Guardianship of Saul H. ( 2022 )

IN THE SUPREME COURT OF
CALIFORNIA
Guardianship of SAUL H.
___________________________________
SAUL H.,
Petitioner and Appellant,
v.
JESUS RIVAS et al.,
Real Parties in Interest.
S271265
Second Appellate District, Division One
B308440
Los Angeles County Superior Court
19AVPB00310
August 15, 2022
Justice Groban authored the opinion of the Court, in which
Justices Corrigan, Liu, Kruger, Jenkins, and Guerrero
concurred.
Chief Justice Cantil-Sakauye filed a concurring opinion.
Guardianship of SAUL H.
S271265
Opinion of the Court by Groban, J.
Saul H. left his native El Salvador at the age of 16, fleeing
gang violence. Saul’s parents started sending him to work in
the fields in the summers when he was 10 years old. When Saul
was 15, his parents made him stop going to school after gang
members twice approached him outside of class, attempted to
recruit him, and when he refused to join, threatened to kill him
and his family. Saul then got a job to help provide food for his
family, but a gang member approached him there too,
threatening to “disappear” him unless he paid a gang “tax.”
Saul eventually left El Salvador on his own, against the wishes
of his parents.
In the United States, a distant relative took Saul in and
agreed to serve as his guardian. Saul petitioned the probate
court to issue the predicate findings he needs to support an
application to the federal government for special immigrant
juvenile status, which allows qualifying immigrants under the
age of 21 to seek lawful permanent residence. (Code Civ. Proc.,
§ 155 (section 155); 8 U.S.C. § 1101(a)(27)(J).) In support of his
petition, Saul submitted a declaration describing the dangers
and deprivations he faces in El Salvador, his parents’ inability
to provide for and protect him, and the safety and happiness he
has found in his guardian’s care.
The probate court denied Saul’s petition. The court
determined that because his parents’ inability to provide for and
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protect him was due to their poverty, Saul could not establish
reunification with his parents was “not . . . viable because of
abuse, neglect, abandonment, or a similar basis pursuant to
California law.” (§ 155, subd. (b)(1)(B).) The court further
declined to find that it would not be in Saul’s “best interest . . .
to be returned to” El Salvador. (Id., subd. (b)(1)(C).) It
speculated that Saul would not face the same hardships if forced
to return because, now 18, he was “no longer a minor” and
observed that some Salvadoran youth avoid gang violence and
grow up to be professionals. Saul appealed and the Court of
Appeal affirmed. (Guardianship of S.H.R. (2021)
68 Cal.App.5th 563, 573–574, 583 (S.H.R.).)
We granted review to provide guidance on the statutory
requirements governing California courts’ issuance of special
immigrant juvenile predicate findings. We conclude the probate
court applied an incorrect legal framework in ruling on Saul’s
petition. Applying the correct framework, we hold that it is not
viable to reunify Saul with his parents because he would face a
“substantial risk” of “serious physical harm” as a result of his
parents’ failure or inability to adequately protect him. (Welf. &
Inst. Code, § 300, subd. (b)(1).) This is a “similar basis pursuant
to California law” for the nonviability of reunification finding.
(§ 155, subd. (b)(1)(B).) We further hold that returning Saul to
live in El Salvador would be detrimental to his health, safety,
and welfare, and therefore contrary to his best interest under
California law. (Fam. Code, §§ 3020, subd. (a), § 3011, subd.
(a)(1).) Accordingly, we reverse the Court of Appeal’s judgment
and direct that the case be remanded to the probate court for
issuance of special immigrant juvenile predicate findings.
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I. BACKGROUND
A. Special Immigrant Juvenile Status
Congress created the special immigrant juvenile (SIJ)
classification in 1990 to protect certain immigrant children and
allow them to remain in the United States when it would not be
in their best interests to be returned to their home countries.
(Immigration Act of 1990, Pub.L. No. 101-649, § 153 (Nov. 29,
1990) 104 Stat. 4978, § 153; Bianka M. v. Superior Court (2018)
5 Cal.5th 1004, 1012 (Bianka M.).) As amended, the law permits
an immigrant “ ‘child’ ” — a term defined as “an unmarried
person under twenty-one years of age” (8 U.S.C. § 1101(b)(1)) —
to apply for special immigrant juvenile status if: (1) the child is
a dependent of a juvenile court, in the custody of a state agency
by court order, or in the custody of an individual or entity
appointed by the court; (2) it would not be viable to reunify the
child with one or both parents because of “abuse, neglect,
abandonment, or a similar basis found under State law;” and (3)
“it would not be in the [child’s] best interest to be returned to
the [child’s] or parent’s previous country of nationality or
country of last habitual residence.” (Id., § 1101(a)(27)(J)(ii).)
Each of these predicate findings must be made in state court
proceedings. (Bianka M., at p. 1013.) A state court order
containing these findings is a required component of an
immigrant child’s application to United States Citizenship and
Immigration Services for special immigrant juvenile status,
which allows the child to seek lawful permanent residence in the
United States. (Ibid.)
In 2014, the California Legislature enacted Code of Civil
Procedure section 155. (Stats. 2014, ch. 685, § 1.) Section 155
clarifies that superior courts “have jurisdiction to make the
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factual findings necessary to enable a child to petition the
United States Citizenship and Immigration Services for
classification as a special immigrant juvenile.” (§ 155, subd.
(a)(1).) From its enactment, section 155 has provided that, on
request, a court “shall issue” an order containing SIJ predicate
findings if “there is evidence to support those findings.” (§ 155,
subd. (b)(1).) The Legislature has since acted to facilitate the
issuance of SIJ predicate findings to California’s immigrant
children in several ways. The 2015 enactment of Probate Code
section 1510.1 aligned California law with federal law by
authorizing courts to “appoint a guardian of the person for an
unmarried individual who is 18 years of age or older, but who
has not yet attained 21 years of age, in connection with a
petition to make the necessary findings regarding special
immigrant juvenile status.” (Prob. Code, § 1510.1, subd. (a)(1);
as added by Stats. 2015, ch. 694, § 3, and subsequently
amended.) In 2016, the Legislature amended section 155 to
clarify that the evidentiary support for SIJ predicate findings
“may consist solely of” the child’s declaration and that a court
may not deny a petition based on its conclusion that the child’s
primary motivation in invoking the court’s jurisdiction is
immigration related. (Stats. 2016, ch. 25, § 1; see Bianka M.,
supra, 5 Cal.5th at p. 1024.)
B. Factual Background
With this legal background in mind, we now turn to the
facts of Saul’s case, which are taken from the declaration he
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submitted in support of his petition for SIJ predicate findings
under section 155.1
Saul was born in El Salvador on December 2, 2001, and
lived there until, at the age of 16, he left his home and family
and set out for the United States. In El Salvador, Saul lived
with his parents, five siblings, and maternal grandfather. His
parents and grandfather were not working, though his father
had been looking for work for a couple of years. The family
depended for income on Saul and his two older sisters, who left
for the United States a few months before he did.
Saul’s parents began sending him to work in the fields
with his grandfather during the summers when he was 10 years
old. Saul would harvest fruit and vegetables for six to seven
hours every day, which left him completely exhausted. His
grandfather gave him some money for his work, which Saul used
to buy necessities, such as food, clothing, and shoes.
When Saul was in the ninth grade, gang members began
targeting him for recruitment. Two men with tattoos of devil
horns approached him outside of class, asked him where he was
from, and demanded that he join their gang. When he told them
that he did not like gangs and did not want to join, they
threatened to kill him and his family. Gang members had killed
1
In addition to his own declaration, Saul submitted to the
probate court a psychological evaluation conducted by a licensed
clinical social worker. Saul argues we should consider the
information about his experiences in El Salvador and their
psychological effects on him that was included in the evaluation,
which the probate court and the Court of Appeal did not
consider. Because we conclude that Saul’s declaration alone is
sufficient to support the requested findings, we do not reach this
question.
