Guardianship of S.H.R. ( 2021 )

Filed 9/2/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
Guardianship of S.H.R. B308440
___________________________________
(Los Angeles County
S.H.R., Super. Ct. No. 19AVPB00310)
Petitioner and Appellant,
v.
JESUS RIVAS et al.,
Objectors and Respondents.
APPEAL from orders of the Superior Court of Los Angeles
County, Scott J. Nord, Judge Pro Tempore. Affirmed.
Horvitz & Levy, Jason R. Litt, David S. Ettinger, Anna J.
Goodman; Immigrant Defenders Law Center, Bhairavi Asher
and Abigail Ward Lloyd for Petitioner and Appellant.
Akin Gump Strauss Hauer & Feld, Rex S. Heinke, Jessica
M. Weisel, and Joshua D. Tate for Public Counsel as Amicus
Curiae on behalf of Petitioner and Appellant.
No appearance for Objectors and Respondents.
S.H.R. filed petitions in the superior court for the
appointment of a guardian of his person (the guardianship
petition; Prob. Code, § 1510.1) and for judicial findings that
would enable him to petition the United States Citizenship
and Immigration Services (USCIS) to classify him as a special
immigrant juvenile (SIJ) under federal immigration law (the
SIJ petition; Code Civ. Proc.,1 § 155). The court denied the SIJ
petition and denied the guardianship petition as moot.
As we explain below, S.H.R. had the burden of proving by
a preponderance of the evidence the facts supporting SIJ status.
Because the trial court found his evidence did not support the
requested findings, S.H.R. has the burden on appeal of showing
that he is entitled to the SIJ findings as a matter of law. For
the reasons discussed below, he has not met his burden. We
therefore affirm the order denying the SIJ petition. Because
the denial of the SIJ petition rendered the guardianship petition
moot, we also affirm the order denying that petition.
SPECIAL IMMIGRANT JUVENILE STATUS
In the Immigration Act of 1990 and subsequent
amendments, Congress established the SIJ classification
of immigrants and a path “to protect abused, neglected, and
abandoned unaccompanied minors through a process that
allows them to become permanent legal residents.” (In re Y.M.
(2012) 207 Cal.App.4th 892, 915; see 8 U.S.C. §§ 1101(a)(27)(J),
1153(b)(4), 1255(a) & (h); Bianka M. v. Superior Court (2018)
5 Cal.5th 1004, 1012−1013.) The USCIS may consent to grant
1Subsequent unspecified statutory references are to the
Code of Civil Procedure.
2
SIJ status to an unmarried immigrant under 21 years of age if
the immigrant is in the custody of an individual appointed by a
state court with jurisdiction to determine the custody and care
of juveniles, and that court makes two findings: (1) reunification
with one or both of the immigrant’s parents “is not viable due
to abuse, neglect, abandonment, or a similar basis found under
[s]tate law”; and (2) it is not in the immigrant’s best interest
to return to his or her home country or the home country of his
or her parents. (8 U.S.C. § 1101(a)(27)(J) & (b)(1); see 8 C.F.R.
§ 204.11(a) (2021); Eddie E. v. Superior Court (2013) 223
Cal.App.4th 622, 627−628.)
In 2014, the California Legislature enacted section 155
(Stats. 2014, ch. 685, § 1, pp. 4485−4486), which confers
jurisdiction on every California superior court—including
its juvenile, probate, and family court divisions—to make the
findings necessary to petition the USCIS for SIJ status. (§ 155,
subd. (a); Bianka M., supra, 5 Cal.5th at p. 1013.) The statute
further provides that “[i]f an order is requested from the superior
court making the necessary findings regarding special immigrant
juvenile status . . . , and there is evidence to support those
findings, which may consist solely of, but is not limited to, a
declaration by the child who is the subject of the petition, the
court shall issue the order.” (§ 155, subd. (b)(1).)
The following year, the Legislature enacted Probate Code
section 1510.1, which grants courts the power 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 [SIJ] status.” (Prob. Code, § 1510.1, subd. (a); Stats.
2015, ch. 694, § 3, p. 5330.) The appointment of a guardian
3
under this statute may satisfy the requirement under the SIJ
law that the immigrant be “placed under the custody of . . .
an individual . . . appointed by a [s]tate or juvenile court.”
(8 U.S.C.A. § 1101(a)(27)(J)(i); J.L. v. Cissna (N.D.Cal. 2019) 374
F.Supp.3d 855, 867; Matter of A-O-C-, USCIS Adopted Decision
2019-03 (AAO, Oct. 11, 2019) 2019 WL 5260453, pp. *4−*5.)2
FACTUAL AND PROCEDURAL SUMMARY
S.H.R. was born in El Salvador in December 2001. He left
El Salvador in June 2018 and arrived in the United States in
August 2018. In January 2019, he moved in with his maternal
cousin’s husband, Jesus Rivas, in Palmdale.
