The following papers have been read:Notice of Motion for Special Findings, Memorandum of Law in Support of Motion for SpecialFindings, Affidavit (Exhibit A), Proposed Order-Special Findings 1Brief in Support of the Motion Seeking a Special Findings Order 2DECISION AND ORDER Petitioner-Mother moves by Notice of Motion, dated August 23, 2018 and filed with this Court on August 28, 2018 (hereinafter the “Motion”), seeking an Order pursuant to F.C.A. §6611; Article 17 of the S.C.P.A.; I.N.A. §101(a)(27)(J), codified at 8 U.S.C. §1101(a)(27)(J); and 8 C.F.R. §204.11, making factual findings that the subject child, D.S., born XX, X, 19XX(hereinafter “D.S.”): (1) is under the age of 21; (2) is unmarried; (3) is within the jurisdiction of and dependent upon the Family Court; 4) that reunification with one or both of her parents is not viable due to abandonment, abuse, neglect, or similar basis under the law; and (5) that it is not in the best interest of D.S. to be returned to her country of origin, Honduras, the country of nationality, or last habitual residence of D.S. or of her birth parents. BACKGROUNDThe Petitioner-Mother, D.P. (hereinafter the “Mother”) and the Respondent-Father, E.E. (hereinafter the “Father”) are the natural parents of D.S. On or about May 13, 2016, the Mother filed a Petition for Custody dated March 10, 2016, Docket Number V-0XXXX-16, seeking an Order granting her sole legal and residential custody of D.S.2 which was granted pursuant to a Final Order on Petition for Custody (hereinafter the “Final Order of Custody”) signed by the Hon. Felice J. Muraca, A.J.F.C. on June 2, 2017. During the course of the underlying proceedings, the parties were represented by counsel, to wit: the Mother was represented by Yvette Aguiar, Esq.; the Father was represented by the Nassau County Legal Aid Society; and D.S. was represented by Mitra Zervos, Esq. At no time during the course of the underlying proceedings did the Mother file a motion for special findings, and during the instant proceedings, she did not advise the Court as to the reason for her 14-month delay in making such a motion.In the Memorandum of Law in Support of the Motion, Mother’s counsel argues that this Court has jurisdiction to grant a Special Findings Order, as D.S.: (1) is3 less that 21 years of age; (2) is not married; (3) that D.S. became dependent on the Family Court when the Court appointed a custodian pursuant to F.C.A. §651; (4) that reunification with the D.S.’s Father is not viable due to neglect and abandonment; and (5) it is not in the best interest of D.S. to be returned to Honduras. Counsel further argues that “[t]o be eligible to apply for SIJS, a child must either be ‘dependent upon a juvenile court…’ ” [emphasis added].The Motion was heard before this Court on September 11, 2018, on which date, this Court raised the question of whether D.S. could be found to be “dependent” upon the Family Court, as of the date of Motion, where D.S. had reached 18 years of age and the Order of Custody thus expired by operation of law prior to the filing of the Motion. After hearing oral argument, this Court requested that the Petitioner’s Attorney submit a Brief in Support of the Motion For Special Findings (hereinafter the “Brief”) to support her argument that D.S. is “dependent” upon the Family Court in view of the circumstances of this case (see 8 U.S.C.§1101[a][27][J], 8 C.F.R. §204.11[c], [d][2][I]), which counsel did submit on October 11, 2018. Neither the Attorney for the Father nor the Attorney for Child opposed the instant application. The matter was adjourned to October 17, 2018.Thereafter, on October 17, 2018, this Court commenced a hearing on the Motion, whereat testimony was taken from D.S. At the conclusion of the hearing, this Court granted branches “1″, “2″, “4″ and “5″ of the Motion, and specifically found that D.S. is under 21 years of age, that D.S. is unmarried, that reunification with the Father is not viable due to the Father’s neglect and abandonment of D.S., and that it is not in D.S.’s best interest to be returned to Honduras, as there is no one in that country who can care for her, and that there were threats of violence from certain gangs to D.S. With respect to the issue of whether D.S. is (currently) “dependent” upon and under the jurisdiction of the Family Court based upon the Final Order of Custody (branch “3″), the Court reserved decision4. At the conclusion of the hearing, this Court advised the parties and counsel that it would consider the contentions raised in the Motion and the Brief, the arguments raised by the Petitioner’s Attorney on the record on October 17, 2018, as well as the testimony during the hearing.In the Brief, counsel cites to the Matter of Juan R.E.M., 154 A.D. 3d 725 (2nd Dept. 2017), arguing that as the underlying custody order was issued prior to D.S.’s 18th birthday, and since D.S. has not yet reached 21 years of age, the Family Court retains jurisdiction to issue a Special Findings Order. Further relying on the Matter of Juan R.E.M., supra, in her Brief, the Mother’s Attorney argues that there is no jurisdictional bar to the issuance of