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

25 EACH PERSON WHO IS A PARTY TO THIS ORDER IS ORDERED TO NOTIFY EACH OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY OF ANY CHANGE IN THE PARTY S CURRENT RESIDENCE ADDRESS, MAILING ADDRESS, HOME TELEPHONE NUMBER, NAME OF EMPLOYER, ADDRESS OF EMPLOYMENT, DRIVER S LICENSE NUMBER AND WORK TELEPHONE NUMBER. THE PARTY IS ORDERED TO GIVE NOTICE OF AN INTENDED CHANGE IN ANY OF THE REQUIRED INFORMATION TO EACH OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY ON OR BEFORE THE 60 TH DAY BEFORE THE INTENDED CHANGE. IF THE PARTY DOES NOT KNOW OR COULD NOT HAVE KNOWN THE CHANGE IN SUFFICIENT TIME TO PROVIDE 60-DAY NOTICE, THE PARTY IS ORDERED TO GIVE NOTICE OF THE CHANGE ON OR BEFORE THE FIFTH DAY AFTER THE DATE THAT THE PARTY KNOWS OF THE CHANGE. THE DUTY TO FURNISH THIS INFORMATION TO EACH OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY CONTINUES AS LONG AS ANY PERSON, BY VIRTUE OF THIS ORDER, IS UNDER AN OBLIGATION TO PAY CHILD SUPPORT OR ENTITLED TO POSSESSION OF OR ACCESS TO A CHILD. FAILURE BY A PARTY TO OBEY THE ORDER OF THIS COURT TO PROVIDE EACH OTHER PARTY, THIS COURT, AND THE STATE CASE REGISTRY WITH THE CHANGE IN THE REQUIRED INFORMATION MAY RESULT IN FURTHER LITIGATION TO ENFORCE THE ORDER, INCLUDING CONTEMPT OF COURT. A FINDING OF CONTEMPT MAY BE PUNISHED BY CONFINEMENT IN JAIL FOR UP TO SIX MONTHS, A FINE OF UP TO $500 FOR EACH VIOLATION, AND A MONEY JUDGMENT FOR PAYMENT OF ATTORNEY S FEES AND COURT COSTS

26 Notice shall be given to the other party by delivering a copy of the notice to the party by registered or certified mail, return receipt requested. Notice shall be given to the Court by delivering a copy of the notice either in person to the clerk of this Court or by registered or certified mail addressed to the clerk at 401 W. Belknap, Fort Worth, Texas Notice shall be given to the state case registry by mailing a copy of the notice to State Case Registry, P.O. Box 12017, Austin, Texas Warnings WARNINGS TO PARTIES: FAILURE TO OBEY A COURT ORDER FOR CHILD SUPPORT OR FOR POSSESSION OF OR ACCESS TO A CHILD MAY RESULT IN FURTHER LITIGATION TO ENFORCE THE ORDER, INCLUDING CONTEMPT OF COURT. A FINDING OF CONTEMPT MAY BE PUNISHED BY CONFINEMENT IN JAIL FOR UP TO SIX MONTHS, A FINE OF UP TO $500 FOR EACH VIOLATION AND A MONEY JUDGMENT FOR PAYMENT OF ATTORNEY S FEES AND COURT COSTS. FAILURE OF A PARTY TO MAKE A CHILD SUPPORT PAYMENT TO THE PLACE AND IN THE MANNER REQUIRED BY A COURT ORDER MAY RESULT IN THE PARTY S NOT RECEIVING CREDIT FOR MAKING THE PAYMENT. FAILURE OF A PARTY TO PAY CHILD SUPPORT DOES NOT JUSTIFY DENYING THAT PARTY COURT-ORDERED POSSESSION OF OR ACCESS TO A CHILD. REFUSAL BY A PARTY TO ALLOW POSSESSION OF OR ACCESS TO A CHILD DOES NOT JUSTIFY FAILTURE TO PAY COURT-ORDERED CHILD SUPPORT TO THAT PARTY. Costs IT IS ORDERED each party is to pay costs they have incurred. Discharge from Discovery Retention Requirement 22-26

27 IT IS ORDERED that the parties and their respective attorneys are discharged from the requirement of keeping and storing the documents produced in this case in accordance with rule 191.4(d) of the Texas Rules of Civil Procedure. Retention of Jurisdiction IT IS ORDERED that this Court retain jurisdiction over this matter until Child XXXXXXXXXXX (aka XXXXXXXXXXX) reaches the age of 18 or graduates from high school, whichever occurs later, provided that the Child remains enrolled in high school for consecutive semesters and is not expelled from school. Relief Not Granted IT IS ORDERED that all relief requested in this case and not expressly granted is denied. Date of Order SIGNED on this day of March JUDGE PRESIDING APPROVED AND CONSENTED TO AS BOTH FORM AND SUBSTANCE: XXXXXXXXXXX PETITIONER 22-27

28 APPROVED AS TO FORM ONLY: By: Alfred A. Attorney State Bar No. xxxxxxxx ATTORNEY FOR PETITIONER Alfred A. Attorney, LLP 1234 Main St. Dallas, Texas Tel: (214) xxx-xxxx By: Melissa E. Weaver State Bar No ATTORNEY AD LITEM Human Rights Initiative 2501 Oak Lawn Avenue, Suite 850 Dallas, Texas Tel: Fax:

