Zayas, J. v. Brizuela, J.

J-A24033-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

JOSE MIGUEL ZAYAS : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

:

v. :

:

:

JUAN ANTONIO GARMENDIA : No. 1248 EDA 2024

BRIZUELA, AND WENDY VANESSA :

RODRIGUEZ TRIMINIO :

Appeal from the Order Entered April 9, 2024

In the Court of Common Pleas of Delaware County Civil Division at

No(s): CV-2023-005583

BEFORE: LAZARUS, P.J., KING, J., and LANE, J.

MEMORANDUM BY LANE, J.: FILED JANUARY 8, 2025

Jose Miguel Zayas (“Zayas”) appeals from the custody order that, inter

alia, denied his request for predicate findings that would enable E.X.G.R.

(“Child”) to petition the United States Citizenship Immigration Services

(“USCIS”) for special immigrant juvenile status (“SIJS”). After careful

consideration, we reverse and remand with instructions.

We gather the relevant factual and procedural history of this matter

from the certified record. Child was born in San Pedro Sula, Honduras, in

August 2006. She is the biological daughter of Juan Antonio Garmendia

Brizuela (“Father”) and Wendy Vanessa Rodriguez Trimino (“Mother”)

(collectively, “Parents”). See N.T., 3/21/24, at 11. The principal evidence

concerning Child’s life in Honduras was garnered from her own testimony,

which was facilitated by an interpreter. See id. at 5-6.

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Child averred that she resided in Honduras with Parents and her

unnamed biological brother, who was born sometime in 2015. See id. at 13.

Child explained that Father ceased living with the family sometime between

2013 and 2017. Thereafter, his contact with the family was sporadic and he

ceased providing material support to the family. See id. at 13-14. Child

testified that, following Father’s departure from the home, Mother began to

abuse alcohol and ceased providing care for her children. See id. at 14.

Consequently, at the age of approximately eight years old, Child became

responsible for caring for her younger brother. See id. at 15. Child was also

forced to stop attending school in 2020. See id. at 22. When Child expressed

reluctance at continuing to provide childcare, Mother threatened to “hurt

herself” and “take” Child’s younger brother “with her.” See id. at 16.

Zayas’s husband, Ever Samir Luna (“Luna”), has extended family

members who resided near Child’s home in Honduras and often provided her

family with food after Parents abdicated their parental responsibilities. See

id. at 15, 40-41.

At some point in 2021, Child became pregnant when she was

approximately fifteen years old. See id. at 16. Child averred that neither her

family, nor the family of her child’s unnamed father, supported her pregnancy.

See id. Thereafter, Child departed Honduras and traveled by bus to the

United States with “caravans” that she claimed did not require her to pay a

fee. See id. at 20-21. She entered the United States at Hidalgo, Texas, on

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April 4, 2022. See id. at 23. Initially, Child was placed into a temporary

group home. Child subsequently contacted Zayas, who resides with Luna in

Chester, Pennsylvania. See id. at 21-23. Ultimately, Child was released into

Zayas’s custody in May 2022. Although the date of birth is not in the certified

record, Child gave birth to a son who also resides with her. See id. at 12.

In 2023, Zayas filed a custody complaint seeking sole legal and physical

custody of Child as well as a petition for special relief requesting predicate

judicial findings in favor of Child being granted SIJS. On March 21, 2024, the

trial court held a consolidated hearing on both petitions. Zayas and Child were

both present and testified. Parents did not appear, or otherwise participate

in, these proceedings.1 In addition to Child’s testimony regarding her life in

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1 We note that “a parent outside the Commonwealth is entitled to notice and

an opportunity to be heard in accordance with our law or the foreign state’s

law, but Pennsylvania does not require the absent parent to participate in the

proceedings in order for our courts to have jurisdiction over the custody

action.” Velasquez v. Miranda, 321 A.3d 876, 884 n.2 (Pa. 2024). Service

of process outside of the Commonwealth is generally governed by Pa.R.C.P.

