Special Immigrant Juvenile Status (Family Law Portion)

Transcription

1 Chapter 22 Special Immigrant Juvenile Status (Family Law Portion) Eligible unaccompanied immigrant children are entitled to special protections under U.S. law. Because these children and teens are often orphans, neglected, or fleeing abusive home lives, they are defenseless and often targets of exploitation both in their home countries and in the U.S. Special Immigrant Juvenile Status allows a child to remain in a safe environment in the U.S., to attend school, and eventually to obtain lawful permanent residency. P ro Bono 1 assistance is critical to protect an unaccompanied child s rights because without legal counsel, these children may never know or exercise their rights Overview Special Immigrant Juvenile Status ( SIJS ) was specifically created for an undocumented child 2 who is under the jurisdiction of a state juvenile court and who cannot be returned to the child s parents due to abuse, neglect, or abandonment. Once a child who has received Special Immigrant Juvenile Status becomes a permanent resident, the child s parents are permanently barred from receiving any immigration benefit based on their relationship to the child. This chapter provides a substantive overview of the SIJS process, including an in-depth analysis of both state court and immigration procedures and pleadings. 1 As with adults placed in removal proceedings, an unaccompanied child shall have the privilege of being represented, at no expense to the Government. INA 240(b)(4) (emphasis added). 2 An unaccompanied alien child is a child who: (A) has no lawful immigration status in the United States; (B) has not attained 18 years of age; and (C) with respect to whom (i) there is no parent or legal guardian in the United States; or (ii) no parent or legal guardian in the United States is available to provide care and physical custody. 6 USC 279(g)(2). 22-1

2 Sample documents and templates, statutory and regulatory references, and immigration forms have been provided in the appendices at the end of this chapter Requirements for Special Juvenile Immigrant Status The requirements for Special Immigrant Juvenile Status are set out in federal statute 3 and regulations Juvenile Court is to Make Findings as Presented in a Court Order. Federal regulation provides that any court in the United States with authority to make placement and custody decisions over a juvenile is a juvenile court enabled to make SIJS findings. 5 Congress purposely designated these courts to make the required predicate findings because state courts hold expertise regarding child-related matters and are uniquely placed to make decisions concerning the best interest of a child. The required findings are to be set out in a simple order, signed by the state court judge. The order should include brief but specific findings of fact to show that the court has made an informed decision, and a brief summary of the evidence relied upon to make the findings Court Must Declare Child to Be a Court Dependent. A juvenile court s acceptance of jurisdiction over the custody of a child renders the child dependent on the court for SIJS purposes because such jurisdiction empowers the court to make decisions about the child s custody and care. 7 Furthermore, placement of a child in a conservatorship by a court does not preclude a finding of the child s dependence on the court for SIJS purposes Court Must Find the Child is Deemed Eligible for Long-Term Foster Care, meaning Parental Reunification is Not a Viable Option. To establish and maintain eligibility for Special Immigration Status, the statute requires a determination by a state 3 Special immigrant juvenile is defined in the Immigration and Nationality Act ( INA ) 101(a)(27)(J), codified at 8 USC 1101(a)(27)(J). The law was created by 153 of the Immigration Act of The INA can be found online at: and then click on the Laws and Regulations tab. 4 The Code of Federal Regulations sets forth the standards for implementing the statute at 8 CFR The CFR can be found online at: and then click on the Laws and Regulations tab. 5 Id (a) (defining a juvenile court as a court located in the United States having jurisdiction under State law to make judicial determinations about the custody and care of juveniles. ) 6 Memorandum #3 Field Guidance on Special Immigrant Juvenile Status Petitions, issued by William R. Yates, Associate Director for Operations (May 27, 2004). 7 Id. See also Tex. Fam. Code , et seq. 8 The issue of a child placed in a conservatorship was conclusively settled in Matter of Menjivar. In that case, which concerned an SIJS case in Dallas, the Administrative Appeals Unit of the then-immigration and Naturalization Service ruled that the family court s placement of the child in a conservatorship did not preclude a finding that the child was dependent upon the court for SIJS purposes. Matter of Menjivar, File A , INS Administrative Appeals Unit (Dec. 27, 1994). 22-2

3 court that the child is deemed eligible [ ] for long term foster care due to abuse, neglect, or abandonment of the child. 9 a. Deemed Eligible for Long-Term Foster Care. The federal regulation defines eligible for long term foster care to mean family reunification is no longer a viable option and the child normally will be expected to remain in foster care until reaching the age of majority, unless the child is [ ] placed in a guardianship situation. 10 The regulation further provides: For the purposes of establishing and maintaining eligibility for classification as a special immigrant juvenile, a child who has been [ ] placed in a conservatorship situation after having been found dependent upon a juvenile court in the United States will continue to be considered eligible for long-term foster care. 11 Thus, a child who is placed in a conservatorship 12 remains eligible for long term foster care under applicable regulations even though not actually placed in longterm foster care. b. Family Reunification is No Longer a Viable Option. The regulations define eligible for long term foster care to mean a determination has been made by the juvenile court that family reunification is no longer a viable option. 13 Additionally, the regulations specifically require that the dependency declaration be issued in accordance with state law governing such declarations of dependency. 14 As a dependency declaration (i.e., managing conservatorship) 15 is typically established through a Suit Affecting the Parent-Child Relationship, 16 (SAPCR) (with few exceptions) only a natural parent or a person with a courtordered obligation or relationship to the child is entitled to notice of the suit. 17 There is no requirement that other family members be notified of or participate in the suit USC 1101(a)(27)(J)(i) CFR (a). 11 Id. (emphasis added). 12 See Tex. Fam. Code , et. seq CFR (a). The statute further provides that a child who has been [ ] placed in a conservatorship situation after having been found dependent upon a juvenile court in the United States will continue to be considered eligible for long-term foster care. Id CFR (c)(3) (emphasis added). 15 See Tex. Fam. Code 153, Subchapter G: Appointment of Nonparent as Conservator. 16 Tex. Fam. Code Tex. Fam. Code (a). 18 For this reason, it is imperative that the order state that all parties entitled to notice were properly served. 22-3

