional health to be
      significantly impaired. Abuse of a child includes acts or omissions.
      Corporal discipline of a child by a parent or legal custodian for
      disciplinary purposes does not in itself constitute abuse when it does
      not result in harm to the child.

There is no allegation in this case that anyone has ever laid a hand or threatened to

lay a hand on B.R.C.M., even while he resided in his home country, Guatemala.

His problem is one typical of all minors who are not safe outside their homes

because of a government that is unable to provide them, their family members and

neighbors a safe environment in which to go about their daily lives. Sadly, what

exists in Guatemala is what exists in the majority of countries of the world

today―lawless nations and societies which do not provide or do not choose to

provide freedom, safety and security to their citizens.           Whether or not to

accommodate individuals of any age into this country on the basis of the conditions

of the country in which they were born or reside is not for us to decide. It is a

matter of federal policy entrusted to the United States Congress. See, e.g., Galvan

v. Press, 

, 531 (1954) (“Policies pertaining to the entry of aliens and

their right to remain here are . . . entrusted exclusively to Congress.”).

      Finally, there is no cognizable claim in this case for an adjudication of

dependency based upon “neglect.” Section 39.01(44) of Florida’s dependency law

defines “neglect” as follows:



                                           7
      (44) “Neglect” occurs when a child is deprived of, or is allowed to be
      deprived of, necessary food, clothing, shelter, or medical treatment or
      a child is permitted to live in an environment when such deprivation
      or environment causes the child’s physical, mental, or emotional
      health to be significantly impaired or to be in danger of being
      significantly impaired. The foregoing circumstances shall not be
      considered neglect if caused primarily by financial inability unless
      actual services for relief have been offered to and rejected by such
      person.

B.R.C.M. does not seriously contend that his grandmother neglected him during

the ten years he lived in her home in Guatemala. Rather, the gravamen of his

petition is that it was his parents who “neglected” him by leaving him behind or

not making any arrangements for someone to take care of him. For example,

paragraph 23 of the petition alleges:

      [B.R.C.M.] is a neglected child because his parents failed to provide
      for him or arrange for the provision of his basic necessities.
      [B.R.C.M.]’s parents “permitted [B.R.C.M.] to live in an
      environment” in which his health was “in danger of being
      significantly impaired.” [B.R.C.M.]’s parents made no arrangements
      for someone to take care of [B.R.C.M.], nor did they send [B.R.C.M.]
      any money to provide himself with food and clothing.”

In making this allegation, the petitioner conflates “neglect” with “abandonment.”

The harm alleged here is a consequence of B.R.C.M.’s abandonment. There is no

claim that his mother, the only parent he had during the first four years of his life,

“neglected” him during those early years, or that B.R.C.M.’s grandmother did not

do all she could possibly do in her circumstance during the ten years B.R.C.M.

lived with her. Rather, B.R.C.M. avers only that after ten years living with his



                                          8
grandmother, the grandmother―now having reached the age of seventy-

five―could no longer take adequate care of him. Although this claim, like every

other one made by the petitioner, is too remote to constitute “neglect” under

section 39.01(44) of the Florida Statutes, it also fails on the merits of the

allegations of the petition.

      The petitioner in this and all similar cases have urged that a literal

interpretation of Chapter 39 affords them the blessing of a dependency

adjudication. For example, one of the specific allegations in this case is that,

without more, B.R.C.M. is entitled to a dependency adjudication because one of

the definitions of a “dependent child” in section 39.01 of the Florida Statutes is “[a

child] whom the court finds . . . (e) [t]o have no parent or legal custodians capable

of providing supervision or care.”3 A godmother is neither a parent nor legal

custodian under the statute.4 However, it is apodictic among the canons of judicial

interpretation that judicial interpreters should consider the entire text of a statute,

including its structure and the physical and logical relation of its many parts, when


3 The other claims in this case are that B.R.C.M. is dependent on the court pursuant
to section 39.01(15)(a) and (f).
4 B.R.C.M.’s godmother is an “Office of Refugee Resettlement approved sponsor,”

entrusted with his custody under federal law. One of the obligations of such a
sponsor is to “make best efforts to establish legal guardianship with your local
court within a reasonable time.” See Office of Refugee Resettlement Agreement,
available at http://www.acf.hhs.gov/programs/orr/resource/unaccompanied-children-
services. It has been fifteen months since the Office of Refugee Settlement placed
B.R.C.M. with his godmother. The godmother has yet to fulfill that obligation.

                                          9
applying the language of the statute to a set of facts. See, e.g., Scalia & Garner,

supra at 167 (“Perhaps no interpretative fault is more common than the failure to

follow the whole-text canon, which calls on the judicial interpreter to consider the

entire text, in view of its structure and of the physical and logical relation of its

many parts.”). Counsel for B.R.C.M. ignores this canon of construction, instead

engaging in a process of etymological dissection in which he seeks to separate

words and phrases and then apply to each to reach his desired result.           This

interpretive form is contrary to acceptable revelatory practice in the field of

statutory construction. See 2A Sutherland Statutory Construction § 46:5 (7th ed.)

(“The meaning of a statute is determined, not from special words in a single

sentence or section, but from the statute as a whole and viewing legislation in light

of its general purpose.”); see also Graham Cnty. Soil & Water Conservation Dist.

v. U.S. ex rel. Wilson, 

, 415 (2005) (“Statutory language has meaning

only in context.”); QBE Ins. Corp. v. Chalfonte Condo. Apartment Ass’n, Inc., 

, 551 (Fla. 2012) (“In determining the meaning of the language used, the

court must look not only to the words themselves but also to ‘the context in which

the language lies.’”) (quoting Miele v. Prudential-Bache Sec., Inc., 

,

472 (Fla. 1995)). We conclude, just as we did recently in In re K.B.L.V.: “The

purpose of the dependency laws of this state is to protect and serve children and




                                         10
families in need, not those with a different agenda.” 

