In re Scarlett V.

Filed 12/8/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
B311089
In re SCARLETT V., a Person
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. No. 19CCJP04900A)
LOS ANGELES DEPARTMENT
OF CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
FRANKLIN V.,
Defendant and Appellant;
SCARLETT V.,
Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Marguerite D. Downing, Judge. Reversed
with directions.
Anne E. Fragasso, under appointment of the Court of
Appeal, for Defendant and Appellant.
Marissa Coffey, under appointment of the Court of Appeal,
for Appellant.
No appearance for Plaintiff and Respondent.
______________________________
INTRODUCTION
The Los Angeles County Department of Children and
Family Services filed a petition alleging Scarlett V. came within
the jurisdiction of the juvenile court under Welfare and
Institutions Code section 300. After the juvenile court sustained
the petition, Scarlett—who was born in Honduras—filed a
request for Special Immigrant Juvenile (SIJ) findings under Code
of Civil Procedure section 155.1 The juvenile court denied the
request, ruling the findings were “discretionary.” Because the
court committed legal error, and because Scarlett submitted
unimpeached and uncontradicted evidence that required the
court to enter an order with the findings Scarlett requested under
section 155, we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Juvenile Court Sustains a Petition Under Welfare
and Institutions Code Section 300
Scarlett was born in Honduras in 2013. Scarlett’s mother,
Karen M., and her father, Franklin V., were also born in
Honduras. The family moved to the United States in 2015.
1 Undesignated statutory references are to the Code of Civil
Procedure.
2
Karen and Franklin also have a younger daughter who was born
in the United States.
In July 2019 the Department received a referral claiming
Franklin had attacked Karen. A Department social worker
interviewed Karen, who stated that Franklin had physically and
emotionally abused her for years and that she and Franklin had
separated six months earlier. On the night of the most recent
incident, Franklin arrived at the apartment where Karen lived
with the children and began to argue with Karen and insult her.
Eventually, Franklin hit Karen in the mouth and in the head
several times, causing Karen to bleed and feel as though she was
going to faint.
The social worker also interviewed Scarlett, who at the
time was six years old. Scarlett stated that she was in the
kitchen with her sister when her father attacked her mother, but
that she heard the argument, heard her father say he was “going
to kill” her mother, and knew her father had hit her mother. She
also said that her father sometimes hit her and her sister with a
belt on the legs and buttocks and that she was afraid of her
father.
The Department filed a petition under Welfare and
Institutions Code section 300, subdivisions (a) and (b)(1). In
October 2019 the court sustained an amended petition, finding
true the allegations that, because of the July 2019 incident and
other instances of domestic violence,2 and because Franklin had
hit Scarlett and her sister with a belt, Franklin placed Scarlett at
risk of serious physical harm and Karen failed to protect her.
2 A social worker interviewed Scarlett again after the
Department filed the petition, and Scarlett said her father had
previously hit her mother.
3
The juvenile court declared Scarlett a dependent of the court,
removed Scarlett from Franklin, released her to Karen, and
ordered family maintenance services for Karen and enhancement
services for Franklin.
B. Scarlett Files a Request for SIJ Findings Under
Section 155, Which the Court Denies
On February 8, 2021 Scarlett filed a request with the
juvenile court for SIJ findings under section 155.3 Using Judicial
Council of California form JV-356,4 Scarlett asked the court to
find that she had been declared a dependent of the court and
placed in Karen’s custody; that reunification with Franklin was
not viable under California law because of abuse and neglect; and
that it was not in Scarlett’s best interest to return to Honduras.
