Immigration – Dependency – Neglect

Listen to this article

Where a plaintiff filed a complaint requesting declaratory and equitable relief in the form of a decree of special findings that she was dependent on the Probate & Family Court, a decision to dismiss that complaint must be reversed because it is not in the plaintiff’s best interests to return to her country of nationality, Brazil.

“On October 13, 2023, Luana Goncalves de Paula, raised in Brazil and currently residing in Winthrop, filed a complaint for dependency pursuant to G.L.c. 119, §39M, in the Probate and Family Court, requesting declaratory and equitable relief in the form of a decree of special findings that she was dependent on the Probate and Family Court. Such findings are necessary to establish Luana’s eligibility to apply to the United States Citizenship and Immigration Services for special immigrant juvenile (SIJ) status under the Immigration and Nationality Act (INA), 8 U.S.C. §1101(a)(27)(J). Luana submitted an affidavit detailing the neglect she suffered from her father in Brazil, including that he was not involved in her upbringing, was not a caring father, did not spend meaningful time with her, kicked her out of his house when she turned eighteen years old, and failed to provide her with any support — financial, emotional, or otherwise — thereafter.

“On February 16, 2024, a Probate and Family Court judge held a nonevidentiary hearing on Luana’s complaint. On February 21, 2024, the judge entered a written order dismissing the complaint after reasoning that ‘[a]lthough the Father was not an ideal parent, his conduct does not rise to the level of neglect.’ The judge did not find, pursuant to 8 U.S.C. §1101(a)(27)(J)(i), that ‘reunification with [one] or both of [Luana’s] parents is not viable due to abuse, neglect, abandonment, or similar basis found under State law.’ Accordingly, the complaint was dismissed by decree on March 4, 2024. Thereafter, Luana moved to vacate the judgment of dismissal and sought to file an amended complaint for dependency, then moved for relief from judgment under Mass. R. Dom. Rel. P. 60(b). The motion for relief was denied, and Luana filed a motion for reconsideration. On August 26, 2024, an order entered denying the motion for reconsideration, and a supplemental order of dismissal issued. The judge found that the behavior alleged does not meet the standard for abuse, neglect, and abandonment, nor does it ‘rise to the same level or magnitude to establish ‘or similar circumstance’ (i.e., death of a parent) pre or post 18 years of age.’ The judge further found that Luana made no allegation that her father withheld food, shelter, or other necessities and further noted that parents in another country are not obliged to support their children after the age of eighteen. A timely notice of appeal was filed on September 17, 2024. Luana was twenty at the time the case was dismissed and will reach the age of twenty-one on October 10, 2024. …

“… As the evidence is uncontested, and the relief requested is time-sensitive, we choose to address the merits and in doing so, make the following special findings and ruling based on the record before us:

“1. The plaintiff, Luana Goncalves de Paula, was born on October 10, 2003, in Brazil. Luana resides in the town of Winthrop, Suffolk County, Massachusetts and under the jurisdiction of the Probate and Family Court. Luana is not married.

“2. The Probate and Family Court has jurisdiction pursuant to G.L.c. 215, §6, to make determinations about the dependency, care, support, and well-being of youth under the age of twenty-one. … Luana Goncalves de Paula is dependent upon the Probate and Family Court for her health, safety, and welfare. …

“3. Luana’s father, the named defendant, neglected Luana. Accordingly, Luana’s reunification with her father, Ronaldo Goncalves Lemos, is not viable. See 110 Code Mass. Regs. §2.00 (2008) (defining, inter alia, caretaker, child, and neglect).

“4. Having considered the health, educational, developmental, physical and emotional interests of Luana, this court determines that it is not in Luana’s best interests to return to her country of nationality, Brazil. … In Brazil, Luana would lack parental protection and support. In the United States, Luana has found stability, safety, and opportunities she could not access in Brazil. For these reasons, it is in Luana’s best interests to remain in the United States.

“5. The above findings were made due to the neglect of Luana by her father, the defendant, to provide for her safety and well-being, and to protect Luana from future harm, in accordance with the laws of the Commonwealth of Massachusetts.

“The order denying the motion for reconsideration and the supplemental judgment of dismissal entered August 26, 2024, and the judgment of dismissal entered March 4, 2024, are reversed. The matter is remanded to that court for entry of a decree incorporating the numbered findings recited above in this memorandum and order. …”

Goncalves de Paula v. Goncalves Lemos (Lawyers Weekly No. 81-113-24) (7 pages) (Docket No. 24-P-1148) (Oct. 4, 2024).

Click here to read the full text of the opinion.