404, which permits, inter alia, a “competent adult” to hand a copy of the at-

issue pleading to the defendant. See Pa.R.C.P. 402(a)(1), 404(1). However,

adults who are “related” to a litigant are prohibited from personally delivering

service of process. See Pa.R.C.P. 76. During the custody hearing, it came to

light that the sister of Zayas’s sister-in-law, Maryori Luna Alvarado, personally

delivered copies of the custody complaint to Parents at their respective

residences in Honduras. See Certificate of Service, 3/7/24, at 1-2; see also

N.T., 3/21/24, at 24-25. In its Rule 1925(a) opinion, the trial court concluded

that Ms. Alvarado’s delivery of service of process was “not permissible”

pursuant to Rule 76. See Trial Court Opinion, 5/21/24, at 7. Nonetheless,

the trial court ultimately considered and granted the custody petition, in part,

on the merits. Id. While this procedural history is concerning, our review of

Pennsylvania law has revealed no precedent that relatives of relatives-in-law

(Footnote Continued Next Page)

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Honduras, she confirmed that Zayas has provided her with care, food, and

shelter since May 2022. See id. at 16-17. Child also averred that Zayas

helped her re-enroll in school. See id.

On April 9, 2024, the trial court entered an order awarding Zayas

“temporary shared legal and primary physical custody” of Child, while

providing Mother with “liberal visitation” rights. Amended Order, 4/9/24, at 1

(unpaginated). Concomitantly, the trial court denied Zayas’s request for

predicate findings in support of Child being granted SIJS status. See id. The

trial court also authored factual and legal findings in support of its holdings.

Zayas filed a timely notice of appeal along with a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).

The trial court filed a responsive opinion pursuant to Rule 1925(a)(2)(ii).

Zayas raises the following issues for our review:

I. Did the trial court abuse its discretion or commit an error of

law when it denied . . . Zayas’s request for a finding that

reunification of Child with [F]ather is not viable due to

abandonment and serious physical neglect where, inter alia, the

court found that [F]ather has been completely absent from Child’s

life since 2017, providing no support, leaving Child without food

and other essentials of life, causing Child to miss school and

eventually cease her education altogether so that she could work

to support herself and her younger brother?

II. Did the trial court abuse its discretion or commit an error of

law when it denied . . . Zayas’s request for a finding that

reunification of Child with [M]other is not viable due to serious

physical neglect where, inter alia, the court found that [M]other,

____________________________________________

qualify as being “related” for the purposes of Rule 76. Accordingly, we observe

no fatal defect with respect to service of process.

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who suffers from alcohol use disorder, was unable to care for or

provide Child with adequate essentials of life, including food,

leaving Child to rely on the kindness of neighbors for survival, and

causing Child to miss school and eventually cease her education

altogether so that she could work to support herself and her

younger brother?

III. Did the trial court abuse its discretion or commit an error of

law when it denied . . . Zayas’s request for a finding that it is not

in Child’s best interest to return to Honduras, where her basic

physical, emotional, and educational needs were not being met

and where there would be no one to care for her, despite awarding

. . . Zayas custody after reviewing the best interest factors?

Zayas’s Brief at 5-6 (unnecessary capitalization omitted).

Initially, we note that Zayas’s claims for relief implicate only the trial

court’s order denying Zayas’s request for predicate judicial findings in support

of SIJS. Our Supreme Court recently discussed the applicable standard and

scope of review with respect to SIJS issues that arise in the context of custody

proceedings. See Velasquez v. Miranda, 321 A.3d 876, 891 (Pa. 2024).

Specifically, the High Court noted that our scope of review in this context is

plenary since it implicates issues pertaining to child custody. See id.

(reiterating that “an appellate court is not bound by the trial court’s inferences

drawn from its findings of fact, and is compelled to perform a comprehensive

review of the record for assurance the findings and credibility determinations

are competently supported”). Generally, an appellate court may not “interfere

with the trial court’s factual conclusions unless they are unreasonable in view

of the trial court’s factual findings and thus represent an abuse of discretion.”

