PETITION SEEKING FINDINGS ALLOWING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Family Court, determined the petition for findings to enable the child to petition for special immigrant juvenile status (SIJS) should have been granted:

… [R]eunification of the child with her father is not viable due to parental neglect … . The petitioner testified that after the father came to the United States with the child, they lived in the petitioner’s home, during which time the father would “drink every day,” and that the father eventually returned to El Salvador on his own. The petitioner stated in his affidavit in support of his motion that the father’s drinking caused him to become “aggressive,” “[h]e hit doors, walls, and started to yell at all times of the night,” and that the child became “scared of [the father].” Further, the child stated in her affidavit that the father “[drank] to the point that he could not walk,” and testified in court that she did not believe she could live with the father if she returned to El Salvador due to his excessive drinking. Thus, the record demonstrates that the father repeatedly misused alcoholic beverages to the extent of producing a state of intoxication or a “substantial manifestation of irrationality,” triggering a presumption that the child was neglected by the father … . Since the presumption of neglect was not rebutted, the Family Court should have found that reunification of the child with the father was not viable due to parental neglect. The record also supports a finding that it would not be in the child’s best interests to be returned to El Salvador, where gang members had threatened the father in the presence of the child, made the father “complete tasks and favors for them,” and murdered the child’s cousin … . Matter of Agustin E. v Luis A.E.S., 2019 NY Slip Op 00273, Second Dept 1-16-19