D.L. v. Super. Ct. CA1/3

Filed 5/5/15 D.L. v. Super. Ct. CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

D.L., Petitioner, v. A144960 THE SUPERIOR COURT OF SAN (San Mateo County Superior MATEO COUNTY, Court Case No. FL 128406) Respondent; D.L., Real Party in Interest.

D.L. (Father), father of 17-year-old D.L. (Minor), filed the instant petition for writ relief in this court seeking review of the San Mateo County Superior Court’s denial of his request for preliminary factual findings, pursuant to the Immigration Act of 1990, codified as section 1101 of title 8 of the United States Code (Act), that would qualify Minor for special immigrant juvenile status (“SIJ Status”).1 For the reasons set forth below, we grant Father’s request for extraordinary writ relief (Palma procedure) and remand the matter for further proceedings.2

1 Father also filed a request to waive court fees. That request is granted as to the filing fee only. 2 Minor’s mother’s unrepresented estate was the nominal adverse party named below. 1

Father filed a petition in the superior court alleging the following facts. Minor was born in May 1997 in Guatemala City. When she was fourteen years old her mother died. Following her mother’s death, Father has been Minor’s sole caregiver. In June 2014, Minor, her two brothers, and Father fled Guatemala due to threats from a violent gang, the Zetas, and came to the United States. After arriving in the United States, the family has lived with a family friend in Menlo Park. Minor is doing well in this country, excelling in her studies of English as a foreign language. Minor’s 18th birthday is in a few days. Pursuant to the Act, a minor qualifies for SIJ Status if he or she: (1) is a dependent of the juvenile court or committed to, or placed under the custody of, a state entity or other court-appointed individual or entity; (2) cannot be reunified with one or both parents due to abuse, neglect, abandonment, or a similar basis found under State law; and (3) it is not in the minor’s best interest to be returned to his or her native country. (In re Israel O. (2015) 233 Cal.App.4th 279, 284; 8 U.S.C. § 1101(a)(27)(J)(i).) A superior court with jurisdiction to make child custody determinations under California law “ ‘has the authority and duty to make [SIJ status] findings’ ” if the evidence supports those findings. (In re Israel O, supra, at pp. 284–285.) After a state court makes SIJ findings, the minor must include that order in the materials presented to the federal authorities, who make the final decision concerning SIJ status. (Ibid.) Father requests that the superior court enter an order making the above referenced findings pursuant to the Act. The superior court denied Father’s request stating that it could not find abandonment in this case3 because the mother died of natural causes. We conclude that the superior court erred when it determined that a finding of willful abandonment was required under the Act. To the contrary, “willfulness” is not a predicate requirement to finding that a parent has abandoned a minor.