Id. Thus, we must conduct a plenary review of the instant certified record to

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ascertain whether the trial court’s conclusions are reasonably supported by its

factual findings.

SIJS “is an immigration classification that provides humanitarian

protection for certain minors located in the United States.” Velasquez, 321

A.3d at 882 (citing 8 U.S.C. § 1101(a)(27)(J); 8 C.F.R. § 204.11(b)).

Specifically, the Immigration and Nationality Act (“INA”) defines SIJS, in

pertinent part, as a child immigrant who is present in the United States and

satisfies at least one of the following additional criteria:

(i) who has been declared dependent on a juvenile court located

in the United States or whom such a court has legally committed

to, or placed under the custody of, an agency or department of a

State, or an individual or entity appointed by a State or juvenile

court located in the United States, and whose reunification with 1

or both of the immigrant’s parents is not viable due to abuse,

neglect, abandonment, or a similar basis found under State law;

(ii) for whom it has been determined in administrative or judicial

proceedings that it would not be in the alien’s best interest to be

returned to the alien’s or parent’s previous country of nationality

or country of last habitual residence; and

(iii) in whose case the Secretary of Homeland Security consents

to the grant of special immigrant juvenile status[.]

8 U.S.C. § 1101(a)(27)(J). Generally speaking, SIJS “allows immigrant

children to seek lawful residency in the United States in order to remain where

their needs are best met and avoid deportation with, or back to, a parent that

maltreated them.” Velasquez, 321 A.3d at 882-83.

From a procedural standpoint, “[t]he road to [SIJS] classification

requires stops in both a state and federal decision-making tribunal. [USCIS]

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promulgates applicable regulations and policy, conducts interviews, screens

for fraud and other concerns, adjudicates all [SIJS] applications, and

determines whether to grant [SIJS] classification to a child.” Id. at 883.

Although the USCIS renders the final determination regarding applications for

SIJS, state courts play an integral role in these proceedings:

The USCIS application process is extensive and requires, inter

alia, a state court order that includes specific conclusions of law,

or predicate “judicial determinations.” See 8 C.F.R. § 204.11.

The state court with “jurisdiction under [s]tate law to make judicial

determinations about the dependency and/or custody and care of

juveniles,” described in the federal provisions as a “juvenile

court,” must issue an order that includes “dependency or

custody,” “parental reunification,” and “best interest”

determinations.” Id. Specifically, the state court must determine

whether: (1) “reunification with [one] or both of the child’s

parents is not viable due to abuse, neglect, abandonment, or a

similar basis found under state law,” and (2) “it would not be in

the child’s best interest to be returned to the child’s or parent’s

previous country of nationality or country of last habitual

residence.” 8 U.S.C. § 1101(a)(27)(J)(i)-(iii). It is the resulting

state court order containing these predicate judicial

determinations that an applicant must present to USCIS when

seeking SIJ[S] classification.

Velasquez, 321 A.3d at 883. Thus, “the state court does not render an

immigration decision but rather makes factual determinations predicate to

USCIS’s SIJ[S] decision.” Orozco v. Tecu, 284 A.3d 474, 477 (Pa. Super.

2022).

Our High Court has also emphasized that petitioners need only establish

their entitlement to predicate SIJS determinations by a preponderance of the

evidence. Velasquez, 321 A.3d at 906 (collecting cases). Specifically, our

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Supreme Court has explained that a Pennsylvania court presented with a

request for an SIJS judicial determination is expressly authorized by federal

law to issue predicate findings in support of SIJS if all three of the following

elements are established by a preponderance of the evidence:

(1) The court has exercised its jurisdiction as authorized by

Pennsylvania law to determine the dependency and/or

custody and care of a child;

(2) Reunification with one or both of the child’s parents is not

viable due to abuse, abandonment, neglect, or a similar

basis under Pennsylvania law; and

(3) It is not in the child’s best interest to be returned to the

child’s or their parent’s country of nationality or last habitual

residence.

