Hernandez v. Dorantes
Citation994 N.W.2d 46, 314 Neb. 905
Date Filed2023-08-18
DocketS-22-549
Cited16 times
StatusPublished
Full Opinion (html_with_citations)
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/18/2023 08:09 AM CDT
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314 Nebraska Reports
HERNANDEZ V. DORANTES
Cite as 314 Neb. 905
Tania Gallardo Hernandez, appellant, v.
Emilio I. Martinez Dorantes, appellee.
___ N.W.2d ___
Filed August 18, 2023. No. S-22-549.
1. Statutes. Statutory interpretation presents a question of law.
2. Judgments: Appeal and Error. An appellate court independently
reviews questions of law decided by a lower court.
3. Federal Acts: Appeal and Error. When reviewing a trial court’s
determination made pursuant to 8 U.S.C. § 1101(a)(27)(J) (2018)
of the Immigration and Nationality Act, an appellate court applies
the same standard of review ordinarily applied to judicial determina-
tions in the type of action or proceeding in which the determinations
were requested.
4. Divorce: Appeal and Error. In a marital dissolution action, an appellate
court reviews the case de novo on the record to determine whether there
has been an abuse of discretion by the trial judge.
5. Evidence: Appeal and Error. In a review de novo on the record, an
appellate court is required to make independent factual determinations
based upon the record, and the court reaches its own independent con-
clusions with respect to the matters at issue.
6. Judges: Words and Phrases. A judicial abuse of discretion exists if the
reasons or rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in matters
submitted for disposition.
7. Evidence: Appeal and Error. When evidence is in conflict, the appel-
late court considers and may give weight to the fact that the trial court
heard and observed the witnesses and accepted one version of the facts
rather than another.
8. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence
Rules commit the evidentiary question at issue to the discretion of the
trial court, an appellate court reviews the admissibility of evidence for
an abuse of discretion.
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9. Courts: Minors. The role of state courts in the special immigrant juve-
nile status determination is to make the findings of fact necessary to the
U.S. Citizenship and Immigration Service’s legal determination of the
immigrant child’s entitlement to special immigrant juvenile status.
10. Courts: Federal Acts: Minors. Federal law affirms the institutional
competence of state courts as the appropriate forum for child welfare
determinations regarding abuse, neglect, and abandonment, as well as a
child’s best interests. But it is not the role of the state court to make a
determination as to whether a child will ultimately be eligible for special
immigrant juvenile status; that is a determination reserved for the U.S.
Citizenship and Immigration Service and the federal government.
11. Courts: Minors: Evidence. On a motion for special findings pursu-
ant to Neb. Rev. Stat. § 43-1238(b) (Cum. Supp. 2022), the state court
should concern itself only with the determinations that have been
requested and are supported by sufficient evidence, and not with the
ultimate merits or purpose of the juvenile’s application for special immi-
grant juvenile status.
12. Jurisdiction: Minors: Child Custody: Evidence. Pursuant to Neb.
Rev. Stat. § 43-1238(b) (Cum. Supp. 2022), if there is sufficient evi-
dence to support special immigrant juvenile status findings, a Nebraska
court exercising jurisdiction over an initial child custody proceed-
ing shall issue an order regarding the following determinations, when
requested by one of the parties or upon the court’s own motion: (1) that
the child has been abused, abandoned, or neglected; (2) that reunifica-
tion with at least one of the child’s parents is nonviable due to abuse,
abandonment, neglect, or a similar basis under state law; and (3) that it
would not be in the child’s best interests to be removed from the United
States to a foreign country, including the child’s country of origin or last
habitual residence.
13. Divorce: Minors: Proof. When special immigrant juvenile findings are
requested in a dissolution action, it is ordinarily appropriate to apply the
preponderance of the evidence standard.
14. Courts: Minors: Evidence. Courts asked to make special immigrant
juvenile status determinations are not required to make determinations
favorable to the party seeking them, and may conclude that there was
insufficient evidence to support such determinations or that the evidence
adduced was not credible.
15. Trial: Evidence: Appeal and Error. In a civil case, the admission or
exclusion of evidence is not reversible error unless it unfairly prejudiced
a substantial right of the complaining party.
16. ____: ____: ____. The exclusion of evidence is ordinarily not prejudi-
cial where substantially similar evidence is admitted without objection.
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17. Trial: Evidence: Testimony. Where the information contained in an
exhibit is, for the most part, already in evidence from the testimony of
witnesses, the exclusion of the exhibit is not prejudicial.
Appeal from the District Court for Douglas County: Marlon
A. Polk, Judge. Affirmed.
Anna D. Deal, of Immigrant Legal Center, an affiliate of the
Justice for Our Neighbors Network, for appellant.
No appearance for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Per Curiam.
I. INTRODUCTION
In this dissolution case, the mother requested sole legal
and physical custody of the parties’ minor child, and she also
asked the dissolution court to make specific findings to sup-
port an application to obtain special immigrant juvenile (SIJ)
status for the child under 8 U.S.C. § 1101(a)(27)(J) (2018)
of the Immigration and Nationality Act. The court awarded
the mother sole custody and made some, but not all, of the
requested SIJ findings. The mother timely appealed to chal-
lenge the SIJ findings, and we moved this case to our docket
on our own motion. 1 On this record, we find no abuse of dis-
cretion regarding the SIJ findings, and affirm.
II. BACKGROUND
Tania Gallardo Hernandez (Tania) and Emilio I. Martinez
Dorantes (Emilio) were married in Mexico. The parties’ only
child, Max, was born in Mexico in December 2016. Max has
been diagnosed with hydrocephaly and spina bifida. In 2018,
Tania moved with Max to the United States to seek spe-
cialized treatment for his medical conditions. Emilio joined
1
See Neb. Rev. Stat. § 24-1106 (Cum. Supp. 2022).