, 301 (Fla. 3d

DCA 2015) (J. Shepherd, specially concurring).

      For this reason, we affirm the order under review.

      Affirmed.

      LOGUE, J., concur.




                                                                  In re B.R.C.M.
                                                              Case No. 3D15-962

      SALTER, J. (dissenting).




                                        11
         I respectfully dissent. B.R.C.M.’s “private petition” for dependency, filed

on behalf of an undocumented, fifteen-year-old immigrant, warrants individualized

consideration and adjudication rather than summary denial. B.R.C.M.’s petition

seeks an adjudication that would assist him in applying for “special immigrant

juvenile” (SIJ) status under federal immigration law,5 but that is not a basis for

summarily dismissing or denying the petition.

         B.R.C.M.’s petition states a legally sufficient claim.      The petition was

served by email on the Department of Children and Families (DCF), which did not

oppose or support the petition below.6 The transcript of the only hearing in the

trial court regarding the petition indicates that the colloquy between court and

counsel lasted eight minutes. No evidence was presented, and no fact-finding

resulted. Following the colloquy, the trial court denied the petition, as a matter of

law and based on a prior circuit court case, In re E.G.S.-H., 22 Fla. L. Weekly

Supp. 693b (Fla. 11th Cir. Ct. Jan. 27, 2015). The trial court also advised that it

was “waiting to see what the appellate court does.”


5   See 8 U.S.C. § 1101(a)(27)(J); see also § 39.5075, Fla. Stat. (2015).
6 At oral argument, and as quoted in the majority opinion, counsel for DCF
reported that DCF will follow the dependency statutes when a petitioning juvenile
immigrant is “truly” abandoned, abused, or neglected. In my view, DCF cannot
assess whether a petitioning juvenile immigrant has been “truly” abandoned,
abused, or neglected without investigation, and should not decline to support or
oppose the claims in a sworn SIJ petition, as occurred in B.R.C.M.’s case.


                                           12
         We should reverse the summary denial and remand the case for investigation

by DCF and for an evidentiary hearing and adjudication. Alternatively, we should

certify the central issue in this case to the Supreme Court of Florida on the grounds

that it is of great public importance, and we should certify conflict between the

majority opinion and decisions of other district courts of appeal.7

         The minors seeking an adjudication of dependency (represented by a “next

friend” and attorney appearing pro bono publico) in this and other SIJ cases are

children seeking protection from harm, are inside our state borders, and are entitled

to have their petitions individually adjudicated.

         In response to my colleagues’ differing view of this case and this “series of

cases,”8 this opinion will: review the history of cases considering SIJ petitions by

immigrant juveniles in Florida, including the Miami-Dade circuit court’s recent

shift toward summary denials and this Court’s per curiam affirmance of such

denials; respond to the argument that only the federal immigration authorities, not

state courts, should deal with these issues; and address the importance of
7See, e.g., In re Y.V., 

, 580 (Fla. 1st DCA 2015) (concluding that a
petition on behalf of immigrant minor should not be rejected when motivated by a
desire to obtain special immigrant juvenile 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.”) (reversing and remanding case for further
proceedings).
8   Majority op. at 1.




                                           13
adjudicative findings—even if those findings only involve one of the petitioner’s

parents—to each individual petitioner.

         A recent opinion by the Supreme Court of New Jersey9 has carefully

analyzed the role of state courts regarding SIJ issues. That opinion describes a

practical procedure applicable to such cases and provides a rational template that

Florida courts should adopt. We should also certify the recurring legal issue posed

by such cases to the Supreme Court of Florida based on inter-district conflict and

as an issue of great public importance.10 The number of such cases, the need for

statewide uniformity, and the federal-state tension suggested by my colleagues in

this and other opinions warrant certification on both of those grounds.

         I.    Procedural and Factual Background

         B.R.C.M. was fifteen years old when he filed his sworn petition. He was

assisted by a law school clinical professor and certified legal interns on behalf of

the Florida International University College of Law. His petition alleged that he

was born in Guatemala; that his father abandoned him at birth and never provided

B.R.C.M. food, clothing, shelter, or medical care;11 that his mother disappeared

9   H.S.P. v. J.K., 

(N.J. 2015).
10Fla. R. App. P. 9.030(a)(2)(A)(iv) and (v), respectively. This case could also be
identified as a “pipeline” case for consideration by the Supreme Court of Florida in
another SIJ case, O.I.C.L. v. Department of Children & Families, Case No. SC15-
1570 (Fla. Oct. 30, 2015) (oral argument set for Feb. 2, 2016).
11   B.R.C.M. alleged that he met his father for the first time after B.R.C.M. arrived

                                           14
when he was four and never contacted him or provided food, clothing, shelter, or

medical care for him; that his grandmother, then 75 years of age and infirm,

brought him into her home in Guatemala, but could not provide a long-term home

because of her own illness and age; that he had no other family members in

Guatemala who could protect him from a local gang; and that he fled Guatemala at

thirteen years of age. He alleged that he had been released by federal immigration

authorities to his godmother as a “sponsor,” and that he was residing in Miami

with her.

