UPA Is Used as Gateway for SIJ Findings

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By Julianne Tobin Wojay

March 3 — An undocumented teenage girl from Central America who, as part of a state court parentage action against her mother, sought findings regarding her putative father in Honduras for inclusion in her federal petition for “special immigrant juvenile” status was properly required to join him as a party to the state action where his identity and whereabouts are known, the California Court of Appeal, Second District, held Mar. 2.

The court explained that by asking for explicit findings that her father had abandoned her—thereby establishing a basis for SIJ status—the nonmarital child necessitated consideration of his parentage and parental rights. The Uniform Parentage Act, it said, does not authorize a court to make factual findings concerning parental abuse, neglect or abandonment in the absence of a finding of parentage.

Forced to Get Creative

In a Mar. 4 e-mail to Bloomberg BNA, Florida attorney Michael G. Murray, who is a member of the American Immigration Lawyers Association, said that “[b]ased on the influx of unaccompanied minors crossing the border, and the recent challenges in pursuing one parent Special Immigrant Juvenile Status (SIJS) claims in court, immigration attorneys have been forced to get creative in their approach.”

Saying that the Bianka M. case, filed under the UPA, “was an effective way to settle a legitimate issue concerning custody, while addressing the SIJS claim concurrently,” he also said that “I believe the Court appropriately addressed the issue of a notice requirement when one parent's custody rights are affected.”

“Since Bianka's father was served in the originally filed UPA action [brought by her mother], it is only logical to assume that service was practicable in any related actions. I see no reason why the original petition cannot be modified accordingly,” he stated.

Murray added that the “good news is that the Court made no issue of applying SIJS to such actions despite the apparent novelty.”

SIJ Process

A child petitioning for SIJ status under federal law must provide a state court order containing findings that he or she is: (1) in the custody of a court-appointed agency, guardian or other individual; (2) cannot reunify with one or both parents due to abuse, neglect, abandonment or other similar basis under state law; and (3) it is not in his or her best interest to return to their home country or their parents' home country. See 8 U.S.C. § 1101(a)(27)(J); 8 C.F.R. § 204.11(d)(2).

In many cases, the state court is either a juvenile court (foster care) or a probate court (guardianship). However, when the immigrant child has been reunited with a parent in the U.S., it more likely that the family court will be involved and that the child will be the subject of a custody proceeding.

The judicial route chosen by Bianka M. was a family court action under California's Uniform Parentage Act (Cal. Fam. Code § 7600 et seq.). (Bianka entered the U.S. from Honduras alone and without documentation when she was 13 years old.)

Maternity Action

Parentage actions generally arise in two situations: a mother, child or the state seeks to establish a man's parentage as a predicate for a child support order or a putative parent seeks to establish a parent-child relationship in order to obtain custody or visitation rights.

However, Bianka filed the UPA action against her unwed mother, Gladys, who came to the U.S. from Honduras a decade ago and with whom Bianka was placed by immigration authorities in after she entered the U.S. in 2013.

(Initially, Gladys had filed a UPA petition against Bianka's putative father, Jorge, who still lives in Honduras. Although Jorge was personally served, he did not respond. No default was entered against him and Gladys dismissed the petition without prejudice because she believed the court lacked personal jurisdiction over him.)

In her UPA petition against Gladys, Bianka alleged that Gladys was her mother and asked that she be awarded sole legal and physical custody. Gladys did not respond and her maternity (as well as her apparent ability to obtain health care, education, and other services for Bianka without a parentage order) was uncontested.

As a basis for the sole custody award, Bianka alleged that Jorge had abandoned her at birth and physically abused her mother. She also asked the court for the findings necessary for her petition for SIJ status: that she cannot be reunified with her father because he abandoned her and it is not in her best interest to return to Honduras.

In declining to make the SIJ findings, the court concluded that Bianka's request for an award of sole custody to her mother in a UPA action necessarily implicated her father's paternity and parental rights (along with a possible support obligation), which thus made Jorge an indispensable party.

Bianka petitioned the appellate court for a writ of mandate after the family court required Jorge's joinder in the case.

Novel Use of UPA

In denying her petition, Justice Luis A. Lavin expressed concern “about the unusual procedural posture and the nonadversarial nature of this case,” and noted that he had found no published cases involving an uncontested parentage action between a child and her biological mother.

“Although such a parentage action is not expressly prohibited under the UPA or the applicable rules of court, it is certain a novel use of that statutory scheme,” he remarked.