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many young people in Saul’s neighborhood, and Saul was very
afraid. When he got home from school, he told his parents what
had happened. His father went to the police, who said they
would investigate.
Despite his fear, Saul kept going to school. He wanted to
continue his education and graduate. A few weeks later, the
same gang members again approached Saul at school and tried
to recruit him. When he refused to join the gang, they again
threatened to kill him and his family. His father went back to
the police and reported the new incident, but the police did
nothing and his parents did not follow up.
Saul’s parents made him stop going to school and start
working. Saul got a job at a car wash. When Saul had been
working at the car wash for a few months, a gang member
approached him and demanded he pay a “tax,” threatening to
make him disappear if he did not do so. Afraid, Saul told his
parents he wanted to leave El Salvador, but they said it would
be too dangerous and insisted he stay.
Because his parents could not protect him from the gangs
and did not want him to leave, Saul decided to leave without
their knowledge or help. He continued to work at the car wash,
in constant fear that gang members would return and kidnap or
kill him. He used half his earnings to buy food for his family
and saved the rest. When he had saved enough money, Saul left
for the United States without telling his parents.
Saul entered the United States as an unaccompanied
immigrant minor in August 2018 and was transferred to the
custody of the United States Office of Refugee Resettlement.
After Saul had spent over five months in a shelter in
Brownsville, Texas, federal authorities released him to his
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cousin’s husband, Jesus Rivas, who lives in California and had
agreed to care for him. The following September, Saul filed an
unopposed petition in the probate court asking it to appoint
Rivas as his guardian, which the court eventually granted.
C. Procedural Background
On December 3, 2019 — the day after his eighteenth
birthday — Saul filed his petition for SIJ predicate findings in
the probate court. In the declaration supporting his petition,
Saul states that he feels “happy and cared for” because Rivas
provides him with food and shelter and ensures he gets health
care and can continue his education. Saul expresses his desire
to “remain in Rivas’s care and graduate from high school.” He
notes that “[m]y only responsibility for the first time is focusing
on my education. I feel safe, far from the threatening gang
members.” Saul expresses his fear that if he is returned to El
Salvador, gangs will come after him with threats of violence or
even kill him. He states his belief that he “cannot hide” from
the gangs, from which his parents are unable to protect him.
Together with his petition, Saul submitted proposed SIJ
predicate findings. Saul proposed the probate court find that
reunification with his parents is not viable due to their failure
to provide him with adequate care and protection. The proposed
findings cited to Welfare and Institutions Code section 300,
which allows for dependency jurisdiction when, among other
things, “[t]he child has suffered, or there is a substantial risk
that the child will suffer, serious physical harm or illness, as a
result of the failure or inability of the child’s parent or guardian
to adequately supervise or protect the child” or a child is “left
without any provision for support.” (Id., subds. (b)(1), (g).) It
also cited to Family Code section 3402, subdivision (a), which
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defines “abandoned” as “left without provision for reasonable
and necessary care or supervision.” Saul further proposed the
court find that it is in his best interest to remain in California
under Rivas’s care, where he feels happy, safe, and protected,
rather than be forced to return to El Salvador.
The probate court denied Saul’s petition in a written
decision, issued after briefing and oral argument, but without
an evidentiary hearing. In a hearing on Saul’s petition, the
probate court expressed the view that in El Salvador “poverty
breeds” child labor and violence “[b]ut being poor or living in [an]
impoverished country is not a basis to grant a [special
immigrant juvenile status] petition.” In its written decision, the
court declared that Saul’s petition “only raises one issue for the
Court to decide. Does the poverty of the family, which resulted
in Saul being required to leav[e] school and begin working at an
early age, qualify as ‘neglect’ or ‘abuse’ under California Code of
Civil Procedure, Section 155”? Citing to cases involving the
termination of parental rights, the court answered this question
“no.” The court further found that Saul had not shown
“abandonment” (§ 155, subd. (b)(1)(B)), employing a definition of
that term that required the parent to have intended to abandon
the child. Without addressing other provisions to which Saul
had cited, the court concluded that Saul was not entitled to a
finding that reunification with his parents was nonviable on any
similar basis under California law.
The court next turned to whether it would be in Saul’s best
interest to be returned to El Salvador. The court stated that
because Saul is “no longer a minor” and so “no longer reliant on
[his] parents for a permanent, safe, stable, and loving
environment” it could not conclude the “issues” he had faced in
El Salvador when he was younger would “continue to exist.”
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While the court observed that “the United States offers Saul
greater benefits” than El Salvador, it noted that Saul “speaks
the language and lived there almost his entire life” and he has
“both parents, siblings, and grandfather” there. It
acknowledged that “there are hardships he will face in his
native country (alleged gang issues),” but opined that “El
Salvador also produces doctors, lawyers, and other professionals
who have been able to avoid these pitfalls” and Saul had no
“issues” with “criminal activity” aside from “the alleged requests
to join the gangs (which he resisted).”
Saul appealed and the Court of Appeal affirmed. (S.H.R.,
supra, 68 Cal.App.5th, at pp. 573–574, 583.)2 The court
concluded that Saul had the burden of proving the facts
supporting SIJ predicate findings by a preponderance of the
evidence. (Id. at p. 574.) Reasoning that “[b]ecause the trial
2
Amicus curiae California Academy of Appellate Lawyers
notes that there has been some confusion concerning when
orders denying SIJ predicate findings are reviewable by appeal
and when they are reviewable by writ. Reflecting this
uncertainty, Saul filed both a notice of appeal from the probate
court’s order and a petition in the Court of Appeal for writ of
mandate or prohibition. (S.H.R., supra, 68 Cal.App.5th at
p. 573.) The Court of Appeal correctly held that the probate
court’s order denying SIJ predicate findings was appealable
because it “completely dispose[d]” of Saul’s petition, leaving “no
further issues to be resolved,” rendering the order “the
equivalent of a final, appealable judgment,” and appropriately
exercised its discretion to treat Saul’s writ petition as his
opening brief on appeal and the exhibits as his appellant’s
appendix. (Id. at p. 574; cf. Griset v. Fair Political Practices
Com. (2001) 25 Cal.4th 688, 697 [“A judgment is the final
determination of the rights of the parties”].) As the Court of
Appeal noted, writ review may be appropriate in other
circumstances. (S.H.R., at p. 574.)
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court found his evidence did not support the requested findings,
[Saul] has the burden on appeal of showing that he is entitled to
the SIJ findings as a matter of law,” the Court of Appeal further
concluded that Saul “has not met his burden.” (Id. at p. 569.)
We granted review.3
II. DISCUSSION
Saul contends the Court of Appeal erred in concluding
that petitioners must prove the facts necessary to demonstrate
entitlement to SIJ predicate findings by a preponderance of the
evidence and in applying the wrong standard of review. He
further argues that the probate court misconstrued state and
federal law in various ways in denying his petition. We discuss
each of these arguments below.
A. Burden of Proof
Saul first argues the Court of Appeal erred in holding that
a petitioner must prove the facts necessary to support SIJ
predicate findings “by a preponderance of the evidence.”
(S.H.R., supra, 68 Cal.App.5th at pp. 569, 574.) The Legislature
did not specify a burden of proof and, as the Court of Appeal
noted, preponderance of the evidence is the default burden of
proof for findings of fact in civil cases. (Id. at p. 574; Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 861; see Evid. Code,
§ 115 [“Except as otherwise provided by law, the burden of proof
requires proof by a preponderance of the evidence”].) We
presume the Legislature was aware of this default standard
3
Since no party or amicus curiae had opposed the issuance
of SIJ predicate findings, we invited Jeffery E. Raskin and
Stefan Love of Greines, Martin, Stein and Richland LLP to brief
and argue this case on a pro bono basis in support of the Court
of Appeal’s holdings. We thank them for their service.