In September 2019, S.H.R.—then 18 years old—filed
a petition in the superior court for appointment of Rivas as
guardian of his person (the guardianship petition). S.H.R.
stated in the petition that Rivas has been caring for him “since
he arrived [in] the United States” and has provided him with
“shelter, food, and other vital necessities.” The guardianship, he
asserted, “will promote stability for [him] as he adjusts to life in
2 The appointment of a guardian under Probate Code
section 1510.1 and the judicial findings described in section 155
do not guarantee USCIS’s consent to SIJ status. (See Reyes v.
Cissna (4th Cir. 2018) 737 Fed.Appx. 140, 146 [USCIS may
withhold its consent to SIJ status if the petitioner’s state court
request for SIJ findings was not “bona fide”]; Matter of E-A-L-O-,
USCIS Adopted Decision 2019-04 (AAO, Oct. 11, 2019) 2019
WL 5260455, pp. *8−*9; id. at p. *9 [USCIS need not consent
to SIJ status where petitioner failed to show that he sought the
state court finding “for any reason other than to enable him to
file his petition for SIJ classification”].)
4
the United States.” Rivas consented to be S.H.R.’s guardian and
S.H.R.’s parents consented to Rivas’s appointment as guardian.
On December 3, 2019, S.H.R. filed a petition for special
immigrant juvenile findings (the SIJ petition) in the superior
court. The SIJ petition states that reunification with S.H.R.’s
“parents is not viable under California law because of . . . [¶] . . .
[¶] neglect [and] [¶] abandonment,” and that it is not in his
best interest to be returned to El Salvador.
S.H.R. supported the petition with his declaration setting
forth the following facts.
Prior to coming to the United States, S.H.R. lived in
El Salvador with his parents, two younger brothers, a younger
sister, and his maternal grandfather. His two older sisters had
left for the United States a few months before him and are living
in San Francisco. His mother and grandfather do not work, and
his father had been unable to find work for “a couple of years.”
The family depends mostly on S.H.R. and his older sisters for
money.
Beginning at the age of 10 and continuing until he was 15,
S.H.R. helped his grandfather by “working in the fields” during
the summer, collecting fruit and vegetables “under the sun for six
to seven hours every day.” After work, he “would be completely
exhausted.” He used the money his grandfather paid him to buy
necessities, such as food, clothing, and shoes.
One day, when S.H.R. was in ninth grade, two gang
members approached him outside of school. They told him he
needed to join the gang, but S.H.R. refused. The men told S.H.R.
that if he did not join the gang, they would kill him or his family.
This made S.H.R. “very afraid,” and he told his parents about the
incident. His father reported the incident to the police. S.H.R.
5
did not hear from the police again and his parents did not follow
up with them.
A few weeks later, the two gang members met S.H.R.
after school again and threatened to kill him and his family if
he refused to join their gang. He reported the incident to his
parents, who informed the police. As with the first incident,
the police did nothing and his parents did not follow up. S.H.R.
believes that the “police are afraid of the gang members, who
will go after them or their family members if they investigate the
incidents.”
S.H.R. feared that gang members would wait for him again
after school. His parents then “made [him] stop going to school
and start working.” This meant that he would not graduate from
high school.
S.H.R. began working at a car wash every day from
8:00 a.m. to 6:00 p.m. He used half the money he earned “to
buy food for [his] parents, grandfather, and younger siblings,”
and saved the rest.
After a few months of working at the car wash, a gang
member approached S.H.R. and asked him to pay a “gang tax.”
The man threatened that S.H.R. would “disappear” if he did not
cooperate.
S.H.R. was afraid of the gang member and told his parents
he wanted to leave the country. His parents told him “it would
be too dangerous for [him] to go” and “insisted [he] stay.” He
felt that his parents could not protect him, yet would not let him
leave.
S.H.R. knew of three people in his neighborhood who had
been killed by gang members and he “lived in constant fear that
6
the gang members would return to [his] work and kidnap or kill
[him].”
S.H.R. saved money to pay for a trip to the United States
and, in June 2018, he left El Salvador without telling his parents.
S.H.R. is afraid that if he returned to El Salvador, the
“gang members will come after [him] again with threats of
violence, or even kill [him],” and his “parents are not able to
protect [him].”
At a hearing held on June 25, 2020, the court indicated that
the SIJ petition provided no basis for granting the petition. The
court, however, granted S.H.R.’s request to submit a brief and
granted the guardianship petition.
S.H.R. thereafter submitted a brief in which he argued that
his “parents neglected him under California law when they failed
to provide for his support resulting in harm to [his] health and
welfare.” In particular, his “parents consented to him spending
his summers working in the fields when he was ten years old,
doing difficult, exhausting work.” His parents also “forced him
to stop attending school and to instead spend his childhood days
working tirelessly,” including “working full-time at a car wash.”3
S.H.R. also submitted proposed SIJ findings that include
the finding, among others, that his “parents neglected and
abandoned him by failing to provide him with adequate care and
3 S.H.R. attached to his supplemental brief a purported
psychological evaluation of S.H.R. The document is not
authenticated and it was neither offered nor admitted into
evidence at the hearing. Nor does it appear from our record that
the probate court considered it. Because it was not authenticated
or introduced into evidence, we do not consider it.