29 Appendix 22-B Sample UCCJEA Affidavit CAUSE NO. IN THE INTEREST OF IN THE DISTRICT COURT & JUDICIAL DISTRICT,, TEXAS CHILDREN UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA) AFFIDAVIT STATE OF TEXAS ) ) appeared in person before me today and stated under oath: My name is. I am competent to make this affidavit. The facts stated in this affidavit are within my personal knowledge and are true and correct. I am a Petitioner in this suit and a friend of the Children who are the subject of this suit. is the mother of the Children and is the father of the Children. The Child s present address is, Texas. The full legal name, place of birth, date of birth, and sex of the Children are: Child s Legal Name: Place of Birth: Date of Birth: Sex: Child s Legal Name: Place of Birth: Date of Birth: Sex: For the past years immediately preceding the date of this affidavit, the Children have lived with the following persons: 22-29

30 Address: Persons lived with: Date: Address: Persons lived with: Date: 1. Participation in Custody Proceeding(s): [ one only] I HAVE NOT participated as a party, witness, or in any capacity in any other litigation or custody proceeding in Texas or any other state, concerning custody of or visitation a child subject to this proceeding. I HAVE participated as a party, witness, or in any capacity in any other litigation or custody proceeding in this or another state, concerning custody of a child subject to this proceeding. Explain: Name of each child: Type of proceeding: Court and state: Date of court order or judgment (if any): 2. Information about custody proceeding(s): [ one only] I HAVE NO INFORMATION of any other proceeding that could affect this proceeding, including proceedings for enforcement and proceedings relating to domestic violence, protective orders, termination of parental rights, and adoptions in a court of this or any other state concerning a child subject to this proceeding. I HAVE THE FOLLOWING INFORMATION concerning a custody proceeding pending in a court of this or another state concerning a child subject to this proceeding, other than set out in item 2. Explain: Name of each child: Type of proceeding: Court and state: Date of court order or judgment (if any): 22-30

31 3. Persons not a party to this proceeding: [ one only] I DO NOT KNOW OF ANY PERSON not a party to this proceeding who has physical custody or claims to have custody of visitation rights with respect to the child subject to this proceeding. I KNOW THAT THE FOLLOWING NAMED PERSON(S) not a party to this proceeding has (have) physical custody or claim(s) to have custody or visitation rights with respect to any child subject to this proceeding: Name and address of person: ( ) has physical custody ( ) claims custody rights ( ) claims visitation rights. Name of each child: Name and address of person: ( ) has physical custody ( ) claims custody rights ( ) claims visitation rights. Name and address of person: ( ) has physical custody ( ) claims custody rights ( ) claims visitation rights. 4. Knowledge of prior child support proceedings: [ one only] The Child described in this affidavit is NOT subject to existing child support order(s) in Texas or any state or territory. The child(ren) described in this affidavit are subject to the following existing child support order(s): Name of each child: Type of proceeding: Court and address: Date of court order/judgment (if any): Amount of child support paid and by whom: AFFIANT Sworn and subscribed to me this day of. [Stamped Notary Seal] Notary Public in and for The State of Texas 22-31

32 Appendix 22-C Sample Health Insurance Availability Form CAUSE NO. IN THE INTEREST OF IN THE DISTRICT COURT & JUDICIAL DISTRICT,, TEXAS CHILDREN HEALTH INSURANCE AVAILABILITY FORM Attention: This information must be filed with the court BEFORE first hearing. See TEX FAM CODE (b). NAME OF PARTY (OR PARTIES): PARTY S ATTORNEY (IF ANY):, Petitioner; and, Petitioner BESIDE THE NAME OF EACH CHILD, CHECK ALL TYPES OF HEALTH INSURANCE OR HEALTH CARE BENEFITS CURRENTLY COVERING THE CHILD(REN). YOU MAY CHECK MORE THAN ONE SOURCE. EMPLOYER PROVIDED NAME DOB SSN FATHER S MOTHER S PRIVATE CHIP OTHER NONE N/A [] [] [] [] [] [] N/A [] [] [] [] [] [] FOR EACH INSURANCE SOURCE, PLEASE LIST THE FOLLOWING INFORMATION: (ATTACH ADDITIONAL FORMS FOR EACH SOURCE OF BENEFITS) A. NAME OF CARRIER: B. GROUP POLICY ID NUMBER: C. POLICYHOLDER NAME & ID NUMBER: D. NAME OF COVERED CHILD: E. COST/MONTH OF COVERAGE [CHILD(REN) ONLY] $ F. ARE YOU CURRENTLY PAYING THE PREMIUMS FOR LISTED MEDICAL BENEFITS? [] YES [] NO STATE YOUR NET MONTHLY INCOME FROM YOUR FINANCIAL INFORMATION STATEMENT: $ SIGNATURE OF PARTY COMPLETING FORM DATE PRINTED NAME 22-32

33 Appendix 22-D Austin Form 22-33

34 22-34

35 Appendix 22-E Sample Affidavit for Citation by Publication (Rule 109 Affidavit) CAUSE NO. IN THE INTEREST OF IN THE DISTRICT COURT, JUDICIAL DISTRICT A CHILD COUNTY, TEXAS AFFIDAVIT FOR CITATION BY PUBLICATION BEFORE ME, the undersigned Notary Public, on this day personally appeared [Affiant Name], who, being by me duly sworn on oath deposed and said that he has read this affidavit; and that every statement contained in this affidavit is within his personal knowledge and is true and correct. 1. Affiant is the attorney of record for the petitioners in this cause. 2. The residence of [Respondent s Name], respondent in this cause and mother of the child, is unknown to affiant and to the petitioners. After due diligence, affiant has been unable to locate the whereabouts of the respondent, who was last known to reside in [City, Country]. 3. Affiant has taken the following specific actions in attempting to ascertain the whereabouts of or locate the residence of the respondents: a. Personal interview with the child in this matter on [date]; b. Personal interview with [responsible adult caregiver or family member] on [date]; c. Performed Internet searches for both Respondents on or about [date], but no search returned any results for Respondent