      B.R.C.M. alleged that he is a “dependent child” under three separate criteria

in the statutory definition of that term in section 39.01(15), Florida Statutes (2015):

he has been abandoned and neglected by each of his parents under (15)(a); he has

no parent or legal custodian capable of providing supervision and care under

(15)(e); and he is at substantial risk of imminent abuse, abandonment, or neglect

by his parent, parents, or legal custodian under (15)(f). He sought an adjudication

of dependency under each of these criteria, as well as an order determining that it

is in his “best interests” not to be returned to his home country.

      Upon receipt of a copy of the petition by email after it was filed in the trial

court, DCF did not investigate the allegations. At the single hearing in the case, at

which no testimony or other evidence was received, the trial court denied the
in Miami. They have spoken occasionally, but his father has not provided money
or support.


                                          15
petition. The trial court did so on the basis of the published 2015 circuit court

decision in In re E.G.S.-H., 

, discussed in greater

detail in a later section of this opinion. The order of denial did not render any

specific findings of fact or conclusions of law, and it did not specify whether it was

without prejudice.

      This appeal followed.

      II.    Analysis

             A.      Florida Appellate Decisions, 2005-2011

      Florida appellate cases reported from 2005 to 2011 were receptive to

immigrant juveniles petitioning for dependency. The Fourth District reversed the

denial of an adjudication of dependency in F.L.M. v. Department of Children &

Families, 

(Fla. 4th DCA 2005). The Fifth District reversed the

summary dismissal of a private petition in Department of Children & Families v.

K.H., 

(Fla. 5th DCA 2006), and it reversed an adjudication of

denial of dependency in L.T. v. Department of Children & Families, 

(Fla. 5th DCA 2010). In 2011, this Court reversed, in pertinent part, the summary

denial of a private petition in In re T.J., 

(Fla. 3d DCA 2011),

relying principally on F.L.M. and L.T.

             B.      Miami-Dade Circuit Court, 2013




                                         16
      In the case of In re M.A.S-Q. & Y.E.S-Q., 

(Fla. 11th Cir. Ct. Oct. 22, 2013), the circuit court adjudicated two children

(siblings) dependent despite earlier doubt “as to the legitimacy of these cases.”

The trial judge invited and received extensive briefing by the Guardian Ad Litem

Program, Regional Counsel’s Office, Americans for Immigrant Justice, Florida’s

Children First, Florida Equal Justice Center, and the University of Miami School

of Law Children & Youth Clinic. After reviewing the particular facts in the

evidentiary record and applicable law, the circuit court ruled that the juveniles

were dependent and entered a “best interests” order.        That record included a

consideration of evidence regarding conditions in the juveniles’ countries of origin

and the juveniles’ likely deportation “absent the entry of an adjudicatory order.”12

      After considering the extensive briefing, the circuit court entered a fourteen-

page, single-spaced, and closely-reasoned opinion in In re M.A.S-Q. & Y.E.S-Q.,

addressing a series of concerns, including venue (whether a Florida dependency

adjudication can be based on occurrences outside the United States), justiciability

(whether juvenile immigrant positions are actual cases or controversies, rather than

“merely a mechanism used to secure a ‘back door’ route to naturalization”), and

12 The trial court correctly recognized in In re M.A.S-Q. & Y.E.S-Q. that an
adjudication of dependency and a “best interests” order do not guarantee SIJ status
or naturalization. In footnote 7 of In re M.A.S-Q. & Y.E.S-Q., the circuit court
noted that the juvenile “also must satisfy other federally imposed eligibility
criteria.” 

n.7.


                                         17
how a child not in need of services can be “dependent.” For each of these issues,

the court’s concern was assuaged.

      The circuit court’s assessment of the conflict between a finding of

dependency and a “no services needed” stipulation, together with the court’s

concern for the ability to enter custody orders and make other post-adjudication

decisions regarding the SIJ petitioners, is noteworthy:

             The Court also asked the parties to address how a child not in
      need of services can in fact be “dependent,” and whether the Court
      should exercise jurisdiction in a case when it cannot carry out all of
      the responsibility assigned to it by Chapter 39; and in particular the
      responsibility to enter and enforce custody orders. The Court had
      difficulty comprehending how a child in need of “nothing” could be
      “dependent” on the Court -- and I questioned whether the Court
      should assume jurisdiction over a case when it could not exercise the
      authority vested by the legislature. The parties (and participants) have
      assuaged the Court's concerns.

            As for the first point, our appellate courts have uniformly
      concluded that a child who makes “no request for services” may
      nonetheless be “dependent” -- as defined by Florida Statute §
      39.01(15) -- and that a finding to the contrary would encourage
      immigrant children to deplete state resources available for “other
      needy children.” See T. 

, at fn. 5, citing F.L.M., supra at 1270.
      This precedent confirms that “[F]lorida Appellate Courts view
      immigrant children not requesting DCF services as a cost savings to
      the State and not something that should be held against their
      dependency petitioners.” See Petitioner's Brief, p. 10. The Court is
      bound by this precedent and, as a result, is not permitted to take into
      account a child's need of services (or lack thereof) in determining
      whether they are in fact “dependent.”

            The Court also is persuaded that jurisdiction over these cases is
      appropriate even though it will not always be able to exercise every
      responsibility assigned to it by Chapter 39. As the Petition and


                                         18
Amicus Brief point out, the determination of whether a child is
eligible for SIJS [Special Immigrant Juvenile Status] is a joint one,
“reflecting the recognition of congress that states retain primary
responsibility and administrative competency to protect child
welfare.” See Petitioner's Brief, p. 12, 13, fn. 15. In this unique and
limited area, federal and state authorities exercise concurrent
jurisdiction, with each having distinct roles and responsibilities. This
Court's role and responsibility is to adjudicate whether the child is
“dependent” under state law, and whether the facts support the entry
of a “best interest order” -- factual findings within this Court's
traditional purview.