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when it enacted section 155. (People v. Pieters (1991) 52 Cal.3d
894, 907.) Federal statutes and regulations do not specify a
burden of proof to be used by state courts making SIJ predicate
findings. (See 8 U.S.C. § 1101(a)(27)(J); 8 C.F.R. § 204.11(2022).) However, application of a preponderance of the
evidence standard is consistent with the practice of federal
authorities adjudicating petitions for special immigrant juvenile
status and with the practice of California courts in jurisdictional
hearings in dependency cases. (See, e.g., Matter of D-Y-S-C-
(U.S. Citizenship and Immigration Services, Oct. 11, 2019,
Adopted Dec. 2019-02) 2019 WL 5260454, p. *2 (D-Y-S-C-); Welf.
& Inst. Code, § 355, subd. (a).) And courts in other jurisdictions
apply a preponderance of the evidence burden of proof in ruling
on petitions for SIJ predicate findings. (Romero v. Perez (2019)
463 Md. 182, 199 [205 A.3d 903] (Romero); B.R.L.F. v. Zuniga
(D.C. 2019) 200 A.3d 770, 776 (B.R.L.F.); Matter of
Guardianship of B.A.A.R. (Ct.App. 2020) 136 Nev. 494, 499 [474
P.3d 838].) Accordingly, we hold petitioners must prove the
facts supporting SIJ predicate findings by a preponderance of
the evidence.
Citing to O.C. v. Superior Court (2019) 44 Cal.App.5th 76,
Saul describes what he is advocating for as a “substantial
evidence” standard. (See id. at p. 83 [paraphrasing § 155,
subd. (b)(1) as providing that “if substantial evidence supports
the requested SIJ findings, the issuance of the findings is
mandatory”].) Nevertheless, Saul seems to acknowledge that a
petitioner must prove the facts supporting SIJ predicate
findings by a preponderance of the evidence. His argument
focuses not on the burden of proof for factual findings, but
instead on how section 155 — the statute authorizing SIJ
predicate findings — defines the superior court’s task in ruling
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on an immigrant child’s petition. Though we conclude that
preponderance of evidence is the appropriate burden of proof for
facts supporting SIJ predicate findings, we agree with Saul that
section 155 provides important guidance for the superior court’s
inquiry in ruling on a petition for such findings, as elaborated
below.
First, section 155 specifies that the evidence supporting
SIJ predicate findings “may consist solely of, but is not limited
to, a declaration by the child who is the subject of the
petition . . . .” (§ 155, subd. (b)(1), italics added.) The
Legislature added the word “solely” to section 155 by
amendment. (See Legis. Counsel’s Dig., Assem. Bill No. 1603
(2015–2016 Reg. Sess.); see also Stats. 2016, ch. 25, § 1.) By
this addition, the Legislature clarified that a child’s declaration
can, without further evidence, prove the facts needed to support
SIJ predicate findings. (Sen. Budget & Fiscal Review Com.,
Analysis of Assem. Bill No. 1603 (2015–2016 Reg. Sess.) as
amended June 13, 2016.) Accordingly, section 155 makes a
child’s declaration admissible evidence of the facts described
within it for purposes of SIJ predicate findings. (§ 155, subd.
(b)(1).) If the child’s declaration establishes a fact supporting
the findings, the findings may be issued without further
evidence of that fact.
The Legislature’s determination that a child’s declaration
alone can constitute evidence sufficient to establish eligibility
for SIJ predicate findings is consistent with congressional
intent. When creating special immigrant juvenile status,
“Congress knew . . . ‘that those seeking the status would have
limited abilities to corroborate [their own] testimony with
additional evidence’ ” because they would be children who had
traveled many miles from their homes to escape difficult
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circumstances. (B.R.L.F., supra, 200 A.3d at p. 777; see, e.g.,
8 U.S.C. § 1232(d)(8) [regulations on immigration relief for
unaccompanied immigrant children shall account for their
“specialized needs” and “address both procedural and
substantive aspects of handling” their cases].) As other
jurisdictions have observed, “[i]mposing insurmountable
evidentiary burdens of production or persuasion” on such
children would be inconsistent with the federal statute’s child-
protective purposes. (In re Dany G. (2015) 223 Md.App. 707, 715
[117 A.3d 650] (Dany G.); see B.R.L.F., at p. 777; Romero, supra,
205 A.3d at p. 915.) Accordingly, in exercising their authority to
fashion procedures for use in making SIJ predicate
determinations, superior courts must remain mindful of the
unique features and challenges of such proceedings, which are
generally nonadversarial and in which petitioners typically are
young, poor, nonnative English speakers who frequently are
unrepresented by counsel. (J.U. v. J.C.P.C. (D.C.Ct.App. 2018)
176 A.3d 136, 141, fn. 9 (J.U.)].)
This is not to suggest a superior court should abdicate its
factfinding responsibility. (Romero, supra, 205 A.3d at p. 915.)
The declarations children submit with their petitions will not
always be sufficient to establish eligibility for SIJ predicate
findings. Section 155, subdivision (b)(1) states expressly that
evidence supporting SIJ predicate findings “is not limited to” the
child’s declaration. In some cases, for example, clarification of
ambiguous or contradictory statements or additional support for
conclusory or implausible assertions may be required. When a
child’s declaration alone does not establish the factual basis for
SIJ predicate findings, a superior court may probe deeper to
ascertain the child’s eligibility, so long as the procedures it
employs adhere to the baselines in state and federal law. (Weiss
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v. People ex rel. Dept. of Transportation (2020) 9 Cal.5th 840,
857.) A court may, for example, ask the child to provide
additional evidence supporting the findings, such as a
supplementary or amended declaration, or may hold an
evidentiary hearing. A court may also make a referral to the
local child welfare agency to assist in gathering evidence of
eligibility for SIJ predicate findings. (Welf. & Inst. Code, §§ 328,
329; Prob. Code, § 1513; Fam. Code, § 3027, subd. (b); Judicial
Council of Cal., Memorandum to Presiding Judges of the
Superior Courts and Court Executive Officers of the Superior
Courts re Senate Bill 873 and the Special Immigrant Juvenile
Process in the Superior Courts (Sept. 30, 2014) p. 15.) When a
factual assertion in a child’s declaration is contradicted by
evidence in the record that a court finds more credible or
persuasive, a court may make a factual finding contrary to the
assertion. When it does so, a court should make a record of its
reasons for rejecting the child’s factual assertion to facilitate
appellate review.
However, superior courts may not ignore or discredit facts
shown by a child’s declaration based on surmise or on evidence
outside the record or draw speculative inferences against the
child. Were a court permitted to do these things, the effect
would be to require the child to submit evidence beyond a
declaration even when the declaration establishes the facts
necessary to support SIJ predicate findings. (See Leslie H. v.
Superior Court (2014) 224 Cal.App.4th 340, 352 (Leslie H.)
[reversing denial of petition for SIJ predicate findings where
“court based its finding on anecdotal impressions, untethered to
any evidence in this case”].) Such an approach would be
inconsistent with the Legislature’s determination that the
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evidence supporting SIJ predicate findings “may consist solely
of” the child’s declaration. (§ 155, subd. (b)(1).)
Second, section 155 specifies that “[t]he asserted,
purported, or perceived motivation of the child seeking
classification as a special immigrant juvenile shall not be
admissible in making the findings under this section” and shall
not be referenced by the court in ruling on a petition for SIJ
predicate findings. (§ 155, subd. (b)(2).) This provision
acknowledges that state “trial judges are not gatekeepers tasked
with determining the legitimacy of SIJ petitions.” (Romero,
supra, 205 A.3d at p. 915; see Dany G., 117 A.3d at p. 655 [“It is
important to remember that the juvenile court is not granting
SIJ status”]; Kitoko v. Salomao (2019) 210 Vt. 383, 396
[215 A.3d 698] (Kitoko) [citing cases].) As we have observed, the
role of California courts “ ‘is not to determine worthy candidates
for citizenship, but simply to identify abused, neglected, or
abandoned [immigrant] children under [our] jurisdiction who
cannot reunify with a parent or be safely returned in their best
interests to their home country.’ ” (Bianka M., supra, 5 Cal.5th
at p. 1025.)