At a hearing the next day for the court to consider whether
to terminate jurisdiction, counsel for Scarlett asked whether the
court had received the request for SIJ findings. The court
3 Section 155, subdivision (a)(1), gives juvenile courts
“jurisdiction to make the factual findings necessary to enable a
child to petition the United States Citizenship and Immigration
Services for classification as a special immigrant juvenile
pursuant to Section 1101(a)(27)(J) of Title 8 of the United States
Code.” “Title 8 United States Code section 1101(a)(27)(J) ‘is a
form of immigration relief that affords undocumented children a
pathway to lawful permanent residency and citizenship [by
employing] “a unique hybrid procedure that directs the
collaboration of state and federal systems.”’” (O.C. v. Superior
Court (2019) 44 Cal.App.5th 76, 82.)
4 Section 155, subdivision (e), directs the “Judicial Council
[to] adopt any . . . forms needed to implement this section.”
4
responded “yes” and asked counsel whether she wanted “to be
heard.” Counsel for Scarlett argued that Scarlett had met “the
requirements . . . for relief,” having come “under the court’s
jurisdiction because of the abuse that the court found true.” The
court asked whether any other parties wanted to be heard.
Counsel for the Department did not object to Scarlett’s request.
Nevertheless, the court denied the request, stating “it’s
discretionary and the court decided not to.” The court terminated
jurisdiction and awarded sole custody of Scarlett to Karen.
On February 17, 2021 the juvenile court held a final
hearing before entering the custody and visitation order. Counsel
for Scarlett renewed her request for SIJ findings, to which the
court responded: “You argued it, I made a ruling. We’re not here
for that.” Scarlett timely appealed from the order denying her
request for SIJ findings and terminating jurisdiction.
DISCUSSION
A. Applicable Law
Congress “established the SIJ classification in 1990 to
provide relief to immigrant children . . . whose interests would
not be served by returning to their country of origin.” (Bianka M.
v. Superior Court (2018) 5 Cal.5th 1004, 1012 (Bianka M.).)
Under the current version of the law, “a child is eligible for SIJ
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) the child cannot
reunify with one or both parents due to abuse, neglect,
abandonment, or a similar basis found under state law; and (3) it
is not in the child’s best interest to return to his or her home
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country or the home country of his or her parents.” (Id. at
p. 1013, fn. omitted; see 8 U.S.C. § 1101(a)(27)(J)(i)-(ii).) “SIJ
applications are reviewed by the United States Citizenship and
Immigration Service (USCIS), an agency within Department of
Homeland Security (DHS).” (Bianka M., at p. 1013.) “Once
granted” by USCIS, “SIJ status permits a recipient to seek lawful
permanent residence in the United States, which, in turn,
permits the recipient to seek citizenship after five years.” (Ibid.;
see 8 U.S.C. §§ 1255(a) & (h), 1427(a); In re Israel O. (2015)
233 Cal.App.4th 279, 283 (Israel O.).)
“‘“While the federal government has exclusive jurisdiction
with respect to immigration [citations] . . . , state juvenile courts
play an important and indispensable role in the SIJ application
process.” [Citation.] Under section 1101(a)(27)(J) and its
implementing regulations codified at 8 Code of Federal
Regulations part 204.11 . . . , “state juvenile courts are charged
with making a preliminary determination of the child’s
dependency and his or her best interests, which is a prerequisite
to an application to adjust status as a special immigrant
juvenile.”’” (Israel O., supra, 233 Cal.App.4th at p. 284; see
Bianka M., supra, 5 Cal.5th at p. 1013 [“Under federal
immigration regulations, each of the[ ] findings [under 8 U.S.C.
§ 1101(a)(27)(J)(i)-(ii)] is to be made in the course of state court
proceedings.”].)
“To provide a basis for SIJ-eligible children to secure the
necessary state court findings, the California Legislature in 2014
enacted . . . section 155 (Stats. 2014, ch. 685, § 1). Section 155
confers jurisdiction on every superior court—including its
juvenile, probate, and family divisions—to issue orders
concerning the findings relevant to SIJ status.” (Bianka M.,
6
supra, 5 Cal.5th at p. 1013; see § 155, subd. (a); Alex R. v.
