RE: Commonwealth V. CLIENT, DOCKET NUMBER

RE: Commonwealth V. CLIENT, DOCKET NUMBER

[NOTE: The following is a redacted, complete submission filed on behalf of a juvenile seeking Special Findings from a juvenile court judge in a delinquency matter. As you will see, much of it is very fact-specific. This is intended to guide counsel in seeking Special Findings in delinquency cases, but counsel will need to significantly modify these materials to fit the facts of each case.]

DATE

ATTN: Clerk’s Office

TOWN Juvenile Court

ADDRESS

RE: Commonwealth v. CLIENT, DOCKET NUMBER

Dear Sir/Madam:

Enclosed for filing in the above-referenced matter, please find:

1)Ex Parte Motion for Special Findings;

2)Memorandum in Support of Motion for Special Findings;

3)Proposed Order of Special Findings of Fact and Rulings of Law;

4)Affidavit of CLIENT;

5)Affidavit of BROTHER;

6)Affidavit of AUNT;

7)Copy of Birth Certificate of CLIENT

8)Copy of Death Certificate of MOTHER

This matter is currently scheduled for arraignment on DATE. However, I ask that this matter be heard ON DATE. Please note that the enclosed motion is an ex parte motion.

Please feel free to contact me if you have any questions or concerns. I can be reached at PHONE NUMBER, or at EMAIL.

Sincerely,

ATTORNEY

cc: Judges’ Lobby

COMMONWEALTH OF MASSACHUSETTS

COUNTY, ss.TOWN JUVENILE COURT

DOCKET NUMBER

COMMONWEALTH

v.

CLIENT

EX PARTE MOTION FOR SPECIAL FINDINGS

Pursuant to Massachusetts General Laws, Chapter 119, Section 53; Massachusetts General Laws, Chapter 119, Section 58; 8 U.S.C. 1101(a)(27)(J); and the attached Memorandum of Law, CLIENT, the juvenile, by and through undersigned counsel, moves this Honorable Court to make the following special findings pursuant to the instant delinquency proceedings:

  1. CLIENT is an unmarried minor child, born PLACE, on DATE.
  1. CLIENT currently lives with his GUARDIAN, at LOCATION, which is within the jurisdiction of this Court.
  1. CLIENT is dependent upon this Court through the instant delinquency proceedings. He is further dependent upon this Court to make the requisite findings that will provide him with the opportunity to obtain protection and relief from neglect.
  1. As described in his affidavit, CLIENT’s reunification with his father in PLACE is not viable due to the neglect of his father. His mother died when he was eleven years old. Furthermore, CLIENT’s grandmother, who remains in PLACE, is unable to care for him and keep him safe from gang violence. Therefore, CLIENT requests findings from this Court to reduce his chances of having to return to violence in his home country, PLACE, where he has no parent to care for him and to protect him from such violence.
  1. It is not in the best interests of the minor child,CLIENT, to be returned to PLACE, his country of origin, and it is in his best interests to remain in the United States, where he has his aunt to care for him and has access to schooling, medical, and specialist care, as well as services to overcome the problems he faced in his childhood.
  1. CLIENT request all of the above findings and determinations because his father failed to provide even basic necessities after his mother died, including food, schooling, and medical care, as well as failing to provide any developmental or emotional support. CLIENT’s father later abandoned him completely after he discovered that gang members were threatening CLIENT.

WHEREFORE, on behalf of the minor child, CLIENT, counsel respectfully requests that this Honorable Court enter the proposed order of special findings.

Respectfully submitted,

CLIENT

By His Attorney,

______

Date:

COMMONWEALTH OF MASSACHUSETTS

COUNTY, ss.TOWN JUVENILE COURT

DOCKET NUMBER

COMMONWEALTH

v.