7
protection” and that he “was forced to work starting from a young
age using dangerous equipment.”4
On August 25, 2020, the probate court denied the SIJ
petition. In its statement of decision, the court explained that
“nothing in [S.H.R.’s] petition or declaration supports any finding
that he was abandoned in any respect under California law”
(capitalization omitted), and the conduct of S.H.R.’s parents
did not “meet the definition of ‘neglect’ under California law.”
The court further stated that “[t]he [p]etition does not state, and
no evidence is provided, which suggests that[,] should [S.H.R.]
be returned to El Salvador[,] reunification with one or both
parents[,] absent a finding of other factors[,] is not possible or
viable.” Moreover, the facts S.H.R. alleged “dealt with issues
that arose while he was a minor. However, he is no longer a
minor. As such, the [c]ourt cannot conclude that those issues
will continue to exist.”
Based on the denial of the SIJ petition, the court denied
the guardianship petition as moot.
S.H.R. filed a notice of appeal from the probate court’s
August 25, 2020 order, as well as a petition in this court for writ
of mandate or prohibition. We granted his request to treat his
writ petition as his opening brief on appeal and the exhibits
accompanying the writ petition as his appellant’s appendix. No
respondent’s brief has been filed.
4S.H.R. submitted his proposed findings on Judicial
Council form No. FL-357/GC-224/JV-357 [rev. July 1. 2016].
8
We granted a request by Public Counsel to file an amicus
brief in support of S.H.R.5
DISCUSSION
A. Appealability
At least one appellate court has reviewed the denial of a
petition for SIJ findings as an appealable order. (In re Israel O.
(2015) 233 Cal.App.4th 279, 283.) Other courts have done so
through writ proceedings. (Bianka M., supra, 5 Cal.5th at
p. 1015; O.C. v. Superior Court (2019) 44 Cal.App.5th 76, 82
(O.C.); Leslie H. v. Superior Court (2014) 224 Cal.App.4th 340,
343 (Leslie H.).) The cases do not discuss whether an appeal or a
writ petition is the proper vehicle to obtain appellate review of an
order denying a petition for SIJ findings. We hold that the order
is appealable.
“A reviewing court has jurisdiction over a direct appeal
only when there is (1) an appealable order or (2) an appealable
judgment.” (Griset v. Fair Political Practices Com. (2001) 25
Cal.4th 688, 696.) “A judgment is the final determination of the
5 Amicus Public Counsel filed in this case a request for
judicial notice of three documents: A declaration filed by certain
California legislators filed in another California appellate court
proceeding; a declaration filed by a social worker in a federal
district court; and so-called “compliance reports” filed by USCIS
in a federal district court. The documents are offered for the
truth of statements made therein. Therefore, although the first
was filed in a state court and the other two were filed in federal
courts (Evid. Code, § 452, subd. (d)), we deny the request for
judicial notice by separate order. (See Bennett v. Regents of
University of California (2005) 133 Cal.App.4th 347, 358, fn. 7;
Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564−1565, 1568.)
9
rights of the parties.” (Id. at p. 697.) An order by the superior
court may constitute an appealable judgment if it disposes
of all causes of action pending in the case. (See ibid.) “As a
general test,” an order is final and appealable when “no issue
is left for future consideration except the fact of compliance or
noncompliance with the terms” of the order. (Id. at p. 698.)
Here, S.H.R. filed his SIJ petition pursuant to section 155
for the purpose of obtaining the findings authorized by that
section. The court’s order denying the requested findings
completely disposes of the matter before it and leaves no further
issues to be resolved. (See Estate of Miramontes-Najera (2004)
118 Cal.App.4th 750, 755 [holding that a probate court’s order
denying a request to set aside community property transfers was
appealable as a final judgment because it had “all the earmarks
of a final judgment,” leaving nothing further for judicial
consideration].) Thus, the court’s order denying the SIJ petition
is the equivalent of a final, appealable judgment and we therefore
consider S.H.R.’s appeal from the order.6 In doing so, we
recognize that review by writ petition also may be appropriate
under the circumstances of a given case. (See 9 Witkin, Cal.
Procedure (5th ed. 2008) Appeal, § 91, p. 153 [even if a judgment
or order is appealable, review by writ may be available where the
remedy by appeal is inadequate].)
6We will deny the writ petition in S.H.R. v. Superior Court
(case No. B308307) as moot by separate order.