This limit on the role of state courts makes sense when
considered in the context of the cooperative scheme Congress
established for identifying immigrant children entitled to
protection as special immigrant juveniles. (Special Immigrant
Juvenile Petitions 87 Fed.Reg. 13066, 13076–13077, 13081,
13086 (Mar. 8, 2022).) In assigning state courts the task of
making SIJ predicate findings, Congress recognized their
particular competence in making child welfare determinations.
(In re Y.M. (2012) 207 Cal.App.4th 892, 908; Perez–Olano v.
Gonzalez (C.D.Cal. 2008) 248 F.R.D. 248, 265.) State courts,
however, lack both the authority and competence to make
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immigration status determinations, which are the exclusive
province of the federal government. (Arizona v. United States
(2012) 567 U.S. 387, 394–395; DeCanas v. Bica (1976) 424 U.S.
351, 354.) For these reasons, Congress assigned to federal
authorities, not state courts, the determination whether a
child’s request for SIJ status is bona fide. (J.U., supra, 176 A.3d
at p. 141, fn. 9.)4
Third, section 155 provides that the superior court “shall
issue” the findings if “there is evidence to support” them. (§ 155,
subd. (b)(1).) This language imposes a mandatory duty. (People
v. Standish (2006) 38 Cal.4th 858, 869 [“ ‘shall’ ” is
presumptively “mandatory and not permissive”].) When the
facts a petitioner has established by a preponderance of the
evidence support SIJ predicate findings, the superior court must
issue these findings; it has no discretion to deny the petition.
(See In re Scarlett V. (2021) 72 Cal.App.5th 495, 502 [superior
court erred in concluding decision whether to issue SIJ predicate
4
To this point, new federal regulations acknowledge all
children seeking SIJ predicate findings are doing so in the hope
of being able to apply for SIJ status. Accordingly, the desire to
“obtain relief from parental abuse, neglect, abandonment, or a
similar basis under State law” need only be “a primary
reason” — not the only reason and not even the primary
reason — the child seeks SIJ predicate findings. (8 C.F.R.
§ 204.11(b)(5) (2022), italics added.) In adopting this language,
federal authorities recognized that SIJ predicate findings are
invariably sought for purposes of applying for SIJ status, so the
fact that a child is seeking the findings for immigration purposes
should not be disqualifying. (Special Immigrant Juvenile
Petitions, 87 Fed.Reg., supra, at p. 13070 [regulation’s use of “a”
rather than “the” before “primary reason” recognizes that
“petitioners can have dual or mixed motivations for seeking the
juvenile court’s determinations”].)
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findings was “discretionary”].) This mandate helps ensure that
California courts perform their federally assigned function.
While an order making SIJ predicate findings does not
guarantee that federal authorities will grant an application for
special immigrant juvenile status, a state court order denying
SIJ predicate findings is, “in effect, a negative immigration
decision.” (B.R.L.F., supra, 200 A.3d at p. 776.) Failure to issue
SIJ predicate findings when a preponderance of the evidence
before the court supports them could result in a decision at odds
with the ultimate judgment federal immigration authorities
would have made had the superior court issued the findings,
which would be contrary to purposes of both California and
federal law. (Id. at p. 781 (conc. opn. of Ferren, J.).) As long as
the child’s declaration and any other evidence or testimony
presented establishes the facts supporting SIJ predicate
findings by a preponderance of the evidence, section 155
requires the superior court to issue the findings.
B. Merits
Having addressed the burden of proof, we now turn to the
merits. Saul argues the probate court erred in denying his
petition by using unduly stringent standards to assess the
nonviability of reunification and whether it would be in his best
interest to be returned to El Salvador. He also contends the
Court of Appeal applied the wrong standard of review. We agree
and conclude that the uncontested evidence in Saul’s
declaration supports issuance of the findings.
1. Standard of Review
Saul contends the Court of Appeal misunderstood him to
be arguing factual error rather than legal error, leading it to
apply an overly deferential standard of review to the probate
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court’s decision. (See S.H.R., supra, 68 Cal.App.5th at p. 574
[“here . . . ‘the party who had the burden of proof in the [trial]
court contends the court erred in making findings against
[him]’ ”].) Trial courts “generally are in a better position to
evaluate and weigh the evidence” than appellate courts.
(Haworth v. Superior Court (2010) 50 Cal.4th 372, 385.)
Accordingly, an appellate court should accept a trial court’s
factual findings if they are reasonable and supported by
substantial evidence in the record. (Boling v. Public
Employment Relations Bd. (2018) 5 Cal.5th 898, 912–913; see
People v. Barnwell (2007) 41 Cal.4th 1038, 1052.) And if a court
holds an evidentiary hearing, it may make credibility
determinations, to which an appellate court would generally
defer. (See Haworth, at p. 385; but see Leslie H., supra,224 Cal.App.4th at pp. 344, 352 [not deferring to superior
court’s adverse credibility determination where evidence in
record overwhelmingly established factual basis for findings].)
However, “the application of law to undisputed facts
ordinarily presents a legal question that is reviewed de novo.”
(Boling, at p. 912.) Similarly, our review is de novo when “the
question is predominantly legal” and “requires a critical
consideration, in a factual context, of legal principles and their
underlying values.” (Crocker National Bank v. City and County
of San Francisco (1989) 49 Cal.3d 881, 888; Haworth, at p. 385.)
That is precisely the type of review called for here. In ruling on
Saul’s petition, the probate court did not weigh the evidence. It
did not hold an evidentiary hearing or make credibility
determinations based on what it heard and observed. Instead,
it accepted as true the facts described in Saul’s declaration. (See
§ 155, subd. (b)(1) [a court “shall issue” SIJ predicate findings if
“there is evidence to support those findings, which may consist
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Opinion of the Court by Groban, J.
solely of” the declaration of the child petitioner]; see J.U., supra,176 A.3d at p. 141, fn. 9 [filings “made under penalty of perjury
. . . would appear to have some presumptive validity”].) The
questions presented in this case are primarily questions of law,
the resolution of which involves consideration of the language
and purposes of the SIJ statutes. (See 8 C.F.R., § 204.11(a), (c)
(2022) [SIJ predicate findings are “conclusion[s] of law” by the
juvenile court].) Accordingly, our review is de novo.
2. The Nonviability of Reunification Determination
Saul argues that the probate court erred in several ways
in denying his request for a finding that “reunification” with his
parents is “not . . . viable because of abuse, neglect,
abandonment, or a similar basis pursuant to California law.”
(§ 155, subd. (b)(1)(B).) He contends that in determining
whether he had demonstrated neglect, the courts below
improperly focused on whether his parents were
blameworthy — that is, whether they had acted unreasonably
under the circumstances and whether they had intentionally
failed to protect and provide for him. He also contends that the
courts below erred in relying on a definition of abandonment
that required a showing that his parents intended to abandon
him. And more generally, he argues that the courts below erred
in choosing to apply narrow definitions of “neglect” and
“abandonment” when California law supplies broader
definitions of these terms and similar bases for finding that it
would not be viable to reunify Saul with his parents. Finally,
Saul argues the probate court inappropriately based its ruling
on its impression that the conditions Saul faces are pervasive in
El Salvador rather than on whether Saul’s evidence shows
reunification with his parents is not viable. We agree with Saul
on each of these points and discuss each of them in turn.