4 Therefore, the typical dependency declaration concerns only the parent-child relationship and the state court may find that family reunification is no longer a viable option and issue an order that addresses and impacts only the child s parents. 4. Court s Findings and Order Must Be Based on Abuse, Neglect, or Abandonment of the Child. To be sufficient for SIJS purposes, 19 and to combat claims of fraudulently seeking immigration status, the court s order should specifically identify abuse, neglect, or abandonment as the basis for the dependency or placement order. Texas law is specific in what constitutes abuse, 20 neglect, 21 and abandonment, 22 and may provide for the termination 23 of the parent-child relationship under enumerated instances of each. 5. Court Must Find that Return to Home Country is Not in Child s Best Interest. In issuing any order, the paramount concern of the court remains the best interest of the child. 24 In concert with public policy of the State, the court s overarching concern for the child remains provision of a safe, stable, and nonviolent environment for the child. 25 Thus, where evidence indicates a return to the child s homeland would jeopardize the child s safety or wellbeing, the court should find the child s return is not in the child s best interest, and the court s order should include a finding to that extent. 26 The regulations specifically address the state court s capacity to issue an order declaring a return to the child s homeland not to be in the child s best interest. 27 In issuing field guidance regarding SIJS, the U.S. Citizenship and Immigration Services specifically noted that a decision concerning the best interest of the child may be made 19 There is no requirement in the statute, regulation, or U.S. Citizenship and Immigration Services memoranda for the abuse, neglect, or abandonment to occur or to have occurred in the United States. Many immigrant children have lost or escaped abusive parents in their country of origin and arrived alone in the United States. The only legal issue is whether the family court has made its determination based on abuse, neglect, or abandonment of the child as defined under state law. 20 Tex. Fam. Code (1). 21 Id (4). See Zheng v. Pogash, 416 F. Supp. 2d 550, (2006) (discussing neglect under Texas law in the context of SIJS). 22 Id (1) (defining abandoned as left without provision for reasonable and necessary care or supervision. ). 23 Id Id ( The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship [ ]. ) 25 Id USC 1101(a)(27)(J)(ii) (defining a special immigrant juvenile as a child 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 the parent s previous country of nationality or country of last habitual residence ). 27 Id. 22-4

5 by the [state] juvenile court, 28 and encourages state courts to address this issue and incorporate a finding of fact into the court order. 29 A court may find such proof in documentary evidence, or in its own knowledge that the child has no known appropriate or accountable family in the home country to care for the child. 6. Juvenile Court Must Retain Jurisdiction Until Application Is Granted. Federal regulation requires the applicant remain under juvenile court jurisdiction until the petition is finally decided and the applicant is granted lawful permanent residency. 30 The interview may take place several months to a year or more after the SIJS application is filed, depending on the local backlog and complexity of the case. Jurisdiction must be retained over the child throughout the application process or the SIJS application may be denied. AGE OUT WARNING! Although federal regulations provide that an applicant may apply until age 21, a child will age out of eligibility for Special Immigrant Juvenile Status at age 18 in Texas because the child will cease to be under the jurisdiction of a juvenile court State Court Procedures The two-part process for obtaining SIJS begins in the family court, and is commenced by initiating a Suit Affecting the Parent-Child Relationship (hereinafter SAPCR ), 31 which seeks the appointment of an individual, including someone other than a child s parent, to be responsible for the care, custody, and control of the child. Although public policy considers the rights of parents, of equal concern is the provision of a safe, stable, and nonviolent environment for the child, 32 which may necessitate appointment of a non-parent managing conservator to care for the child. 28 See supra note Id CFR (c)(5). 31 Tex. Fam. Code (a). See generally William V. Dorsaneo, III, Texas Litigation Guide, Chapter 370: SAPCR Procedures (2006). 32 Tex. Fam. Code (2). 22-5