Superior Court (2016) 248 Cal.App.4th 1, 5.) Section 155,
subdivision (b)(1), provides: “If an order is requested from the
superior court making the necessary findings regarding [SIJ]
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, which shall include all of the following findings: [¶]
(A) The child was either of the following: [¶] (i) Declared a
dependent of the court. [¶] (ii) Legally committed to, or placed
under the custody of, a state agency or department, or an
individual or entity appointed by the court. . . . [¶] (B) That
reunification of the child with one or both of the child’s parents
was determined not to be viable because of abuse, neglect,
abandonment, or a similar basis pursuant to California law. . . .
[¶] (C) That it is not in the best interest of the child to be
returned to the child’s, or his or her parent’s, previous country of
nationality or country of last habitual residence.” An order
“denying [an] SIJ petition is the equivalent of a final, appealable
judgment . . . .” (Guardianship of S.H.R. (2021) 68 Cal.App.5th
563, 574 (S.H.R.); see Israel O., supra, 233 Cal.App.4th at p. 283
[hearing an appeal from the juvenile court’s order declining to
make requested SIJ findings].)
B. The Juvenile Court Erred in Denying Scarlett’s
Request for an Order with SIJ Findings
Courts have disagreed over the superior court’s role when
ruling on a request for SIJ findings under section 155. As
discussed, section 155, subdivision (b)(1), states that a court shall
make the SIJ findings if “there is evidence to support those
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findings, which may consist solely of . . . a declaration by the
child who is the subject of the petition . . . .” In O.C. v. Superior
Court (2019) 44 Cal.App.5th 76 (O.C.), cited by Scarlett, the court
interpreted section 155, subdivision (b)(1), to mean that, “if
substantial evidence supports the requested SIJ findings, the
issuance of the findings is mandatory.” (O.C., at p. 83.) Under
this interpretation, the juvenile court’s role is similar to that
normally performed by a reviewing court. Rather than act as an
independent factfinder, the juvenile court determines whether
there is substantial evidence to support the SIJ findings, i.e.,
“‘evidence that is “reasonable, credible, and of solid value,” such
that a reasonable trier of fact could make such findings.’”
(In re L.W. (2019) 32 Cal.App.5th 840, 848.)
In S.H.R., supra, 68 Cal.App.5th 563, however, the court
rejected the O.C. court’s interpretation of section 155. The court
in S.H.R. held that section 155 requires the juvenile court to
determine “whether the petitioner has proved particular facts”
and that the reference in subdivision (b)(1) to whether “there is
evidence to support those findings” means whether the petitioner
has met his or her burden of “‘proof by a preponderance of the
evidence.’” (S.H.R., at pp. 574, 576; see id. at p. 576 [“Because
section 155 requires factual findings, we reject the O.C. court’s
‘substantial evidence’ standard at the trial court level.”].)
Therefore, the court in S.H.R. concluded, a petitioner is “required
to prove by a preponderance of the evidence the existence of the
facts specified in section 155.” (S.H.R., at p. 576.) And, according
to the court in S.H.R., where the petitioner contends on appeal
“‘the court erred in making findings against [the petitioner], “the
question for a reviewing court becomes whether the evidence
compels a finding in favor of the appellant as a matter of law.
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[Citations.] Specifically, the question becomes whether the
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.’”’” (Id. at pp. 574-575.)
The juvenile court here erred under either interpretation of
section 155 by ruling its determination on Scarlett’s request for
SIJ findings was “discretionary.” As the Supreme Court
explained in Bianka M., supra, 5 Cal.5th 1004, “since its
enactment, [section 155, subdivision (b)(1),] has made clear that a
superior court ‘shall’ issue an order containing SIJ findings if
there is evidence to support them.” (Bianka M., at p. 1025.)
