Luana Goncalves De Paula v. Ronaldo Goncalves Lemos.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-1148

LUANA GONCALVES DE PAULA

vs.

RONALDO GONCALVES LEMOS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

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).1 Luana submitted an affidavit

1To be eligible to seek SIJ status, an alien juvenile must
establish: (1) that he or she has been declared dependent on a
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.2

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

"juvenile court"; (2) that reunification with one or both of the
juvenile's "parents is not viable due to abuse, neglect,
abandonment, or a similar basis found under State law"; and (3)
that it would not be in the juvenile's best interests to return
to his or her country of nationality. 8 U.S.C.
§ 1101(a)(27)(J)(i)-(ii). The State court's role is not "to
engage in an immigration analysis or decision." Recinos v.
Escobar, 473 Mass. 734, 738 (2016).

2 Luana's father was provided with a copy of Luana's filings
in English and his native language, Portuguese. He assented to
Luana's complaint for dependency against him by written filing
dated December 14, 2023.

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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.

"[T]he Probate and Family Court has jurisdiction, under its

broad equity power, over youth between the ages of eighteen and

twenty-one for the specific purpose of making the special

findings necessary to apply for SIJ status pursuant to the INA."

Recinos v. Escobar, 473 Mass. 734, 739 (2016). In addition,

"[i]n order to attain self-sufficiency, the plaintiff and
other youth in [his or her] situation need the assistance
of the Probate and Family Court in the form of special

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findings applicable to SIJ status. If an immigrant child
is able to show, for purposes of SIJ status eligibility,
that he or she experienced abuse, neglect, or abandonment
by one or both parents, it follows that the child is
dependent on the Probate and Family Court for the
opportunity to obtain relief. The child would be
'dependent' on the Probate and Family Court for the
assistance that is available in applying successfully for
the Federal relief, i.e., SIJ status."

Id. at 743.

"Acting within the limits of this fact-finding role, the

judge must make the special findings even if he or she suspects

that the immigrant child seeks SIJ status for a reason other

than relief from neglect, abuse, or abandonment." Guardianship

of Penate, 477 Mass. 268, 275 (2017). "The immigrant child's

motivation is irrelevant to the judge's special findings. The

judge's obligation to make the special findings also applies

regardless of whether the child presents sufficient evidence to

support a favorable finding under each of the criteria set forth

in § 1101(a)(27)(J)." Id. The findings must also

"be limited to the parent with whom the child claims
reunification is not viable due to abuse, neglect, or
abandonment. Thus, where an immigrant child asserts in her
or his motion for special findings that reunification is
not viable with only one parent, the Probate and Family
Court shall limit its findings to that parent."
Id.

In the present case, the judge based her decision solely on

the documents presented to her. Accordingly, "we are in as good

a position as the probate judge to decide questions of fact."

Bluhm v. Peresada, 5 Mass. App. Ct. 766, 766 (1977). The facts

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contained in Luana's affidavit are undisputed.3 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. Cf. Eccleston v. Bankosky, 438

Mass. 428, 436-437 (2003). Luana Goncalves de Paula is

dependent upon the Probate and Family Court for her

health, safety, and welfare. Id.

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).

The defendant assented to Luana's complaint for dependency
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and did not contest any of the allegations contained therein.

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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. See, e.g.,

Custody of Kali, 439 Mass. 834, 843-845 (2003) (in making

best interests determination, judge must identify and

weigh pertinent factors). 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. The First Justice of the Suffolk Division

of the Probate and Family Court shall direct the Register to

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enter the decree forthwith, but in any event no later than

October 8, 2024. The rescript shall issue forthwith.

So ordered.

By the Court (Massing,
Henry & Desmond, JJ.4),

Clerk.

Entered: October 4, 2024.

4 The panelists are listed in order of seniority.

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