L. A. Dep't of Children & Family Servs. v. Franklin V. (In re Scarlett V.)

72 Cal.App.5th 495

287 Cal.Rptr.3d 370

IN RE SCARLETT V., a Person Coming Under the Juvenile Court Law.

Los Angeles Department of Children and Family Services, Plaintiff and Respondent,

v.Franklin V., Defendant and Appellant;

Scarlett V., Appellant.

B311089

Court of Appeal, Second District, Division 7, California.

Filed December 8, 2021

Anne E. Fragasso, Encinitas, under appointment of the Court of Appeal, for Defendant and Appellant.

Marissa Coffey, Monterey Park, under appointment of the Court of Appeal, for Appellant.

No appearance for Plaintiff and Respondent.

SEGAL, J.

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. 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. 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 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, 236 Cal.Rptr.3d 610, 423 P.3d 334 ( 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 country or the home country of his or her parents." ( Id. at p. 1013, 236 Cal.Rptr.3d 610, 423 P.3d 334, 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, 236 Cal.Rptr.3d 610, 423 P.3d 334.) "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, 182 Cal.Rptr.3d 548 ( 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, 182 Cal.Rptr.3d 548 ; see Bianka M. , supra , 5 Cal.5th at p. 1013, 236 Cal.Rptr.3d 610, 423 P.3d 334 ["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. , supra , 5 Cal.5th at p. 1013, 236 Cal.Rptr.3d 610, 423 P.3d 334 ; see § 155, subd. (a) ; Alex R. v. Superior Court (2016) 248 Cal.App.4th 1, 5, 203 Cal.Rptr.3d 251.) 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, 283 Cal.Rptr.3d 805 ( S.H.R. ); see Israel O. , supra , 233 Cal.App.4th at p. 283, 182 Cal.Rptr.3d 548 [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 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, 257 Cal.Rptr.3d 159 ( 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, 257 Cal.Rptr.3d 159.) Under this interpretation, ...