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THE FACT THAT PATERNITY HAD NOT BEEN ESTABLISHED DID NOT PRECLUDE MOTHER’S GUARDIANSHIP PETITION OR FINDINGS TO ALLOW THE CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT).

The Second Department, reversing Family Court, determined the petition to have the child’s mother appointed guardian and to make findings necessary for the child to petition for special immigrant juvenile status (SIJS) should have been granted:

The Family Court should not have dismissed the guardianship petition on the ground that paternity had not been established. A natural parent may be appointed guardian of his or her own child (see Family Ct Act § 661 [a] …), and the mere fact that paternity has not been established for the putative father does not preclude the guardianship petition or the issuance of an order making specific findings enabling the subject child to petition for SIJS … . …

Here, the subject child is under the age of 21 and unmarried, and since we have found that the mother should have been appointed as the subject child’s guardian, a finding also should have been made that the child is dependent on a juvenile court within the meaning of 8 USC § 1101(a)(27)(J)(i) …. Further, based upon our independent factual review, the record supports a finding that reunification of the subject child with his father is not a viable option due to parental abandonment  …. Lastly, the record supports a finding that it would not be in the best interests of the subject child to return to Guatemala … . Matter of Mardin A. M.-I. (Reyna E. M.-I.–Mardin H.), 2020 NY Slip Op 05754, Second Dept 10-14-20

 

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