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We begin by noting that the purpose of the nonviability of
reunification inquiry is to identify children whom it would not
be viable — meaning not workable or practical — to return to
live with a parent. (See Romero, supra, 205 A.3d at p. 915
[“viable” means “workable or practical”]; Kitoko, supra, 215 A.3d
at p. 708 [“ ‘viability’ ” means “ ‘workability or practicability’ ”];
Lopez v. Serbellon Portillo (2020) 136 Nev. 472, 474 [469 P.3d
181] (Lopez) [same].)5 In making this inquiry, courts should
consider all relevant circumstances, including the ongoing
psychological and emotional impact on the child of the past
relations between the child and the parent, how forced
reunification would affect the child’s welfare, the parent’s ability
and willingness to protect and care for the child, and the
5
The Court of Appeal observed that “[s]ome courts and the
[United States Citizenship and Immigration Services] have
interpreted the phrase as requiring the petitioner to prove that
reunification with his or her parents cannot occur, or is not
possible.” (S.H.R., supra, 68 Cal.App.5th at p. 580.) However,
the cases the Court of Appeal cited do not address the meaning
of “not . . . viable” in section 155, subdivision (b)(1)(B). Instead,
they either imprecisely paraphrase the statute, substituting
“not possible” for “not . . . viable,” or state the obvious conclusion
that reunification is nonviable when a child cannot be reunified
with a parent. (See, e.g., O.C. v. Superior Court, supra, 44
Cal.App.5th at pp. 82–83 [inaccurately paraphrasing statute as
calling on state courts to find “ ‘ “whether reunification with one
or both of the juvenile’s parents is not possible” ’ ”]; D-Y-S-C-,
supra, 2019 WL 5260454 at p. *7 [concluding state court finding
that child “could not be reunified with her parents due to her
father’s abuse and her mother’s neglect and abandonment”
constituted finding of nonviability of reunification].) These
decisions did not interpret the SIJ statutes as requiring
petitioners to prove that reunification cannot occur or is not
possible.
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Opinion of the Court by Groban, J.
parent’s living conditions. (See Romero, at p. 915; Lopez, at
p. 184.)
With this general guidance in mind, we turn to Saul’s first
contention: that the courts below improperly focused on
whether his parents were blameworthy. The probate court
construed Saul’s petition as presenting “one issue”: whether
“the poverty of the family, which resulted in [Saul] being
required to leav[e] school and begin working at an early age,
qualif[ies] as ‘neglect’ or ‘abuse’ under . . . [s]ection 155.” Citing
cases in which the termination of parental rights was at stake,
the court asserted that “the law is clear that ‘poverty alone’ is
not a basis for judicial, neglect-based intrusion,” which it
considered to include the issuance of SIJ predicate findings.
Saul argues the probate court erred in applying this “poverty
alone” rule in the context of a petition for SIJ predicate findings,
in which parental rights are not at issue. (See 8 C.F.R.,
§ 204.11(c)(1)(ii) (2022) [“The court is not required to terminate
parental rights to determine that parental reunification is not
viable”].) We agree.
We have observed that the termination of parental rights
“is a uniquely serious step — one widely recognized as ranking
‘among the most severe forms of state action.’ ” (In re A.R.
(2021) 11 Cal.5th 234, 245.) Accordingly, courts have held that
a trial court may not terminate parental rights unless the state
has first made efforts to assist a parent suffering from poverty.
(See, e.g., In re Serenity S. (2020) 55 Cal.App.5th 355, 374
[“where family bonds are strained by the incidents of poverty,
the [social services] department must take steps to assist the
family, not simply remove the child and leave the parent on their
own to resolve their condition and recover their children”].)
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Opinion of the Court by Groban, J.
In the context of SIJ predicate findings, by contrast, the
parent and child are already separated, parental rights are not
at stake, and courts have no authority to order services to assist
impoverished parents. In this context, the policy considerations
animating the poverty alone rule are inapplicable. Instead,
courts consider whether any state law definition of abuse,
neglect, abandonment, or a similar basis applies for the purpose
of determining whether it would be workable or practical to
return children to live with their parents. (See J.U., supra,176 A.3d at p. 141; Kitoko, supra, 215 A.3d at p. 708; Lopez,
supra, 469 P.3d at p. 184.) The fact that harm to the child is
attributable to a parent’s poverty does not preclude a court from
determining that reunification with the parent is not viable.6
Instead, the focus of the nonviability inquiry is on the effect of
that harm on the workability or practicality of returning the
child to live with the parent. The probate court’s reliance on the
poverty alone rule was misplaced.
The Court of Appeal did not expressly endorse the probate
court’s reliance on the poverty alone rule to find that Saul had
not established reunification was nonviable because the harm
6
Indeed, a parent’s poverty can support a finding that
reunification is nonviable if poverty renders the parent unable
to provide for or protect the child. (See post, pp. 25–27.) If the
parent’s poverty had rendered the parent unable to provide for
or protect the child at the time the child and parent separated,
a court may consider whether the parent’s financial condition
has improved such that poverty no longer makes it unworkable
or impractical to return the child to live with the parent or
whether the parent’s financial condition has stayed the same or
worsened. In either event, a parent’s financial circumstances
should be considered as part of a holistic assessment of whether
returning the child to live with the parent is workable or
practical.
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Opinion of the Court by Groban, J.
he suffered was due to his parents’ poverty, but it similarly
focused on the blameworthiness of Saul’s parents. Specifically,
it focused on whether his parents’ decisions to send him to work
from a young age and to stop attending school were “reasonable”
under the circumstances. (S.H.R., supra, 68 Cal.App.5th at
pp. 578–579.) This was error for the same reason the probate
court’s reliance on the poverty alone rule was error: For
purposes of the nonviability of reunification inquiry, the focus is
on whether it is workable or practical to force the child to return
to live with the parent, not on whether harm the child
experienced in the past was excusable or the parent’s reasons
for inflicting it reasonable.
Second, Saul challenges the lower courts’ reliance on a
definition of “abandonment” that required a showing that the
parent intended to abandon the child. (S.H.R., supra,
68 Cal.App.5th at p. 577, citing Guardianship of Rutherford
(1961) 188 Cal.App.2d 202, 206 [“ ‘In order to constitute
abandonment “there must be an actual desertion, accompanied
with an intention to entirely sever, so far as it is possible to do
so, the parental relation and throw off all obligations growing
out of the same” ’ ”].) We agree that this reliance was misplaced.
Family Code section 3402, part of California’s version of the
Uniform Child Custody Jurisdiction and Enforcement Act,
defines “abandoned” as “left without provision for reasonable
and necessary care or supervision.” (Fam. Code, § 3402, subd.
(a).) And Welfare and Institutions Code section 300, subdivision
(g) provides a laundry list of ways in which a child may be
deemed abandoned for the purposes of establishing dependency
jurisdiction, among them when a child is “left without any
provision for support.” (See In re E.A. (2018) 24 Cal.App.5th
648, 663 [jurisdiction may be established based on any one of
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Opinion of the Court by Groban, J.
the listed criteria].) Neither of these definitions requires a
showing that the parent intended to abandon the child. By
contrast, the California statutes that require a showing of intent
to abandon involve termination of parental rights and criminal
liability. (Fam. Code, § 7822, subd. (a)(2); Pen. Code, § 271.)
While a showing of intent may be necessary in those contexts,
the same showing is not required in the context of determining
whether returning a child to live with a parent is workable or
practical for the purpose of SIJ predicate findings. (J.U., supra,176 A.3d at p. 141; Lopez, supra, 469 P.3d at p. 708.) Employing
this unnecessary requirement could lead to unwarranted
denials of SIJ predicate findings when, for example, a child has
been orphaned, the parent is incarcerated or suffering from
mental illness, or the parent’s failure to adequately care for a
child leads the child to leave the home or seek other sources of
provision for the child’s basic needs. The probate court erred in
applying overly narrow definitions of “neglect” and
“abandonment” rather than asking whether any relevant
definition of these terms available under California law would
support a SIJ predicate finding. (B.R.L.F., supra, 200 A.3d at
p. 777.)