6 Family Law Portion of SIJS Pro Bono (PB) Completes Initial Screening and Establishes Timeline (Child Must Meet 6 Month Residency Requirement) PB Finds Attorney Ad Litem (contact HRI and we will locate an additional pro bono to complete this portion) PB Files SAPCR (and Other Required Documents) (Approximately 30 Days Later) PB Files Memorandum of Points and Authorities PB Requests Appointment of Attorney Ad litem; Ad Litem Files Statement of Evidence with Court PB, Client, Guardian, and Ad Litem Attend Prove Up Hearing and Receive Order PB Contacts HRI to Discuss Immigration Portion 1. Definitions. Statutory definitions are of critical importance in establishing the scope and applicability of SAPCR proceedings, and the rights and duties of the parties. Comprehension of and familiarity with the following statutory definitions is recommended for a clear understanding of SAPCR proceedings. Abandoned Tex. Fam. Code (1) Abuse. Tex. Fam. Code (1) Adult... Tex. Fam. Code (c) Best Interest of Child... Tex. Fam. Code Child (or Minor ).. Tex. Fam. Code (a) Danger to Physical Health or Safety of Child.. Tex. Fam. Code Factors in Determining Best Interest of Child... Tex. Fam. Code Health Insurance.. Tex. Fam. Code Managing Conservatorship.... Tex. Fam. Code Medical Support... Tex. Fam. Code Medical Support Order Tex. Fam. Code Neglect... Tex. Fam. Code (4) Parent Tex. Fam. Code Parent-Child Relationship Tex. Fam. Code Rights and Duties of Nonparent Appointed as: Sole Managing Conservator.. Tex. Fam. Code Joint Managing Conservator.. Tex. Fam. Code Suit Affecting the Parent-Child Relationship... Tex. Fam. Code

7 2. Standing. For SIJS purposes, a SAPCR suit may be brought by any of the following persons: A child s grandparent; A child s relative; A child s foster parent; or A non-parent adult, provided certain statutory requirements are met. Although, statutorily, other parties 33 may initiate SAPCR proceedings, many of these enumerated parties are unlikely candidates within the SIJS context (e.g., parents). The suit may be brought at any time, 34 provided the party has satisfied the required time period, if any, for standing to vest. The time need not be continuous and uninterrupted, although the court must give weight to the child s principal residence 35 in the time prior to filing suit in assessing whether the party may properly exercise standing. 36 a. Foster Parent. A court will ask Child Protective Services to temporarily place a child in foster care 37 when the court cannot grant temporary legal possession to an appropriate party (e.g., non-custodial parent, relative, close family friend) to care for the child. Foster care is meant to be a temporary situation for a child until a permanent living arrangement can be obtained. For a foster parent to file suit, the child must have been placed and lived in the foster parent s home for at least one year, ending not more than 90 days preceding the filing of the petition. 38 Because many children will leave foster care for a more permanent placement within this timeframe, a foster parent may not likely obtain standing to file suit. b. Grandparents. A child s grandparent my initiate a SAPCR proceeding if (a) the grandparent has standing as enumerated in the general SAPCR standing statute, 39 and (b) there is adequate proof 40 that granting managing 33 See Tex. Fam. Code (1) (8), (10), (14). 34 Tex. Fam. Code (a). 35 Doncer v. Dickerson, 81 S.W.3d 349, (Tex. App. El Paso 2002) (defining principal residence as (1) a fixed place of abode, (2) occupied consistently over a substantial period of time, (3) that is permanent rather than temporary.). 36 Tex. Fam. Code (b) (applicable to (a)(9), (11), (12) only). 37 For additional information on Foster Care, visit the Texas Department of Family and Protective Services website at 38 Tex. Fam. Code (a)(12). 39 Tex. Fam. Code (a). 40 Von Behren v. Von Behren, 800 S.W.2d 919, 921 (Tex. App. San Antonio 1990) (establishing satisfactory proof by preponderance of evidence). 22-7

8 conservatorship to the grandparent is essential because of a substantial threat of impairment to the child s physical health or emotional development. 41 c. Relatives. A child s relative may file suit if the child s parents are deceased. 42 Only the following relatives, 43 however, may initiate SAPCR proceedings: Sibling; Grandparent; Great-grandparent; Aunt or uncle; or Niece or nephew. Although statutorily enabled to exercise standing, a child seeking SIJS is often without any family resources whatsoever, and therefore, many relatives are unlikely or unsuitable candidates to file suit. d. Non-Parent with Actual Possession and Control of the Child. With the exception of a foster parent, any person who has exercised actual possession and control of the child for a minimum of six months and at least within 90 days of filing suit may initiate SAPCR proceedings. 44 Likewise, a person who lived in the same household 45 as the child and the child s parent or managing conservator may file suit if that parent or managing conservator is deceased when the suit is filed. 46 As above, the period of joint residence required is a minimum of six months and at least within 90 days of filing suit. 3. Venue. Generally, SAPCR proceedings must be initiated in the county where the child resides. 47 Numerous exceptions exist. 48 In the context of SIJS, however, an exception to the general venue rule is commonly the county of the non-parent adult with actual care, control, and possession of the child Tex. Fam. Code (a)(1). The grandparent may also establish standing if both parents, the sole surviving parent, or a managing conservator either filed or consented to the suit. Tex. Fam. Code (a)(2). In the SIJS context, however, this option is unlikely but should be considered, if practicable. 42 Tex. Fam. Code (a)(13) (limiting exercise of standing to child s relatives within third degree by consanguinity). 43 Tex. Gov. Code (c) (delineating relatives within third degree by consanguinity). See also Tex. Gov. Code , et seq. Because of the nature of SIJS, the child s parent has been omitted from this list. 44 Tex. Fam. Code (a)(9). 45 Tx. Dept. of Prot. and Reg. Ser. v. Sherry, 46 S.W.3d 857, 861 (Tex. 2001). 46 Tex. Fam. Code (a)(11). 47 Tex. Fam. Code (a). 48 See Tex. Fam. Code (a) (venue fixed by court exercising continuing exclusive jurisdiction or by suit for dissolution of marriage). See id (b) (venue for adoption), (c) (cataloging exceptions). 22-8