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Tania and Max in the United States sometime in 2019. They
lived together for a period of time in Omaha, Nebraska, but in
2020, Tania and Emilio separated.
1. Complaint for Dissolution
In July 2021, Tania filed, pro se, a complaint for dissolution
of marriage in the district court for Douglas County. Her com-
plaint requested sole legal and physical custody of Max. Emilio
was personally served with the complaint on July 22, 2021, but
he never filed an answer.
Apparently, pursuant to local “Court Rule 4.3,” the court
referred the case to the conciliation court in Douglas County
for the parties to complete parenting classes and medi-
ate a parenting plan. The transcript includes a filing titled
“Parenting Plan Disposition” filed by the conciliation court,
stating that Tania attended the required parenting class in
December 2021 and that Emilio “attended parent education
class but did not pay.” Attached to this filing is a document
dated March 25, 2022, and titled “Default Parenting Plan Rule
4.3,” which states:
[Emilio] (defaulting parent) is in default for failing
to comply with Court Rule 4.3 requiring participation in
the parent education class and mediation for purpose of
establishing a parenting plan. [Tania] (custodial parent)
shall have custody of the minor child/ren of the parties.
The visitation and parenting time of [Emilio] (defaulting
parent) shall be at the sole discretion of [Tania] (custodial
parent) until such time as [Emilio] (defaulting parent)
complies with Rule 4.3 by attending the parent education
class and by either mediating or negotiating a parenting
plan, which has been approved by the Conciliation Court
and Mediation Services.
In April 2022, the Immigrant Legal Center entered an
appearance as Tania’s counsel of record and filed a notice
setting the dissolution for final hearing on April 27, 2022.
The notice of hearing advised that Tania “intends to seek
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special findings, to be requested in a forthcoming motion,
with respect to whether her minor child’s reunification with
[Emilio] is viable and whether return to Mexico would be in
the child’s best interest.”
2. Motion for Special Findings
In April 2022, Tania filed a motion asking the court to
issue “an order containing special findings in support of her
minor child’s eligibility for [SIJ] Status.” As authority for
this request, the motion relied on 8 U.S.C. § 1101(a)(27)(J) of the Immigration and Nationality Act andNeb. Rev. Stat. § 43-1238
(b) (Cum. Supp. 2022). The relevant provisions of
both statutes are set out in the analysis section of this opinion.
Tania’s motion asked that the following SIJ findings be
incorporated into the dissolution decree:
1. The minor child’s reunification with [Emilio] is not
viable due to abuse, neglect, abandonment, or a similar
basis found under state law within the meaning of Section
101(a)(27)(J) of the INA;
2. [Emilio] has neglected the minor child . . . as defined
in Neb. Rev. Stat. § 28-710(2)(b)(i) and (iii) [(Cum. Supp.
2022)], in that [he] has knowingly, intentionally, or negli-
gently caused or permitted Max to be placed in a situation
that endangers his . . . physical or mental health, and to
be deprived of necessary food, clothing, shelter, or care.
[Emilio] verbally and physically abused [Tania] in the
minor child’s presence, including threatening and attack-
ing her with a knife. [Emilio] also abused alcohol and
drugs in the presence of the minor child. Since December
2020, when [Tania] and [Emilio] separated, [Emilio] has
not provided any economic or emotional support for the
child or maintained a parent-child relationship. [Tania]
alone has provided for Max’s physical, emotional, medi-
cal, and educational needs.
3. It would not be in Max’s interest to return to
Mexico, his country of nationality, within the meaning
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of Section 101(a)(27)(J) of the INA. Max has significant
disabilities due to congenital conditions including hydro-
cephaly and spina bifida. In Mexico, he would be without
parental support and care and would lack access to the
medical treatment, therapy, and special education services
he requires to survive and reach his full potential.
The record shows that Tania served Emilio with the notice
of hearing and a Spanish translation of the motion for
SIJ findings.
3. Final Hearing
On April 27, 2022, the district court held a final hearing on
the complaint for dissolution and took up the motion for spe-
cial SIJ findings. Emilio appeared pro se, and Tania appeared
with counsel of record. Although the parties had not reached
a formal settlement agreement, the record shows there was no
dispute that the marriage was irretrievably broken, that Tania
should have sole custody of Max, that Tania did not want child
support, and that the parties had already divided all their mari-
tal property. The evidence thus focused primarily on Tania’s
requested SIJ findings. The court received several exhibits
and heard testimony from both parties, each of whom testified
through a Spanish interpreter.
(a) Tania’s Testimony
As relevant to the issues on appeal, Tania testified that when
Max was born in Mexico City, Mexico, Emilio was working
in Acapulco, Mexico, and did not earn enough to support the
family. No specific evidence was adduced about Emilio’s earn-
ings or earning potential, either historically or currently. Tania
testified that Max was hospitalized for 3 months after his birth
and has required several additional hospitalizations and surger-
ies. Tania said she relied primarily on her mother, who resides
in the United States, to pay for Max’s medical care in Mexico.
Tania also testified that Emilio has never participated in Max’s
daily care and that he did not want to.
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According to Tania, she moved with Max to the United
States in 2018, in part because of “all the violence in Mexico”
but also to receive medical care because Max’s doctor in
Mexico “said that he couldn’t do anything for him.” She said
Emilio did not want to come to the United States at that point,
but he joined them in 2019. After Emilio moved to the United
States, Tania said their marital relationship deteriorated. She
testified that Emilio became physically, emotionally, and ver-
bally abusive and would use drugs in Max’s presence. The
parties separated in 2020. Tania testified that since the separa-
tion, Emilio has not asked to see Max and has provided no
financial support. There is nothing in the record suggesting
either party requested temporary orders during the pendency of
the dissolution.