Velasquez, 321 A.3d at 895 (citing 8 C.F.R. § 204.11(a), (c), & (d)(5)(i);

see also 8 U.S.C. § 1101(a)(27)(J); Orozco, 284 A.3d at 477.

At the time that the trial court denied Zayas’s SIJS petition, our

Supreme Court had not yet issued its holding in Velasquez concerning the

appropriate resolution of controversies of this nature. Zayas similarly did not

have the opportunity to raise the applicability of Velasquez before the trial

court. Additionally, our High Court noted that this particular area of law lacks

clarity, which has been an evident source of confusion to the trial and appellate

courts of Pennsylvania. See Velasquez, 321 A.3d at 905. Nonetheless, our

precedent generally provides that a “decision announcing a new rule of law is

applied retroactively so that a party whose case is pending on direct appeal is

entitled to the benefit of the changes in the law.” In re L.J., 79 A.3d 1073,

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1087 (Pa. 2013). A close review of Velasquez is, therefore, appropriate and

necessary here.

In Velasquez, a mother and her children fled Guatemala following a

violent “history of abuse” at the hands of the children’s father, who also did

not adequately provide for the family. Velasquez, 321 A.3d at 883-84.

Following their arrival in Pennsylvania, the mother initiated custody litigation

in the Delaware County Court of Common Pleas seeking sole legal and physical

custody, while concomitantly requesting SIJS predicate findings based upon

the “alleged abuse, abandonment, and neglect” perpetrated by the children’s

father. Id. at 884. Following a consolidated hearing, the trial court awarded

the mother sole legal and physical custody. See id. at 887.

The trial court denied, however, the mother’s request for SIJS predicate

findings. Specifically, the court cited several alleged factual deficiencies that

it believed precluded the entry of findings in support of SIJS status. See id.

at 889 (holding that the record could not “definitively support a conclusion

that it is in the best interests of [c]hildren to issue a[n] SIJ[S] order” due to

the absence of information regarding the children’s “prospects of success” in

Guatemala or the parents’ financial situation). This Court affirmed after

concluding that the children were “simply ineligible” for SIJS as they had not

been “adjudicated dependent or placed in the legal custody of a state agency

or an individual or entity appointed by a state or juvenile court.” See id. at

890 (citing 8 U.S.C. § 1101(a)(27)(J)(i)).

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Our Supreme Court granted allowance of appeal and reversed on both

legal and factual grounds. With respect to eligibility, the High Court concluded

that the Superior Court’s interpretation of section 1101(a)(27)(J)(i) had been

too narrow and that the at-issue statutory language plainly indicated that

“proceedings in custody court . . . may properly support a[n] SIJ[S]-qualifying

order for later presentation to USCIS.” Velasquez, 321 A.3d at 901; see

also Orozco, 284 A.3d at 477 (recognizing that a Pennsylvania custody court

has jurisdiction to adjudicate requests for SIJS findings).

The High Court also disapproved of the trial court’s preoccupation with

the ultimate immigration implications of its holding, explaining as follows:

The operative question is not whether immigration to the

United States is in [the children’s] best interest, but rather

whether the facts found by the court –which in this case evidently

supported an award of sole legal and physical custody to [their

mother] – also supported the SIJ[S] predicate determinations that

reunification with [their father was] not viable due to abuse,

neglect, abandonment, or a similar basis under state law, and that

a return to Guatemala [was] not in [the children’s] best interest.

Velasquez, 321 A.3d at 905-06. Furthermore, the Court found that the trial

court had held the mother “to an inapt burden of proof” by opining that the

record must “definitively support a conclusion that it is in the best interest

of the children to issue a[n] SIJ[S] order.” Id. at 906 (emphasis in original).

Rejecting this high evidentiary standard, our Supreme Court emphasized that

SIJS petitioners need only establish their entitlement to predicate findings by

a “preponderance of the evidence.” Id.