36 d. Researched the consulate-general in Houston, Texas, but found the consulategeneral unable to provide assistance in locating either Respondent. 4. This affidavit is made for the purpose of authorizing the clerk of this court to issue citation for the named respondents by publication in accordance with the Texas Rules of Civil Procedure. AFFIANT Sworn and subscribed to me this day of. [Stamped Notary Seal] Notary Public in and for The State of Texas 22-36

37 Appendix 22-F Sample Certificate of Attorney (Rule 239A Affidavit) CAUSE NO. IN THE INTEREST OF IN THE DISTRICT COURT [Child s Name] JUDICIAL DISTRICT COUNTY, TEXAS A CHILD CERTIFCATE OF ATTORNEY Pursuant of Rule 239A, Texas Rules of Civil Procedure, I hereby certify that the last know mailing address of the Respondent(s), is as follows: [Respondent s Name], Mother [Respondent s Name], Father ADDRESS UNKNOWN ADDRESS UNKNOWN [Attorney s Name] State Bar No. ######## ATTORNEY FOR PETITIONERS [Attorney Address, Telephone, Fax] 22-37

38 [Date] Appendix 22-G Sample Memorandum Cover Letter [Clerk s Name] District Court [Address] Re: Memorandum of Points and Authorities In re: [Childs Name] Cause No. Dear [Clerk s Name]: Enclosed you will find a Memorandum of Points and Authorities for the above-referenced cause. I have prepared this Memorandum for Judge [Lname] s review in advance of the prove-up hearing for this cause. I ask that you notify Judge [Lname] of receipt of the Memorandum, and add the Memorandum to the court s file. Additionally, please return the enclosed copy to me, file stamped and dated, in the enclosed, postage paid envelope. If you have any questions or need additional information, please call me at (###) ###-####. Thank you for your timely attention to this request. [Attorney s Name] Attorney at Law Enclosure 22-38

39 Appendix 22-H Sample Memorandum of Points and Authorities CAUSE NO. XXX-XXXXX-XX IN THE INTEREST OF IN THE DISTRICT COURT CHILD & XXXXX JUDICIAL DISTRICT CHILD, XXXXX COUNTY, TEXAS CHILDREN MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MINOR CHILDREN S REQUEST FOR ORDER RE: SPECIAL IMMIGRANT JUVENILE STATUS INTRODUCTION This Memorandum of Points and Authorities is submitted by Petitioners to request that this court make the necessary factual findings as a predicate to CHILD s and CHILD s application to the U.S. Citizenship and Immigration Service for Special Immigrant Juvenile Status. This unique immigration status was specifically created for undocumented children who are under the jurisdiction of a juvenile court, who cannot be returned to the children s parents due to abuse, neglect, or abandonment, and for who it is found not to be in the best interest to be returned to their homeland. It allows the children to remain in a safe environment in the United States, to attend school, and eventually to obtain lawful permanent residency and employment authorization. STATEMENT OF FACTS CHILD and CHILD, natural siblings, are citizens of Thailand. CHILD is AGE years of age, and CHILD is AGE years of age. The children s mother, MOTHER, is missing; her current whereabouts are unknown, and efforts to locate her have been unsuccessful. The children s father, FATHER, is missing; his current whereabouts are unknown, and efforts to locate him have been unsuccessful

40 The children s parents have wholly failed to provide for the children s emotional well being or basic physical needs. Having been abandoned by their parents at birth, the children have no significant recollection or knowledge of their parents. As children without parents or family to care for or to protect them in Thailand, CHILD and CHILD would be further marginalized by a society with a poor human rights record, especially for children. In Thailand, physical and sexual violence against women and young girls is widespread, 113 and enforcement in cases of domestic violence is virtually non-existent as no laws specifically address this problem. 114 Likewise, opportunities for women in the workforce in Thailand remain highly inequitable. 115 Child abuse 116 and illegal child labor 117 is endemic in Thailand, and remains a serious problem, as is trafficking in children for commercial sexual exploitation and child prostitution 118 under a burgeoning sex tourism industry. 119 Government officials and law enforcement are often complicit in this sex trade of children, 120 as are children s parents and family members. 121 The dangers of spousal rape, 113 See U.S. Department of State Country Reports on Human Rights Practices, at ( Domestic violence often went unreported, and the police often were reluctant to pursue reports of domestic violence. ). 114 See id. 115 See id. ( Government regulations require employers to pay equal wages and benefits for equal work, regardless of gender. Nonetheless, discrimination in hiring was common, and women were concentrated in lower-paying jobs. In practice women received lower pay for equal work in virtually all sectors of the economy. ). 116 See id. ([P]police were reluctant to investigate abuse cases, and rules of evidence made prosecution of child abuse difficult. ). 117 See id. 118 See id. 119 See id. ( Pedophilia continued, both by citizens and by foreign sex tourists. ) 120 See id. ( Some local officials, immigration officers, and police reportedly either were involved in trafficking directly or took bribes to ignore it. ). 121 See id. ( Brothel procurers reportedly advanced parents a substantial sum against their child's future earnings. The child was then obligated to work in a brothel to repay the loan. )

41 sexual violence, and forced prostitution is grossly compounded by the rampant spread of AIDS. 122 Illegal child labor flourishes in Thailand. 123 Poor and orphaned children face exploitation by gangs, who subject the children to forced labor 124 and deprivation of basic needs. 125 Religious discrimination is prevalent, and Thai Muslims face particular scrutiny. 126 Concordantly, it is not in CHILD s and CHILD s best interests to be returned to their home country. The proposed Nonparent Joint Managing Conservators, ADULT and ADULT, a married couple, are RELATIONSHIP, IF ANY. Mr. and Mrs. ADULT first met CHILD the day she was born. After a three-day stay, the child s mother left the hospital without the child. After paying the hospital expenses, Mr. and Mrs. ADULT took her into their home. Mr. and Mrs. ADULT first met CHILD three days after he was born. The hospital staff phoned Mr. and Mrs. ADULT and informed them that the child s mother had delivered another child. Again, after paying the hospital expenses, Mr. and Mrs. ADULT took him into their home. On neither occasion did the children s father visit the mother or the child while in the hospital, nor did either parent contact Mr. and Mrs. ADULT afterwards about taking responsibility for or physical custody of the children. 122 See id. 123 See id. (Underage children are often procured for labor on farms or in sweatshops, and very young children were used to work in street begging gangs. ). 124 See id. 125 See id. 126 See id. ( Many Muslims complained of societal discrimination both by Buddhist citizens and by the central government. )