9 4. Requisites of Suit a. SAPCR. A SAPCR suit is commenced by the filing of a petition. 50 Subsequent pleadings (e.g., motions, memoranda) are to be specifically styled 51 and filed under the same docket number, as issued by the clerk of the court, without additional letters, digits, or special designations. A petition in a SAPCR proceeding must include each of the following items: 52 Statement that no court has continuing jurisdiction; 53 Child's name, date of birth, and county of residence; 54 Full name, county of residence, 55 and description of petitioner s relationship to the child (or allegation that no relationship exists); Names of child s parents; 56 Description and statement of value of all property owned or possessed by the child; Statement describing the action the court is requested to take concerning the child and the statutory grounds for the request; and Any other information required by statute. Include the residence addresses of all persons entitled to service of citation: In the petition itself; 57 or In a cover letter to the process server. Practice Tip Family Court Pleadings should be drafted using the following format: 1.5 top margin 1 side and bottom margins Times New Roman, 12 pt. font Double-spaced 49 Id (c). 50 Tex. Fam. Code Tex. Fam. Code (a). 52 Tex. Fam. Code (b). 53 Or a statement that the court in which the petition is filed has continuing jurisdiction. Tex. Fam. Code (b)(1). 54 For both privacy and safety reasons, the Family Code no longer requires that a SAPCR petition state the place of residence (i.e., address) of a child or petitioner. The petition should, however, allege the county of residence of both the child and the petitioner to prove proper venue. See also Tex. R. Civ. P. 79 (requiring a petition state the names of the parties and their residences, if known. ). 55 Id. 56 Tex. Fam. Code (b)(4). Although unlikely in the SIJS context, also include names of any court-ordered managing conservator or custodian of the child, guardians of the child's person and estate, possessory conservators or of other persons having access to the child under a court order, and alleged father of the child, or a statement that the identity of the father is unknown. Tex. Fam. Code (b)(5)-(8). 57 Tex. Fam. Code ( Service of Citation ). 22-9

10 b. Other Required Documents. In addition to filing the original SAPCR suit, the following supporting and administrative documents are required: Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) Affidavit Citation of Service Affidavit(s) o Affidavit for Citation by Publication (if parent is missing and unable to be located); or o Affidavit for No Personal Service (if parent is deceased) Health Insurance Availability Form Information on Suit Affecting the Family Relationship (i.e., often times referred to as the Austin form). The form is available online at: Statement of Child s preference as to where to live (optional, and only if child is at least 12 years of age) Family Court Filing Cover Sheet (optional, depending on jurisdiction) Citation Publication Request Form (optional, depending on jurisdiction) See Appendices for samples of the required items listed above. 5. Order of SAPCR Package: a. SAPCR suit b. UCCJEA Affidavit c. Citation of Service Affidavit(s) d. Health Insurance Availability Form e. Austin form f. Child s Birth Certificate with translation and notarized certificate of translation. g. Optional items: 1. Statement of Child s preference as to where to live (only if child is at least 12 years of age) 2. Family Court Filing Cover Sheet (depending on jurisdiction) 3. Citation Publication Request Form (depending on jurisdiction) 6. Requisites of Order a. State law requirements. The order should be styled Order in Suit Affecting the Parent-Child Relationship, and should include the general nature of the proceedings, including: Appearances by parties and counsel; Statement of court s jurisdiction; Statement that case was tried by court; Statement that proceedings were recorded by court reporter; and Identification of child. 58 For each party, including the child (when applicable), 59 must contain: the court s final order 58 Including child s name, sex, date of birth, and home state. 59 It is axiomatic that this information is not required if the child has not yet been issued a social security number or driver s license number, or is not employed

11 Social security number; 60 Driver's license number; 61 Current residence address; 62 Mailing address; 63 Home telephone number; 64 Name of employer; 65 Address of employment; 66 and Work telephone number. 67 The court s order must also include (in plain type) a notice to advise each other party of a duty to inform each other party of changes to this required information. 68 Under certain circumstances, 69 disclosed. the court may order that this information not be Additionally, the court s order must also include the following statutory warnings and notices, which must be prominently displayed in boldface type, capital letters, or underlined: 70 Consequences of failure to obey a court order for child support and possession of or access to the child; 71 Required notification concerning changes of contact and employment information; 72 Authorization of peace officers to use reasonable efforts to enforce child custody order Tex. Fam. Code (a)(1). 61 Id. 62 Id (a)(2). 63 Id. 64 Id. 65 Id. 66 Id. 67 Id. 68 Id (b). See also id Id (c) (Information may be withheld if likely to cause the child or a conservator harassment, abuse, serious harm, or injury ). 70 Id (d), (e), and (e-1). 71 Id (d). 72 Id (e)