       There is no doubt that in the ordinary dependency case Chapter
39 charges this Court with the responsibility of ensuring that children
under its jurisdiction are cared for in a safe and secure environment.
See, e.g., § 39.001(1)(a), Fla. Stat. (2013) (purpose of this chapter is
“[T]o provide for the care, safety, and protection of children in an
environment that fosters healthy social, emotional, intellectual, and
physical development; to ensure secure and safe custody; to promote
the health and well-being of all children under the state's care; and to
prevent the occurrence of child abuse, neglect, and abandonment.”).
The Court's duty to carefully examine “placement” options
commences upon acquiring jurisdiction over a child and remains until
that jurisdiction is relinquished. In other words, the Court must assess
the suitability of a child's placement at all stages of the proceeding.

       But Congress has decided that federal immigration authorities
should retain the ability to determine issues of custody and placement
so long as an alien child remains in federal custody. M.A.S-Q. and
Y.E.S-Q. were in federal custody at the time the Court entered its
adjudicatory order. The Court therefore lacked jurisdiction to order
that the children remain at [a federal Office of Refugee Resettlement
Facility], and federal immigration authorities were free to place them
with their uncharged Mother sans this Court's knowledge or approval.

      That dependent children under the Court's jurisdiction may -- in
these limited circumstances -- be moved without the Court's
involvement is no doubt troubling, as one of the Court's primary
responsibilities in a Chapter 39 proceeding is to ensure that the child
resides in a suitable placement. On the other hand, in these unique


                                  19
instances a federal agency takes on that responsibility, and the Court
must assume that the child's welfare is -- and always will be -- of
paramount concern. Moreover, nothing in Chapter 39 obligates the
Court to exercise all its authority in all cases. There are indeed
circumstances where the Court is permitted to terminate supervision --
and jurisdiction -- immediately upon adjudication. See, e.g., §
39.521(3)(b)1, Fla. Stat (2013) (authorizing the court to place an
adjudicated child in the sole custody of an uncharged parent and
terminate jurisdiction).

       The Court also is cognizant of, and informed by, the fact that
the Legislature has undeniably recognized the importance of assisting
undocumented minors who may qualify for SIJS. Florida Statute §
39.5075(4) obligates DCF -- or its contracted [community based care
provider] -- to “petition the court for an order finding that the child
meets the criteria for special immigrant juvenile status” anytime the
child may be eligible. § 39.5075(4), Fla. Stat. (2005). Florida Statute §
39.5075(5), then obligates DCF -- or its contracted [community based
care provider] -- to actually “file a petition for special immigrant
juvenile status” with the appropriate federal authorities on behalf of
the “child” within sixty (60) days after the Court determines
eligibility. 

39.5075(5).

       The Legislature also amended Chapter 39 to allow the Court to
retain jurisdiction over an immigrant child with a pending SIJS
petition “solely for the purpose of allowing the continued
consideration of the petition and application by federal authorities,”
until the earlier of a final decision or the child's twenty second (22nd)
birthday. § 39.013(2)(d), Fla. Stat.(2013). So there can be no doubt
that the Legislature contemplated -- and has in fact compelled --
consideration of these “private petitions.”

       For these reasons the Court finds that it should not abdicate its
responsibility to adjudicate these cases simply because it lacks the
authority to make placement decisions for dependent alien children in
federal custody. Congress, and our Legislature, charged this Court
with the task of determining whether these children are “dependent” --
as defined by State law, and whether applying for SIJS “is in the best
interest of the child.” § 39.5075(5), Fla. Stat. (2005). The Court will
carry out that mandate notwithstanding that its authority over alien


                                   20
      children may be slightly circumscribed during their tenure in federal
      custody.

(emphasis added) (footnotes omitted).

       In F.L.M., the 2005 Fourth District case cited by the circuit court in its

analysis above, DCF opposed the immigrant juvenile’s petition on the grounds that

such cases were “not a proper use of Florida’s laws, courts, and resources devoted

to helping truly-dependent, truly-needy 

. The Fourth

District, however, flatly rejected that argument: “This argument is unavailing,

because if a child qualifies for a declaration of dependency under our statutes, the

child’s motivation to obtain legal residency status from the United States Attorney

General is irrelevant.” 

Circuit Court, 2015

      In January 2015, the Miami-Dade circuit court considered a private petition

brought by a young immigrant, E.G.S.-H. E.G.S.-H. was living with his father in

Miami after fleeing a Central American country,13 and he alleged that he had been

abandoned by his mother shortly after birth. The court denied the petition without

prejudice14 because it concluded that the alleged abuse, abandonment, or neglect

13 The reported opinion has redacted a number of specific facts to protect the
juvenile’s privacy.
14In re E.G.S.-H., 

. So far as the opinion reflects,
DCF did not investigate, appear, or take a position in the trial court. The public
record does not indicate that the petition was amended or that an appeal was taken.


                                        21
was too remote in time (“long stale”), and there was no allegation that the child

faced any imminent or continuing risk of harm. The court found that an allegation

that E.G.S.-H. had been threatened by gangs in his home country “will not support

a dependency adjudication unless perhaps a parent’s failure to protect a child from

such abuse rises to the level of ‘neglect.’” In re E.G.S.-H., 22 Fla. L. Weekly

Supp. 693b.