At the time of trial, Max was 5 years old. He was attending
school, as well as receiving regular medical care and therapy,
and Tania described his progress as “really, really good.” Max
uses a wheelchair and requires assistance with daily activities.
Tania offered a letter from one of Max’s medical providers that
explains that due to his spina bifida, Max is unable to walk
or move his legs. He has a neurogenic bladder that requires
assistance to be emptied completely and as a result is at greater
risk for urinary tract infections. Max has a shunt for his hydro-
cephalus that requires great care and monitoring, as infections
can be life threatening. As a result of his hydrocephalus, Max
has speech delays that are being addressed in school. Max has
a good prognosis for a full life, but he will continue to require
specialized medical care and support.
Tania generally testified that Emilio does not know how to
care for Max; he has never fed Max or changed his diaper.
Tania said that if Max was placed in Emilio’s care she would
worry for Max’s safety. Tania requested full legal and physical
custody of Max. She also testified that it would not be in Max’s
best interests to return to Mexico, because he would not have
access to the medical specialists or the therapy he needs and he
would not be able to attend school.
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Tania also testified about occasions when she called police
to report that Emilio was being physically and verbally abusive
toward her. At one point Emilio was arrested and charged with
terrorism, and he spent approximately 3 months in jail await-
ing trial. Tania said she eventually “drop[ped] the charges”
and then petitioned for, and was granted, a domestic abuse
protection order against Emilio, on behalf of herself and Max.
File-stamped photocopies of the protection order filings and
orders were received into evidence. These documents show
that Emilio requested a hearing on the ex parte domestic abuse
protection order, but then failed to appear so the ex parte order
was affirmed. The affidavit attached to Tania’s petition detailed
several instances of domestic abuse by Emilio against Tania
and stated that Max was present when Emilio was threatening
Tania with a knife and Emilio “started stabbing the door.” The
affidavit stated Max was “very afraid and was shaking because
he saw everything that happened.”
(b) Emilio’s Testimony
Emilio did not cross-examine Tania, but he testified briefly
in his own behalf. As stated earlier, he did not contest the
divorce nor did he contest that Tania should have sole legal
and physical custody of Max. Emilio testified that he was
working in Acapulco when Tania and Max first came to the
United States, and he explained, “I didn’t know that they
were going to allow . . . her in, that’s why I didn’t come with
them.” Emilio said that after he moved to the United States,
Tania decided to leave the marriage. He believed Tania had
been unfaithful to him because her goal was to obtain U.S. cit-
izenship. According to Emilio, Tania said that “if she couldn’t
become a citizen with me, she would become a citizen without
me.” Emilio said he was “giving [Tania] full custody” because
he did not have any family in the Omaha area; he was consid-
ering moving away to live with his aunts and uncles, but he
did not say where. Emilio testified that it was “fine” if Tania
wanted him to be “far away from her” but he did not like
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that she “threatened to keep me away from my son.” He testi-
fied that although Tania painted him as a “really bad person,”
he “never attacked her” and he did not use drugs. Emilio
asked the court to “have compassion” for his circumstances,
stating: “[P]lease, I don’t want anything on my immigration
record. I just came here because of my marriage with her.
So I just don’t want any problems . . . with the authorities,
Your Honor.”
4. Dissolution Decree
At the close of the hearing, the district court made specific
findings from the bench. It made the standard findings that
the marriage was irretrievably broken and should be dis-
solved. It also found that Tania should be awarded sole legal
and physical custody of Max, that Emilio’s parenting time
would be “at the discretion of Tania” until he completed the
required parenting class, and that no child support would be
ordered. As to the requested SIJ findings, the court expressly
found it would not be in the child’s best interests to return to
Mexico, but it declined to make any of the other SIJ findings.
The following exchange then occurred between the court and
Tania’s counsel:
[Counsel for Tania]: Just to confirm, Your Honor, it
sounds like your order is not entering findings with
respect to [Emilio’s] neglect of Max and his — Max’s
inability to be reunified with [Emilio] at this time due to
that neglect; is that correct?
THE COURT: That is correct. I am making the finding
that pursuant to the Parenting Plan, that the parenting
time would be at her discretion, but if he were to com-
plete the parenting seminar, then he would be able to
access and look to and try to get parenting time with
Max. This is not a termination of parental rights case,
so I am not making that finding against [Emilio]. But I
am making findings that it would be in the best interests
of Max to remain here in the United States for his
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safety, as well as his medical and as well as his educa-
tional needs.
[Counsel for Tania]: Okay. We are not seeking a ter-
mination of parental rights. . . . We are seeking a finding
that [Emilio] has neglected Max, and that Max cannot be
reunified with [Emilio] at this time due to such neglect.
So if you feel the evidence does not support that finding,
then that’s fine.
THE COURT: That is correct.
[Counsel for Tania]: In the alternative, Your Honor,
would you find that reunification is not viable based on
abandonment because the father has not been involved in
the child’s care or maintenance?
THE COURT: I’m not willing to make that finding.
On May 2, 2022, the district court entered a dissolution
decree that memorialized the findings announced from the
bench. The decree gave Tania sole legal and physical custody
of Max. The court attached and incorporated the “Default
Parenting Plan” referenced earlier, and it expressly found such
parenting plan “complies with the Parenting Act and is in the
best interest of the minor child.”
As relevant to the request for SIJ findings, the decree stated:
The Court finds that it would not be in Max’s inter-
est to return to Mexico, his country of nationality. Max
has significant disabilities due to congenital conditions
including hydrocephaly and spina bifida. In Mexico, he
would be without parental support and care and would
lack access to the medical treatment, therapy, and special
education services he requires to survive and reach his
full potential.