12 Although these statutory warnings and notices are largely inapplicable in the context of SIJS, each are nonetheless required and must be included. b. SIJS requirements. To be sufficient for SIJS purposes, the court s order must contain the following findings: The court has jurisdiction under Texas law to make judicial determinations about the custody and care of minors; 74 The child is dependent on the court; 75 The child is eligible for long-term foster care because of abuse, abandonment, and/or neglect; 76 and It is not in the best interests of the child to return to the child s county of origin or last habitual residence. 77 c. Court s Orders. The court s order will contain specific orders concerning conservatorship, including: Specific findings in support of application for SIJS (as delineated above); Appointment of petitioner as Nonparent Managing Conservator; 78 Statutory list of exclusive rights and duties of a conservator; 79 Limitation of conservator as sole person authorized to apply for and keep child s passport; Statement of why parents cannot or should not be appointed as conservators; and Statement of conservator s responsibilities concerning child support and healthcare. 80 The court s order will also contain general orders, including: Notice to each party to pay their own costs; Discharge of duty to retain discovery materials; and Notice of denial of all other relief not expressly granted. 73 Id (e1) CFR (a). 75 Id USC 1101(a)(27)(J)(i) USC 1101(a)(27)(J)(ii). 78 A solitary petitioner will be named as Nonparent Sole Managing Conservator, whereas a pair of petitioners will be named as Nonparent Joint Managing Conservators. There is no requirement that Nonparent Joint Managing Conservators be married. See Tex. Fam. Code (specifically enabling a nonparent to serve jointly with another nonparent ). By the language of the statute, however, no more than two persons may serve jointly. 79 Tex. Fam. Code ( Rights and Duties of Nonparent Appointed as Sole Managing Conservator ); see also id ( Nonparent Appointed as Joint Managing Conservator ). 80 See generally Tex. Fam. Code Ch. 54; id ( Provision of Medical Support ), ( Medical Support Order )

13 See Appendices for a Sample Order. 7. Service of Citation. All parties entitled to service of citation must be served when a SAPCR suit is filed. 81 To be sufficient in form, a citation must comply with specific statutory requirements. 82 a. Waiver of Service. Although an unlikely alternative in the SIJS context, because the whereabouts of the child s parents are unknown, or if known, their collaboration is doubtful, the parents may waive issuance and service of citation. 83 When a duly executed waiver is filed with the trial court, it has the same force and effect as if the citation had been issued and served on the party signing the waiver. 84 b. Personal Service of Citation. Personal service may be accomplished by one of two methods: By personally delivering a copy of the citation with the delivery date endorsed on it, and a copy of the petition; 85 or By sending a copy of the citation and petition by registered or certified mail, return receipt requested. 86 c. Service of Citation by Publication. By the very nature of SIJS, the child s parents are the most likely object of service, 87 and if presumed to be to be living in another country or their whereabouts are unknown, will be accomplished by service of citation by publication. 88 Citation may be served by publication in three circumstances: 89 The party s residence is unknown; The party is a transient person; The party is absent from or a nonresident of the state. Two prerequisites 90 must be satisfied before seeking service by publication: 81 Tex. Fam. Code See Tex. R. Civ. P. 99(b)-(c). See also Tex. Fam. Code (c) (providing template for citation). 83 Tex. R. Civ. P Tex. R. Civ. P Tex. R. Civ. P. 106(a)(1). 86 Id. 106(a)(2). 87 Id (7). 88 Id ( Service of Citation by Publication ). 89 Tex. R. Civ. P

14 Due diligence must have been exercised to locate the party; and An affidavit reflecting such due diligence is filed with the court clerk. See Appendices for Affidavit for Citation by Publication (Rule 109 Affidavit). Many, if not most, such citations are published in the Daily Commercial Record. A notarized copy of the notice will be mailed to the attorney of record; the original citation, with return of service, will be returned to the court and included in the court s file. It is recommended, however, to frequently check the website (located at after filing to check for timely publication. SAPCR notices are found under Notices, in the subheading Miscellaneous Notices. Date of publication of the notice may also be obtained by phone at (214) ; a search is made by cause number. d. Service of Citation by Posting at the Courthouse. If the child s parents are both deceased, however, a request may be made to the court for no personal service. The court will require definitive proof of the parents death (e.g., death certificate, affidavits of witnesses to funeral and/or burial service). If only the child s mother is deceased, 91 and the father is presumed to be living (or cannot be proven to have died), and the father s last name is unknown, the court may order citation by posting the citation at the courthouse door if this notice is as likely to give the respondent actual notice of the suit. 92 The logic of this exception to citation by publication is that, for an unknown or missing parent located in another country, posting the notice at the courthouse is equally likely to give the respondent actual notice i.e., slim in either instance. The advantage to citation by posting is cost as there is no need to pay for publication of the notice in the Daily Commercial Record or other publication. 8. Filing an Amended Suit An amended petition must be complete, both in content and legal sufficiency, because once filed, it will become the live pleading for the matter and the original petition is rendered a nullity, 93 and will not be a part of the record. Accordingly, the new petition must be appropriately styled (e.g., Petitioner s First Amended Original Petition and Suit Affecting the Parent-Child Relationship ). Generally, new service of citation is not required Id. 91 The Family Code allows for posting when the last name of any respondent is unknown. As a practical matter, however, in most instances the child s mother s name will be known, and accordingly, the above-described scenario is based upon this premise. 92 Tex. Fam. Code (e). 93 Tex. R. Civ. P. 65 ( Substituted Instrument Takes Place of Original ). 94 See Sanchez v. Texas Indus., Inc., 485 S.W.2d 385, 387 (Civ. App. Waco 1972, ref. n.r.e.) (requiring new service of citation only if respondent has not yet appeared and new pleading states a new cause of action or a more onerous judgment)

