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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 16-FM-929
GLENDA DEL CARMEN BENITEZ, APPELLANT,
v.
JOHN DOE, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(DRB-4307-15)
(Hon. Hiram E. Puig-Lugo, Trial Judge)
(Submitted June 29, 2017 Decided September 6, 2018)
Michael E. Zielinski was on the brief for appellant.
No brief was filed for the appellee.
Before THOMPSON and BECKWITH, Associate Judges, and WASHINGTON,
Senior Judge.
WASHINGTON, Senior Judge: In 2013, J.V.B., the minor at the center of this
appeal, illegally entered the United States as an unaccompanied minor from El
Salvador to join her mother (“the mother” or “appellant”), who has been a resident
of this country since 2005. On appeal, the mother challenges the trial court’s April
26, 2016, and May 26, 2016, orders denying her motion for a Special Immigrant
2
Juvenile (“SIJ”) Status finding pursuant to the requirements of 8 U.S.C. § 1101
(a)(27)(J) (2009 Supp. II). In light of the record before us, we agree with the
mother that such a finding is mandated.
I. The Trial Court’s Ruling
J.V.B. was born on May 31, 2004, in El Salvador and lived with her mother
and maternal grandmother for the first year of her life. In 2005, J.V.B.’s mother
moved to the United States, where she has since resided with J.V.B.’s two half-
siblings. Prior to her departure, the mother arranged for J.V.B.’s maternal
grandmother to care for J.V.B. In the years they lived apart, the mother sent the
maternal grandmother $100-150 every fifteen days to support J.V.B., and spoke on
the phone with J.V.B. “two or three times a week.”
At the time of J.V.B.’s conception, the mother was approximately eighteen
years old and had been in a relationship with Walter Alvarado for four to five
months. The mother believed Mr. Alvarado was J.V.B.’s father, though Mr.
Alvarado never expressed any interest in parenting her. 1
1
For approximately twelve years, both the mother and Mr. Alvarado’s sister
believed Mr. Alvarado was J.V.B.’s father. In her declaration, the mother attested
(continued…)
3
In 2012, while residing in the United States, the mother was assaulted by the
brother of her former boyfriend. After reporting the assault to the police, the
mother’s former boyfriend informed the mother that “he knew [she] had family in
El Salvador and, if his brother was deported,” her family “would pay for it.” The
mother interpreted his comments “as a threat to do physical harm to her family in
El Salvador.” In 2013, due to these threats, as well as general gang activity that
threatened the safety of J.V.B., J.V.B. came to the United States to live with her
mother where she has resided since her arrival.
Based on the belief that Mr. Alvarado was J.V.B.’s biological father, the
mother initiated a custody action in Superior Court, naming Mr. Alvarado as the
defendant. After receiving notice of the proceedings, Mr. Alvarado “questioned
that he was the father” of J.V.B., and a subsequent “paternity test reportedly
excluded him as the father.” The mother attested that she initially “wanted the test
repeated, in a process that would ensure that all test participants were present and
provided samples at the same time,” as she was “shocked by the test result.”
(…continued)
that Mr. Alvarado’s sister “came to [J.V.B.’s] Christening, and visited her several
times a year.” Mr. Alvarado also “met with [J.V.B.] briefly after she came to the
United States, and made statements to her which she interpreted as acknowledging
that he was her father.”
4
However, after reviewing “pictures taken of the participants when samples were
given,” she “decided not to challenge the test result.” Because Mr. Alvarado was
excluded as J.V.B.’s biological father, the trial court dismissed the first custody
action without prejudice.
J.V.B.’s mother subsequently initiated the instant case against John Doe by
filing a verified complaint for custody in the Superior Court seeking sole physical
and legal custody of J.V.B., as well as a Motion for Special Immigrant Juvenile
Status Predicate Order. After Mr. Alvarado was excluded as J.V.B.’s father, the
mother sought to serve “John Doe” by posting because “despite her best diligent
efforts, the identity of [J.V.B.’s] biological father and his last known place of
residence [were] unknown.” On February 22, 2016, Judge Michael O’Keefe of the
Superior Court granted the mother’s motion and ordered that the “notice shall be
posted in the Clerk’s Office of the Family Division of the Superior Court of the
District of Columbia for a period of twenty-one calendar days in order to serve”
John Doe. In granting the motion, the trial court explained that it “may authorize
service by publication or posting when the plaintiff has shown that diligent efforts
to locate the defendant are futile.” Because the development from the recent DNA
testing of Mr. Alvarado “was unexpected,” and “in light of the distance in time and
location of the minor child’s conception in El Salvador,” the trial court determined
5
that service by posting was the appropriate course of action to ensure John Doe
received notice. The Clerk of the Court subsequently entered a default judgment
against John Doe for his failure to respond.