Finding that Bianka's UPA action “seeks to preserve the status quo even though nothing threatens to disrupt the status quo,” Lavin added that the matter, “in our view, does not appear to require any intervention by the court.”

Also noting that Bianka did not seek to enforce any obligations arising out of Jorge's alleged parent-child relationship, Lavin observed that she “instead seeks a custody order tantamount to a termination of his parental rights as well as an order finding Jorge abandoned her,” matters that are more appropriately addressed in an action to declare her free from his custody and control under § 7800.

Not a Bona Fide Custody Proceeding

“In any event,” he continued, “the essential problem presented in this case is this: By requesting an order giving her mother sole legal and physical custody predicated on Jorge's abuse and abandonment, Bianka is impliedly asking the court to adjudicate Jorge's custody rights (if any) but she has presented the issue in a case in which Jorge is not a party.”

(Lavin pointed out that Jorge was not defaulted in Gladys' UPA action and that no evidence was presented that he was unwilling to enter into a parentage or custody stipulation.)

“Simply put, an uncontested action under the UPA between a child and one parent is not an appropriate means by which to adjudicated both parents' custody rights,” he explained, adding that in an action under UPA it would be “inappropriate” for a court to find that Bianka's father abandoned her without first determining paternity.

Further noting that an order containing SIJ findings “will not be useful to Bianka unless it is issued in the context of a bona fide custody proceeding,” Lavin said that because her parentage action against Gladys “appears to have been brought only to obtain SIJ findings, the proceeding below was not a bona fide custody proceeding under the UPA.”

Permissive Joinder

Going on to recognize that the UPA does not require both alleged biological parents to be named as parties in every parentage action, he conceded that “as a general matter, Bianka was not required to name Jorge as a respondent in her action to establish a parental relationship with Gladys.”

“Nevertheless, there are circumstances in which joinder may be appropriate, as in the present case,” Lavin said, explaining that while joinder of an alleged nonresident parent may not be required in every case in which sole custody is requested, “we are hard pressed to think of a circumstance in which it would not be prudent and consistent with principles of due process.”

Finding that the joinder order here was appropriate under the court rule on permissive joinder, he rebuffed Bianka's claim that it was an abuse of discretion.

Personal Jurisdiction

Although she sought to establish maternity, Bianka placed Jorge's paternity “squarely at issue by requesting an order containing a factual finding that her father abandoned her,” Lavin said, reiterating that while she did not expressly seek to terminate Jorge's parental rights, the order “would have a similar effect.”

He added that the substantial geographic separation that is usually found in cases where SIJ findings are requested “further exacerbates the effect of a sole custody order in this case,” saying that “[i]n our view, the court was reasonably concerned about making such an order in a nonadversarial proceeding to which the noncustodial parent is not a party[.]”

Acknowledging that Bianka not only needed to join Jorge to her action but also had to establish a basis for personal jurisdiction over him—a process that “may prove difficult” for children seeking SIJ status, Lavin noted that if a nonresident parent stipulates to parentage, such stipulation constitutes a general appearance and establishes personal jurisdiction.

Untenable Alternative

Further noting that if the family court proceeded in the absence of such jurisdiction, any order regarding Jorge's parentage and any default judgment would necessarily be void and subject to a motion to vacate, he declared that “[t]his alternative is untenable.”

Lavin also said that in addition to joining Jorge as a party, Bianka “must” provide him with notice of the specific findings of abuse, neglect or abandonment she seeks.

Explaining that this was because—as with her mother's petition—there was a good chance Jorge would not respond to her petition, he said that “in light of the significant consequences which flow from the finding of abuse, neglect, abandonment or some similar conduct by a parent, such findings should not be made in a default proceeding without adequate and specific notice.”

Lavin also emphasized “our narrow holding that joinder is appropriate under the circumstances present in this case—namely, where the identity and whereabouts of the child's absent parent are known. In other circumstances [ ] joinder would be inappropriate.”

Justices Lee Smalley Edmon and Richard D. Aldrich concurred.

Bianka M. was represented by Joshua C. Lee, Stephen A. Rossi, and Meiqiang Cui, of Irell & Manella, and by Nickole G. Miller of Public Counsel. All are from Los Angeles. There was no appearance for the respondent.

To contact the reporter on this story: Julianne Tobin Wojay in Washington at jwojay@bna.com.

To contact the editor responsible for this story: David Jackson at djackson@bna.com