5. Motion to Alter or
Amend Decree
Tania filed a timely motion to alter or amend the decree,
asking the court to include in the decree “specific findings of
fact regarding the best interest of the minor child, including
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that the child’s reunification with [Emilio] is not viable at
this time due to [Emilio’s] neglect.” The brief Tania submit-
ted in support of this motion is in the appellate transcript,
and it argued primarily that there was sufficient evidence in
the record to support a finding that Max’s reunification with
Emilio was not viable due to neglect. The district court denied
Tania’s motion without elaboration in an order entered July
11, 2022.
Tania filed a timely notice of appeal, and we moved the
case to our docket. Emilio has not filed a brief on appeal and
is in default.
III. ASSIGNMENTS OF ERROR
Tania recites six assignments of error that can be con-
solidated and restated into two: (1) The district court erred by
refusing to make the requested SIJ determinations pursuant to
8 U.S.C. § 1101(a)(27)(J) and § 43-1238(b), and (2) the dis-
trict court erred in excluding exhibit 3, which was styled as an
unsworn, unnotarized “declaration” signed by Tania.
IV. STANDARD OF REVIEW
[1,2] Statutory interpretation presents a question of law. 2 An
appellate court independently reviews questions of law decided
by a lower court. 3
We have not expressly articulated a standard of review for
appeals from a trial court’s determination made pursuant to 8
U.S.C. § 1101(a)(27)(J) of the Immigration and Nationality Act. In most of our prior decisions, the primary issue on appeal concerned the trial court’s jurisdiction and authority to make such determinations. 4 In the few appeals addressing the 2 McGill Restoration v. Lion Place Condo. Assn.,313 Neb. 658
,986 N.W.2d 32
(2023). 3 Charter West Bank v. Riddle, ante p. 263,989 N.W.2d 428
(2023). 4 See, Sabino v. Ozuna,305 Neb. 176
,939 N.W.2d 757
(2020); In re Guardianship of Luis J.,300 Neb. 659
,915 N.W.2d 589
(2018); In re Guardianship of Carlos D.,300 Neb. 646
,915 N.W.2d 581
(2018). See, also, Francisco v. Gonzalez,301 Neb. 1045
,921 N.W.2d 350
(2019).
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Cite as 314 Neb. 905merits of the trial court’s determination made pursuant to the federal statute, the applicable standard of review was generally dependent upon the type of action or proceeding in which the determinations were requested. 5 [3] We now hold that when reviewing a trial court’s deter- mination made pursuant to8 U.S.C. § 1101
(a)(27)(J) of the Immigration and Nationality Act, an appellate court applies the same standard of review ordinarily applied to judicial determi- nations in the type of action or proceeding in which the deter- minations were requested. [4-7] Here, Tania appeals from the decree issued by the district court in a marital dissolution. In a marital dissolution action, an appellate court reviews the case de novo on the record to determine whether there has been an abuse of discre- tion by the trial judge. 6 In a review de novo on the record, an appellate court is required to make independent factual deter- minations based upon the record, and the court reaches its own independent conclusions with respect to the matters at issue. 7 A judicial abuse of discretion exists if the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submit- ted for disposition. 8 When evidence is in conflict, the appellate court considers and may give weight to the fact that the trial court heard and observed the witnesses and accepted one ver- sion of the facts rather than another. 9 5 See, In re Interest of Luis G.,17 Neb. App. 377
,764 N.W.2d 648
(2009) (juvenile case); Mejia Ramirez v. Mercado Bautista, No. A-19-908,2020 WL 2730967
(Neb. App. May 26, 2020) (selected for posting to court website) (marital dissolution); In re Guardianship of Jaime G., No. A-16-895,2017 WL 4269830
(Neb. App. Sept. 26, 2017) (selected for posting to court website) (probate case). Cf. Sabino v.Ozuna, supra note 4
(marital dissolution). 6 Kauk v. Kauk,310 Neb. 329
,966 N.W.2d 45
(2021). 7 Parde v. Parde,313 Neb. 779
,986 N.W.2d 504
(2023). 8 Parish v. Parish, ante p. 370,991 N.W.2d 1
(2023). 9 Parde v.Parde, supra note 7
.
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[8] Where the Nebraska Evidence Rules commit the evi-
dentiary question at issue to the discretion of the trial court,
an appellate court reviews the admissibility of evidence for an
abuse of discretion. 10
V. ANALYSIS
1. Overview of SIJ Procedure
We begin with an overview of the SIJ procedure. Under
8 U.S.C. § 1101(a)(27)(J) of the federal Immigration and Nationality Act, SIJ status provides certain immigrant children the ability to seek lawful permanent residence in the United States. It is a unique form of immigration relief in that the application process requires determinations made by both the state courts and the federal government. 11 Generally speaking, the application for SIJ status involves a two-step process. To be eligible for SIJ status, a petitioning juvenile must first obtain certain determinations from a state “[j]uvenile court.” 12 Federal regulation defines “[j]uvenile court” as “a court located in the United States that has jurisdiction under State law to make judicial determinations about the dependency and/or custody and care of juveniles.” 13 In Nebraska, a dissolution court with jurisdiction to determine custody of a child also has jurisdiction to make SIJ determinations regarding such child. 14 By federal statute and regulation, the state juvenile court— rather than the U.S. Citizenship and Immigration Services (USCIS), the federal adjudicating entity—is designated as the appropriate forum for child welfare determinations regarding abuse, neglect, and abandonment, as well as determination 10 State v. Lorello, ante p. 385,991 N.W.2d 11
(2023). 11 See,8 U.S.C. § 1101
(a)(27)(J);8 C.F.R. § 204.11
(2023). 128 C.F.R. § 204.11
(a). 13Id.