Third, and more generally, Saul contends that in focusing
on whether his parents were blameworthy or acted with intent,
the probate court not only employed improperly narrow
definitions of “neglect” and “abandonment,” but also failed to
consider whether there was a “similar basis pursuant to
California law” for determining that it would not be workable or
practical to return Saul to live with his parents. (§ 155, subd.
(b)(1)(B).) By adding the “similar basis found under State law”
provision to the federal special immigrant juvenile statute,
Congress expanded eligibility for special immigrant juvenile
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Opinion of the Court by Groban, J.
status and made clear its intent for state courts to issue SIJ
predicate findings to children who have suffered mistreatment
that does not qualify as “abuse,” “neglect,” or “abandonment”
under state law. (William Wilberforce Trafficking Victims
Protection Reauthorization Act of 2008, Pub.L. No. 110–457, §
235(d)(1)(A) (Dec. 23, 2008) 122 Stat. 5044; Dany G., supra,117 A.3d at p. 657, fn. 6; Romero, supra, 205 A.3d at p. 915, fn.
24.) New federal regulations expressly allow petitioners for
special immigrant juvenile status to submit evidence of a state
court determination “as to how the basis is legally similar to
abuse, neglect, or abandonment under State law” for purposes
of determining that reunification is not viable. (8 C.F.R.
§ 204.11(d)(4)(i) (2022).) The probate court erred in failing to
consider whether Saul had shown it would not be workable or
practical to return him to live with his parents based on the
provisions to which Saul had cited that do not define “abuse,”
“neglect” or “abandonment” but that may nevertheless provide
a “similar basis” for a nonviability of reunification
determination.
Among other provisions of California law, Saul cited in his
petition and proposed order to Welfare and Institutions Code
section 300, subdivision (b)(1). Under this provision, a child is
subject to juvenile court jurisdiction and may be adjudged a
dependent child if “[t]he child has suffered, or there is a
substantial risk that the child will suffer, serious physical harm
or illness, as a result of the failure or inability of the child’s
parent or guardian to adequately supervise or protect the child.
. . .” (Welf. & Inst. Code, § 300, subd. (b)(1).) In In re R.T. (2017)
3 Cal.5th 622, 624, we explained that a parent’s inability to
supervise or protect a child need not amount to “neglect” or
involve neglectful conduct to satisfy Welfare and Institutions
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Opinion of the Court by Groban, J.
Code section 300, subdivision (b)(1). (R.T., at p. 629.) That
provision “authorizes dependency jurisdiction without a finding
that a parent is at fault or blameworthy for her failure or
inability to supervise or protect her child.” (Id. at p. 624.)
Rather than focusing on parental fault or blameworthiness, the
focus instead is on “whether the child is at ‘substantial risk’ of
‘serious physical harm or illness.’ ” (Id. at p. 634.)
For dependency purposes, California law treats a parent’s
inability to supervise or protect a child similarly to neglect: as
a basis for invoking jurisdiction to protect a child. (See In re
Nolan W. (2009) 45 Cal.4th 1217, 1233 [“In the dependency
context, the juvenile court intervenes to protect a child, not to
punish the parent”].) The purpose of dependency law is “to
provide maximum safety and protection for children who are
currently being physically, sexually, or emotionally abused,
being neglected, or being exploited, and to ensure the safety,
protection, and physical and emotional well-being of children
who are at risk of that harm.” (Welf. & Inst. Code, § 300.2.) This
purpose mirrors the child-protective purposes of special
immigrant juvenile status, rendering it a “similar basis” to
“abuse, neglect or abandonment” for purposes of the nonviability
of reunification determination under section 155. (See 8 C.F.R.
§ 204.11(d)(4)(i) (2022).) The probate court erred in failing to
consider whether Saul has shown that reunification with his
parents is not viable on the “similar basis” that he faces “a
substantial risk [he] will suffer[] serious physical harm or illness
as a result of” his parents’ “failure or inability to adequately
supervise or protect him.” (Welf. & Inst. Code, § 300, subd.
(b)(1).)
Finally, Saul argues the probate court inappropriately
speculated about the pervasiveness of the conditions Saul faced
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Opinion of the Court by Groban, J.
in El Salvador in determining whether reunification was
nonviable. Here again, we agree. Congress specified that the
nonviability of reunification determination is to be made “under
State law.” (8 U.S.C. § 1101(a)(27)(J)(i); see 8 C.F.R.
§ 204.11(c)(3)(i) (2022) [predicate findings made “under
applicable State law”].) This suggests that Congress’s intent
was for state courts to apply state law to the facts established
by the child, without considering extra-record information or
making assumptions about conditions prevailing in other
countries — a topic on which federal immigration authorities
have far greater expertise. (See Dany G., supra, 117 A.3d at
p. 657 [noting that state-court judges have little “expertise in
understanding the living conditions for children in each of the
nearly 200 nations of the world”].) As the Maryland high court
has observed, “if Congress had intended to ‘require knowledge
of living conditions in other countries, surely federal
immigration judges[, who deal with such matters regularly,]
would have been a far more appropriate selection.’ ” (Romero,
supra, 205 A.3d at p. 917.) Moreover, to the extent it is more
common for parents in El Salvador to be unable to protect their
children from gang violence than it is for parents in California,
that is an improper basis for concluding that Saul has failed to
show that reunification with his parents is nonviable due to
their inability to adequately protect him from “a substantial
risk” of “serious physical harm.” (Welf. & Inst. Code, § 300,
subd. (b)(1); see Romero, supra, at p. 916 [trial judges apply state
law definitions in adjudicating petitions for SIJ predicate
findings].)
In summary, the probate court’s determination that Saul
had not shown reunification with his parents was nonviable due
to abuse, neglect, abandonment, or a similar basis under
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California law was based on a misapprehension of the nature
and purpose of this inquiry. The relevant inquiry is not whether
a child’s parents are blameworthy. Instead, the inquiry should
focus on whether returning the child to live with the parent
would be workable or practical. In making this determination,
a court should consider the history of the child’s relationship
with the parent and whether the child would be exposed to harm
if returned to live with the parent. Bearing in mind the child-
protective purpose of SIJ law and that the issuance of SIJ
predicate findings to a child does not in any way restrict the
rights of the child’s parent, courts should rely on any applicable
definition of abuse, neglect, abandonment, or similar basis in
California state law for finding nonviability of reunification
under section 155. Finally, in determining whether
mistreatment qualifies as “abuse,” “neglect,” “abandonment,” or
a “similar basis” for finding nonviability of reunification (§ 155,
subd. (b)(1)(b)) courts must apply California law and may not
rely on extra-record evidence or speculate about prevailing
conditions in other countries.
Applying this analytical framework to the undisputed facts
established by Saul’s declaration, we conclude that returning
Saul to live with his parents would not be workable or practical
because he would face a substantial risk that he would suffer
serious harm as a result of his parents’ inability to protect him
from gang violence while providing for his basic needs and
education. (Welf. & Inst. Code, § 300, subd. (b)(1).) In El
Salvador, gang members threatened Saul’s life and the lives of
his family members when he resisted their attempts to recruit
him. His parents were unable to adequately protect him and
removed him from school because they feared for his safety.
After leaving school, Saul had to work to help provide for his
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Opinion of the Court by Groban, J.
family’s basic needs, making it difficult to avoid contact with
gang members, who approached and threatened him at work as
well. Based on these experiences, Saul fears that if he is forced
to return to El Salvador, he will not be able to hide from the
gangs and his parents will be unable to protect him from gang
violence. Accordingly, reunifying Saul with his parents is not
viable due to the “substantial risk” that he will suffer “serious
physical harm’ as a result of his parents’ ‘failure or inability to
adequately . . . protect him” within the meaning of Welfare and
Institutions Code section 300, subdivision (b)(1). (Ibid.)