42 CHILD and CHILD received the same care and attention that Mr. and Mrs. ADULT gave to their own natural children, and the children were raised in the ADULT household from infancy. Due to political strife and civil unrest in their homeland, Mr. and Mrs. ADULT fled. The family was granted refugee status, and arrived in the United States on DATE. CHILD and CHILD, however, were not permitted to join the ADULT family because the children were neither the natural nor adopted children of Mr. and Mrs. ADULT. Consequently, the children remained in Thailand. Mr. ADULT made arrangements for the children to come to the United States. Since the children s arrival in the United States on DATE, 127 Mr. and Mrs. ADULT have provided a nurturing home for them. Specifically, they provide CHILD and CHILD with food, shelter, clothing, and medical care, 128 as well as moral guidance and emotional support. Mr. and Mrs. ADULT enrolled the children in school in CITY, and they started attending classes in the fall. Mr. and Mrs. ADULT plan to continue to raise the children in their home, and to provide for their needs. CHILD and CHILD seek to apply for Special Immigrant Juvenile Status. If approved, CHILD and CHILD will be eligible to adjust their immigration status to lawful permanent resident, 129 and the children will then have the right to remain in the United States, to 127 See Tex. Fam. Code (9) (enabling the filing of an original suit by a person [ ] who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition. ). 128 See id (3) ( [A child s conservator has] the duty to provide the child with clothing, food, shelter, education, and medical, psychological, and dental care. ). 129 Adjustment of status is the procedure through which a person becomes a lawful permanent resident without leaving the United States. Although some people who entered the United States illegally and immigrate through family members are not permitted to adjust status in the United States, and instead must go to the home country to do so, this is not a problem for SIJS applicants because the statute provides an exception to allow for adjustment of status in the United States despite having entered or worked illegally. See 8 USC 1255(h)

43 continue their education, and to work. After five years as a lawful permanent resident, CHILD and CHILD may then apply for United States citizenship. 130 REQUIREMENTS FOR SPECIAL IMMIGRANT JUVENILE STATUS The requirements for Special Immigrant Juvenile Status ( SIJS ) are set out in federal statute 131 and regulations. 132 Eligibility is based on findings about the child made by a state juvenile court. 133 To be eligible for SIJS, the state court must make the following findings: 1. Declare the child to be a court dependent; 2. Find that the child is deemed eligible for long-term foster care, because of abuse, neglect, or abandonment; and 3. Find that it is not in the child s best interest to return to the child s country of origin. A. A Juvenile Court is to Make Findings as Presented in a Court Order Federal regulation provides that any court in the United States that has authority to make placement and custody decisions over a juvenile is a juvenile court enabled to make SIJS findings. 134 Congress purposely designated these courts to make predicate findings because state juvenile courts hold expertise with child-related matters and are uniquely placed to make findings concerning the best interest of a child. 130 See 8 USC 1427(a). 131 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 Code of Federal Regulations sets forth the standards for implementing the statute at 8 CFR CFR (c). Under the regulations, any unmarried person under age 21 who meets the enumerated requirements may apply for SIJS, so long as the child remains under the jurisdiction of a juvenile court. 134 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. ) 22-43

44 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 juvenile court has made an informed decision, and a brief summary of the evidence relied upon to make the findings. B. Court Must Declare Child to Be a Court Dependent The acceptance of jurisdiction over the custody of a child by a juvenile court makes the child dependent on the court for SIJS purposes because the court is empowered to make decisions about the child s custody and care. 135 The issue of a child placed in a conservatorship was conclusively settled (concerning an SIJS case in Dallas) in Matter of Menjivar, 136 wherein the Administrative Appeals Unit of the then-immigration and Naturalization Service 137 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. C. Court Must Find that the Child is Deemed Eligible for Long-Term Foster Care, which means that Parental Reunification is Not a Viable Option The statute provides that the child must have been found by the court to be deemed eligible for long term foster care due to abuse, neglect, or abandonment of the child. 138 The federal regulation defines eligible for long term foster care to mean that family reunification is no longer a viable option and that the child normally will be expected to 135 Id. See also Tex. Fam. Code , et seq. 136 Matter of Menjivar, File A , INS Administrative Appeals Unit (Dec. 27, 1994). 137 The U.S. Citizenship and Immigration Service supersedes the Immigration and Naturalization Service USC 1101(a)(27)(J)(i)

45 remain in foster care until reaching the age of majority, unless the child is [ ] placed in a guardianship situation. 139 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. 140 Thus, a child who is placed in a conservatorship remains eligible for long term foster care under applicable regulations even though not actually placed in long-term foster care. D. Court s Findings and Order Must Be Based on Abuse, Neglect, or Abandonment of the Child To be sufficient for SIJS purposes, 141 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 142 and neglect, 143 and is equally specific in what constitutes abandonment 144 both actual and constructive and provides for the termination 145 of the parent-child relationship under enumerated instances of each. E. Court Must Find that Return to Home Country is Not in Child s Best Interest CFR (a). 140 Id. (emphasis added). 141 There is no requirement in the statute, regulation, or memoranda that the abuse, neglect, or abandonment occur or 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. 142 Tex. Fam. Code (1). 143 Id (4). See Zheng v. Pogash, 416 F. Supp. 2d 550, (2006) (discussing neglect under Texas law in the context of SIJS). 144 Id (1) (defining abandoned as left without provision for reasonable and necessary care or supervision. ). 145 Id