      Importantly, the decision in In re E.G.S.-H. considered dependency only

under section 39.01(15)(a) (abandonment, abuse, or neglect by the child’s parent,

parents, or legal custodian).     The juvenile immigrant was residing with his

uncharged father, and the allegations of abandonment, abuse, and neglect as to the

mother were found to be too remote in time. Petitioner and counsel or the court

may not have focused on the significance of a single-parent finding for SIJ

purposes (see detailed discussion infra Section III).

      In the present case, B.R.C.M. petitioned for an adjudication of dependency

as to each parent and under three criteria provided by section 39.01(15), including

subparagraphs (e) and (f) as well as (a). And B.R.C.M.’s godmother is not a “legal

custodian” under the definition applicable to section 39.01(15)(e).15 In short, a

15A legal custodian is a person appointed by a court and vested with “the right to
have physical custody of the child and the right and duty to protect, nurture, guide,
and discipline the child and to provide him or her with food, shelter, education, and
ordinary medical, dental, psychiatric, and psychological care.” § 39.01(34), Fla.
Stat. (2015).


                                          22
summary denial of all of B.R.C.M.’s allegations by the circuit court on the basis of

In re E.G.S.-H., and without other analysis, authorities, or an evidentiary hearing,

was unwarranted.

              D.   In re Y.V., April 2015

      In April 2015, the First District considered a circuit court order dismissing a

private petition for dependency filed on behalf of a juvenile immigrant from

Honduras. “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.” In re

Y.V., 

, 577 (Fla. 1st DCA 2015).

      The First District reversed the dismissal order and remanded the case for

further proceedings, concluding:

            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.

              E.   This Court, July 2015

      In July 2015, this Court issued two opinions addressing private dependency

petitions filed on behalf of immigrant juveniles. In In re K.B.L.V., 

                                        23
(Fla. 3d DCA 2015), a seventeen-year-old from Honduras alleged that he had been

abandoned by his father at birth. He reunited with his mother in 2013 in Florida

and was residing with her. He sought an adjudication of dependency based on

abandonment by only the father and a “best interests” order. His father consented

to the petition, and DCF did not oppose it. Following a seven-minute colloquy

with counsel, the trial court dismissed the petition on the grounds detailed in In re

E.G.S.-H.—the alleged abandonment was too remote in time for the court to make

a dependency adjudication.

      The trial court did not hear evidence, enter findings regarding each parent, or

indicate that the dismissal was without prejudice. On appeal, DCF again took no

position. This Court affirmed the trial court’s summary dismissal.

      A specially concurring opinion in In re K.B.L.V. went further, observing

that “in all probability, these cases do not reach the threshold of a case or

controversy for consideration in this court or the court below,” and that “our

decisions in these cases are nothing but advisory 

(Shepherd, J., specially concurring). The specially concurring opinion introduced

an additional objection to such petitions:

            Despite the long settled understanding in our federal system
      that “[p]olicies pertaining to the entry of aliens and their right to
      remain here are . . . entrusted exclusively to Congress,” Galvan v.
      Press, 

, 531 (1954), the United States Congress, for
      reasons of its own, has decreed that our stamp of approval is a sine



                                         24
       qua non for consideration by the United States Citizenship and
       Immigration Services of a child’s request for SJIS [sic] status and
       permanent residency. It is as if we are customs agents, although the
       federal government will make the final decision. I admit to an erosion
       of roles between state and federal responsibilities in our federal
       system in recent times. However, we are not yet colonies or territories
       of the United States government. We correctly decline to subordinate
       ourselves to the whim of the United States Congress in this case. The
       purpose of the dependency laws of this state is to protect and serve
       children and families in need, not those with a different agenda.3

              ....
       3 Section 39.001 of the Florida Statutes provides a lengthy list of
       purposes, the first of which is “[t]o provide for the care, safety, and
       protection of children.” Assistance to the United States Citizenship
       and Immigration Services is not one of them. But see, § 39.5075, Fla.
       Stat. (2014).

(alterations in original).

       The same day this Court issued the opinion in In re K.B.L.V., the Court

affirmed the denial of another SIJ petition in In re B.Y.G.M., 

(Fla.

3d DCA 2015).16 In that case, a seventeen-year-old girl alleged that she fled El

Salvador in 2014 after threats to her life and harassment from local gang members.

She alleged that she was abandoned by her father when she was eight months old

and had not seen or been contacted by him since. He never provided financial or

other support.



16K.B.L.V. and B.Y.G.M. are seeking review by the Supreme Court of Florida.
K.B.L.V. v. Fla. Dep’t of Children & Families, No. SC15-2026 (Fla. filed Nov. 2,
2015); In re B.Y.G.M., No. SC15-2025 (Fla. filed Nov. 2, 2015).

                                         25
       When she was three years old, B.Y.G.M.’s mother left for the United States.

B.Y.G.M. was reunited with her mother in Homestead, Florida, and was living

with her mother when she filed the petition. She sought a finding of dependency

as to the father and a “best interests” order. The trial court heard testimony from

B.Y.G.M. and her mother, and denied the petition on the grounds that (a) the

abandonment was too remote in time and (b) her mother is capable of providing

B.Y.G.M. supervision and care. B.Y.G.M. sought no services from DCF, and

DCF did not investigate, or take a position regarding, the allegations in the

petition.

       In B.Y.G.M.’s appeal, DCF again took no position. This Court affirmed the

trial court’s findings and the denial of the petition. Once again, a concurring

opinion addressed DCF’s failure or refusal to take a position in these cases (and to

alert the Court “to other state authority germane to our decision”)17 and expressed

the view, with regard to SIJ petitioners, that “[t]here is no reason for this court to

succumb to those who would misuse our law.”              

(Shepherd, J.,

concurring).