15 In the context of SIJS, an amended petition may be filed to correct factual errors or, more commonly, to incorporate additional evidence (e.g., to include additional affidavits from family members or the child to further substantiate the necessity for substituted service by publication, or to provide additional proof of abuse, neglect, or abandonment of the child.). Once amended, as needed, the only substantive textual alterations occur in the first and last paragraphs, as follows: TO SAID HONORABLE COURT: Now comes [Petitioner s Name], Petitioner, and files this First Amended Original Petition and Suit Affecting the Parent-Child Relationship, incorporating all exhibits and attachments of the Original Petition as if set forth in full herein, and in support hereof would show the Court as follows: [ ]WHEREFORE, Petitioner asks Respondent take notice of this amended petition and that the Court grant Petitioner the relief sought herein. In practice, a petitioner may file an amended petition any time before trial and without filing a formal motion for leave to amend. 95 The amended petition may be mailed to the court clerk, 96 with a copy 97 to be returned by a self-addressed, postage-paid envelope. 9. Waiting Period After Service of Citation. The respondent(s) must file an answer by 10:00am on the next Monday after 20 days from the date of citation of service. 98 Although the date of citation is not counted in computing the 20-day period, all subsequent days are counted, including weekends and holidays. 99 If the last day falls on a weekend (i.e., Saturday or Sunday), the last day is moved to the following Monday (subject to the next exception). 100 If the last day falls on a holiday, the last day is moved to the next day following the holiday. 101 After computing the expiration of 20 days, the respondent must file an answer by the next following Monday. 102 If the 20th day falls on a Monday, the respondent has until the following Monday to answer Although Rule 63 indicates that leave of court is required for an amended petition filed within seven (7) days before the trial date, as a practical matter, the court will generally allow the filing unless there is a showing by the opposing party that the amended petition will operate as a surprise to the opposing party. Tex. R. Civ. P. 63 ( Amendments and Responsive Pleadings ). 96 Tex. R. Civ. P As a practical consideration, the copy should be marked as such on each page, not hole-punched, and paper clipped to the self-addressed, postage-paid envelope. If properly done, the court clerk will understand your intentions and return the file-stamped copy to you. 98 Tex. R. Civ. P. 99 ( Issuance and Form of Citation ). 99 Tex. R. Civ. P. 4 ( Computation of Time ). 100 Id. 101 Id. 102 Id

16 Check with the court clerk prior to scheduling an appointment with the client to attend a prove-up hearing to ensure that citation has been issued and that the return has been filed with the court. 10. Memoranda of Points and Authorities. A Memoranda of Points and Authorities is a reference tool for the court which provides a concise statement of the facts, arguments of the law (with supporting statutes, cases, and other references), and substantive and procedural considerations that will be required to adjudicate a case. Though not required by any rule or standing order, submission of a memorandum in SIJS cases is strongly recommended, largely because it serves a dual purpose as legal resource and persuasive device. Although Human Rights Initiative has undertaken measures to educate the family and juvenile courts about the substantive law and practical considerations governing SIJS, do not overlook an opportunity to provide the judge with a valuable resource tool in the event the judge or associate judge is unfamiliar with this area of law. See Appendices for Sample Memoranda of Points and Authorities. The Memoranda may either be submitted concurrently with or after the original SAPCR suit is filed. Because the factual allegations in the SAPCR suit are general, however, and because you may not have yet had an opportunity to fully interview the client in-depth and better develop the client s story, the Memoranda is likely to be filed after the SAPCR suit. As a pragmatic consideration, the Memoranda may be filed after the SAPCR suit by mailing it to the court with a letter advising the court clerk of the anticipated date of the prove-up hearing and asking the court clerk to deliver the Memoranda to the judge for review. See Appendices for a Sample Cover Letter to Court for Memoranda. Be advised, however, to do so only if you have seven (7) or more business days before the prove-up hearing, as the file may not be returned to the clerk in a timely manner. 11. Appointment of Attorney Ad Litem. An attorney ad litem 104 is an attorney who is appointed by the court to provide legal services to a person, usually the missing parent in the SIJS context, and must adhere to the same professional standards and competency as with any other client. 105 a. Request for Waiver of Appointment. Although appointment of an attorney ad litem is discretionary, 106 and may only be made if the court determines that an 103 Id. 104 Tex. Fam. Code (2). 105 Tex. Fam. Code (2) (prescribing the duties of undivided loyalty, confidentiality, and competent representation ). 106 Tex. Fam. Code ( Discretionary Appointments )