10
B. The Order Denying the SIJ Petition
1. Burden of proof and standard of review
As the party requesting SIJ findings, S.H.R. had the
burden of proof in the trial court. (Evid. Code, § 500; see Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 861 [generally,
“the ‘party desiring relief ’ bears the burden of proof ”].) Because
section 155 does not specify a burden of proof, the burden is
“proof by a preponderance of the evidence.” (Evid. Code, § 115.)7
Here, the trial court concluded that S.H.R. had not met his
burden of proving the facts necessary to make the SIJ findings
under section 155, including the finding that his reunification
with one or both parents is not viable “because of abuse, neglect,
abandonment, or a similar basis pursuant to California law.”
(§ 155, subds. (a)(2) & (b)(1)(B).) The court therefore rejected
S.H.R.’s request to make this finding, and denied S.H.R.’s
petition.
When an appellant challenges a trial court’s factual
findings on appeal, our review will ordinarily be governed by
the substantial evidence standard of review. (See generally
Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs
(The Rutter Group 2020) ¶¶ 8:43 to 8:44.) When, as here,
however, “the party who had the burden of proof in the [trial]
court contends the court erred in making findings against [him],
‘the question for a reviewing court becomes whether the evidence
compels a finding in favor of the appellant as a matter of law.
[Citations.] Specifically, the question becomes whether the
7Evidence Code 115 provides: “Except as otherwise
provided by law, the burden of proof requires proof by a
preponderance of the evidence.”
11
appellant’s evidence was (1) “uncontradicted and unimpeached”
and (2) “of such a character and weight as to leave no room for
a judicial determination that it was insufficient to support a
finding.” ’ ” (Estate of Herzog (2019) 33 Cal.App.5th 894, 904;
quoting, In re I.W. (2009) 180 Cal.App.4th 1517, 1527−1528;
accord, Patricia A. Murray Dental Corp. v. Dentsply Internat.,
Inc. (2018) 19 Cal.App.5th 258, 270.)8
S.H.R. views the role of the trial court under section 155
and, consequently, our standard of reviewing the court’s ruling,
differently. According to him, the “role of the superior court” in
evaluating a SIJ petition under section 155 is “to determine . . .
whether there is evidence that could support a ruling in favor of
the petitioner.” For this assertion, S.H.R. relies on a statement
in O.C., supra, 44 Cal.App.5th 76, that, “if substantial evidence
supports the requested SIJ findings, the issuance of the findings
is mandatory.” (Id. at p. 83.) We disagree.
The O.C. court had no occasion to consider either the
petitioner’s burden of proof in the trial court or the trial court’s
standards for evaluating the petitioner’s evidence. Indeed,
the petitioner’s evidence played no part in the court’s analysis.
The statement from the opinion that S.H.R. relies upon—“if
substantial evidence supports the requested SIJ findings, the
issuance of the findings is mandatory”—is therefore dicta. (O.C.,
8 S.H.R. and amicus devote much of their briefs to
challenging the trial court’s reasoning and its reliance on cases
addressing the termination of parental rights under juvenile
dependency law. We review the court’s order, however, not its
reasoning, and may affirm the order if it is correct on any theory
of applicable law. (D’Amico v. Board of Medical Examiners (1974)
11 Cal.3d 1, 18−19.)
12
supra, 44 Cal.App.5th at p. 83.) For the following reasons, we
decline to follow it.
For the quoted statement, the O.C. court relied solely on
subdivision (b)(1) of section 155, set forth above, which makes
no reference to “substantial” evidence. The court’s statement is
otherwise made without analysis or citation to authority. (O.C.,
supra, 44 Cal.App.5th at p. 83.) Indeed, there is nothing in the
statute’s text or its legislative history to support the statement,
and it has not been followed in any other published decision.9
The O.C. court’s reference to “substantial evidence” also
suggests a standard that is inconsistent with the trial court’s
factfinding task under section 155. Under that section, the court
must determine whether the petitioner has proved particular
facts, such as parental maltreatment of the petitioner and the
nonviability of reunification. (See J.L. v. Cissna, supra, 374
F.Supp.3d at p. 866 [the reunification finding under section 155
“is inherently factual”].) “ The substantial evidence test,”
however, “does not ask what proposed facts are more likely than
not to be the true facts” (Wollersheim v. Church of Scientology
(1999) 69 Cal.App.4th 1012, 1017); rather, it is aimed at
9 S.H.R. also relies on the Supreme Court’s statement in
Bianka M. that, under section 155, subdivision (b)(1), “a superior
court ‘shall’ issue an order containing SIJ findings if there is
evidence to support them.” (Bianka M., supra, 5 Cal.5th at
p. 1025.) The Bianka M. court, however, was concerned with
the question whether the trial court could consider evidence of
the petitioner’s motivation in seeking SIJ findings, and concluded
that such evidence is irrelevant. (Ibid.; see § 155, subd. (b)(2).)
The court did not address the petitioner’s burden of proof or
suggest that that burden was less than proof by a preponderance
of evidence.