46 In issuing any order, the paramount concern of the court remains the best interest of the child. 146 In concert with public policy of the State of Texas, the court s overarching concern for the child remains the provision of a safe, stable, and nonviolent environment for the child. 147 Thus, where evidence indicates that a return to the child s homeland would jeopardize the child s safety or wellbeing, the court should find that the child s return is not in the child s best interest. The court s order should include a finding that it is not in the child s best interest to be returned to the home country. 148 Proof may be found in documentary evidence or in simply interviewing the child to learn that there is no known appropriate or accountable family in the home country to care for the child. F. Juvenile Court Must Retain Jurisdiction Until the Application is Granted Federal regulation requires that the applicant remain under juvenile court jurisdiction until the immigration application is finally decided and the applicant is granted lawful permanent residency. 149 The SIJS interview may take place several months to a year or more after the SIJS application is filed, depending on the local office backlog and complexity of the case. Jurisdiction must be retained over the child throughout the application process or the SIJS application may be denied. 146 Id ( The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship [ ]. ) 147 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 ) CFR (c)(5)

47 ARGUMENT I. This Court is a Juvenile Court Under Applicable Immigration Laws Texas law 150 specifically entrusts this court with the capacity to make decisions and orders concerning the placement and custody of children. Although this court is not specifically styled or entitled a juvenile court under Texas law, this court is a juvenile court for SIJS purposes. 151 Because this court is considered to be a juvenile court, this court is specifically empowered by Federal law and regulation to make the necessary findings of fact and to issue an order in support of CHILD s and CHILD s SIJS applications. II. CHILD and CHILD are Dependent on This Court Based Upon This Court s Jurisdiction Over Their Conservatorship Under Texas law, this court holds the authority and responsibility to make a decision and to create orders naming a conservator to provide for CHILD s and CHILD s care and protection. Because this court is so empowered, CHILD and CHILD will remain dependent on this court by nature of this court s continuing exclusive jurisdiction over CHILD s and CHILD s conservatorship as established by court order. III. CHILD and CHILD are Eligible for Long-Term Foster Care, and Family Reunification is Not a Viable Option Family reunification for CHILD and CHILD is not possible. The children s parents are missing and their whereabouts are unknown and unascertainable. The children have no one in Thailand to care for them or to provide protection from harm. Although CHILD and CHILD are not currently placed in foster care, the children s placement with a conservator will not 150 See Tex. Gov. Code (entitled Juvenile Jurisdiction ); see also Tex. Fam. Code , et seq CFR (a)

48 adversely impact their qualifications for SIJS. Under these circumstances, for SIJS purposes, family reunification is impossible, and thus, CHILD and CHILD remain eligible for longterm foster care under continued supervision of this court. IV. CHILD s and CHILD s Placement in Conservatorship is Based on Abuse, Neglect, or Abandonment by Their Parents CHILD s and CHILD s mother and father are missing and their whereabouts are unknown and unascertainable. The children s mother and father have exhibited gross indifference to the children s welfare, and as a practical consequence, the children have been abandoned 152 and neglected. 153 As such, the children s parents are wholly incapable of providing for their physical care 154 and emotional wellbeing, powerless to provide protection from harm, and unable or unlikely to change these circumstances. 155 Because these unfortunate circumstances make it clear that the children s current situation is based on abuse, neglect, or abandonment by their parents, this court is capable of making a finding and issuing an order to reflect these circumstances. V. Return to Thailand is Not in CHILD s and CHILD s Best Interest, and Is Likely Dangerous CHILD s and CHILD s prospects for a safe, stable, and nonviolent environment 156 upon return to Thailand remain bleak. Because CHILD and CHILD have no family to provide them with support and protection, CHILD and CHILD would confront a hostile 152 Tex. Fam. Code (1). 153 Tex. Fam. Code (4). 154 See id (defining Danger to Physical Health or Safety of Child ). 155 See generally id (1), (4) (defining abuse and neglect ). 156 Id

49 environment 157 and almost-certain exploitation. 158 Presently, Mr. and Mrs. ADULT provide CHILD and CHILD with a safe, nurturing home life and provide for the children s physical and emotional needs. Because CHILD and CHILD lack a family support network and as unprotected juveniles would likely encounter a hostile and dangerous environment, a return to Thailand is unequivocally not in CHILD s and CHILD s best interest. VI. This Court May Retain Jurisdiction Over CHILD and CHILD Until Their Applications are Granted With few exceptions, Texas law provides that a person under the age of majority is a child. 159 A child may file an application for SIJS so long as the child is under the jurisdiction of a juvenile court, which generally in Texas, ends when the child attains majority. CHILD is presently AGE years of age and will turn age 18 in approximately 34 months; CHILD is presently AGE years of age, and will turn age 18 in approximately 48 months. Although the SIJS application process (in Dallas) may take from 9 months to a year, CHILD and CHILD will remain subject to this court s jurisdiction under a court-ordered conservatorship. Thus, this court may (and as a practical matter, will likely) retain jurisdiction over CHILD and CHILD until the U.S. Citizenship and Immigration Service has granted CHILD s and CHILD s SIJS application. CONCLUSION This court s order will ensure CHILD s and CHILD s continued safety and wellbeing by allowing them to remain under the supervision and care of their long-time caregivers, Mr. and Mrs. ADULT, and will enable CHILD and CHILD to pursue their education and to 157 Supra note Id. 159 Tex. Fam. Code (a) (definition of Child or Minor )