17 appointment is necessary to determine the best interests of the child, 107 it is unlikely that the Court will allow for such a waiver. Therefore, we do not advise filing a waiver. b. Appointment After Publication. If a waiver of appointment has not been sought or has been denied, a request may be made to the court for an appointment of an attorney ad litem. The request for appointment should only be made after the return of citation by publication has been filed with the court, and should indicate that the respondent had been cited by publication, after which no answer had been filed and no appearance has been entered by the party within the prescribed time. While there is no specific statutorily prescribed training required of an attorney to be appointed to represent a party as an attorney ad litem, 108 the request for an appointment should be accompanied by a report from the State Bar 109 indicating the following information: Full Name Work Address Work Telephone Number Bar Card Number Date Licensed Eligibility to Practice in Texas Education and Certification History Public Disciplinary History (if any) See Appendices for a Sample Appointment of Attorney Ad Litem After Publication. After obtaining the court file from the clerk, deliver the original request for appointment with a copy of the report to the court coordinator for the presiding judge. Depending upon work load and the judge s availability, the court coordinator will generally be able to present the appointment to the judge for signing. Once received, ask the court clerk to conform a copy of the appointment and return the original appointment with the court file. Deliver a copy of the appointment to the attorney ad litem and retain a copy for the client s file. At the prove-up hearing, the attorney ad litem will submit a Statement of Evidence, which should describe, in detail, the attempts made to locate and identify the respondent, and include any exhibits introduced, made part of the record, and filed with the court. The court may also receive the report orally. 107 Tex. Fam. Code (b)(2). 108 But cf. Tex. Fam. Code (2) (requiring an attorney ad litem for child to be trained in child advocacy or have experience determined by the court to be equivalent to that training ). 109 For a complete report, visit the State Bar of Texas website at and perform an attorney search. The resulting report should provide all of the necessary information, including a statement as to whether the attorney is currently in good standing and eligible to practice law in Texas

18 See Appendices for a Sample Attorney Ad Litem Statement of Evidence. 12. Prove-Up Hearing. A prove-up hearing is a brief court appearance before the judge by the petitioner. See Appendices for a Sample Prove-Up Hearing Explanation Letter. If the respondent fails to answer, a prove-up hearing may be held immediately after the required time period has elapsed, subject to local court rules on when prove-up hearings are conducted. Days and times of prove-up hearings vary by court so checking local rules is imperative before scheduling an appointment with the client. On the morning of the prove-up hearing, 110 obtain the file from the court clerk and signout the file on the clerk s sign-out sheet. Immediately find which court is handling proveup matters, and deliver the file (with an original signed copy of the order) to the bailiff or court coordinator in the courtroom. All matters are handled on a first-come, first-served basis. Each petitioner and counsel should remain in the courtroom until the case is called. Generally, children are not allowed in the courtroom, so unless the judge wishes to ask specific questions of the child, there is no need for the child to attend the prove-up hearing (especially if the child is attending school). After being sworn in by the court, the attorney will ask the petitioner a series of questions to elicit information about the petitioner, their residence, their employment, their knowledge (if any) of the child s parents and/or their whereabouts, their relationship with the child, and their knowledge of other relevant circumstances concerning the child (e.g., school attendance, social activities and interests). Advise each petitioner that the judge may also ask questions or seek additional clarification. If an Attorney Ad Litem has been appointed by the court, the judge will then receive evidence from the appointee. See Appendices for a Sample Prove-Up Preparation Questionnaire and Prove-Up Script. Due to the abbreviated nature of a prove-up hearing, it is highly unlikely that the judge will require, expect, or even permit, a brief opening statement. However, in the event that an opening statement is requested or permitted, a concise statement should be provided for the record. At the conclusion of the prove-up hearing, if the judge is satisfied with the evidence presented, 111 the judge will sign the order and pass the file with the signed order to counsel. Immediately following the prove-up hearing, each petitioner and counsel will sign the original and all copies of the order, if not signed prior to the hearing. It is best, of course, to sign all documents prior to the hearing, but because of the first-come, first-served basis, it may be more advisable to get the file in the stack before the docket is closed. 110 Generally, prove-up hearings are conducted in the morning and continue until the first contested matter 111 Tex. Fam. Code ( [T]he court s finding shall be based on a preponderance of the evidence )

19 Return the file to the court clerk. Do not place the signed order or any of the other court documents in the folder brads; leave all documents loose as each will need to stamped and signed. The court clerk will certify the court s original order and will certify at least one (1) copy. Ask the clerk to certify all three (3) copies, but be advised that the clerk may ask for payment to certify the additional copies. The clerk will certify the copy by stamping the judge s signature on the signature line, and stamping a certification on the back page of the order, which the court clerk will date and sign. It is absolutely imperative that one (1) original certified copy be included with the SIJS petition. Retain an additional copy for the client s file, and another copy for the petitioner s records. 13. Continuing, Exclusive Jurisdiction. The court acquires continuing, exclusive jurisdiction of a SAPCR suit when the final order is rendered Tex. Fam. Code (a). Although specific conditions trigger loss of continuing, exclusive jurisdiction, many of these circumstances are not relevant considerations in the context of SIJS. Id

20 Chapter 22 Special Immigrant Juvenile Status Index of Appendices Appendix 22-A Appendix 22-B Appendix 22-C Appendix 22-D Appendix 22-E Appendix 22-F Appendix 22-G Appendix 22-H Appendix 22-I Appendix 22-J Appendix 22-K Appendix 22-L Appendix 22-M Sample Suit Affecting Parent Child Relationship Sample UCCJEA Affidavit Sample Health Insurance Availability Form Sample Austin Form Sample Affidavit for Citation by Publication (Rule 109 Affidavit) Sample Certificate of Attorney (Rule 239A Affidavit) Sample Cover Letter to Court for Memoranda Sample Memoranda of Points and Authorities Sample Appointment of Attorney Ad Litem After Publication Sample Attorney Ad Litem Statement of Evidence Sample Prove-Up Hearing Explanation Letter Sample Prove-Up Preparation Questionnaire and Prove-Up Script Sample Order 22-20