13
determining a legal issue: Whether there is substantial evidence
to support factual findings. (See Smith v. Selma Community
Hospital (2008) 164 Cal.App.4th 1478, 1515 [the existence or
nonexistence of substantial evidence is a question of law].) Thus,
a determination by the trial court that the petitioner has
produced substantial evidence that could support a finding under
section 155 is not a factual finding at all. Because section 155
requires factual findings, we reject the O.C. court’s “substantial
evidence” standard at the trial court level.
Furthermore, a substantial evidence standard would not
satisfy the federal requirement that the state court actually find
the required facts. (See Osorio-Martinez v. Att, Gen. U.S. of
America (3d Cir. 2018) 893 F.3d 153, 169 [SIJ eligibility “requires
the state court to find” that reunification “ ‘is not viable due to
abuse, neglect, abandonment, or a similar basis found under
State law’ ”].) The SIJ petitioner must thus present “evidence
of a judicial determination that the juvenile was subjected to”
parental maltreatment, not a determination that the juvenile
could have been subjected to maltreatment. (Matter of E-A-L-O-,
USCIS Adopted Decision 2019-04, supra, 2019 WL 5260455,
p.*6, italics added; see Reyes v. Cissna, supra, 737 Fed.Appx.
at p. 146; id. at p. 144 [affirming summary judgment against
SIJ applicant where the state court failed to make “ ‘specific
factual findings regarding the basis for finding abuse, neglect,
or abandonment’ ”].) Because section 155 was enacted to aid
juveniles in obtaining SIJ status under federal law, we reject
a construction of the statute that would not support the federal
standard for SIJ status.
For the foregoing reasons, we reject S.H.R.’s argument that
he needed merely to produce “substantial evidence” that could
14
support the required findings, and hold that he was required
to prove by a preponderance of the evidence the existence of the
facts specified in section 155. Under these circumstances, where
the court considered the evidence and concluded that S.H.R. had
failed to prove the existence of such facts, we review the court’s
ruling denying the requested findings to determine whether
S.H.R. is entitled to the requested findings as a matter of law.
2. S.H.R.’s failure to prove parental
abandonment or neglect
S.H.R. and amicus rely on S.H.R.’s declaration evidence in
arguing that his parents abandoned and neglected him because:
(1) between the ages of 10 and 15, he was required to perform
exhausting agricultural field work during the summers under
difficult conditions; (2) gang members threatened him and his
family and, because of these threats, his parents required that
he discontinue his high school education and work at a car wash;
and (3) his parents did not provide him with financial support.
We may quickly dispose of the argument that S.H.R.’s
parents abandoned him. According to S.H.R., he lived with both
of his parents from his birth until he left El Salvador in June
2018. Although he stated that his mother does not work and
his father had “not been able to find work for a couple of years,”
he does not state that his parents had ever left him without
provision for his care or supervision. (See Fam. Code, § 3402,
subd. (a).) Nor is there any evidence that either parent ever
deserted or intended to abandon S.H.R. (Fam. Code, § 7822,
subd. (b); see In re Guardianship of Rutherford (1961) 188
Cal.App.2d 202, 206 [abandonment requires “ ‘ “an actual
desertion, accompanied with an intention to entirely sever, so
far as it is possible to do so, the parental relation and throw
15
off all obligations growing out of the same” ’ ”].) Indeed, when
S.H.R. raised the subject of leaving the country, his parents
insisted that S.H.R. stay with them. Ultimately, S.H.R.
disregarded his parents’ advice and left home “without telling
them.” His separation from his parents was thus the fulfillment
of his intention and action, not the result of abandonment by
his parents.
We also conclude that S.H.R. has failed to satisfy his
burden on appeal of showing that, as a matter of law, his
parents committed neglect against him. Neglect is not defined
in section 155. S.H.R. and amicus point to several definitions of
neglect under California law. For purposes of the Child Abuse
and Neglect Reporting Act, neglect is defined as “the negligent
treatment or the maltreatment of a child by a person responsible
for the child’s welfare under circumstances indicating harm or
threatened harm to the child’s health or welfare.” (Pen. Code,
§ 11165.2.) The same law distinguishes “ ‘[s]evere neglect’ ”
and “ ‘[g]eneral neglect,’ ” and defines the latter as “negligent
failure of a person having the care or custody of a child to provide
adequate food, clothing, shelter, medical care, or supervision
where no physical injury to the child has occurred.” (Id.,
subd. (b).)
Under a law enacted for protection of the elderly, neglect
is defined to include “[t]he negligent failure of any person having
the care or custody of an elder or a dependent adult to exercise
that degree of care that a reasonable person in a like position
would exercise.” (Welf. & Inst. Code, § 15610.57, subd. (a)(1).)
Although the statutes describing the circumstances
supporting juvenile dependency jurisdiction do not define neglect,
our Supreme Court has interpreted the term in that context
16
as having its “commonly understood” meaning of a “ ‘failure or
inability . . . to adequately supervise or protect’ ” the parent’s
child. (In re R.T. (2017) 3 Cal.5th 622, 629; see also In re
Ethan C. (2012) 54 Cal.4th 610, 627−628.)