14 See Sabino v.Ozuna, supra note 4
. See, also, § 43-1238(b).
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Cite as 314 Neb. 905of a child’s best interests. 15 In pertinent part,8 U.S.C. § 1101
(a)(27)(J) defines a “special immigrant” as:
[A]n immigrant who is present in the United States—
(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 pre-
vious 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 . . . .
(Emphasis supplied.) Federal regulation instructs that the itali-
cized language above reflects the determinations to be made by
the state juvenile court, when there is sufficient evidence, as
the first step in the SIJ procedure. 16
The second step in the SIJ procedure requires the juvenile to
file a petition with USCIS that includes the state court’s deter-
minations, after which USCIS conducts a plenary review, 17 and
makes the final determination regarding SIJ status. 18 Federal
regulations governing such review are contained in 8 C.F.R.
§ 204.11(c), which provides, in part:
Juvenile court order(s)—
15
See, generally, 8 U.S.C. § 1101(a)(27)(J);8 C.F.R. § 204.11
. 16 See, generally,8 C.F.R. § 204.11
(c). 17 See, generally,8 C.F.R. § 204.11
(d). 18 See8 C.F.R. § 204.11
(b)(5).
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(1) Court-ordered dependency or custody and paren-
tal reunification determination. The juvenile court must
have made certain judicial determinations related to the
petitioner’s custody or dependency and determined that
the petitioner cannot reunify with their parent(s) due to
abuse, neglect, abandonment, or a similar basis under
State law.
(i) The juvenile court must have made at least one of
the following judicial determinations related to the peti-
tioner’s custodial placement or dependency in accordance
with State law governing such determinations:
(A) Declared the petitioner dependent upon the juve-
nile court; or
(B) Legally committed to or placed the petitioner
under the custody of an agency or department of a State,
or an individual or entity appointed by a State or juve-
nile court.
(ii) The juvenile court must have made a judicial deter-
mination that parental reunification with one or both par-
ents is not viable due to abuse, abandonment, neglect, or a
similar basis under State law. The court is not required to
terminate parental rights to determine that parental reuni-
fication is not viable.
(2) Best interest determination.
(i) A determination must be made in judicial or admin-
istrative proceedings by a court or agency recognized by
the juvenile court and authorized by law to make such
decisions that it would not be in the petitioner’s best
interest to be returned to the petitioner’s or their parent’s
country of nationality or last habitual residence.
(ii) Nothing in this part should be construed as altering
the standards for best interest determinations that juvenile
court judges routinely apply under relevant State law.
(3) Qualifying juvenile court order(s).
(i) The juvenile court must have exercised its authority
over the petitioner as a juvenile and made the requisite
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judicial determinations in this paragraph under applicable
State law to establish eligibility.
Federal regulations state that a juvenile court’s order should
include the factual basis for any determinations. 19 If SIJ status
is approved by USCIS, the juvenile can apply for legal perma-
nent residence in the United States.
2. State Law and SIJ Findings
As additional background, we next review the Nebraska
legislation implemented to support the federal SIJ proce-
dure. In 2018, the Legislature amended Nebraska’s version
of the Uniform Child Custody Jurisdiction and Enforcement
Act to clarify that Nebraska courts with jurisdiction over an
“initial child custody determination” as that term is used in
§ 43-1238(a) also have jurisdiction and authority to make spe-
cial findings of fact similar to those contemplated by 8 U.S.C.
§ 1101(a)(27)(J). 20 As relevant here, § 43-1238(b) provides:
In addition to having jurisdiction to make judicial deter-
minations about the custody and care of the child, a court
of this state with exclusive jurisdiction under subsection
(a) of this section has jurisdiction and authority to make
factual findings regarding (1) the abuse, abandonment, or
neglect of the child, (2) the nonviability of reunification
with at least one of the child’s parents due to such abuse,
abandonment, neglect, or a similar basis under state law,
and (3) whether it would be in the best interests of such
child to be removed from the United States to a foreign
country, including the child’s country of origin or last
habitual residence. If there is sufficient evidence to sup-
port such factual findings, the court shall issue an order
containing such findings when requested by one of the
parties or upon the court’s own motion.
19
8 C.F.R. § 204.11(d)(5)(i).
20
See In re Guardianship of Carlos D., supra note 4.
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Cite as 314 Neb. 905Although the elements recited in § 43-1238(b) do not precisely track the language of the federal SIJ statute, we have said that § 43-1238(b) “clarifies that courts with jurisdiction over an ‘initial child custody determination’ as that term is used in § 43-1238(a) also have jurisdiction and authority to make spe- cial findings of fact similar to those contemplated by8 U.S.C. § 1101
(a)(27)(J).” 21 [9,10] With this overview in mind, we take this opportu- nity to emphasize the limited role of the Nebraska courts with respect to a juvenile’s motion for special SIJ determinations under8 U.S.C. § 1101
(a)(27)(J). In our most recent opinion addressing a motion for SIJ findings, we said that the role of state courts in the SIJ status determination is to make the findings of fact necessary to USCIS’ legal determination of the immigrant child’s entitlement to SIJ status. 22 We explained that federal law affirms the institutional competence of state courts as the appropriate forum for child welfare determina- tions regarding abuse, neglect, and abandonment, as well as a child’s best interests. But we observed it is not the role of the state court to make a determination as to whether a child will ultimately be eligible for SIJ status; that is a determination reserved for USCIS and the federal government. 23 We adhere to that articulation and supplement it here. [11] Because the federal courts have exclusive jurisdiction over immigration status, the merits of a juvenile’s appli- cation for SIJ status, if any, will be determined in immigra- tion proceedings in accordance with federal law. Therefore, when presented with a motion for special findings pursuant to § 43-1238(b), the state court should concern itself only with the determinations that have been requested and are supported by sufficient evidence, and not with the ultimate merits or pur- pose of the juvenile’s application for SIJ status. 21 Id., 300 Neb. at 654, 915 N.W.2d at 586. 22 Sabino v.Ozuna, supra note 4
. 23Id.