17 However, the New Jersey case cited by the specially concurring opinion
regarding the rejection of an immigrant juvenile’s petition, H.S.P. v. J.K., 

(N.J. Super. Ct. App. Div. 2014), was later reversed by the Supreme Court of
New Jersey in an opinion discussed in greater detail below, H.S.P. v. J.K., 

. That Court remanded the case to the trial court for a new hearing and
detailed findings. See supra Section III.


                                         26
      Although these two panel decisions of our Court are binding on the panel in

this case as to issues of law, petitions for dependency turn on their particular facts

and the totality of circumstances. See In re M.F., 

(Fla. 2000).

Determinations of abandonment are fact-specific and are not reweighed if based on

testimony and evidence at trial. J.C.J. v. Heart of Adoptions, Inc., 

,

35 (Fla. 2d DCA 2008) (citing In re Adoption of Baby E.A.W., 

,

966-67 (Fla. 1995)). The temporal remoteness of abandonment, and long-term

lack of contact by a parent, is not always a bar to such a claim. See, e.g., V.C.B. v.

Shakir, 

(Fla. 4th DCA 2014) (concluding the child was abandoned

based on four years without parental contact; five years without financial support);

M.A. v. Dep’t of Children & Families, 

(Fla. 5th DCA 2002)

(affirming the trial court’s finding of abandonment based on five years with only

marginal efforts to maintain contact, while making no provisions for the children’s

welfare). Neglect and abuse are similarly fact-intensive determinations.

      The facts relied upon by the trial court and this Court in In re K.B.L.V. and

In re B.Y.G.M. are markedly different than those at issue in B.R.C.M.’s case. The

majority’s opinion in the present case concludes that a child abandoned by both

parents and presently living with a godmother has not been abandoned for

purposes of Chapter 39.      But as the First District held in In re Y.V., such

allegations present prima facie grounds for dependency under sections



                                         27
39.01(15)(a) and (e), and “the only reason [the petitioner] is not at imminent risk is

because a responsible adult is caring for him on a voluntary 

. Nevertheless, the majority approves the trial court’s summary denial of

B.R.C.M.’s petition without an evidentiary hearing or findings.

             F.    Citation PCAs

      A series of five summary adjudications by the Miami-Dade circuit court

followed, with per curiam affirmances (PCAs) by this Court citing the July 2015

decisions in In re K.B.L.V. and In re B.Y.G.M. Four of these are part of an

introductory string cite in the majority opinion in this case, but in my view each of

the underlying cases should be considered on its own unique, sworn allegations

and an evaluation by DCF, and should culminate in specific adjudicative findings,

rather than a summary denial.

      M.J.M.L. v. Department of Children & Family Services, 

(Fla. 3d DCA 2015), affirmed the summary denial of a petition filed on behalf of a

thirteen-year-old immigrant juvenile from Honduras. The written order denying

M.J.M.L.’s petition stated only that it was denied “based on the fact that there is a

parent with the child residing in Dade County.”18



18 The order indicates reliance on a circuit court order from another case. From the
transcript and chronology, the intended reference was to the circuit court opinion in
In re E.G.S.-H.


                                         28
      Similarly, In re J.A.T.E., 

(Fla. 3d DCA 2015), the private

petition was summarily denied without elaboration or findings, and with a citation

to In re E.G.S.-H. On appeal, DCF filed a “Notice of the Department’s Position,”

stating that the appeal concerned a private dependency petition, and “The

Department did not assert its party status, did not appear as a litigating party in the

trial court, and did not take a position in the underlying proceedings on the issue of

whether [J.A.T.E.] proved the statutory requirements for dependency.”

      The third citation PCA issued the same day as those in M.J.M.L. and In re

J.A.T.E. was in D.A.O.L. v. Department of Children & Families, 

(Fla. 3d DCA 2015). The written order reflects a denial without prejudice based

on S.H. v. Department of Children & Families, 

(Fla. 4th DCA

2004),19 and In re M.A.S-Q. & Y.E.S-Q., 

. DCF

filed a notice of taking no position in this Court in D.A.O.L.’s subsequent appeal.

      In a fourth citation PCA, In re F.J.G.M., 40 Fla. L. Weekly D1908 (Fla. 3d

DCA Aug. 12, 2015), this Court affirmed a summary dismissal with citations to In

re B.Y.G.M. and In re K.B.L.V.20 The trial court order denied the petition on the
19 S.H. involved a petition by a sixteen-year-old immigrant from Guatemala
establishing only “that S.H.’s parents sent him to live with his uncle” to obtain
work in the United States and support his family in 

. “These facts alone would not as a matter of law constitute abandonment.”

20 The citation PCA in In re. F.J.G.M. is the subject of a pending motion for
rehearing and rehearing en banc.


                                          29
basis of the circuit court’s opinion in In re E.G.S.H. and the opinions of this Court

in In re B.Y.G.M. and In re K.B.L.V.

         Finally, in In re D.A.M., No. 3D15-1154 (Fla. 3d DCA Oct. 28, 2015), the

trial court summarily denied a petition filed by two immigrant minors, citing the

circuit court order in In re E.G.S.-H. as the legal basis for the ruling. This Court

entered an affirmance citing In re B.Y.G.M. and In re. K.B.L.V.

         In each of these five PCAs, the trial court had summarily denied the

immigrant juvenile’s petition without an evidentiary hearing and without issuing

any findings of fact.