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Based upon the trial court’s application of incorrect legal standards, the

High Court set aside its SIJS findings. See id. Thereafter, the High Court

conducted a “comprehensive review of the record” and reversed on the merits.

Id. Ultimately, the Supreme Court remanded to the custody court for the

entry of orders “containing predicate SIJ[S] determinations and corresponding

factual support” consistent with its holding. See id. at 908.

Applying Velasquez to the instant case, we find the same errors of law

on the face of the trial court’s holdings. As a threshold matter, the trial court

incorrectly opined that it may not entertain requests for SIJS predicate

findings in the context of custody proceedings. See Findings of Fact and

Conclusions of Law, 4/9/24, at 9-10 (erroneously concluding that SJIS

requests are improper outside of the context of dependency or delinquency

matters). As detailed above, our Supreme Court has rejected this position

and affirmed that custody proceedings are an appropriate vehicle to seek SIJS

findings. See Velasquez, 321 A.3d at 901.

The trial court also misapprehended the applicable burden of proof in an

identical fashion to the trial court in Velasquez. Here, the trial court used an

incorrect evidentiary standard when it stated, “the record in this matter does

not definitively support a conclusion that it is in the best interest of [Child] to

issue a[n] SIJ[S] order.” Findings of Fact and Conclusions of Law, 4/9/24, at

10. In Velasquez, the trial court similarly used an incorrect standard when

it concluded that the record could not “definitively support a conclusion that it

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is in the best interests of [c]hildren to issue a[n] SIJ[S] order” due to the

absence of information regarding the children’s “prospects of success” in

Guatemala or the parents’ financial situation. Velasquez, 321 A.3d at 889.

As explained by our High Court, SIJS petitioners need only establish their

entitlement to predicate findings by a preponderance of the evidence, not by

the high evidentiary standard of establishing a definitive conclusion. See

Velasquez, 321 A.3d at 905-06.

Finally, as did the court in Velasquez, the trial court in the instant case

displayed the same inappropriate preoccupation with Child’s legal status,

opining as follows:

The court struggled not to believe that [Child’s] departure

from Honduras was really for the sole purpose of trying to benefit

from the child custody laws in Pennsylvania and for her, and her

child, to become a United States citizen, rather than the stated

reasons in the petition alleging neglect[] and abandonment.

Findings of Fact and Conclusions of Law, 4/9/24, at 10; see also Velasquez,

321 A.3d at 905 (holding that “[t]he custody court inaccurately framed the

issue as whether the issuance of an SIJ[S order was] in the best interest of

[the c]hildren because it will enable them to pursue permanent lawful status

and eventually citizenship”).

As noted above, we recognize that the trial court rendered its analysis

in this matter without the assistance of our Supreme Court’s holding in

Velasquez. Nonetheless, based upon the fundamental legal errors discussed

above, we conclude that the trial court’s findings with respect to Zayas’s SIJS

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petition must be set aside. See id. at 906 (holding that “[w]e reject the

custody court’s SIJ[S] findings because, as discussed supra, it applied the

wrong legal standard and burden of proof”). There is simply no way to

adequately harmonize the trial court’s analysis with Velasquez.

Moreover, upon conducting a comprehensive and plenary review of the

certified record, we conclude that Child is entitled to SIJS predicate

determinations. See id. at 907 (citing Interest of K.N.L., 284 A.3d 121, 133

(Pa. 2022)). Notably, the trial court did not find the testimony of Child to be

credible regarding the manner in which Child traveled to the United States and

ended up in the custody of Zayas. See Findings of Fact and Conclusions of

Law, 4/9/24, at 6 (detailing the trial court’s conclusion that Child was not

credible in testifying that she had not paid to travel to the United States and

did not initially intend to reside with Zayas upon departing from Honduras).

Frankly, though, we fail to discern how the mere manner in which Child

traveled to the United States is relevant to the pertinent statutory elements,

particularly in light of our Supreme Court’s recent guidance on this very issue.

See Velasquez, 321 A.3d at 905-06.