S.H.R. contends that his parents committed neglect
because, between the ages of 10 and 15, he “spent [his] entire
summers working in the fields helping [his] grandfather”
for six to seven hours every day “under the hot weather.”10
As S.H.R. asserts, such work may be prohibited under California
law. (See Lab. Code, § 1290.)11 Nevertheless, a violation of that
prohibition does not necessarily constitute neglect by the child’s
parents under the foregoing definitions. S.H.R. was apparently
working with his parents’ consent under the auspices of his
grandfather and for the purpose of helping his parents provide
for his family. Even if a court could reasonably infer parental
neglect from such evidence, the court could also reasonably infer
that, because his parents were impoverished, allowing S.H.R.
to earn money by helping his grandfather in the fields during
10 S.H.R. asserts in his brief on appeal that during his time
as a child farmworker, he used a machete, suffered sunburn,
dehydration, and exhaustion, was exposed to pesticides, snakes,
scorpions, and harmful insects, and worked without running
water or toilet facilities. These facts, however, are not found
in S.H.R.’s declaration and are apparently based on statements
in an inadmissible “psychological evaluation,” which we do not
consider. (See fn. 3, ante.)
11 Although a child is permitted to work on a farm owned,
operated, and controlled by the child’s parent (Lab. Code,
§ 1394, subd. (a)), it does not appear from the record that S.H.R.’s
parents owned, operated, or controlled the farm on which S.H.R.
was “helping [his] grandfather.”
17
summers was, under the circumstances, a reasonable parental
decision that enabled the family to provide for S.H.R. without
interfering with his education. The evidence of S.H.R.’s
childhood summer work does not, therefore, establish parental
neglect under any of the foregoing definitions of neglect as a
matter of law.
We reach a similar conclusion as to S.H.R.’s argument
regarding his parents’ decision to remove him from school in light
of the gang threats against him and his family. Although, under
California law, parents of children between the ages of 6 and 18
are generally required to send their children to public school
(Ed. Code, § 48200), whether a decision to pull the child from
school constitutes neglect must take into consideration the
circumstances surrounding that decision. Here, S.H.R.’s
declaration implies that his parents took him out of high school
because of repeated threats by gang members against S.H.R.’s
life. The threats were made at or near the school and, despite
S.H.R.’s father’s reports of the incidents to police, it appeared
that the police were unwilling or unable to prevent the gangs
from carrying out their threats. Under these circumstances,
keeping S.H.R. from school, where he would face substantial
risk of being killed, appears to have been the most reasonable
and prudent action to take. Rather than neglect, the decision
reflects the parents’ commitment to protect S.H.R. from “harm
or threatened harm to the child’s health or welfare.” (Pen. Code,
§ 11165.2.) At a minimum, the parents’ actions do not constitute
neglect as a matter of law.
S.H.R. also argues that his parents left him “unprotected
from multiple credible threats of gang violence.” The threats
themselves cannot reasonably be viewed as constituting parental
18
neglect. S.H.R. suggests, however, that his parents should
have done something more than report the threats to the police.
Other than “follow[ing] up” with the police, however, S.H.R. does
not indicate what more his parents could have done to protect
him from gangs; and failing to follow up with police does not
constitute neglect. Indeed, S.H.R. apparently believes that any
follow-up would have been futile because, he asserts, the police
are afraid to investigate complaints about gang members.
Lastly, S.H.R. argues that his parents “did not financially
support” him. He points to his statements that his mother does
not work, his father had “not been able to find work for a couple
of years,” and his “family depends mostly on [his] older sisters
and [himself] to provide money.” His parents’ lack of employment
or their partial dependence on others, however, does not, without
more, constitute neglect toward S.H.R. as a matter of law. A
parent can provide for a child indirectly as well as through the
parent’s employment income. Indeed, even an incarcerated
parent may avoid a finding of neglect if the parent can arrange
for the child’s care while the parent is in prison. (In re S.D.
(2002) 99 Cal.App.4th 1068, 1077.) Although S.H.R. states that
his family depended in part on his siblings and himself, he does
not state that his parents failed to provide him with food, shelter,
clothing, or medical care.12
12 Although SIJ status may be based on a finding that
reunification is not viable because of parental “abuse,” as well
as “neglect, abandonment, or a similar basis,” S.H.R. based his
petition solely on grounds of neglect and abandonment. We do
not, therefore, consider other possible grounds.
19
3. S.H.R.’s failure to show that reunification
was not viable
Even if S.H.R. had established that his parents were guilty
of neglect towards him, he was further required to show that
reunification with one or both of his parents is not viable because
of such neglect. (§ 155.) The trial court determined he had not
made that showing. Whether we review the court’s ruling under
the test we applied above to the court’s neglect and abandonment
findings or, as S.H.R. argues, under a de novo standard, we reach
the same conclusion as the trial court.