               G.    Summary Regarding the 2015 Dispositions of SIJ Petitions

         From the elaboration of rulings in 2015 in this district 

Sections

II.E. and II.F.), it is apparent that (a) DCF has previously treated SIJ petitions as

inappropriate for pre-hearing investigation or legal analysis at a hearing, and (b)

the circuit court and this Court have concluded that private petitions by immigrant

juveniles are generally appropriate for summary denial, despite the more deliberate

consideration previously afforded the SIJ petitioners in 2013 in In re M.A.S-Q. &

Y.E.S-Q. and in prior opinions by the district courts of appeal.

         This circumstance is exacerbated by the rules of procedure requiring the

circuit court to expedite hearings and dispositions on dependency petitions,21 and

21   Fla. R. Jud. Admin. 2.250(a)(1)(F).


                                           30
requiring this Court to expedite the appeals in such cases.22         The short time

between our citation PCAs and the next case in the trial court may seem to endorse

facial review and summary denial of subsequent petitions by immigrant juveniles.

         But although the particular petitions ruled upon by the circuit court and this

Court in In re B.Y.G.M. and In re K.B.L.V. may have warranted denial, those trial

and appellate rulings did not, and should not be read to, justify a blind eye by DCF

and to invite categorical, summary denial and per curiam affirmances in all

petitions by immigrant juveniles in this district. This trend seems to reflect a belief

or conclusion that the petitioners are only seeking immigration relief, not state

assistance following abuse, abandonment, or neglect, such that the immigrant

petitioners are not entitled to adjudicative findings under Chapter 39, Florida

Statutes.

         Despite the distinguishing facts in B.R.C.M.’s petition and the fact-intensive

character of dependency determinations, this Court’s opinions in In re B.Y.G.M.

and In re K.B.L.V. apparently are now considered by some to support a threshold,

categorical rejection of immigrant juveniles’ petitions. The resulting circuit court

denial orders lack any findings amenable to meaningful appellate review. And,

viewed cumulatively, the recent spate of summary denial orders in the trial court

and per curiam affirmances in this Court suggest a categorical rejection of such

22   Fla. R. App. P. 9.146(h).


                                           31
petitions rather than the usual individualized evidentiary hearings and written

findings of fact.

      As already noted, there is also a view that the federal government and its

immigration authorities have unfairly thrust these petitions on DCF and our state

courts by creating the SIJ process—a view that SIJ petitions are in effect an

unfunded mandate to a DCF that already works hard but strains to care for our

state’s “truly” abused, abandoned, and neglected children. To address these views

and provide a practical way forward, we can benefit from a recent decision from

another state.

      III.   Individualized Consideration and Findings: H.S.P. v. J.K.

      In the case of H.S.P. v. J.K., 

(N.J. 2015), the Supreme Court

of New Jersey addressed two separate petitions filed on behalf of immigrant

juveniles. In the first, a petition was filed by an uncle (H.S.P.) on behalf of his

seventeen-year-old nephew, M.S. M.S., a citizen of India lacking immigration

documentation, sought a declaration in the state “Family Part” that he had been

abandoned and neglected by each of his parents. In New Jersey, the “Family Part”

is the trial court division corresponding to the Juvenile Division of the Miami-

Dade circuit court.

      The Family Part conducted a hearing and declined to enter the predicate SIJ

findings because it concluded that neither of M.S.’s parents had abandoned or



                                        32
neglected M.S. The Family Part “did not reach the question of whether it would be

in [M.S.’s] best interests to remain in the United States or be returned to India.”

The Appellate Division affirmed the Family Part’s conclusion that M.S.

had not been abandoned or neglected by his mother, reversed the conclusion as to

abandonment by his father, and affirmed the Family Part’s refusal to enter a “best

interests” order.

      In the second petition reviewed by the Supreme Court of New Jersey in the

same opinion, a mother filed on behalf of her daughters, J.S.G. (then fifteen years

old) and K.S.G. (then twelve years old).        All were citizens of El Salvador.

Approximately six years before the petition was filed, the mother left for the

United States, leaving the children in the care of their father and grandmother. The

petition alleged that the father was murdered by members of a gang in El Salvador

eleven months before the petition was filed. At the age of twelve, the older

daughter was raped by a member of a gang, and she later attempted suicide. The

girls entered the United States via Mexico in 2013, were transferred by

immigration authorities to Chicago, and ultimately were released by the Office of

Refugee Resettlement to the care of their mother in Elizabeth, New Jersey.

      The Family Part found that it was not in the juveniles’ best interests to return

to El Salvador, but also that there was “no basis under state law to suggest that [the

mother] had abused, neglected, or abandoned the children.” 

This order



                                         33
was allowed to be directly certified to the Supreme Court of New Jersey and the

case was consolidated there with the first of the two immigrant juvenile cases

(involving the juvenile from India, M.S.).

      The Supreme Court of New Jersey received amicus briefs from the

American Friends Service Committee, Kids in Need of Defense, the Young Center

for Immigrant Children’s Rights, and a number of New Jersey law school

professors specializing in family and immigration law. The Supreme Court of

New Jersey concurred with the New York courts that SIJ petitions represent “a

unique hybrid procedure that directs the collaboration of state and federal

systems,” quoting In re Marisol N.H., 

, 645 (N.Y. App. Div.

2014); and with the California courts that “[t]he SIJ statute affirms the institutional

competence of state courts as the appropriate forum for child welfare

determinations regarding abuse, neglect, or abandonment, and a child’s best

interests,” quoting In re Y.M., 

, 68 (Cal. Ct. App. 2012).

, 859.

      The Supreme Court of New Jersey also focused on the language of the

federal SIJ statute regarding adjudicative findings as to “1 or both” parents.