After a hearing before Judge Hiram Puig-Lugo, during which both J.V.B.
and the mother testified, the trial court granted the mother sole physical and legal
custody of J.V.B. As to the requested SIJ status findings, the trial court concluded
that J.V.B. had satisfied some of the conditions imposed by the statute, including:
(1) that J.V.B. was under the age of twenty-one years and unmarried at the time of
her SIJ status petition; (2) J.V.B. was placed, pursuant to an order of the juvenile
court, in the sole legal and physical custody of her mother; and (3) it was not in
J.V.B.’s best interest to be returned to El Salvador because J.V.B. “resides with her
mother, the only parent she knows, who is able to provide” for her. The trial court,
however, found that J.V.B. failed to meet the final condition required for SIJ status
eligibility: that although reunification with J.V.B.’s father “is not possible, there is
no evidence that the lack of viability is due to abandonment.” The mother timely
appealed the trial court’s denial of her SIJ status request.2
2
On May 9, 2016, the mother filed a Motion for New Trial, contending that
the April 26, 2016 order was “based on errors of fact and law.” The trial court
denied that motion shortly thereafter in a May 26, 2016, order, concluding that the
mother had “misstate[d] the basis of the court’s finding” in arguing that
(continued…)
6
II. Abandonment Under “State” Law
The SIJ statute provides, in relevant part:
[A special immigrant juvenile is] an immigrant who is
present in the United States—(i) who has been declared
dependent on a juvenile court located in the United States
or whom such a court has legally committed to, or placed
under the custody of, an agency or department of a State,
or an individual or entity appointed by a State or juvenile
court located in the United States, and whose
reunification with 1 or both of the immigrant’s parents is
not viable due to abuse, neglect, abandonment, or a
similar basis found under State law; (ii) for whom it has
been determined in administrative or judicial proceedings
that it would not be in the alien’s best interest to be
returned to the alien’s or parent’s previous country of
nationality or country of last habitual residence; and (iii)
in whose case the Secretary of Homeland Security
consents to the grant of special immigrant juvenile
status[.]
8 U.S.C. §§ 1101 (a)(27)(J)(i)-(iii). After hearing testimony from both the mother
and J.V.B., the trial court determined that J.V.B. had presented “no credible
evidence that [she] has been abused, neglected or abandoned by” her biological
father, and that “while there is evidence that reunification with [J.V.B.’s] father is
(…continued)
“knowledge of parenthood is not a prerequisite of a finding of abandonment.”
According to the trial court, it had, in fact, “found that it was unreasonable to
expect [J.V.B.’s] father to make any efforts to maintain a parental relationship
when he was unaware of her existence.” The mother subsequently appealed the
May 26, 2016, order, in conjunction with the April 26, 2016, order.
7
not possible,” J.V.B. had failed to present any “evidence that the lack of viability is
due to abandonment or neglect.” The court reasoned that “in order to abandon a
child, a parent must know he is a father.” Thus, because paternity was unknown, it
was impossible “for [J.V.B.’s] father to have made reasonable, or indeed any,
efforts to maintain a parental relationship when he was unaware of her existence.”
In concluding that John Doe had not abandoned J.V.B., the trial court
viewed abandonment, at least in part, in the context of termination of parental
rights, as evidenced by his May 26, 2016, order. See, e.g., In re M.N.M., 605 A.2d
921, 926-27 (D.C. 1992) (putative father’s due process rights violated in
termination of parental rights proceeding); In re H.R. (Baby Boy C.), 581 A.2d
1141, 1162-63, 1166 (D.C. 1990) (same). However, in J.U. v. J.C.P.C., we
explicitly distinguished SIJ status cases from termination proceedings, noting that
“[h]ere, the concept of abandonment is being considered not to deprive a parent of
custody or to terminate parental rights.” 176 A.3d 136, 141 (D.C. 2018).3 Nor do
we simply consider the “abstract question [of] whether the minor has been
neglected or abandoned by the father.” Id. at 140. Rather, our focus is “whether
reunification with the father in El Salvador is ‘viable’ due to ‘abandonment,’”
3
See USCIS Policy Manual, Vol. 6, Part J, Ch. 2. § D2 (current as of May
23, 2018), https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume6-
PartJ-Chapter2.html (“[A]ctual termination of parental rights is not required”).