Reunification involves the child’s return to the parents’
custody and care. (In re K.L. (2012) 210 Cal.App.4th 632, 642;
see In re Welfare of D.A.M. (Minn.Ct.App. Dec. 12, 2012,
No. A12-0427) 2012 WL 6097225, p. *5 [“ ‘reunification’ ” under
the SIJ law “appears to mean returning the child to successfully
live with his or her parent”].) The meaning of “not viable” under
the SIJ law is unsettled. Some courts and the USCIS have
interpreted the phrase as requiring the petitioner to prove that
reunification with his or her parents cannot occur, or is not
possible. (See, e.g., O.C., supra, 44 Cal.App.5th at pp. 82−83;
Leslie H., supra, 224 Cal.App.4th at p. 351; In re Erick M. (Neb.
2012) 820 N.W.2d 639, 645; D-Y-S-C-, USCIS Adopted Decision
2019-02 (AAO, Oct. 11, 2019) 2019 WL 5260454, p. *2; USCIS,
Policy Manual (2021) Immigrants, vol. 6, pt. J, ch. 2, § A,
pp. 408-409.) Some courts, however, have interpreted the phrase
as requiring proof only that reunification is not practicable
or workable. (See, e.g., Lopez v. Serbellon Portillo (Nev. 2020)
469 P.3d 181, 184; see also J.U. v. J.C.P.C. (D.C. 2018) 176 A.3d
136, 140 (J.U.) [viability connotes “common-sense practical
workability”]; accord, Kitoko v. Salomao (Vt. 2019) 215 A.3d 698,
20
708; Romero v. Perez (Md.Ct.App. 2019) 205 A.3d 903, 914−915.)
For purposes of our analysis, we will assume that S.H.R. was
required to meet the less demanding, practical or workable
standard. This standard “calls for a realistic look at the facts
on the ground in the country of origin and a consideration of
the entire history of the relationship between the minor and the
parent in the foreign country.” (J.U., supra, 176 A.3d at p. 140.)
The finding of nonviability must be made as of the present time.
(Perez v. Cuccinelli (4th Cir. 2020) 949 F.3d 865, 874.)
The phrases, “due to” in the federal statute (8 U.S.C.
§ 1101(a)(27)(J)(i)) and “because of” in section 155 (§ 155,
subd. (b)(1)(B)) indicate a causal connection between the parents’
maltreatment and the nonviability—or practical unworkability—
of reunification. (See Leslie H., supra, 224 Cal.App.4th at p. 349
[“ ‘a court must find that reunification is not possible because of
abuse, neglect, or abandonment’ ”].)
The link between the parents’ maltreatment and the
nonviability of reunification was addressed in J.U., supra,
176 A.3d 136, a case S.H.R. relies on. In that case, the minor
petitioning for SIJ status, grew up in El Salvador apart from
his father, who “was a non-supportive and distant figure.” (Id.
at p. 142.) Although the father regularly visited the paternal
grandparents’ house where the child lived, he “never fed him,
gave him clothes, took him to school, cared for him when he was
sick, or showed him any affection. . . . The father never invited
[the minor] to live with him even after discovering that [the
child] had nowhere to live in El Salvador, nor did the father
ever provide any financial support or assume any significant
parental responsibility for making necessary day-to-day decisions
regarding [the child]. All financial support came from his mother
21
and grandfather.” (Ibid., fn. omitted.) Although “the father
recognized [the minor] as his son, he never helped the mother to
financially care for him or helped to take care of him, and . . . the
father does not have a parent-child relationship with [the minor]
as he has never participated in his life or shown him love. Once
[the minor] entered the United States and took up residence with
his mother, [the child] . . . never had any contact with his father.”
(Ibid.) The District of Columbia Court of Appeals held that
reunification was not viable due to the father’s abandonment
of the child. It explained that “sending a seventeen-year-old
boy back to the care of a father who has never fulfilled any
day-to-day role in the support, care, and supervision during the
boy’s lifetime cannot be a ‘reunification’ that is ‘viable,’ that is,
‘practicable[,] workable.’ ” (Id. at p. 143; see also Leslie H., supra,
224 Cal.App.4th at p. 352 [reunification with parents was not
viable due to “mother’s lifelong abuse” of child and “father’s
abandonment”].)
In contrast to J.U., even if we assume that S.H.R.’s parents
neglected him under our state law standards, S.H.R. presented
no evidence in this case to support a finding that reunification
with his parents is not presently viable “because of ” such neglect.