Therefore, the juvenile court, at a minimum, had to consider the
evidence submitted by Scarlett and make a finding whether the
evidence supported her requested SIJ findings (under either the
substantial-evidence standard adopted by the court in O.C. or the
preponderance-of-the-evidence standard adopted by the court in
S.H.R.); if the evidence supported the findings, the court’s duty to
enter an order with the findings was mandatory, not
discretionary. (See Israel O., supra, 233 Cal.App.4th at p. 285
[a juvenile court “‘has the authority and duty to make [SIJ
status] findings’ if the evidence before it supports those
findings”]; see also Bianka M., at p. 1025 [a “‘state court’s role’”
under section 155 “‘is not to determine worthy candidates for
citizenship, but simply to identify abused, neglected, or
abandoned alien children under its jurisdiction who cannot
reunify with a parent or be safely returned in their best interests
to their home country’”].)
But the juvenile court’s error went further. Even under the
S.H.R. court’s interpretation of section 155, subdivision (b)(1),
9
which required Scarlett to prove she was entitled to SIJ findings
by a preponderance of the evidence (rather than simply submit
substantial evidence to support SIJ findings), the juvenile court
erred in failing to enter an order with those findings. That is
because Scarlett provided evidence that was uncontradicted and
unimpeached and that left no room for a contrary judicial
determination.
The juvenile court declared Scarlett a dependent of the
court. (See § 155, subd. (b)(1)(A).) The juvenile court also
determined reunifying Scarlett with one of her parents, Franklin,
was not “viable because of abuse, neglect, abandonment, or a
similar basis pursuant to California law.” (§ 155, subd. (b)(1)(B).)
At the jurisdiction and disposition hearing, the juvenile court
found by clear and convincing evidence that, because of
Franklin’s acts of domestic violence toward Karen and his denial
he had abused her, there was a substantial danger to the physical
health, safety, protection, or physical or emotional well-being of
Scarlett if she were returned to her father’s custody. (See Welf. &
Inst. Code, § 361, subd. (c)(1).)
Finally, Scarlett provided uncontradicted, unimpeached,
and compelling evidence it was “not in [her] best interest . . . to be
returned” to Honduras, her and her parents’ “previous country of
nationality or country of last habitual residence.” (§ 155,
subd. (b)(1)(C).) At the time she filed her request for SIJ findings
in 2021, Scarlett was seven years old and had lived in the United
States since she was two years old. In support of the request,
Scarlett’s attorney stated under penalty of perjury that both of
Scarlett’s parents resided in the United States, that Scarlett lived
in “a home where she is cared for” and “feels safe and
comfortable,” and that Scarlett was “attending school and has
10
adjusted well to life in the United States.” The Department did
not object to, or present any evidence contradicting, this evidence.
In addition, the Department submitted evidence in support
of the dependency petition that Karen had limited family in
Honduras. During an interview with a social worker, Karen
stated her maternal grandmother raised her in Honduras until
she was 15 years old because her mother “didn’t want [her]” and
“left with her [the mother’s] partner.” The grandmother forced
Karen to move out when Karen was 15 years old because the
grandmother could no longer afford to raise her. Karen stated
that she did not know her father and that, to her knowledge, she
was an only child. There was no evidence to suggest a family
member or other individual in Honduras was available to care for
Scarlett. Thus, the Department’s evidence confirmed that Karen
had limited, if any, family support in Honduras and that it was
not in Scarlett’s best interests to return. (See Eddie E. v.
Superior Court (2015) 234 Cal.App.4th 319, 333 [juvenile court
erred in ruling it was in the child’s best interest to return to his
previous country of nationality where the child “lived his entire
life here, ha[d] family here, and has no one in [his previous
country] to turn to”]; Leslie H. v. Superior Court (2014)
224 Cal.App.4th 340, 352 [juvenile court erred in ruling it was in
the child’s best interests to return to her previous country of
nationality as an “unaccompanied minor [who] had no one to
return to safely . . . and with no one to care for her”].)
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DISPOSITION
The order denying Scarlett’s request for SIJ findings is
reversed. The juvenile court is directed to enter a new order
granting the request and making the findings.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
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