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Cite as 314 Neb. 905[12] Pursuant to § 43-1238(b), if there is sufficient evidence to support requested SIJ findings, a Nebraska court exercis- ing jurisdiction over an initial child custody proceeding shall issue an order regarding the following determinations, when requested by one of the parties or upon the court’s own motion: (1) that the child has been abused, abandoned, or neglected; (2) that reunification with at least one of the child’s parents is nonviable due to abuse, abandonment, neglect, or a simi- lar basis under state law; and (3) that it would not be in the child’s best interests to be removed from the United States to a foreign country, including the child’s country of origin or last habitual residence. Section § 43-1238(b) does not specify the quantum of proof to be used when determining whether the evidence is sufficient to support any requested SIJ findings. Similarly, the federal statute and supporting regulations are silent on the quantum of proof to be applied, although the regulations generally recog- nize that juvenile courts should apply state law standards when making the various SIJ determinations. 24 In the instant appeal, Tania does not advocate for the adop- tion of any particular quantum of proof, but she generally argues that she proved Emilio’s neglect by a preponderance of the evidence. We have not expressly endorsed a particular quantum of proof for the findings authorized by § 43-1238(b), but in Sabino v Ozuna, 25 we observed that state courts in other jurisdictions have cautioned against placing “insurmountable evidentiary burdens on SIJ petitioners, because those seeking that status will have limited abilities to corroborate testimony with additional evidence.” Other state appellate courts to have considered the issue hold it is appropriate to apply a prepon- derance of the evidence standard to SIJ determinations. 26 24 See, generally,8 C.F.R. § 204.11
(c). 25 Sabino v.Ozuna, supra note 4
,305 Neb. at 183
,939 N.W.2d at 762
. 26 See, e.g., Guardianship of Saul H.,13 Cal. 5th 827
,514 P.3d 871
,297 Cal. Rptr. 3d 86
(2022); Romero v. Perez,463 Md. 182
,205 A.3d 903
(2019); Matter of Guardianship of B.A.A.R.,136 Nev. 494
,474 P.3d 838
(2020).
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[13] Our cases generally recognize that “[u]nless an excep-
tion applies, the burden of proof in civil cases requires only the
greater weight of the evidence.” 27 Therefore, absent a statute
requiring application of a different evidentiary standard, we
agree that when SIJ findings are requested in a dissolution
action, it is ordinarily appropriate to apply the preponderance
of the evidence standard. 28 We apply this familiar standard to
our de novo review in this appeal.
3. Refusal to Make Requested
SIJ Findings
Tania generally assigns that the district court erred by
refusing to make all the SIJ findings she requested pursuant
to 8 U.S.C. § 1101(a)(27)(J) and § 43-1238(b). As explained above, the court made some, but not all, of the requested findings. Tania’s motion arguably requested determinations based on abuse, neglect, and abandonment, but her appellate briefing argues only that the court erred in refusing to find Max was neglected by Emilio, as that term is defined under Nebraska law, 29 and that, due to such neglect, Max’s “reuni- fication” with Emilio was nonviable. We limit our analy- sis accordingly. Tania argues the evidence was sufficient for the court to conclude Max’s reunification with Emilio was nonviable due to neglect, and she assigns error to the refusal to make such 27 Burgardt v. Burgardt,304 Neb. 356, 362
,934 N.W.2d 488
, 493 (2019). See, also, In re Application No. OP-0003,303 Neb. 872
,932 N.W.2d 653
(2019) (holding that when statutory scheme does not specify standard of proof, unless exception applies, only preponderance of evidence is required in civil cases). 28 AccordNeb. Rev. Stat. § 43-2932
(1)(a) (Reissue 2016) (“[w]hen the court is required to develop a parenting plan: . . . If a preponderance of the evidence demonstrates, the court shall determine whether a parent who would otherwise be allocated custody [or] parenting time[: h]as committed child abuse or neglect; . . . [h]as committed child abandonment . . . ; [or h]as committed domestic intimate partner abuse”). 29 SeeNeb. Rev. Stat. § 28-710
(2)(b)(i) through (iii) (Cum. Supp. 2022).
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a determination. She generally contends the court erred
because either it mistakenly assumed that such a finding
required termination of parental rights or it assumed it should
not make this finding because Emilio still had potential par-
enting time with Max and could theoretically obtain shared
custody of Max by seeking modification. She also argues the
court may have mistakenly concluded it had no authority to
make the requested finding. We do not find that any of these
arguments are supported by the record.
As a threshold matter, we note it is unclear how a state
court is to evaluate the viability of “reunification” where, as
here, one parent is awarded legal and physical custody of the
child and the other is awarded parenting time. But we need not
address that issue in this case because, as we explain, we find
no abuse of discretion in the dissolution court’s determination
that there was insufficient evidence to support the requested
finding of neglect.
[14] We have previously established that courts asked to
make SIJ determinations are not required to make determi-
nations favorable to the party seeking them, and may con-
clude that there was insufficient evidence or that the evidence
adduced was not credible. 30 A judicial abuse of discretion exists
if the reasons or rulings of a trial judge are clearly untenable,
unfairly depriving a litigant of a substantial right and denying
just results in matters submitted for disposition. 31
Here, the record shows the district court refused to make
the requested SIJ determination regarding neglect because it
found the evidence was insufficient. At the hearing, Tania’s
counsel clarified, “We are seeking a finding that [Emilio]
has neglected Max, and that Max cannot be reunified with
[Emilio] at this time due to such neglect. So if you feel the
evidence does not support that finding, then that’s fine.” The
court responded, “That is correct.” The court’s determination
30
See Sabino v. Ozuna, supra note 4.