CLIENT

MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SPECIAL FINDINGS

Introduction

This memorandum of law is submitted in support of the Petitioner’s Motion for Special Findings of Fact and Rulings of Law. CLIENT, the minor child, requests that this Court issue the findings specified in his proposed order pursuant to the instant delinquency proceedings. CLIENT requests these findings so that he may apply to the U.S. Citizenship and Immigration Service (“USCIS”) to be classified as a Special Immigrant Juvenile (“SIJ”) due to the extreme neglect [OR ABUSE, OR ABANDONMENT, OR SIMILAR GROUNDS] he suffered in his early childhood in PLACE. As explained below, U.S. immigration law grants state juvenile courts exclusive jurisdiction to make such findings pursuant to 8 U.S.C. § 1101(a)(27)(J). The findings of a juvenile court, if granted, are a prerequisite for seeking the SIJ classification, but the authority to grant such classification ultimately rests with the USCIS.

As set forth below and in his affidavit (attached hereto as Exhibit A), and his brother’s declaration (attached hereto as Exhibit B), and his aunt’s declaration (attached hereto as Exhibit C), CLIENT’s father neglected to care for him after his mother died when he was only eleven years old. Rather than provide him with security and support, his father failed to provide him with even basic necessities—food, medical care, and education. CLIENT and his brother BROTHER lived mainly in the streets of PLACE and rarely saw their father. When CLIENT was thirteen years old, gang members from GANG began pressuring him to join, threatening to kill him and his brother if he failed to do so. Once his father found out about the threats, his father kicked CLIENTout of the house. CLIENT lived with his aging grandmother until he came to the United States at age fourteen.

Once in the United States, CLIENT and his brother BROTHERtraveled to TOWN, Massachusetts to live with their AUNT and her family. It is in CLIENT’s best interest to remain with his aunt in Massachusetts where he is finally safe and protected. The relief of this Court will give CLIENTthe chance to have a safe and rehabilitated future.

Given his experience, reunification with CLIENT’s father is not viable due to extreme neglect, and his mother passed away years earlier. It is not in CLIENT’s best interest to return to PLACE. For these reasons, CLIENT requests that the Court enter the following three findings, which are necessary for CLIENT to seek Special Immigrant Juvenile classification:

  1. That CLIENT is dependent upon this Court as to the present delinquency proceedings;
  1. That this Court has determined that reunification with CLIENT’s only living parent is not viable due to neglect[OR ABUSE, OR ABANDONMENT, OR SIMILAR GROUNDS]; and
  1. That this Court has determined that it is not in CLIENT’s best interest to be returned to PLACE, his home country.

See 8 U.S.C. § 1101(a)(27)(J). Each of these findings is explained further below.

If the Court fails to issue the requisite findings that will enable CLIENTto apply to the USCIS for SIJ classification, he will face the risk of deportation to PLACE. Should he be returned to PLACE, where there is inadequate care, protection, and support for him, he will face further neglect and violence as described in his affidavit, and in the affidavits of his aunt and brother. CLIENT has experienced a long history of neglect at the hands of his father, which led CLIENT to be subject to further violence in PLACE. He came to the United States to find safety from that neglect and violence, and he respectfully requests that this Court make the findings that will enable him to continue to do so.

Statement of Facts

CLIENT was born in PLACE. Exhibit A (Affidavit of Child) at ¶ 1; Exhibit D (Copy of Birth Certificate of Child). His mother was MOTHER, and his father was FATHER. Exhibit D; Exhibit E (Copy of Death Certificate of Mother).CLIENT had a peaceful and happy childhood until his mother’s death of leukemia when CLIENT was only eleven years old. Exhibit A at ¶ 3, ¶ 6; Exhibit B (Affidavit of Brother) at ¶ 2; Exhibit E. His mother owned a restaurant in PLACE and took her children to school every day, and to church on the weekends. Exhibit A at ¶ 3.

CLIENT never knew most of his father’s family. Id. at 4. For the most part, his father’s side of the family ignored him and his brother, stemming from their dislike of his mother. Id. Before she died, CLIENT’s mother attempted to arrange for CLIENT and his brother, BROTHER, to live with a certain aunt and uncle in PLACE. Id. at ¶ 7. However, upon her untimely death, CLIENT’s father refused to let his sons live with his mother’s relatives, insisting that he take his children to live with him. Id. But rather than caring for him and his brother as his mother had, CLIENT’s father neglected them. Id. at ¶ 8-11; Exhibit B at ¶ 2-3. CLIENT stopped attending school in sixth grade. Id. He rarely saw his father; he and his brother were left to fend for themselves for food. Id. He never saw a doctor. Id. Eventually, CLIENT and BROTHER were spending almost all of their time in the streets. Id.