Critically, the trial court did deem Child to be “somewhat credible” with

respect to her descriptions of her life in Honduras. See Findings of Fact and

Conclusions of Law, 4/9/24, at 4 (where the trial court stated “[h]aving

observed the testimony and demeanor of both witnesses, the court did find

their testimony to be somewhat credible”). Indeed, the trial court relied

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entirely upon Child’s testimony in crafting its factual history of the case and

did not indicate that any of these aspects of Child’s testimony were suspect or

lacking in candor. See id. at 3-6. Accordingly, “there is no reason to disrupt

its credibility determination[s] . . . as they are amply supported by the record.”

Velasquez, 321 A.3d at 906. Reviewing only the factual findings deemed

credible by the trial court, we find that there is ample support for the issuance

of predicate SIJS findings in the instant case.

Examining the first of the three statutory elements set forth in

Velasquez, that the court has exercised its jurisdiction to determine the

dependency and/or custody and care of a child, the instant petition fulfills this

requirement since the trial court properly exercised jurisdiction in these

custody proceedings and, thus, was empowered to adjudicate Zayas’s SIJS

petition.2 See id. at 895.

With respect to the second statutory element, Child’s testimony

indicates that reunification with both of her Parents is not viable. As to Father,

Child’s testimony indicates that he has abandoned his family and no longer

provides any material support or care to Child. See N.T., 3/21/24, at 13-14.

Child also testified that, following Father’s abandonment, Mother ceased

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2 The instant case differs from Velasquez in that a non-familial individual

standing in loco parentis sought custody of Child, as opposed to one of her

parents. We do not find that this distinction affects the import of the holding

in Velasquez since Zayas was awarded custody rights. See Velasquez, 321

A.3d at 897 (holding that “[t]he statute also covers children who are placed

into the custody of individuals by the state court”).

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providing care for Child, began abusing alcohol, and used threats of self-harm

to saddle Child with the responsibility of providing full-time care for her

younger brother. See id. at 14-16. According to Child’s testimony, these

events caused her to drop out of school and forced the family to rely on charity

from their neighbors to survive. See id. at 15. Following these flagrant

parental abdications, we are also mindful that Child became pregnant at the

tender age of approximately fifteen. See id. Whether characterized as

neglect or abandonment, these evidentiary findings clearly indicate that

reunification with Parents is not a viable option for Child.

Turning to the third and final statutory element, we also readily conclude

that the evidence establishes that it is not in Child’s best interests to return to

Honduras. Instantly, there is no dispute that Zayas and his family are present

in the United States and providing adequately for Child’s needs. Indeed, the

trial court found that Child’s life has substantially improved since her

departure from Honduras:

[Child] testified that she has been with [Zayas] since leaving from

Texas, and life is much better. [Zayas] has provided food and

shelter for her, and her son, since she has been in the US. [Child]

has also been registered in school, which she has consistently

attended since enrollment, something she says she was unable to

do if she had remained in Honduras. [Zayas] is able to provide

for [Child’s] daily needs, including taking her to all of her medical

appointments.

Findings of Fact and Conclusions of Law, 4/9/24, at 4. Our review of the

transcript corroborates the trial court’s findings on this point. See N.T.,

3/21/24, at 16-19. We also note that Child expressed a clear preference for

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remaining in the custody of Zayas. See id. at 19. Based upon the foregoing,

we find that the third statutory element has also been met in this case. Given

the trial court’s award of physical and legal custody to Zayas, we find that it

is not in Child’s best interests to be returned to the care of her neglectful, or

entirely absent, Parents in Honduras.

Based on the foregoing, we reverse and remand this matter to the trial

court and direct it to enter an order for Child containing predicate SIJS

determinations and corresponding factual support consistent with this

memorandum. See Velasquez, 321 A.3d at 908-09. The court’s order

awarding shared legal and physical custody of Child to Zayas and Mother

remains intact. See id.

Order reversed. Case remanded with instructions. Jurisdiction

relinquished.

Date: 1/08/2025

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