a special findings order, because the family court issued the Order of Custody prior to the Child’s 21st birthday. In that case, the Second Department, Appellate Division reversed the denial of the motion by the family court, and amended the order to include certain findings, holding that as the original order had been granted prior to the child’s 21st birthday there was no impediment to amending the order.DECISION AND ORDERThe family court is a court of limited jurisdiction, constrained to exercise only those powers granted to it by the State Constitution or by statute (H.M. v. E.T. 14 N.Y.3d 521 [2010]). Family Court Act §651 authorizes the court to adjudicate custody and visitation issues with respect to minors, defined by F.C.A. §119(c) as persons who have not yet reached the age of 18 years (see Larock v. Larock 36 A.D.3d 1177 [2nd Dept. 2007]). Thus, it is well-settled that the court no longer has jurisdiction to adjudicate matters involving custody or visitation concerning a child who has turned 18 years of age (see Reich v. Reich 149 A.D.2d 676 [2nd Dept. 1991], Lazaro v. Lazaro 227 A.D.2d 402 [2nd Dept. 1996], Cummings v. Wright 307 A.D.2d 354 [2nd Dept. 2003]).Pursuant to 8 U.S.C. §1101(a)(27)(J), and 8 C.F.R. §204.11 in order for a court to grant an order of Special Immigration Juvenile Status, it must find that the subject child: (1) is under the age of 21 years; (2) is unmarried; (3) is “dependent” upon the family court; (4) that reunification with one or both parents is not viable due to neglect, abandonment or a like reason; and (5) that it is not in the child’s best interest to be returned to their country of nationality.8 U.S.C. §1101(a)(27)(J), provides, in pertinent part, as follows:(J) an immigrant who is present in the United States–(i) who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States, and whose reunification with 1 or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law;(ii) for whom it has been determined in administrative or judicial proceedings that it would not be in the alien’s best interest to be returned to the alien’s or parent’s previous country of nationality or country of last habitual residence; and(iii) in whose case the Secretary of Homeland Security consents to the grant of special immigrant juvenile status***8 C.F.R. 204.11(c), provides as follows, in pertinent part, that:(c) Eligibility. An alien is eligible for classification as a special immigrant under section 101(a)(27)(J) of the Act if the alien:(1) Is under twenty-one years of age;(2) Is unmarried;(3) Has been declared dependent upon a juvenile court located in the United States in accordance with state law governing such declarations of dependency, while the alien was in the United States and under the jurisdiction of the court;***; and(6) Has been the subject of judicial proceedings or administrative proceedings authorized or recognized by the juvenile court in which it has been determined that it would not be in the alien’s best interest to be returned to the country of nationality or last habitual residence of the beneficiary or his or her parent or parents…Though counsel relies mainly on the Matter of Juan R.E.M., supra, that case is distinguishable from the instant matter insofar as that application was simply to amend an order of special findings, which had already been issued prior to the child’s 21st birthday, and which was based upon the granting of an order of guardianship. In this matter, however, the underlying order was one of custody, and as of the date of the filing of the Motion, D.S. had already attained the age of majority, and therefore was no longer subject to the jurisdiction of the Family Court pursuant to F.C.A. §651. Had an order been granted under F.C.A. §661, the Court could have retained jurisdiction through the D.S.’s 21st birthday. It would be disingenuous for this Court to now issue an order after D.S. attained the age of majority, i.e., turned 18 years of age, finding that she is dependent upon and under the jurisdiction of the family court, when as of December 7, 2017 the Final Order of Custody expired. There is no case law or statute presented to or found by this Court to authorize that such a finding, in the first instance, may be made nunc pro tunc. The cases cited by counsel, as well as other Second Department cases, deal with the amendment of prior orders of special findings, where the originating order was issued while the court still retained subject matter jurisdiction over the subject child. Here, as of December 7, 2017, this Court no longer had subject matter jurisdiction over D.S., a necessary element to the issuance of a special findings order.Taking into consideration all of the foregoing, branch “3″of the Motion must be DENIED, based upon this Court’s lack of subject matter jurisdiction over D.S. WITHOUT PREJUDICE TO THE FILING OF A PETITION PURSUANT TO F.C.A §661.Accordingly, it is herebyORDERED, that the Motion is DENIED upon the grounds set forth herein above without prejudice to the filing a petition pursuant to F.C.A. §661.PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.Dated: November 2, 2018