Then, when CLIENT was thirteen years old, members of the GANGgang began pressuring him to join them. Exhibit A at ¶ 12-13; Exhibit B at ¶ 4; Exhibit C (Affidavit of Aunt) at ¶ 4.GANG members targeted CLIENT and some of his friends because they were living on the streets, despite their youth. Exhibit A at ¶12. One of the new GANG members then told CLIENT that if he did not join the gang, they were going to kill him and his brother. Id. at ¶ 13; Exhibit B at ¶ 4.CLIENT protested against these threats, and the gang left him alone for a brief period, but the fear of retribution continued to haunt him. Exhibit A at ¶ 14.

Not long after this, CLIENT’s father discovered that GANGgang members were threatening to kill him if he did not join them. Id. at ¶ 15.CLIENT’s father subsequently kicked CLIENT out of his home, insisting that he wanted no further part of his son’s life. Id. CLIENT went to his grandmother’s house to live, because she was the only relative who would take him in. Id. at ¶ 16. She was in her early 80s at that point; she is now 85 and in poor health. Id. at ¶ 16; ¶ 24.

CLIENT had family in the United States as well, and eventually family members found out that GANGgang members were threatening to murder the brothers. Exhibit C at ¶ 4.With help, the boys were able to come to the United States. Exhibit A at ¶ 18; Exhibit C at ¶ 4-5. [EW1]The boys’ journey to the United States—at ages 14 and 17, respectively—was extremely difficult. Exhibit A at ¶ 19-20; Exhibit B at ¶ 5. It took a month and a half, during which the two rode together on trucks and walked for days on end, sometimes with little or no food. Id.

After a week in Texas with other family, CLIENT and BROTHER came to PLACE to live with AUNT and her family. Id.; Exhibit C at ¶ 6.CLIENT began going to school again, and seeing a doctor regularly for the first time since his mother died. Exhibit A at ¶ 21-22. His aunt cares for him and his brother as if they were her own sons, providing them with both financial and emotional support. Exhibit A at ¶ 21-22; Exhibit B at ¶ 6; Exhibit C at ¶ 7. Unlike in PLACE, CLIENT feels safe here, and can finally sleep at night without fear of being kidnapped or murdered by gang members. Exhibit A at ¶ 26-27. CLIENT also has a son here, a five-month-old boy named CHILD. Id. at ¶ 23. He met CHILD’S mother at school, and spends every weekend with CHILD and his mother, playing with his son and caring for him. Id. He is doing well living with his aunt and her family, and is finally getting the care and support he has long deserved but has lacked since his mother’s untimely death. Exhibit A at ¶ 21; Exhibit B at ¶ 7; Exhibit C at ¶ 7.

CLIENT rarely talks to his family in PLACE; he has attempted to reach out to some of his aunts, but says that they no longer respond to his attempts to communicate. Id. at ¶ 24. He does still keep in touch with his grandmother, but she is now in her mid-eighties, and in poor health. Id. He has no one else who would be willing to take him in, should he be returned to PLACE, and his grandmother cannot protect him from the threat of gang recruitment and violence. Id.; see also Exhibit B at ¶ 7.

Argument

  1. This Court Has Jurisdiction to Issue the Requested Findings

Pursuant to 8 U.S.C. § 1101(a)(27)(J), a state court with authority over a juvenile has jurisdiction to make findings that “reunification with one or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law” and that “it would not be in [his] best interest to return to [his] or [his] parent’s previous country of nationality.” The Regulations provide that a juvenile court is a “court located in the United States having jurisdiction under State law to make judicial determinations about the care and custody of juveniles.” 8 C.F.R. § 204.11(a). As a court which has authority to make determinations regarding CLIENT’s care, custody, and other requirements which may be imposed pursuant to the instant delinquency proceedings and M.G.L. c. 119 § 58, this Court therefore satisfies the definition of “juvenile court” under 8 C.F.R. § 204.11(a) and has jurisdiction to enter the requested findings.

