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In re Guardianship of Xitumul

Court of Appeals of Indiana

November 20, 2019

In the Matter of the Guardianship of Shirla Gonzalez Xitumul: Miguel Hernandez Jeronimo, Appellant-Petitioner.

          Appeal from the Decatur Circuit Court The Honorable Timothy B. Day, Judge Trial Court Cause No. 16C01-1901-GU-1

          ATTORNEY FOR APPELLANT Alexander E. Budzenski Indianapolis, Indiana

          ROBB, JUDGE

         Case Summary and Issue

         [¶1] Miguel Hernandez Jeronimo ("Hernandez") filed a petition seeking to be appointed guardian of his niece, Shirla Gonzalez Xitumul ("Shirla") and also seeking certain findings that could enable Shirla to seek Special Immigrant Juvenile ("SIJ") status from the United States Citizen and Immigration Services ("USCIS"). At the time Hernandez filed the petition, he held a foreign power of attorney signed by Shirla's parents allowing him to act on their behalf with respect to Shirla. The trial court made findings relevant to Shirla's SIJ status but found it unnecessary to appoint Hernandez as her guardian because he already held the power of attorney. In this unopposed appeal, Hernandez raises the sole issue of whether the trial court erred in denying the petition. Concluding the trial court erred in finding the guardianship unnecessary, we reverse and remand.

         Facts and Procedural History

         [¶2] Shirla resided in her native country of Guatemala until October of 2017 when, at fourteen years of age and with her mother's support, she began her journey to the United States. Shirla traveled with people she did not know, "by car or walking," because she "didn't feel secure" in Guatemala due to her "violent" relationship with her father: "He always hit me. He'd always get drunk. He threw me out of the house. Never - he was never there to support me, insults and mistreatment." Transcript, Volume 2 at 12-13. When Shirla arrived in the United States, she initially lived in a shelter for immigrants in Chicago, Illinois. In October of 2018, she came to live with Hernandez and his family in Decatur County, Indiana. She does not think she could go back to Guatemala to live with her parents because she does not have the support there that she has here. Hernandez "treats [her] well[, ]" supporting her and giving her an education, housing, clothing, and food. Id. at 14. She wishes Hernandez to be her guardian.

         [¶3] Hernandez has lived in Indiana since 2007 and works in construction. He is a Guatemalan citizen and an illegal immigrant to this country. He does not believe Shirla could be reunited with her parents in Guatemala "because of what she had to live - she had to go through when she was living over there with her parents." Id. at 9. Shirla's only other relatives in Guatemala are on her father's side of the family. Hernandez thinks living in the United States is in Shirla's best interest because she can get an education, have better opportunities, and be protected. He supports Shirla emotionally and financially and wishes to be her guardian. At some point after Shirla came to live with Hernandez, Shirla's parents signed a document "renounc[ing] the parental authority, guardianship, and custody" of Shirla and giving Hernandez power of attorney "so that he can provide the essentials for her subsistence[.]" Appellant's Appendix, Volume 2 at 11.

         [¶4] On January 2, 2019, Hernandez filed a petition seeking to be named guardian of Shirla, then sixteen years old and unmarried with no dependents. The petition alleged Shirla had been abused, abandoned, and neglected by her parents and that it is not in Shirla's best interest to return her to her home country for those reasons; appointment of a guardian is necessary to ensure her proper care and supervision and specifically to "obtain decision-making powers in the following areas: healthcare, including treatment and access to medical records, and school enrollment"; and Hernandez is the best person to serve as guardian as Shirla resides with him. Shirla consented to the guardianship, but as to her parents, the petition alleges, "Shirla's parents have not objected to [Hernandez] being awarded guardianship of Shirla and it is not likely they will do so." Id. at 14-15.

         Wherefore, [Hernandez] requests that this Court . . . enter an Order finding that:

1. [Shirla] is an unmarried minor;
2. The Decatur County Circuit Court has jurisdiction over minors, and Shirla, as a minor, is dependent upon the Court per IC 29-3-5-1 et seq.;
3. The appointment of a guardian for [Shirla] is necessary;
4. Shirla has been physically and mentally abused by her father;
5. Shirla has been abandoned and neglected by both of her parents who forced her out of the home and left her with nowhere to live in Guatemala and sent her to journey across Guatemala, Mexico, and the United States alone;
6. Reunification with either parent is not a viable option;
7. Shirla has no parent willing or able to care for her in the United States;
* * *
9. It is not in Shirla's best interests to be returned to her country of nationality and last ...

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