50 develop socially as any children of their age. Likewise, this court s order is vital to ensuring CHILD s and CHILD s future in the United States and will open up educational and employment opportunities that would otherwise be closed to them. ADULT and ADULT, Petitioners, respectfully request that this court make the predicate findings of fact to enable CHILD and CHILD to apply for Special Immigrant Juvenile Status. Respectfully submitted, 22-50

51 Appendix 22-I Sample Appointment of Attorney Ad Litem After Publication CAUSE NO. IN THE INTEREST OF IN THE DISTRICT COURT & JUDICIAL DISTRICT,, TEXAS CHILDREN APPOINTMENT OF ATTORNEY AD LITEM AFTER PUBLICATION The Court finds that and, Respondents and parties in this case, have been cited by publication and that no answer has been filed and no appearance has been entered by the party within the prescribed time. The Court appoints, a licensed attorney at law of this state, to defend the suit on behalf of the party. SIGNED on the day of. JUDGE PRESIDING 22-51

52 Appendix 22-J Sample Attorney Ad Litem Statement of Evidence CAUSE NO. xx-xxxxx IN THE INTEREST OF IN THE DISTRICT COURT FNAME LNAME Number JUDICIAL DISTRICT A CHILD DALLAS COUNTY, TEXAS On the date below the Court heard this case. STATEMENT OF EVIDENCE Petitioner appeared in person and through attorney of record,. Respondents, and, the natural parents of the children, were cited by publication, failed to file a written answer in the case, and did not otherwise appear. The undersigned attorney ad litem, a licensed attorney, was appointed by the Court to represent the interest of Respondents. The parties announced ready for trial. All witnesses were sworn, and the case proceeded. The following evidence was introduced: The following unsuccessful attempts were made by the attorney ad litem to locate Respondents: 1. I interviewed the Petitioners, and, and the two children, and, in their home on DATE. Each of the Petitioners and the children stated that they did not know the location of either Respondent, but the Petitioners confirmed that the Respondents likely reside somewhere in. Petitioners stated that they had attempted to locate the Respondents through acquaintances, friends, and relatives in, but had been unable to do so. Petitioners stated that neither Respondent has attempted to contact them about the welfare of the children at any time (beyond the initial contact at each child s birth), and the Petitioners and the children confirmed that neither Respondent has expressed a desire to be a part of the children s lives. Petitioners also confirmed that neither Respondent has provided forwarding information. Petitioners stated that they have no information, and have had no information since the children s births, regarding the whereabouts of Respondent. Petitioner confirmed that, though she is the sister of Respondent, their mother has passed away and their father is in a coma, and there are no other siblings 22-52

53 through whom they could locate Respondent, and none of their other relatives has information regarding Respondents whereabouts. Finally, Petitioners and the children stated that they did not have any additional information that might lead to the whereabouts of Respondents. 2. Petitioner and I also corresponded via during DATE. In that correspondence, Petitioner stated that the Petitioners have attempted to contact the Respondents on numerous occasions throughout the children s lives, both before and after the children arrived in the United States. He stated that the Petitioners have on several occasions contacted business and family friends in their attempts to locate Respondents, all with no success. Petitioner also stated that Petitioners have told their friends to give Respondent their contact information should they ever locate Respondent, but they have had no response. He also stated that he and his wife were well-known members of the community in, and that Respondents could have easily located them. Petitioner also stated that Respondent has no government identification or driver s license that they could use to find him, nor has Respondent been listed in a phone book. Petitioner further stated that, according to the most recent information Petitioners have, Respondent has moved to the border area of, but they do not have more specific information, and their attempts to find him in the directories of all the major cities and some of the smaller towns have been unsuccessful. 3. I do not know the residence of either Respondent. 4. I performed Internet searches for both Respondents, but neither search returned any results for either Respondent. 5. I contacted the consulate-general in and the Embassy in. on numerous occasions and spoke with several individuals, none of whom was able to provide assistance in locating either Respondent. Respondents were served with citation by publication by the clerk of this Court by having the citation published on in the. The citation was returned to the Court

54 APPROVED on [DATE]. JUDGE PRESIDING I have read the foregoing and agree that it accurately represents the evidence introduced at the hearing described above. By: State Bar No. Attorney for Petitioners By: State Bar No. Attorney Ad Litem 22-54

55 Appendix 22-K Sample Prove-Up Hearing Explanation Letter I am writing to you to provide some general information concerning the initial family court procedures, and to request some personal information needed to draft documents for those proceedings. The two-part process for obtaining Special Immigrant Juvenile Status begins in the Family Court, and is commenced by filing a petition for an original suit affecting the parent-child relationship. This suit is brought for the appointment of a managing conservator, and to establish [by court order] that (a) the child is eligible for long-term foster care because of abuse, abandonment, and/or neglect, (b) that it is not in the best interests of the child to return to the child s county of origin or last habitual residence, and (c) there is no other available family or friends to care for the child. The petition must include an affidavit about your knowledge (or lack thereof) of the child s parents and other family members, their whereabouts, your contact with them and your attempts to locate or contact them, if any. Once the suit is filed, the court requires a notice be published to advise the parents of the suit, and allows the parents twenty (20) days to respond. If the parents do not respond, a court order may be obtained after a prove-up hearing. A prove-up hearing is a brief court appearance before the judge by both of you. You each will be sworn in and answer some questions concerning information about you, your residence, your employment, your knowledge of the child s parents and their whereabouts, your relationship with the child, and your knowledge of circumstances which support the factors I noted above. I have provided a copy of sample questions with this letter. The Court s order will establish you as Nonparent Sole Managing Conservator. I will discuss the rights and responsibilities of this role at our appointment. In order to complete the necessary paperwork, please provide the information on the enclosed Petitioner s Questionnaire. Please note that the Court s final order must contain the social security number and driver license number for the child and for each petitioner, if any. I would like to schedule an appointment to meet with you both as soon as practicable to discuss these procedures and paperwork, the prove-up hearing and questions, and to answer any questions or concerns that you may have. I will accommodate your schedules as best as I am able. If you are able to provide the requested information prior to our appointment, please do so as I will be able to draft the documents in advance, which will allow us to prepare in a more time efficient manner. In the meantime, if you have any questions or need additional information, please do not hesitate to contact me by me at [ address], or by phone at [telephone number]. Thank you for your time and consideration. I look forward to seeing you soon

