Chief Justice Jorge Labarga.
Chief Justice Jorge Labarga. (Photo: AM Holt)

The Florida Supreme Court on Thursday ruled juvenile courts cannot reject immigrant children’s petitions for dependency without giving them a chance to present evidence.

The 4-3 ruling came with four separate opinions, showing a variety of thoughts on a divisive issue that two justices said needs “immediate legislative attention and clarification.”

Florida judges, particularly in Miami-Dade County, have seen a flood of dependency petitions from children seeking permanent U.S. residency. In recent years, “dozens, if not hundreds” of those petitions have been denied without an evidentiary hearing, according to University of Miami law professor Bernard Perlmutter, who co-directs the school’s Children & Youth Law Clinic.

“I welcome the opinion,” he said. “I think the law should apply equally whether this is an immigrant child or a U.S. citizen child, and we have a very strong statutory basis for these cases to go forward and not to be dismissed before facts can be presented.”

The majority opinion written by Chief Justice Jorge Labarga reverses a Third District Court of Appeal ruling that found a Guatemalan teenager who crossed into the U.S. illegally had not “truly” been abandoned, abused or neglected under Florida dependency law. The opinion from now-retired Judge Frank Shepherd emphasized the dependency petition was filed for the sole purpose of seeking permanent residency through special juvenile immigrant status, or SIJS.

The teen’s parents left him before he was 5, and he lived with his grandmother until she became too old to care for him. He moved in with his godmother in Miami, who the Third DCA said “meets his every need.”

His dependency petition was dismissed after an eight-minute hearing without any findings of fact, a dismissal the Third DCA upheld: “The purpose of the dependency laws of this state is to protect and serve children and families in need, not those with a different agenda,” Shepherd and Judge Thomas Logue found.

The Florida Supreme Court disagreed, taking cues from Third DCA Judge Vance Salter’s dissent.

“Whether the petition seeks an adjudication to assist the child in applying for an immigration status under federal law is not a basis for summarily dismissing or denying the petition,” Labarga wrote. “The determination of whether an immigrant juvenile may obtain SIJS is reserved for the federal immigration authorities.”

Justices Barbara Pariente, R. Fred Lewis and the newly sworn-in C. Alan Lawson concurred, but both Lewis and Lawson wrote separate opinions. The two agreed with each other that the Florida Legislature needed to make the statute clearer, while Lewis worried the dependency structure was being turned into “an immigration processing system.”

The dissent was penned by Justice Charles Canady, with Justices Peggy Quince and Ricky Polston concurring. They agreed with the key finding that dependency petitions should not be summarily dismissed because the child is an immigrant. But they did not believe the child in this case, identified in court documents only as B.R.C.M., qualified for an evidentiary hearing, arguing he made no claims about his godmother being a deficient caregiver.

His parents’ abandonment more than a decade ago is unlikely to be a proper basis for a dependency finding now, the dissent said.


The definition of abandonment has popped up time and time again in these cases, and it may need clarification, said Steven Hadjilogiou and Angela Vigil of Baker McKenzie in Miami. They worked pro bono to represent the child along with Ricardo Rodriguez and Mary Gundrum of the Carlos A. Costa Immigration & Human Rights Clinic at Florida International University College of Law.

“Our view is abandonment is an ongoing situation rather than a specific point in time,” Hadjilogiou said. “If you’re abandoned one year ago or 10 years ago, there’s still the pain and the need to take care of a child in that situation.”

The attorneys, along with those who worked on amicus briefs in support of evidentiary hearings for immigrant children seeking dependency, said they were jumping for joy over the decision.

“Before [a dependency] claim is ruled on, the child has the due process procedural right to have their claims heard,” said Miami attorney Whitney Untiedt of Akerman, who worked with Perlmutter on an amicus brief on behalf of Florida’s Children First. “This opinion is not just the right opinion, but it upholds justice in our uniquely American way.”

The state Department of Children and Families, the defendant in the case, could seek rehearing.

DCF’s “mission and first priority is child safety,” spokeswoman Jessica Sims said in an email. “The department, as a party to the case, has received the opinion rendered today by the Florida Supreme Court and will thoroughly review it to determine the most appropriate action to take going forward.”

Gundrum said she is hopeful the clarity of the opinion will discourage disputes from DCF.

“We’re really pleased that immigrant children are now going to get the same chance to prove their case before the courts that other Florida children have,” she said.