3. The Best Interest Determination
Saul also contends that the probate court erred in denying
his request for a SIJ predicate finding that it would not be in his
“best interest” to be returned to El Salvador. (§ 155, subd.
(b)(1)(C).) The best interest determination is distinct from the
nonviability of reunification determination in that the court’s
focus is not on the relationship between the child and the child’s
parent. Instead, the best interest determination focuses on the
effects of sending children back to live in their home countries.
The court’s inquiry involves a case-specific, holistic comparison
of the child’s circumstances in California to the circumstances
in which the child would live if repatriated, including the
capacities of current or potential caregivers — who may or may
not be the child’s parents — in each location. (U.S. Citizenship
& Immigration Services, Dept. of Homeland Security, Policy
Manual (2021), vol. 6, pt. J., ch. 2 (USCIS Policy Manual).)
As with the nonviability of reunification determination,
federal law directs states to apply their own legal standards in
making the best interest determination. (8 U.S.C.
§ 1101(a)(27)(J)(ii); 8 C.F.R. § 204.11(c)(2)(ii) (2022).) California
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law makes “health, safety, and welfare” the court’s “primary
concern in determining the best interests of children” when
making custody and visitation orders. (Fam. Code, § 3020,
subd. (a); see id., § 3011, subd. (a)(1); Prob. Code, § 1514, subd.
(b).) In making such determinations, California courts give
special weight to a child’s wishes, assuming the child can form
an intelligent preference. (See In re Aljamie D. (2000)
84 Cal.App.4th 424, 432 [“the child’s testimony that she wants
to live with her mother constitutes powerful demonstrative
evidence that it would be in her best interest to allow her to do
so”]; Fam. Code, § 3042, subd. (a) [a child’s preferences should
be considered if the child “is of sufficient age and capacity to
reason so as to form an intelligent preference”].) This emphasis
on the child’s wellbeing is consistent with the child-protective
purposes of federal and California SIJ law and the criteria
employed by other states. (See USCIS Policy Manual, supra,
vol. 6, pt. J., ch. 2 [under state law, “safety and well-being are
typically the paramount concern”].) Accordingly, in determining
whether it would be in a child’s best interest to be repatriated,
a court should make a holistic comparison between
circumstances affecting the child’s health, safety, and welfare in
California and in the child’s home country, giving special
consideration, where appropriate, to the child’s wishes.
The probate court did not do this, and its reasoning was
inconsistent with this standard. While the probate court
acknowledged that the United States offers Saul “greater
benefits,” than El Salvador, it implicitly found those
“benefits” — that Saul is happy and safe in California and is
under the care of a guardian who provides for his daily needs
and enables him to continue his education — to be outweighed
by the fact that he still has family in El Salvador, lived there
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most of his life, and “speaks the language,” things that will be
true of most newly arrived immigrant children. The probate
court also improperly discounted the uncontroverted evidence in
Saul’s declaration of the life-threatening situation he faced in El
Salvador in favor of an anecdotal observation that some
Salvadoran youth avoid “hardships” such as “gang issues” and
grow up to be “doctors, lawyers, and other professionals.” This
observation was “untethered to any evidence” in the record.
(Leslie H., supra, 224 Cal.App.4th at p. 352 [rejecting finding
that repatriation was in child’s best interest that was based on
“anecdotal impressions” that were “untethered to any evidence
in th[e] case”].) Moreover, nothing in Saul’s declaration
suggested that he would be able to avoid gang violence and grow
up to be a professional were he sent back to El Salvador. Saul
had to work from a young age to help support his family; his
parents made him leave school at age 15 after gang members
threatened his life; and gang members threatened his life again
at his workplace. While Saul might be able to overcome the
deprivations and violence he would face in El Salvador, that
does not mean it would be more conducive to his health, safety,
and welfare to be involuntarily repatriated than it would be for
him to remain in California under his guardian’s care, as he
wishes to do.
The probate court also improperly concluded that Saul’s
age disqualified him from establishing it would not be in his best
interest to be returned to El Salvador. From the fact that Saul
is “no longer a minor” — meaning no longer under the age of
18 — the court inferred he would be “no longer reliant on [his]
parents for a permanent, safe, stable, and loving environment”
were he returned to El Salvador. To be sure, a child’s age may
be relevant to the best interest determination. (See In re
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Marriage of Brown & Yana (2006) 37 Cal.4th 947, 961 [listing
“the child’s age” as relevant factor in custody-related best
interest analysis]; 8 C.F.R. § 204.11(c)(2)(ii) (2022) [clarifying
that “[n]othing in this part should be construed as altering the
standards for best interest determinations that juvenile court
judges routinely apply under relevant State law”].) However,
the probate court’s unsupported inference that because Saul had
turned 18, he would no longer be reliant on his parents if forced
to return to El Salvador ignores federal law, under which a
youth under the age of 21 is considered a “child” and, as such, is
eligible for classification as a special immigrant juvenile.
(8 C.F.R. § 204.11(b)(1) (2022).) The inference is also
inconsistent with California law, which provides that a court
may appoint a guardian for a youth “who has not yet attained
21 years of age” in connection with a petition for SIJ predicate
findings. (Prob. Code, § 1510.1, subd. (a)(1).) In amending the
law to add this provision, the Legislature found that it was
necessary to provide an avenue by which 18- to 20-year-old
youth could have a guardian appointed due to their
“vulnerability” and “need for a custodial relationship with a
responsible adult” as they “recover from the trauma of abuse,
neglect, or abandonment.” (Stats. 2015, ch. 694, § 1, subd (a)(6).)
The Legislature also found that as a result of past harm, “many
unaccompanied immigrant youth between 18 and 21 years of
age face circumstances identical to those faced by their younger
counterparts.” (Id., § 1, subd. (a)(5).) The probate court’s
assumption that because Saul had reached the age of 18, he was
no longer reliant on a parent or guardian for support and
protection is contrary to these legislative findings and the
32
Guardianship of SAUL H.
Opinion of the Court by Groban, J.
Legislature’s and Congress’s intent.7 Regardless of the
petitioner’s age, the relative capacity of potential caregivers in
the child’s home country and in California is relevant to the
determination whether being returned would be conducive to
the child’s health, safety, and welfare. The probate court erred
in assuming otherwise based on Saul’s age alone and in
declining to make a finding that it would not be in his best
interest to be repatriated to El Salvador based on this
assumption.
Comparing the uncontroverted evidence of Saul’s
circumstances in California to the uncontroverted evidence of
the circumstances to which he would return in El Salvador, we
conclude Saul has established it would not be in his best interest
to be returned to El Salvador. In California, Saul has a guardian
who provides him with food and shelter and ensures he gets
health care and can continue his education. Saul wants to
remain in his guardian’s care so he can focus on his education
without fear of gang violence. (Fam. Code, § 3042, subd. (a).) In
7
The Court of Appeal did not reach the best interest
question, so it did not rule on whether the probate court erred
in relying on Saul’s age to reject his request for a finding that it
would not be in his best interest to be returned to El Salvador.
However, it similarly relied on improper speculation in
upholding the probate court’s denial of a nonviability of
reunification predicate finding when it reasoned that “as an
adult” Saul may not need “the level of support for a child” and
musing that “[a]rguably . . . reunification has meaning only in
the context of parents and their minor children . . . .” (S.H.R.,
supra, 68 Cal.App.5th at pp. 582, 581, fn. 13.) It would be
contrary to legislative intent to deny an application for SIJ
predicate findings based on an assumption that a petitioner
under the age of 21 is no longer in need of parental support or
protection.
33
Guardianship of SAUL H.
Opinion of the Court by Groban, J.
El Salvador, Saul’s parents are unable to provide for him. If he
is repatriated, it is unlikely he will be able to pursue his
education. He will have to work to provide for his basic needs
and will be unable to avoid contact with gangs that have
threatened his life. His parents cannot protect him from the
gangs and the police are unable or unwilling to do so. For these
reasons, returning Saul to live in El Salvador would be
detrimental to his health, safety, and welfare, and accordingly
contrary to his “best interest[]” as that term is defined under
California law. (Fam. Code, § 3020, subd. (a); see id., § 3011,
subd. (a)(1).)