31
Parish v. Parish, supra note 8.
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that the evidence was insufficient was a proper basis for its
refusal to make the requested SIJ determination. 32 Moreover,
we are not persuaded by Tania’s argument that the court
thought it lacked authority to make the requested findings,
because it expressly included in the dissolution decree the
requested SIJ finding regarding Max’s best interests.
At the hearing, the parties presented conflicting testimony
regarding neglect. When evidence is in conflict, the appellate
court considers and may give weight to the fact that the trial
court heard and observed the witnesses and accepted one ver-
sion of the facts rather than another. 33 Here, because the evi-
dence was in conflict, we defer to the district court’s implicit
determinations regarding the credibility of the evidence pre-
sented. Upon our de novo review of the record, we cannot find
an abuse of discretion in the court’s determination that the evi-
dence was insufficient to make the requested SIJ determination
that reunification with Emilio was not viable due to neglect,
and we decline to reweigh credibility on appeal.
4. Evidentiary Ruling
Tania next assigns error to the court’s refusal to accept
exhibit 3, so we provide relevant background regarding that
exhibit. Exhibit 3 was styled as an unsworn, unnotarized
“declaration” signed by Tania. The exhibit contains statements
about the parties’ marriage, Max’s birth and his medical and
educational needs, Tania’s reasons for moving with Max to the
United States, the difficulties that developed in her marriage,
the alleged neglect, and specific instances of alleged domestic
abuse against Tania.
Emilio objected to exhibit 3 because it was not in Spanish.
When the judge asked the court interpreter to translate the
exhibit from English to Spanish, she declined, explaining the
exhibit was “a very long document to sight translate.” Tania’s
32
See Sabino v. Ozuna, supra note 4.
33
Parde v. Parde, supra note 7.
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Cite as 314 Neb. 905counsel then told the court that “most of the things” in exhibit 3 would be “stated here in the testimony,” after which the court declined to receive that exhibit. On appeal, Tania asserts it was reversible error to exclude exhibit 3 without providing additional time to prepare a Spanish translation of the document. Tania also argues the court should have continued the hearing to permit a transla- tion to be prepared, although the record shows she did not request a continuance at any point during the hearing. We do not reach the merits of these arguments, because we con- clude that even if error could be shown, it would not warrant reversal on this record because Tania cannot show the requi- site prejudice. [15-17] In a civil case, the admission or exclusion of evi- dence is not reversible error unless it unfairly prejudiced a substantial right of the complaining party. 34 The exclusion of evidence is ordinarily not prejudicial where substantially similar evidence is admitted without objection. 35 In particular, where the information contained in an exhibit is, for the most part, already in evidence from the testimony of witnesses, the exclusion of the exhibit is not prejudicial. 36 Here, the relevant information contained within exhibit 3 was presented to the court through Tania’s testimony and other exhibits she offered into evidence without objection. At the hearing, the court heard considerable testimony from Tania regarding the parties’ marriage, Max’s birth and his medical and educational needs, Tania’s reasons for moving with Max to the United States, the difficulties that developed in her mar- riage, and the alleged neglect of Max by Emilio. The court also received as evidence file-stamped photocopies of the pro- tection order filings and orders detailing specific instances of alleged domestic abuse by Emilio against Tania. We conclude 34 In re Estate of Koetter,312 Neb. 549
,980 N.W.2d 376
(2022). 35 Marr v. West Corporation,310 Neb. 21
,963 N.W.2d 520
(2021). 36 O’Brien v. Cessna Aircraft Co.,298 Neb. 109
,903 N.W.2d 432
(2017).
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Tania’s counsel’s statement to the court that “most of the
things” in the exhibit would be “stated here in the testimony”
is supported by the record and directly contradicts her position
on appeal. Moreover, nothing in the record supports Tania’s
argument that excluding exhibit 3 was unfairly prejudicial to
her. This assignment is without merit.
VI. CONCLUSION
For the reasons set forth herein, we find no merit to Tania’s
assigned errors and affirm the judgment of the district court.
Affirmed.
Stacy, J., concurring.
Although I agree with the majority’s resolution of the
assigned errors, I write separately to address what I consider
to be plain error in approving the “Default Parenting Plan” and
incorporating it into the decree.
An appellate court may, at its option, notice plain error. 1
Plain error is error plainly evident from the record and of such
a nature that to leave it uncorrected would result in damage
to the integrity, reputation, or fairness of the judicial process. 2
As I explain, I think it was plain error to approve the default
parenting plan because it failed to conform to the requirements
of the Parenting Act 3 and it improperly delegated to Tania the
judicial duty to determine the specific terms and conditions of
Emilio’s parenting time.
Parenting Plan Requirements
Section 43-2929(1) addresses the contents of parenting plans
in Nebraska and provides in relevant part:
1
Tyler F. v. Sara P., 306 Neb. 397,945 N.W.2d 502
(2020). 2 County of Lancaster v. County of Custer,313 Neb. 622
,985 N.W.2d 612
(2023). 3Neb. Rev. Stat. §§ 43-2920
to 43-2943 (Reissue 2016 & Cum. Supp.
2022).
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In any proceeding in which parenting functions for a child
are at issue under Chapter 42, a parenting plan shall be
developed and shall be approved by the court. Court rule
may provide for the parenting plan to be developed by the
parties or their counsel, a court conciliation program, an
approved mediation center, or a private mediator. When
a parenting plan has not been developed and submitted
to the court, the court shall create a parenting plan in
accordance with the Parenting Act. A parenting plan shall
serve the best interests of the child . . . and shall:
....