56 Appendix 22-L Sample Prove-Up Preparation Questionnaire and Prove-Up Script QUESTIONNAIRE 1. Please provide the following personal information: a. Name b. Residence Address c. Mailing Address (if different from residence address) d. Telephone Number e. Social Security Number f. Driver License Number, State of Issue g. Name of Employer h. Employer Address i. Employer Telephone Number 2. Please briefly describe: a. How you met the child b. Duration and circumstances of the child s stay with you c. Care and support you provide 3. Please provide the following information to the best of your ability: a. Knowledge of child s parent(s) or family members whereabouts, if any b. Contact with child s parent(s) or family members, if any c. Attempts to locate or contact child s parent(s) or family members, if any 4. Please provide any additional information or documentation that you believe is important or to be helpful in this case. 5. Please read and review the Prove-Up Questions

57 PROVE-UP SCRIPT 1. Biographical a. Name b. Address c. Residence: home or apartment? d. How long have you lived at that address? 2. Employment a. Where are you employed? b. What do you do there? c. How long have you worked there? 3. Family a. Marital Status i. Are you married? ii. If so, to whom? iii. If so, for how long? b. Children i. Do you have any children? ii. If so, how many? iii. Do your children live with you? 4. Relationship With Child a. How do you know the Child? b. How long have you known him/her? c. Where did you meet him/her? d. Does he/she live with you? If so, how long? 5. Knowledge of Child s Background a. Prior Residence i. Where did the Child live before he/she came to your home? ii. Based on your knowledge, where has the Child lived before he/she lived with you? iii. Negate association with criminal activity and/or infectious disease(s). b. Family Background i. Father 1. What do you know of the Child s father? 2. Do you know where he is? 3. Have you tried to locate him? 22-57

58 4. If so, please describe? ii. Mother 1. What do you know of the Child s mother? 2. Do you know where she is? 3. Have you tried to locate her? 4. If so, please describe? 6. Support of Child a. Have you provided support for the Child (e.g. food, clothing, and shelter; medical)? b. Will you continue to provide this support to the Child? c. Other than you, who could or would provide support for the Child? 7. Miscellaneous 22-58

59 Appendix 22-M Sample Order CAUSE NO. xx-xxxxx IN THE INTEREST OF IN THE DISTRICT COURT FNAME LNAME Number JUDICIAL DISTRICT A CHILD DALLAS COUNTY, TEXAS ORDER IN SUIT AFFECTING THE PARENT-CHILD RELATIONSHIP On this x day of Month, A.D 2007, the Court heard this case. Appearances Petitioners, Fname Lname and Fname Lname, appeared in person and through attorney of record, Fname Lname, announced ready for trial. Respondent, Fname Lname, father of the Child, is deceased. See Death Certificate, No. XXX/XX/YEAR, dated Month Date, Year. Respondent, Fname Lname, mother of the Child, is deceased. See Affidavit of Fname Lname and Affidavit of Fname Lname. 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

60 Record District Court. The record of testimony was duly reported by the court reporter for the Number Judicial Child The court finds that the following Child is the subject of this suit: Child s Name: Fname Lname Sex: Female Date of birth: Month Date, Year Home state: State Social Security Number: N/A or number Driver license, issuing state: N/A or number, Texas 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 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 and mother are both deceased

61 4. It is not in the Child s best interest to be returned to his/her 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 Home Country, the Child s home country, who could care for him/her, provide shelter, food, education, support and clothing. There are no known family members in Home Country and family reunification is impossible. IT IS ORDERED that Fname Lname of Petitioner1 and Fname Lname of Petitioner2 are appointed Nonparent Joint Managing Conservators of the following Child: Lname Fname. IT IS ORDERED that, at all times, Fname Lname of Petitioner1 and Fname Lname of Petitioner2, as Nonparent Joint Managing Conservators, shall have the following exclusive rights and duties: (12) the right to have physical possession and to direct the moral and religious training of the Child; (13) the duty of care, control, protection, and reasonable discipline of the Child; (14) the duty to provide the Child with clothing, food, shelter, education, and medical, psychological, and dental care; (15) 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; (16) 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; (17) except as provided by of the Texas Family Code, the right to the services and earnings of the Child; (18) the right to consent to marriage and to enlistment in the armed forces of the United States; (19) 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; 22-61

62 (20) 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; (21) the right to designate the primary residence of the Child and to make decisions regarding the child s education; and (22) 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 Fname Lname of child s father and Fname Lname of child s mother are deceased, they cannot be appointed as conservators. IT IS ORDERED that Fname Lname of Petitioner1 and Fname Lname of Petitioner2 are the sole persons authorized to apply for a passport for the child, Fname Lname. Child Support Health Care IT IS ORDERED that no Child support is due at this time. IT IS ORDERED that medical support shall be provided for the child as follows: 1. Fname Lname of Petitioner1 and Fname Lname of Petitioner2 s Responsibility It is the intent and purpose of this order that Fname Lname of Petitioner1 and Fname Lname of Petitioner2 shall, at all times, provide medical support for the Child as child support. 2. IT IS THEREFORE ORDERED that, as child support, Fname Lname of Petitioner1 and Fname Lname of Petitioner2 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 22-62