III. DISPOSITION
We reverse the Court of Appeal’s judgment and direct that
this case be remanded to the probate court with directions to
reinstate Rivas’s guardianship8 and expeditiously issue an order
granting Saul’s petition for SIJ predicate findings in accordance
with the guidance set out in this opinion, allowing enough time
to ensure Saul can file an application with United States
Citizenship and Immigration Services for special immigrant
juvenile status before his twenty-first birthday.9 To help ensure
8
Amicus curiae Public Counsel argues that the probate
court erred in revoking its guardianship order on the ground
that it was rendered “moot” by the court’s denial of Saul’s
petition for SIJ predicate findings. (See S.H.R., supra,
68 Cal.App.5th at p. 583 [affirming].) Saul did not raise this
issue in his petition for review and we do not reach it. Our
remand necessitates reinstatement of the guardianship order.
9
Ordinarily, having concluded the lower courts erred in
their legal analysis, we would remand for further consideration
in light of our opinion. In this case, however, Saul’s declaration,
which the probate court credited in its entirety, establishes facts
34
Guardianship of SAUL H.
Opinion of the Court by Groban, J.
sufficient time on remand, our decision will become final and
remittitur issue seven days from the date we file this opinion.
(Cal. Rules of Court, rules 8.532(b)(1)(A), 8.540(b)(1).)
GROBAN, J.
We Concur:
CORRIGAN, J.
LIU, J.
KRUGER, J.
JENKINS, J.
GUERRERO, J.
sufficient to support the findings. To avoid further delay, we
have chosen to apply the law to Saul’s undisputed evidence and
have determined SIJ predicate findings are warranted. In cases
in which there are material conflicts in the evidence or
credibility issues, factfinding should be left to the trial courts,
which are best equipped to make these determinations.
35
Guardianship of SAUL H.
S271265
Concurring Opinion by Chief Justice Cantil-Sakauye
I concur in the judgment. As the majority opinion
concludes, the probate court should have made special
immigrant juvenile (SIJ) findings in light of the threats Saul H.
received from gang members in El Salvador, and I agree with
the majority insofar as it orders the issuance of these findings.
I write separately, however, because we need not reach all
of the legal issues pertaining to SIJ proceedings that the
majority opinion directly or obliquely addresses. In his petition
requesting SIJ findings, Saul indicated that reunification with
his parents was not viable because he was a person described by
Welfare and Institutions Code section 300, subdivision (b),
which applies in situations where “[t]he child has suffered, or
there is a substantial risk that the child will suffer, serious
physical harm or illness . . . as a result of the failure or inability
of the child’s parent or guardian to adequately supervise or
protect the child . . . .” (Id., subd. (b)(1).) To substantiate this
assertion, as well as his claim that a return to El Salvador would
not be in his best interests, Saul submitted a declaration that
described his receipt of serious threats from gang members that
stifled his education and employment, as well as the
powerlessness of his parents and police to protect him from this
intimidation. And by all indications, the probate court accepted
the avowals in Saul’s declaration as true. On this record, we do
not have to say a great deal about SIJ proceedings in order to
reverse the judgment on the basis that the probate court failed
Guardianship of SAUL H.
Cantil-Sakauye, C J., concurring
to properly incorporate the unchallenged gang-related evidence
into its analysis, then compounded this error by indulging in
speculation regarding conditions in El Salvador — the critical
reasoning ultimately adopted by the majority.
The majority opinion nevertheless includes a
comprehensive discussion of the law deemed applicable to the
evaluation of SIJ petitions by courts of first instance and to
appellate review of decisions to withhold SIJ findings. This
discussion includes some observations that are clearly relevant
to the court’s ultimate holding, and some others that are more
in the nature of guidance that may be pertinent in future cases,
if not this one. I would instead focus more narrowly upon the
subset of issues relating to SIJ proceedings that, properly
resolved, yield today’s result.
In any event, when this court provides guidance that may
go beyond the facts of a particular dispute, such efforts are
subject to the foundational rule that “[a]s we have said many
times, ‘ “ ‘the language of an opinion must be construed with
reference to the facts presented by the case, and the positive
authority of a decision is coextensive only with such
facts.’ ” ’ ” (Trope v. Katz (1995) 11 Cal.4th 274, 284; see
also Santisas v. Goodin (1998) 17 Cal.4th 599, 620 [“An
appellate decision is not authority for everything said in the
court’s opinion but only ‘for the points actually involved and
actually decided’ ”].) To state the obvious, we have no occasion
here to consider circumstances materially different from those
presently before us. The adjudication of future SIJ petitions
may illuminate considerations and distinctions that are not
presently within our contemplation. When those situations
2
Guardianship of SAUL H.
Cantil-Sakauye, C J., concurring
arise, I trust that courts will understand what the facts of this
case did and did not require us to decide.
CANTIL-SAKAUYE, C. J.
3
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion Guardianship of Saul H.
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 68 Cal.App.5th 563Review Granted (unpublished)
Rehearing Granted
__________________________________________________________
Opinion No. S271265
Date Filed: August 15, 2022
__________________________________________________________
Court: Superior
County: Los Angeles
Judge: Scott J. Nord
__________________________________________________________
Counsel:
Horvitz & Levy, Jason R. Litt, David S. Ettinger, Anna J. Goodman,
Beth J. Jay, Christopher D. Hu; Immigrant Defenders Law Center,
Bhairavi Asher, Abigail Ward Lloyd, Marion Donovan-Kaloust;
Disability Rights California and Munmeeth Soni for Petitioner and
Appellant.
Manatt, Phelps & Phillips, Gregory N. Pimstone, Joanna S. McCallum,
Sirena P. Castillo, Jessamyn Vedro, Thomas R. Worger and Kyla
Wyatt for National Immigrant Women’s Advocacy Project as Amicus
Curiae on behalf of Petitioner and Appellant.
Akin Gump Strauss Hauer & Feld, Joshua D. Tate; California
Appellate Law Group, Rex S. Heinke and Jessica M. Weisel for Public
Counsel as Amicus Curiae on behalf of Petitioner and Appellant.
Maria Blanco, Vivek Mittal, Alfonso Maldonado-Silva and Sarah
Domenick for University of California Immigrant Legal Services
Center as Amicus Curiae on behalf of Petitioner and Appellant.
Dennis A. Fischer, Robin B. Johansen, R. Rothschild, Scott M. Reddie;
Arnold & Porter Kaye Scholer, Sean M. SeLegue; Law Offices of Robert
S. Gerstein, Robert S. Gerstein; Colantuono, Highsmith & Whatley and
Michael G. Colantuono for California Academy of Appellate Lawyers as
Amicus Curiae on behalf of Petitioner and Appellant.
Munger, Tolles & Olson, Joseph D. Lee, J. Max Rosen and Stephen
Hylas for Bet Tzedek as Amicus Curiae on behalf of Petitioner and
Appellant.
Latham & Watkins, Christopher S. Yates, Elizabeth L. Deeley, Austin
L. Anderson, Kailen M. Malloy; and Elizabeth A. Greenman for Kids in
Need of Defense as Amicus Curiae on behalf of Petitioner and
Appellant.
No appearance for Real Parties in Interest.
Greines, Martin, Stein & Richland, Jeffrey E. Raskin and Stefan C.
Love, as Amici Curiae, upon request of the Supreme Court.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
David S. Ettinger
Horvitz & Levy LLP
3601 West Olive Avenue, 8th Floor
Burbank, CA 91505
(818) 995-0800
Stefan C. Love
Greines, Martin, Stein & Richland LLP
5900 Wilshire Boulevard, 12th Floor
Los Angeles, CA 90036
(310) 859-7811