In the Matter of the Paternity of Kevin Yafet Mendoza Bonilla Kevin Yafet Mendoza Bonilla aka Kevin Yafeth Mendoza Bonilla, a Minor, By his Next Friend, Perla Maily Bonilla Acosta, Appellant,
Marco Tulio Mendoza Maldonado, Appellee.
from the Marion Circuit Court Trial Court Cause No.
49C01-1607-JP-23926 The Honorable Sheryl L. Lynch, Judge The
Honorable Marie L. Kern, Magistrate Judge
Attorneys for Appellant Brian J. Paul Erica K. Drew Kayla D.
Britton Faegre Baker Daniels LLP Indianapolis, Indiana
Kevin Yafet Mendoza Bonilla aka Kevin Yafeth Mendoza Bonilla
("Kevin") appeals the trial court's paternity
order and denial of an amended order. Kevin raises one issue
which we revise and restate as whether the trial court had
the authority and duty to make requisite findings on his
special immigrant juvenile status in accordance with 8 U.S.C.
§ 1101(a)(27)(J). We reverse and remand.
and Procedural History
On July 6, 2016, Kevin by his next friend and mother, Perla
Maily Bonilla Acosta ("Mother"), filed a verified
petition to establish paternity in the Marion Circuit Court.
The petition requested that the court issue findings of fact
and conclusions of law regarding Kevin's care including
that "[i]t is not in Kevin's best interests to
return to his home country of Honduras because: (1) there are
no suitable adults there who can provide for his care and (2)
there are dangerous living conditions in that country,"
and that Kevin cannot be reunited with his father, Marco
Tulio Mendoza Maldonado ("Father"), due to
Father's abandonment of Kevin. Appellant's Appendix
Volume II at 9. On July 8, 2016, Mother filed an
"Affidavit of [Mother] Pursuant to Uniform Child Custody
Jurisdiction Act." Id. at 11 (capitalization
On November 16, 2017, Kevin by Mother as next friend filed a
Motion for Court to Issue an Order Establishing Paternity or
in the Alternative to Set a Hearing to Establish Paternity.
That same day, Father filed a Consent to Jurisdiction in
which he asserted that Kevin was born to him and Mother on
January 26, 2000, and that he ceased contact with Kevin on
the day Kevin was born, did not continue a parental
relationship after that time, and did not dispute any of the
factual allegations contained in the petition. On November
30, 2017, Kevin by Mother as next friend filed a Motion for
On March 27, 2018, the court held a hearing. The court
stated: "My review of the file suggest[s] that you are
attempting to get an order from this Court to establish
special juvenile immigration status, counsel is that
correct?" Transcript at 4. Mother's counsel
indicated that was correct. The court stated in part:
"Yeah, unfortunately counsel this is not the first time
this has come up here. This is an issue that we have looked
at extensively and we believe that as the law is currently
written in the State of Indiana, we have limitations in terms
of what this Court's ability to find and enter based upon
the way the law is currently written." Id. at
5. The court also stated that "[t]here is no language
with regards to an abandonment finding that this Court can
make it does not pertain to JP actions in any way."
Id. at 6. The court stated:
[T]he federal law requires me to be able to make a finding
that it is not viable for the child to be returned to one or
both parents and their custody, well a. I have a problem that
we are now dealing with an adult and b. again I do not know I
can make that finding because under current Indiana law at
most I can find that the child would be emotionally impaired
or physically endangered if a parents' parenting time was
Id. The court further stated that it did not believe
it had the legal authority to make certain findings.
Mother testified that Kevin was born on January 26, 2000, and
that he came to the United States in 2015 because he had been
threatened by gangs. She testified that Kevin was in high
school, that Father was not involved in parenting and
currently lives in Honduras and has not contributed any
support, that Father abandoned Kevin and that it was not
possible that Kevin be reunited with Father, that it was not
in Kevin's best interest to return to Honduras because he
was threatened by a gang and Honduras is dangerous, and that
she financially supported Kevin.
On May 4, 2018, Kevin by Mother as next friend filed a
Supplemental Brief and Authorities in Support of and Request
for Order Regarding Petitioner's Eligibility for Special
Immigrant Juvenile Status Under 8 U.S.C. §
On July 23, 2018, the court entered an order establishing
paternity of Kevin in Father, giving Mother sole legal and
physical custody and finding that: "[f]or all intents
and purposes, [Father] effectively abandoned the child at
birth, leaving Mother as the sole care provider"; Father
"effectively abandoned the child at birth, having
provided no physical, emotional or financial support of the
child in 18 years"; and "return to Honduras poses a
risk of harm or injury to the minor child, and as such, [the
court] does not find that it is in the child's best
interests to return to Honduras." Appellant's
Appendix Volume II at 119-120.
On July 30, 2018, Kevin by Mother as next friend filed a
Motion for Clarification of Final Order. He asserted that to
be eligible to apply to U.S. Citizenship and Immigration
Services for Special Immigrant Status, a "juvenile or
State court" must first make several findings of fact,
including that "[t]he child's reunification with one
or both parents is not viable due to abuse, neglect,
abandonment, or similar basis found under State law within
the meaning of 8 U.S.C. § 1101(a)(27)(J)."
Id. at 122. He also requested the court to clarify
its final order to specify its authority to enter the order
and that the child's reunification with Father was not
viable due to Father's abandonment and to enter an order
substantially similar to the court's final order
reflecting such a finding. He requested that the amended
order include the following language: "Based on the
record of this case and [Father's] abandonment of this
child, reunification with [Father] is not viable."
Id. at 123. On October 4, 2018, the court denied