21 Appendix 22-A Sample Suit Affecting Parent Child Relationship (SAPCR) CAUSE NO. XXXXXXXXX IN THE INTEREST OF IN THE DISTRICT COURT XXXXXXXXX 231 st JUDICIAL DISTRICT A CHILD TARRANT COUNTY, TEXAS ORDER IN SUIT AFFECTING THE PARENT-CHILD RELATIONSHIP On this 11 th day of March 2008, the Court heard this case. Appearances Petitioner, XXXXXXXX appeared in person and through attorney of record, Alfred A. Attorney and announced ready for trial. 1. Respondent, The mother of the Child is XXXXXXXXXXX, mother of the Child, is missing; her whereabouts are unknown; efforts to locate her have been unsuccessful. The father of the Child is deceased. Jurisdiction The Court, after examining the record and the evidence and argument of counsel, finds that it has jurisdiction of this case and of all the parties and that no other court has continuing exclusive jurisdiction of this case. All persons entitled to citation were properly cited. Jury A jury was waived, and all questions of fact and of law were submitted to the Court

22 Record District Court. The record of testimony was duly reported by the court reporter for the 231st Judicial Child The court finds that the following Child is the subject of this suit: Child s Name: XXXXXXXXXX (aka XXXXXXXXX) Sex: Male Date of birth: January 1, XXXX Place of birth: Egypt Home state: Texas Social Security Number: None Driver license, issuing state: Not applicable. Conservatorship The Court finds that the following orders are in the best interest of the Child and makes the following findings: 1. This court has jurisdiction under Texas law to make judicial determinations about the custody and care of juveniles within the meaning of 101(a)(27)(J) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(27)(J)(2001), and 8 C.F.R (a). 2. This Child is dependent upon this Court of Tarrant County, Texas, within the meaning of 101(a)(27)(J) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(27)(J)(2001), and 8 C.F.R (a). The Child remains under this Court s jurisdiction. 3. This Child is eligible for long-term foster care due to abuse, abandonment, and neglect within the meaning of 101(a)(27)(J) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(27)(J)(2001), and 8 C.F.R (a). The Child s father is deceased and his mother is 22-22

23 missing, having abandoned the Child without providing for the Child s reasonable and necessary care or supervision. 4. It is not in the Child s best interest to be returned to his parents previous country of nationality or country of last habitual residence within the meaning of 101(a)(27)(J) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(27)(J)(2001), and 8 C.F.R (a). There is no one in Egypt, the Child s home country, who could care for him, provide shelter, food, education, support and clothing. Respondent has only one known family member in Egypt: his xx-year-old brother who was last known to be hiding from Islamic terrorist groups in a monastery. As such, family reunification is impossible. IT IS ORDERED that XXXXXXXXXX is appointed Nonparent Joint Managing Conservator of the following Child: XXXXXXXXX (aka XXXXXXXXXX). IT IS ORDERED that, at all times, XXXXXXXXXXX, as Nonparent Joint Managing Conservator, shall have the following exclusive rights and duties: (1) the right to have physical possession and to direct the moral and religious training of the Child; (2) the duty of care, control, protection, and reasonable discipline of the Child; (3) the duty to provide the Child with clothing, food, shelter, education, and medical, psychological, and dental care; (4) the right to consent for the Child to medical, psychiatric, psychological, dental, and surgical treatment and to have access to the child s medical records; (5) the right to receive and give receipt for payments for the support of the Child and to hold or disburse funds for the benefit of the child; (6) except as provided by of the Texas Family Code, the right to the services and earnings of the Child; (7) the right to consent to marriage and to enlistment in the armed forces of the United States; (8) the right to represent the Child in legal action and to make other decisions of substantial legal significance concerning the child including but not limited to making any application to the Department of Homeland Security or Bureau of Citizenship and Immigration Services; (9) except when a guardian of the Child s estate or a guardian or attorney ad litem has been appointed for the Child, the right to act as an agent of the Child in relation to the Child s estate if the Child s actions is required by a state, the United States, or a foreign government; 22-23

24 (10) the right to designate the primary residence of the Child and to make decisions regarding the child s education; and (11) if the parent-child relationship has been terminated with respect to the parents, or only living parent, or if there is no living parent, the right to consent to the adoption of the Child and to make any other decision concerning the Child that a parent could make. IT IS ORDERED that because, Respondent, XXXXXXXXXXXX is missing, and her whereabouts cannot be ascertained, notwithstanding exercise of due diligence, she cannot be appointed as conservator. IT IS ORDERED that XXXXXXXXXXX is the sole person authorized to apply for a passport for the child, XXXXXXXXXXX (aka XXXXXXXXXXX). Child Support Health Care IT IS ORDERED that no Child support is due at this time. IT IS ORDERED that, as child support, XXXXXXXXXXX shall provide medical support of the Child, for as long as child support is payable under the terms of this order, as set out herein. Required Information follows: The information required for each party by (a) of the Texas Family Code is as Name: XXXXXXXXXXX Social Security number: xxx-xx-xxxx Driver license, issuing state: #xxxxxxxx, Texas Residence/mailing address: 1234 Main Street Dallas, TX Home telephone number: (xxx) xxx-xxxx Name of employer: Address of employment: Work telephone number: Required Notices 22-24