Although the interpretation of the statute itself “is exclusively the province of the

federal government,” the Court recognized that findings as to each of a petitioning

juvenile’s parents could be important to the federal authorities considering the



                                          34
juvenile’s later I-360 SIJ petition. 

The Court provided clear guidance

to New Jersey trial courts relating to such petitions:

      In an effort to ensure that factual findings issued by New Jersey courts
      provide USCIS with the necessary information to determine whether a
      given alien satisfies the eligibility criteria for SIJ status, we instruct
      courts of the Family Part to make separate findings as to abuse,
      neglect, and abandonment with regard to both legal parents of an alien
      juvenile. For example, the Family Part should first determine whether
      reunification with one of the child’s parents is not viable due to abuse,
      neglect, or abandonment. Regardless of the outcome of that analysis,
      the court should next conduct the same analysis with regard to the
      child's other legal parent. By requiring the Family Part to make
      independent findings as to both of the juvenile’s parents, we ensure
      that USCIS will have sufficient information to apply 8 U.S.C.A. §
      1101(a)(J)(27) as it sees fit when a juvenile subsequently submits the
      Family Part’s order to USCIS in support of an application for SIJ
      status. That is the role Congress envisioned for the juvenile courts of
      the fifty states, and that is the process that should be followed by the
      Family Part.

      The Supreme Court of New Jersey reversed the Appellate Division’s

judgment and remanded both petitions to the Family Part for further hearings and

findings in accordance with the Supreme Court’s opinion.

      IV.    Conclusion



23 The Court cited an article addressing this point, Meghan Johnson & Kele
Stewart, Unequal Access to Special Immigrant Juvenile Status: State Court
Adjudication of One-Parent Cases, 16 A.B.A. Child. Rts. Litig., no. 4, at 8 (2014),
http://www.americanbar.org/content/dam/aba/publications/litigation_committees/c
hildrights/summer2014.authcheckdam.pdf. 

.


                                          35
      That B.R.C.M.’s petition is unusual in comparison to the petitions filed on a

daily basis by DCF is without question. That B.R.C.M.’s petition floats on an

undercurrent of polarized views regarding national immigration policy24 is also

without question. But I submit that DCF should evaluate the allegations of each

petition, and Florida circuit courts should enter findings of fact and conclusions of

law that address each juvenile petitioner’s individual claims. If DCF alleges, and

the circuit court concludes, that the petition fails to state a prima facie case, the

petitioner should be allowed to amend, as the rules provide. If the petition states a

prima facie case, the petitioner should be permitted to introduce evidence in

support of his or her claims, and the court should enter specific adjudicative

findings responsive to the issues presented by the petition and the evidentiary

record. When such relief is sought, the circuit court should determine (and if that

determination is appealed, this Court should review) the dependency claims

separately as to each of the petitioner’s parents.

24 “While this court is sympathetic to the plight of alien minors seeking the
opportunity of a better life in the United States, the role of the trial judge is not to
set immigration policy or to decide whether, as a humanitarian gesture, any
particular alien minor should be permitted to stay in the United States.” O.I.C.L. v.
Dep’t of Children & Families, 

, 1250 (Fla. 4th DCA 2015), review
granted, No. SC15-1570 (Fla. Oct. 30, 2015) (oral argument set for Feb. 2, 2016).

“Here we have another unopposed petition to have a minor child who has illegally
crossed the border of the United States declared dependent on the court for the sole
purpose of helping the child obtain legal residency status in the United States.” In
re K.B.L.V., 40 Fla. L. Weekly at D1623 (Shepherd, J., specially concurring).


                                          36
      In this way, our dependency courts can consider what Congress has

invited—not ordered—them to consider (because of the state dependency courts’

superior expertise), and yet stay out of final immigration rulings. And more

importantly, immigrant children may obtain what other children in Florida

routinely obtain in dependency cases—an investigation and individualized

adjudication of their exigent circumstances. The circuit court’s 2013 order in In re

M.A.S-Q. & Y.E.S-Q. afforded careful, individualized adjudication of the

immigrant juveniles’ allegations. The summary denial of B.R.C.M.’s petition in

the present case, in contrast, did not.

      I would also certify our opinion in this case as being in express and direct

conflict with the decisions of the First District in In re Y.V., 

(Fla.

1st DCA 2015); the Fourth District in F.L.M. v. Department of Children &

Families, 

(Fla. 4th DCA 2005); and the Fifth District in

Department of Children & Families v. K.H., 

(Fla. 5th DCA 2006),

and L.T. v. Department of Children & Families, 

(Fla. 5th DCA

2010).

      Finally, I would certify the following to the Supreme Court of Florida as a

question of great public importance:

      REGARDING PETITIONS FOR DEPENDENCY FILED ON
      BEHALF OF IMMIGRANT JUVENILES UNDER CHAPTER 39,
      FLORIDA STATUTES, IS SUMMARY DENIAL OF SUCH
      PETITIONS APPROPRIATE IF THE PETITIONER IS LIVING IN


                                          37
      FLORIDA WITH A FAMILY MEMBER OR VOLUNTEER
      APPROVED BY THE OFFICE OF REFUGEE RESETTLEMENT?

      B.R.C.M. may be “perceived to be a defector from poverty,”25 but that

should not exclude him from adjudication as a dependent juvenile under Chapter

39 if the evidence supports such findings. The order below should be reversed and

remanded for further proceedings.

      For these reasons, I respectfully dissent.




25Fla. Bd. of Bar Exam’rs re Question as to Whether Undocumented Immigrants
are Eligible for Admission to The Fla. Bar, 

, 444 (Fla. 2014)
(Labarga, J., concurring).

                                         38