(§ 155, subd. (b)(1)(B).) The fact that S.H.R.’s parents required
S.H.R. to work in agricultural fields during summers as a child
until the age of 15 to help support the family does not imply
that reunification is presently not viable.13 There is nothing in
13 Arguably, S.H.R. and his parents cannot “reunify”
because reunification has meaning only in the context of parents
and their minor children (see In re K.L., supra, 210 Cal.App.4th
at p. 642), and the 19-year-old S.H.R. is, generally, not a minor
22
S.H.R.’s declaration to suggest that if he returned to the home
of his parents that his childhood experience working in the fields
renders reunification with his parents unworkable. There is no
evidence, for example, to suggest that he left his parents in 2018
because his parents made him work in the fields several years
earlier or that his parents would attempt to compel him to
resume such work upon his return home. Indeed, the fact that
he stopped working in the fields when he was 15 years old and
subsequently worked at a car wash indicates that his parents
would not insist that he work as a farm laborer again.
Nor does S.H.R.’s parents’ decision to pull him from
high school to protect him from gang violence suggest that
reunification with his parents is not presently viable. It appears
that S.H.R.’s parents made the decision to remove him from
school not to harm him in any way, but rather to protect him
from harm. Even if S.H.R. disagrees with the decision, it appears
from his declaration that he understands his parents’ protective
intentions. Thus, even if the parents’ decision constituted neglect
at that time, the decision would not render reunification with his
parents unworkable now.
under the law of either California or El Salvador. (See Fam.
Code, § 3901, subd. (a)(1); Código Civil [Civil Code], art. 26
(El Sal.); but see Prob. Code, § 1510.1, subd. (d) [for purposes of
SIJ-related guardianship petition, “minor” includes an unmarried
person 18 years of age or older and younger than 21 years of
age].) If this argument is accepted, reunification is not viable as
a matter of law not because of any maltreatment by the parents,
but because S.H.R. is not a minor. We will assume arguendo
that S.H.R.’s age is not per se an impediment to reunification for
purposes of the SIJ law. (See R.F.M. v. Nielsen (S.D.N.Y. 2019)
365 F.Supp.3d 350, 380.)
23
The alleged failure to provide S.H.R. with financial support
while he lived in El Salvador, even if it constituted neglect, does
not prove that reunification is not currently viable. Although
S.H.R.’s declaration states that his parents are unemployed and
depend “mostly” on others for money, he does not indicate that
his parents’ financial situation renders reunification unworkable
as a matter of law. He does not suggest that he left his parents
because of a failure to support him and there is nothing in his
declaration to indicate that he, as an adult, would need the level
of support for a child or that he would be unable to contribute to
the family’s income.
It is evident from S.H.R.’s declaration that he does not
desire to return to El Salvador because he is fearful of violence
against him from gangs in that country, not because of any
parental neglect or a purported inability to reunify with his
parents. Although S.H.R.’s fear of gangs may be well-founded,
that alone–absent evidence of parental neglect, abuse or
abandonment—is not among the grounds for finding reunification
with his parents is not viable for purposes of the SIJ law. (See
8 U.S.C. § 1101(a)(27)(J)(i); In re Jeison P.-C. (N.Y. App. Div.
2015) 132 A.D.3d 876, 877 [SIJ petitioner failed to establish
that reunification was not viable where he left his impoverished
parents in Guatemala to escape gang violence and pursue
education].)
Because S.H.R. failed to show that reunification with
one or both parents is not viable due to the asserted grounds of
abandonment or neglect, the court did not err in denying his SIJ
petition.
24
C. The Order Denying the Guardianship Petition
Amicus Public Counsel contends that the court erred in
concluding that S.H.R.’s guardianship petition was rendered
moot by the court’s denial of the SIJ petition. We disagree.
Probate Code section 1510.1, subdivision (a) provides:
“With the consent of the proposed ward, the court may 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 pursuant
to subdivision (b) of [s]ection 155 of the Code of Civil Procedure.”
In a statement accompanying the enactment of the statute,
the Legislature declared its “intent . . . to give the probate court
jurisdiction to appoint a guardian for a person between 18 and
21 years of age in connection with a special immigrant juvenile
status petition” and “to provide an avenue for a person between
18 and 21 years of age to have a guardian of the person appointed
beyond 18 years of age in conjunction with a request for the
findings necessary to enable the person to petition the [USCIS]
for classification as a special immigrant juvenile.” (Stats. 2015,
ch. 694, § 1(b), p. 5329.) It thus appears from the statute’s plain
language and the Legislature’s expressed intent that the statute
grants superior courts jurisdiction to appoint a guardian for
unmarried individuals who are at least 18 years old and less
than 21 years old when the guardianship is sought “in connection
with” a SIJ petition. (Prob. Code, § 1510.1, subd. (a)(1).) The
requirement of a “connection with” a SIJ petition indicates
that the court’s jurisdiction is limited; the statute does not grant
courts the power to grant a guardianship under this provision in
the absence of a SIJ petition.
25
Here, once the court denied the SIJ petition, there was
no longer a SIJ petition with which the guardianship could be
connected. It was therefore proper for the court to dismiss the
guardianship petition as moot.
DISPOSITION
The court’s orders denying appellant’s petition for special
immigrant juvenile findings and denying as moot appellant’s
petition for appointment of guardian are affirmed.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENDIX, J.
26