Furthermore, it is appropriate for this Court to make such findings where the law states that the health, safety, and long-term well-being of a child is of paramount concern to the Commonwealth. M.G.L. c. 119 § 1; see alsoCommonwealth v. Humberto H., 466 Mass. 562, 576 (2013) (“We therefore recognize the importance of giving Juvenile Court judges broad discretion to protect the best interests of children consistent with the interests of justice”); Commonwealth v. Balboni, 419 Mass. 42, 46 (1994) (Juvenile Court “judge has very broad discretion . . . to further the child’s best interests”); Custody of Quincy, 29 Mass. App. Ct. 981 (1990) (noting Juvenile Department of Trial Court in Massachusetts is proper forum to determine best interests of children). Given his current immigration status, CLIENT is at risk of deportation to PLACE, and he needs the Court to issue findings that will allow him to apply for SIJ status in order to protect him from returning to the continued abandonment and violence that he would surely face in PLACE.

  1. CLIENT is Dependent Upon the Juvenile Court

For similar reasons, CLIENT is dependent upon the Juvenile Court, Suffolk County. He is subject to the ongoing delinquency proceedings, as well as any determinations this Court may make regarding his care, custody, conditions of release, or other services to which he may be subject. See M.G.L. c. 119, § 58. Through its jurisdiction over CLIENT’s delinquency proceedings, this Court satisfies the condition necessary for the first finding of fact that CLIENT is dependent upon a juvenile court.

The fact that CLIENT has not yet been arraigned on the charge outlined in his delinquency complaint does not change this analysis. As outlined in Humberto H., supra at 576, courts have the authority to address motions to dismiss prior to arraignment, given the Juvenile Court’s broad authority to act in the best interest of the child. Courts also routinely address other matters prior to arraignment in Juvenile Court, such as motions for competency evaluations, and in many cases, the juvenile is required to participate in out-of-court programming, community service, or other services prior to his or her case being dismissed prior to arraignment. See, e.g., DETENTION DIVERSION ADVOCACY PROGRAM (DDAP), Robert F. Kennedy Children’s Action Corps (“DDAP, a program of Robert F. Kennedy Children’s Action Corps, is a voluntary intervention alternative to court-ordered detention, providing young people with community-based support and supervision”).[1] This has been the case for CLIENT, who has appeared in TOWN Juvenile Court four times since DATE. His case has been repeatedly continued since then, to give him the opportunity to engage in programming and have his case dismissed prior to arraignment. SeeDOCKET.

Moreover, other cases have already held that the juvenile court process begins prior to arraignment. In Commonwealth v. Mogelinski, 460 Mass. 627 (2013), the SJC held that a juvenile has been “apprehended” for the purposes of M.G.L. c. 119, § 72 and 72A, at the point of issuance of process—in that case, and in the present one, a summons—rather than at the point of arraignment or later. “[T]he issuance of a summons ‘apprehends’ an individual by commencing process against him or her and serving as a notification of the pending charges.” Id. at 635. Given that CLIENT has been issued a summons, and has appeared in court multiple times, it follows that he has been “apprehended” by the Juvenile Court and is therefore dependent upon it for the purposes of a SIJ finding.

As noted above, the SJC has repeatedly held that the Juvenile Court has an obligation to protect the best interests of the child. See, e.g., Humberto H., supra at 576; Balboni, supra at 45-46; Police Com’r of Boston v. Mun. Court of Dorchester Dist., 374 Mass. 640, 666 (1978 ) (“This court has often recognized the unique character of the Juvenile Courts as forums in which, to the extent possible, the best interests of the child serve to guide disposition.”). These holdings find support in the very foundation of the Juvenile Court: that “the care, custody, and discipline of the children brought before the court []approximate as nearly as possible that which they should receive from their parents. . . .” M.G.L. c. 119 § 53. In the present case, it is clearly in the best interest of CLIENT to avoid arraignment, and he has already taken steps to do so. To wait until his record has been blemished by a delinquency charge, when otherwise unwarranted, contravenes the mandates of the Juvenile Court and disregards the interests of justice.[EW2]

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