Denial of guardianship for undocumented immigrant’s niece reversed

An Indiana trial court judge who doubted whether he had the authority to grant a guardianship in a case before him involving two undocumented immigrants will get the case back from the Indiana Court of Appeals, which told him in a Wednesday opinion that his ruling was erroneous.

The case involves Shirla Gonzalez Xitumul, who at age 14 escaped her “violent” father in Guatemala in October 2017, eventually settling in Decatur County with her uncle, Miguel Hernandez Jeronimo. Hernandez has a foreign power of attorney signed by Shirla’s parents allowing him to act in his niece’s interests.

Shirla’s parents also signed a document renouncing parental authority after she settled with Hernandez, “so that he can provide the essentials for her subsistence,” according to the record. In January, Hernandez filed an unopposed petition with the Decatur Circuit Court to be named Shirla’s guardian. Judge Timothy Day noted he “reluctantly” made special immigrant juvenile status findings, including that returning Shirla to her native country would not be in her best interests, but he found that appointment of a guardian was not necessary because of Hernandez’s power of attorney.

Day also said in a hearing, “[W]e have a noncitizen of our country asking me to grant him relief under the laws of our country. … To grant guardianship over again, a noncitizen. … So I don’t know where I stand as a state court, in my ability to grant this.”

Appellate Judge Margret Robb pointed with added emphasis to Indiana Code § 29-3-5-1(a): “[a]ny person may file a petition for the appointment of a person to serve as guardian for an incapacitated person or minor[.]

“… Therefore, under the relevant statutes and definitions, neither the citizenship of the proposed guardian nor the citizenship of the minor impacts whether a petition for guardianship can be filed or granted,” Robb wrote for the panel in In the Matter of the Guardianship of Shirla Gonzalez Xitumul: Miguel Hernandez Jeronimo, 19A-GU-948.

“With respect to Shirla’s dependency or custody, the trial court found that a guardianship was not necessary because Hernandez already had a power of attorney entitling him to act on Shirla’s behalf.  However, a guardian appointed by a court to have the care and custody of the person or property of a minor … and an attorney in fact designated to act for a principal under a power of attorney … are not interchangeable and the existence of one does not preclude the other. … And in a case seeking an SIJ predicate order, the ‘appointment of a guardian constitutes the necessary declaration of dependency on the juvenile court,’” the panel held, citing In re Estate of Nina L. ex rel. Howerton, 41 N.E.3d 930 (Ill. App. Ct. 2015).

“Whether or not Hernandez must have the status of guardian to enroll Shirla in school or seek medical treatment for her, it is necessary that he be named her guardian so that she can apply for SIJ status.  Thus, it appears the trial court considered the question of the ‘necessity’ of this guardianship through the wrong lens and erred in declaring the guardianship unnecessary,” the panel held.

The case was remanded for further proceedings on the guardianship petition.

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