Vol. 16, No. 2 January 28, 2020 Written by: Stacie Hendrix (SH), Nancy Sariñana (NS), Margaret Lee (ML), Kristin Hallak (KH).
NEW DEPENDENCY CASELAW
Special Immigrant Juvenile Findings (SIJ findings) O.C. v. Superior Court—filed 12/23/19; mod. and cert. for publ. 1/8/20; Fourth Dist., Div. Three Docket No. G058416 Link to case: https://www.courts.ca.gov/opinions/documents/G058416.PDF
TRIAL COURTS MUST MAKE SPECIAL IMMIGRANT JUVENILE FINDINGS (SIJ FINDINGS) BASED ON STATE LAW
O.C., a 14-year-old refugee from Guatemala, petitioned the probate court to make SIJ findings. The probate court approved the petition for SIJ findings and made findings, reflected in the minute order, citing federal law and delineating the federal requirements for Special Immigrant Juvenile Status. O.C.’s counsel submitted proposed SIJ findings with references to California state law. However, the probate clerk refused to process the proposed findings, stating that the proposed findings did not match the findings in the minute order or the language in the petition. O.C.’s counsel submitted revised SIJ findings, again citing California law, but the probate court issued findings citing only to the federal statute and code of regulations. Thereafter, O.C.’s counsel submitted amended SIJ findings with a memorandum of points and authorities explaining why the citations to California law was necessary. The probate clerk again rejected the proposed findings, stating that only the legal citations included in the minute order or petition may be used and the order could not be amended to include codes that were not in the petition. Because neither the petition nor the minute order cited California law, the probate clerk decided that order also could not reference California law. O.C. filed a petition for writ of mandate.
Writ of mandate issued. California superior courts must issue their findings on a Judicial Council form, which must include citations to the applicable state statutory or decisional authority. The purpose of the SIJ findings is to enable an immigrant child to petition the USCIS for SIJ status. The threshold finding for a superior court is that the immigrant child was either declared a dependent of the court or placed under the custody of a court-appointed guardian. The second required finding is that the immigrant child cannot reunify with one or both parents because of abuse, neglect, abandonment, or a similar basis pursuant to California law. Finally, the superior court must find it is not in the best interest of the child to be returned to the child’s previous country. The failure to issue the SIJ findings under state law prejudiced O.C.’s ability to seek SIJ status from USCIS. The probate court was directed to vacate the SIJ findings, and O.C. was authorized to submit proposed findings on the Judicial Council form. (NS)
Legal Guardianship—WIC 366.26 In re J.M.–published 1/24/20; Sixth Dist. Docket No.: H046917 Link to case: https://www.courts.ca.gov/opinions/documents/H046917.PDF
THE JUVENILE COURT HAS THE AUTHORITY TO GRANT A RELATIVE LEGAL GUARDIANSHIP UNDER WIC 366.26(C)(4) EVEN WHEN THE RELATIVE IS NOT THE CURRENT CAREGIVER TO THE CHILD AND WITHOUT FINDING THE CHILD ADOPTABLE
J.M. is a severely disabled child who had resided in a rehabilitation hospital following an accident when he was 10-months old. At age 7, J.M. was ready to be discharged from the hospital as long as there were two trained adults at home to care for him. A petition was filed alleging that the parents, who rarely visited and refused to take J.M. home, were unwilling to care for him. J.M. is not mobile and is non-verbal, but he does make eye contact and recognize familiar people in his life. His maternal grandmother (“MGM”) regularly visited him in the hospital throughout his life and was caring for his two siblings. Parents failed to reunify. At the section 366.26 hearing, the court appointed MGM the legal guardian and maintained supervision. J.M. appealed. Affirmed. Section 366.26, subdivision (c)(4) states that if the court finds that adoption or termination of parental rights is not in the best interest of the child because of one of the conditions in section 366.26 (c)(1)(B), the court is directed to order the “present caretaker or other appropriate person” to become the child’s legal guardian. Here, the child resides in a treatment facility, which is one of the conditions enumerated in section 366.26, subdivision (c)(1)(B). Under rules of statutory construction, section 366.26, subdivision (c)(4) is not conditioned on the requirement in subdivision (c)(1) that the court must first find the child adoptable. It would defeat the purpose of this subdivision to require a finding of adoptability, especially when subdivision (c)(1)(B)(iii) expressly states as part of that condition that “adoption is unlikely or undesirable.” Further, under J.M.’s reading of the statute, a child in a subacute treatment facility would be ineligible for a guardianship with a relative because it would render subdivision (c)(4) unavailable, leaving only legal guardianship with a non-relative or foster care as the permanent plan. This would be at odds with the importance the Legislature has placed on stable permanent family relationships and the preference for legal guardianship over foster care. Granting the legal guardianship to MGM was not an abuse of discretion because MGM demonstrated her strong commitment to J.M. and his care, had consistently visited, and shared an emotional bond with J.M. J.M. had specialized needs which may not be able to be met in a true home setting and it was in his best interest to have a caring relative as his legal guardian. (SH)