LOPEZ VS. SERBELLON PORTILLO (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court reviewed the district court's interpretation of NRS 3.2203(3)(b) de novo. Amaya v. Guerrero Rivera, 135 Nev. 208, 210, 444 P.3d 450, 452 (2019). Under 8 U.S.C. § 1101(a)(27)(J) and NRS 3.2203, a state juvenile court asked to make SIJ predicate findings must address three prongs: (1) dependency or custody; (2) non-viability of reunification with one or both parents due to abandonment, abuse, neglect, or comparable basis under state law; and (3) best interest. Amaya, 135 Nev. at 210, 444 P.3d at 452. The custody order satisfied the first prong. Id. at 211, 444 P.3d at 452. On the reunification prong, the Court held that the district court erred by treating the question as whether future reunification was "possible" rather than whether it is "viable." The statute, NRS 3.2203(3)(b), tracks the federal text and asks whether reunification is "not viable because of abandonment, abuse or neglect or a similar basis under the laws of this State." The Court explained that while a district court may consult Nevada's termination-of-parental-rights definition of abandonment in NRS 128.012(1) (conduct that "evinces a settled purpose . . . to forego all parental custody and relinquish all claims to the child") and the six-month presumption in NRS 128.012(2) for guidance, the SIJ inquiry is broader and imposes a lower threshold than termination, because SIJ findings do not extinguish parental rights. Adopting the approach of J.U. v. J.C.P.C., 176 A.3d 136, 140-43 (D.C. 2018), and Romero v. Perez, 205 A.3d 903, 915 (Md. 2019), and noting agreement in Kitoko v. Salomao, 215 A.3d 698 (Vt. 2019), the Court held that "viable" means "practicable or workable," and that the analysis requires "a realistic look at the facts on the ground in the country of origin and a consideration of the entire history of the relationship between the minor and the parent in the foreign country." J.U., 176 A.3d at 140. Drawing on Romero, the Court endorsed a nonexhaustive set of factors: (1) the lifelong history of the child's relationship with the parent, including credible evidence of past mistreatment; (2) the effects forced reunification might have on the child's health, education, or welfare; and (3) the realistic facts on the ground in the child's home country, including exposure to danger or harm. Romero, 205 A.3d at 915. Applying this framework, the Court concluded the district court erred by focusing on whether reunification "might be possible in the future" rather than evaluating viability in light of the parent-child history, the workability of returning K.M.L. to Serbellon Portillo's care, and conditions in El Salvador. The Court reversed the denial of SIJ predicate findings and remanded for reconsideration under the correct standard. Because no party challenged the custody award and the record did not show an abuse of discretion, the custody portion of the order was affirmed. In a footnote, the Court declined to address vagueness rulings concerning 8 U.S.C. § 1101(a)(43)(F), see Golicov v. Lynch, 837 F.3d 1065 (10th Cir. 2016); Shuti v. Lynch, 828 F.3d 440 (6th Cir. 2016); Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2016), as those decisions address a different subsection of the statute. The Court determined oral argument was not warranted under NRAP 34(f)(1).

In plain language

This case is about a Nevada family court's role in helping certain immigrant children apply for a special federal immigration status. Federal law allows some children in the United States to apply for what is called Special Immigrant Juvenile (SIJ) status, which can lead to lawful permanent residency. Before a child can apply, a state court must make three specific findings about the child's situation. One of those findings is that the child cannot reasonably be reunited with one or both parents because of abandonment, abuse, neglect, or something similar. Mariela Lopez gave birth to her son K.M.L. in El Salvador in 2007 and told the father, Serbellon Portillo, both about the pregnancy and about the birth. According to the opinion, Serbellon Portillo never communicated with K.M.L., never sought contact, and never provided support, even though he lives in El Salvador and could have reached Lopez or her family. K.M.L. lived with Lopez's mother in El Salvador until 2017, when his grandmother could no longer care for him and gang violence in his neighborhood became a concern (neighbors had been killed by gang members). K.M.L. then moved to the United States to live with his mother. Lopez asked the Nevada family court for custody and for the SIJ predicate findings. The court gave her custody and agreed it was in K.M.L.'s best interest to stay with her, but declined to find that reunification with the father was "not viable," explaining it could not predict whether the father might someday try to reunite with the child. The Nevada Supreme Court held that the family court used the wrong test. The legal question is not whether future reunification is theoretically possible, but whether it is "viable" - meaning workable or practicable - given the history of the parent-child relationship and the realistic conditions in the child's home country. The Court adopted a framework drawn from out-of-state decisions: family courts should look at the entire history of the relationship between parent and child, the effects forced reunification might have on the child, and the actual conditions on the ground in the home country. The Court also emphasized that an SIJ "abandonment" finding is not the same as terminating parental rights, so the standard for abandonment in this context is broader and less demanding. The Supreme Court left the custody award in place but sent the case back to the family court to reconsider the reunification finding using the correct standard.