(b) Include, but not be limited to, determinations of
the following:
(i) Legal custody and physical custody of each child;
(ii) Apportionment of parenting time, visitation, or
other access for each child, including, but not limited
to, specified religious and secular holidays, birthdays,
Mother’s Day, Father’s Day, school and family vaca-
tions, and other special occasions, specifying dates and
times for same, or a formula or method for determining
such a schedule in sufficient detail that, if necessary, the
schedule can be enforced in subsequent proceedings by
the court, and set out appropriate times and numbers for
telephone access.
Similarly, § 43-2935 addresses the court’s responsibility when
one or both parents submit a parenting plan for the court’s
consideration:
After a hearing on the record, the court shall determine
whether the submitted parenting plan meets all of the
requirements of the Parenting Act and is in the best inter-
ests of the child. If the parenting plan lacks any of the
elements required by the act or is not in the child’s best
interests, the court shall modify and approve the parent-
ing plan as modified, reject the parenting plan and order
the parties to develop a new parenting plan, or reject the
parenting plan and create a parenting plan that meets
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all of the required elements and is in the best interests of
the child.
In light of the above statutory requirements, we have empha-
sized that whether parents have mediated or otherwise agreed
on a parenting plan, or whether the issues of custody and
parenting time are disputed, “the court is required to indepen-
dently determine that any parenting plan being ordered is in the
child’s best interests and must reject or modify parenting plans
that are not in the child’s best interests or which do not meet
the requirements of the Parenting Act.” 4 This judicial respon-
sibility cannot be controlled by an agreement or stipulation of
the parties, 5 and it cannot be delegated. 6
“Default Parenting Plan”
Here, the provisions of the default parenting plan submitted
by Tania and ultimately approved by the court stated, in full:
4
State on behalf of Kaaden S. v. Jeffery T., 303 Neb. 933, 955,932 N.W.2d 692, 709
(2019). See, also, §§ 43-2921, 43-2923(4) and (6), and 43-2935. 5 See Becher v. Becher,299 Neb. 206
,908 N.W.2d 12
(2018). 6 See, e.g., VanSkiver v. VanSkiver,303 Neb. 664
,930 N.W.2d 569
(2019) (recognizing that court’s authority to determine parenting time is judicial function that cannot be delegated); Ensrud v. Ensrud,230 Neb. 720
,433 N.W.2d 192
(1988) (decree authorizing child support officer to control custody and parenting time was improper delegation of judicial authority), disapproved on other grounds, State on behalf of Kaaden S. v. Jeffery T., supra note 4; Deacon v. Deacon,207 Neb. 193
,297 N.W.2d 757
(1980) (order authorizing psychologist to determine scope of noncustodial parent’s visitation was improper delegation of judicial duty), disapproved on other grounds, Gibilisco v. Gibilisco,263 Neb. 27
,637 N.W.2d 898
(2002); Barth v. Barth,22 Neb. App. 241
,851 N.W.2d 104
(2014) (order giving each parent discretion to withhold visitation from other amounted to unlawful delegation of trial court’s duty to establish visitation); Mark J. v. Darla B.,21 Neb. App. 770
,842 N.W.2d 832
(2014) (court abused its discretion by ordering that custodial parent had discretion to determine terms and conditions of parenting time); In re Interest of Teela H.,3 Neb. App. 604
,529 N.W.2d 134
(1995) (order giving psychologist authority
to determine time, manner, and extent of parenting time was improper
delegation of judicial authority).
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[Emilio] (defaulting parent) is in default for failing
to comply with Court Rule 4.3 requiring participation in
the parent education class and mediation for purpose of
establishing a parenting plan. [Tania] (custodial parent)
shall have custody of the minor child/ren of the parties.
The visitation and parenting time of [Emilio] (defaulting
parent) shall be at the sole discretion of [Tania] (custodial
parent) until such time as [Emilio] (defaulting parent)
complies with Rule 4.3 by attending the parent education
class and by either mediating or negotiating a parenting
plan, which has been approved by the Conciliation Court
and Mediation Services.
Although the terms of the default parenting plan suggest it
was perhaps intended as a temporary placeholder to guide
the parties until a more specific plan could be developed for
the court’s consideration, this version was submitted to and
expressly approved by the court at the final hearing and there-
after was incorporated into the decree.
To the extent the approved parenting plan purports to give
Tania “sole discretion” to determine whether and when Emilio
can exercise parenting time with the parties’ minor child, it
represents an improper and unlawful delegation of judicial
authority. 7 Moreover, because the approved parenting plan pro-
vides no specific detail regarding dates, times, or methods for
determining a parenting time schedule for Emilio, there is no
practical way it could be enforced by the court in a subsequent
proceeding.
I would find the court plainly erred when it expressly
found the default parenting plan “complies with the Parenting
Act and is in the best interest of the minor child.” Moreover,
leaving this issue uncorrected would, in my opinion, result in
damage to the integrity and fairness of the judicial process
7
See, VanSkiver v. VanSkiver, supra note 6; Ensrud v.Ensrud, supra note 6
;
Deacon v. Deacon, supra note 6; Barth v. Barth, supra note 6; Mark J. v.
Darla B., supra note 6; In re Interest of Teela H., supra note 6.
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and would be contrary to the best interests of the child. I would
therefore vacate that portion of the decree that approved and
incorporated the default parenting plan, and I would remand
the cause to the district court with instructions to either modify
and approve the parenting plan as modified, reject the parent-
ing plan and order the parties to develop a new parenting plan,
or reject the default parenting plan and create a parenting plan
that meets all the requirements of the Parenting Act and is in
the best interests of the child. 8
8
See, generally, §§ 43-2929 and 43-2935(1).