63 The information required for each party by (a) of the Texas Family Code is as follows: Name: Fname Lname of Petitioner1 Social Security number: SSN Driver license, issuing state: Number, Texas Current residence address: Street, City, Texas Zip-XXXX Mailing address: Street, City, Texas Zip-XXXX Home telephone number: xxx-xxx-xxxx Name of employer: Employer Address of employment: Street, City, Texas Zip-XXXX Work telephone number: xxx-xxx-xxxx Name: Fname Lname of Petitioner2 Social Security number: SSN Driver license, issuing state: Number, Texas Current residence address: Street, City, Texas Zip-XXXX Mailing address: Street, City, Texas Zip-XXXX Home telephone number: xxx-xxx-xxxx Name of employer: Employer Address of employment: Street, City, Texas Zip-XXXX Work telephone number: xxx-xxx-xxxx Required Notices EACH PERSON WHO IS A PARTY TO THIS ORDER IS ORDERED TO NOTIFY EACH OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY OF ANY CHANGE IN THE PARTY S CURRENT RESIDENCE ADDRESS, MAILING ADDRESS, HOME TELEPHONE NUMBER, NAME OF EMPLOYER, ADDRESS OF EMPLOYMENT, DRIVER S LICENSE NUMBER AND WORK TELEPHONE NUMBER. THE PARTY IS ORDERED TO GIVE NOTICE OF AN INTENDED CHANGE IN ANY OF THE REQUIRED INFORMATION TO EACH OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY ON OR BEFORE THE 60 TH DAY BEFORE THE INTENDED CHANGE. IF THE PARTY DOES NOT KNOW OR COULD NOT HAVE KNOWN THE CHANGE IN SUFFICIENT TIME TO PROVIDE 60-DAY NOTICE, THE PARTY IS ORDERED TO GIVE 22-63

64 NOTICE OF THE CHANGE ON OR BEFORE THE FIFTH DAY AFTER THE DATE THAT THE PARTY KNOWS OF THE CHANGE. THE DUTY TO FURNISH THIS INFORMATION TO EACH OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY CONTINUES AS LONG AS ANY PERSON, BY VIRTUE OF THIS ORDER, IS UNDER AN OBLIGATION TO PAY CHILD SUPPORT OR ENTITLED TO POSSESSION OF OR ACCESS TO A CHILD. FAILURE BY A PARTY TO OBEY THE ORDER OF THIS COURT TO PROVIDE EACH OTHER PARTY, THIS COURT, AND THE STATE CASE REGISTRY WITH THE CHANGE IN THE REQUIRED INFORMATION MAY RESULT IN FURTHER LITIGATION TO ENFORCE THE ORDER, INCLUDING CONTEMPT OF COURT. A FINDING OF CONTEMPT MAY BE PUNISHED BY CONFINEMENT IN JAIL FOR UP TO SIX MONTHS, A FINE OF UP TO $500 FOR EACH VIOLATION, AND A MONEY JUDGMENT FOR PAYMENT OF ATTORNEY S FEES AND COURT COSTS. Notice shall be given to the other party by delivering a copy of the notice to the party by registered or certified mail, return receipt requested. Notice shall be given to the Court by delivering a copy of the notice either in person to the clerk of this Court or by registered or certified mail addressed to the clerk at 600 Commerce Street, Dallas, Texas Notice shall be given to the state case registry by mailing a copy of the notice to State Case Registry, P.O. Box 12017, Austin, Texas Warnings WARNINGS TO PARTIES: FAILURE TO OBEY A COURT ORDER FOR CHILD SUPPORT OR FOR POSSESSION OF OR ACCESS TO A CHILD MAY RESULT IN FURTHER LITIGATION TO ENFORCE THE ORDER, INCLUDING CONTEMPT OF COURT. A FINDING OF CONTEMPT MAY BE PUNISHED BY CONFINEMENT IN JAIL 22-64

65 FOR UP TO SIX MONTHS, A FINE OF UP TO $500 FOR EACH VIOLATION AND A MONEY JUDGMENT FOR PAYMENT OF ATTORNEY S FEES AND COURT COSTS. FAILURE OF A PARTY TO MAKE A CHILD SUPPORT PAYMENT TO THE PLACE AND IN THE MANNER REQUIRED BY A COURT ORDER MAY RESULT IN THE PARTY S NOT RECEIVING CREDIT FOR MAKING THE PAYMENT. FAILURE OF A PARTY TO PAY CHILD SUPPORT DOES NOT JUSTIFY DENYING THAT PARTY COURT-ORDERED POSSESSION OF OR ACCESS TO A CHILD. REFUSAL BY A PARTY TO ALLOW POSSESSION OF OR ACCESS TO A CHILD DOES NOT JUSTIFY FAILTURE TO PAY COURT-ORDERED CHILD SUPPORT TO THAT PARTY. Costs IT IS ORDERED each party is to pay costs they have incurred. Discharge from Discover Retention Requirement IT IS ORDERED that the parties and their respective attorneys are discharged from the requirement of keeping and storing the documents produced in this case in accordance with rule 191.4(d) of the Texas Rules of Civil Procedure. Relief Not Granted IT IS ORDERED that all relief requested in this case and not expressly granted is denied. Date of Order SIGNED on this x day of Month, A.D JUDGE PRESIDING 22-65

66 APPROVED AND CONSENTED TO AS BOTH FORM AND SUBSTANCE: Fname Lname Petitioner1 PETITIONER APPROVED AS TO FORM ONLY: Fname Lname Petitioner2 PETITIONER By: Fname Lname Attorney State Bar No. xxxxxxxx ATTORNEY FOR PETITIONERS Address City, State ZIP Telephone Fax 22-66

67 22-67