8
calling 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.” Id.; see also E.P.L. v. J.L.-A., No. 16-FM-991,
2018 WL 3764144, at *4 (D.C. Aug. 9, 2018).
Within this framework, like in J.U., we conclude that “the trial court applied
too demanding a standard of . . . abandonment.” Id. at 142 (internal quotation
marks omitted). In denying the petition for SIJ status, the trial court found, as a
matter of law, that knowledge of parentage is a prerequisite to abandonment.
However, we have never endorsed the view that an abandonment finding in the
neglect context can be impeded simply because paternity is not yet established, and
we decline to impose such a requirement in the SIJ status context where
abandonment is to be interpreted broadly. See In re Je.A., 793 A.2d 447, 449 (D.C.
2002) (noting that in our neglect cases “the test of abandonment . . . is an objective
one, asking whether the parent has made . . . reasonable effort[s] to maintain a
parental relationship,” emphasizing that it is not “necessary to prove that the parent
. . . intended to abandon the child”) (quoting D.C. Code §§ 16-2316 (d)(1)(C),
(d)(2) (2012 Repl.)) (internal quotation marks omitted); see also J.U., 176 A.3d at
140 (interpreting abandonment broadly). We thus cannot agree with the trial
court’s conclusion that the mother was required to name J.V.B.’s father before she
9
could prove abandonment and satisfy the requirements of the SIJ status statute.
III. “Viable Reunification” and “Abandonment”
As for reunification, the trial court determined that it was not viable, but that
the lack of viability was not due to John Doe’s abandonment of J.VB. The record
reveals, however, that John Doe has made no effort to assume any parental
responsibility for J.V.B., never “participate[ed], directly or indirectly, in [her] care
and upbringing,” and has never made himself known. In re Je.A., 793 A.2d at 448-
49. Moreover, “what is at issue here is not ‘reunification’ with the father but rather
initial ‘unification’ itself.” J.U., 176 A.3d at 143. All things considered,
reunification of J.V.B. with her father — who has never been involved in her life
— is not viable, i.e., “practicable; workable” due to abandonment. 4 Id.
In reaching this conclusion, we acknowledge the difficult position in which
4
While we apply our state law, we note that this conclusion is consistent
with rulings in other jurisdictions. See, e.g., Guardianship of Penate, 76 N.E.3d
960, 968 (Mass. 2017) (“[W]e note the judge’s acknowledgment that [the child]
has never known her father and that, in fact, he is ‘unknown.’ In these
circumstances, a finding that reunification with the father is not viable due to
neglect or abandonment is difficult to avoid.”); In re Erick M., 820 N.W.2d 639,
647 (Neb. 2012) (“[A] petitioner can show an absent parent’s abandonment by
proof that the juvenile has never known that parent”).
10
the trial court is placed in SIJ cases when attempting to “develop[ ] a proper
evidentiary record,” while also ensuring that “[t]he possibility of collusion is not [ ]
discounted.” Id. at 141 n.9. But it is not the trial court’s duty, nor this court’s
duty, to determine whether a petition for SIJ status is “bona fide.” Id.; see also
Simbaina v. Bunay, 109 A.3d 191, 202 (Md. Ct. Spec. App. 2015) (“The state
court’s role in the SIJ process 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”) (citation and internal quotation
marks omitted); accord In re Danely C., No. 16-CV-1115, 2017 WL 5901022, at
*7-8 (Tenn. Ct. App. Nov. 29, 2017). That responsibility lies squarely with the
United States Custom and Immigration Services (“USCIS”). We therefore caution
the trial court against imposing such insuperable evidentiary burdens on SIJ status
applicants. In re Dany G., 117 A.3d 650, 655 (Md. Ct. Spec. App. 2015)
(“Congress established the requirements for SIJ status knowing that those seeking
the status would have limited abilities to corroborate testimony with additional
evidence.”).
IV. Conclusion
For the foregoing reasons, we vacate the April 26, 2016, and May 26, 2016,
11
orders appealed and remand this case to the trial court to enter an amended order
consistent with this opinion that includes the requisite SIJ status finding that
J.V.B.’s reunification with her father is not viable due to abandonment under
District of Columbia law.
So ordered.