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Case of the Month Archive

October 2021

Petitioner failed to prove parental abandonment or neglect for purposes of establishing special immigrant juvenile status. . .


In affirmance, the Second District held that the trial court properly denied special immigrant juvenile status where petitioner failed to prove that parental abandonment or neglect occurred due to fact that he financially supported his family in El Salvador once his parents withdrew him from school after he was threatened by gang members.


Guardianship of S.H.R.

(September 2, 2021)

Court of Appeal 2 Civil B308440 (Div 1) 68 Cal.App.5th 563, 283 Cal.Rptr.3d 805, 2021 FA 2001, per Rothschild, P.J. Los Angeles County, Nord, J., order affirmed. For Appellant (S.H.R.): David S. Ettinger, Bhairavi Kishor Asher, Jason R. Litt, Anna Jayne Goodman, and Munmeeth Kaur Soni. For Respondent (J.R.): N/A. For Public Counsel: Rex S. Heinke, Jessica Michael Weisel, and Joshua David Tate. CFLP §G.166.3.35.


S.H.R., who was born in El Salvador in December 2001, left his country in June 2018 and arrived in the U.S. in August 2018. Once in the U.S., S.H.R. moved in with his maternal cousin's husband (J.R.). In August 2019, when he was 18 years old, S.H.R. filed a petition for appointment of J.R. to be his guardian. Then on December 3, 2019, S.H.R. filed a petition for special immigrant juvenile (SIJ) status per 8 U.S.C. §1101(a)(27)(J) [special immigrant who is present in U.S., who has been declared dependent of juvenile court or whom court has placed in custody of individual/entity in U.S., and whose reunification with one or both parents is not viable based on state law] and Prob C §1510.1 [court may appoint a guardian of the person or extend an existing guardianship for an unmarried individual who is at least 18 years old but under 21 in connection with a petition under CCP §155(b)].


In support of his SIJ petition, S.H.R. submitted a declaration that prior to moving to the U.S., he lived in El Salvador with his parents, siblings, and maternal grandfather. His mother and grandfather did not work and his father similarly had been out of work for several years. From age 10 to 15, S.H.R. helped his grandfather by "'working in the fields'" during the summer to collect fruits and vegetables. S.H.R. stated he worked six to seven hours every day "'under the hot weather'" and by the end of the day he was "'completely exhausted.'"


Even the police were afraid of local gangs. . .
In ninth grade, S.H.R. was approached at school by two gang members who "threatened to kill him and his family if he refused to join their gang." S.H.R. refused and the gang members continued to harass and threaten him. Later, these individuals approached S.H.R. for payment of a "'gang tax'" and said they would make him "'disappear'" if he did not pay. After each encounter with the gang members, S.H.R. notified his parents, who in turn reported the threats to the police. The police, however, did not investigate and his parents did not follow up with them. S.H.R. stated that he believed the "'police are afraid of the gang members, who will go after them or their family members if they investigate the incidents.'" S.H.R. stated in his declaration that he was "'very afraid'" of the gang members.

As a result of these encounters, S.H.R.'s parents withdrew him from school, where these confrontations mostly took place. S.H.R. then began working at a car wash every day from 8:00 a.m. to 6:00 p.m. He used the money he earned from the car wash to support his family and noted that his family does not financially support him. Along with his declaration, S.H.R. submitted proposed findings to the T/CT that his "'parents neglected and abandoned him by failing to provide him with adequate care and protection' and that he 'was forced to work starting from a young age using dangerous equipment.'"

On August 25, 2020, the trial court denied the SIJ petition, finding that neither S.H.R.'s petition nor declaration support a finding that he was abandoned or neglected. The trial court also held that S.H.R. failed to show that reunification with one or both parents is not viable. Based on its denial of the SIJ petition, the trial court also denied the guardianship petition as moot. S.H.R. appeared but CA-2 affirmed.

First, the Second District noted that appellate courts may review a denial of a petition for SIJ findings as an appealable order or by writ petition in appropriate circumstances. Here, the Second District held the trial court order was appealable.


Parents' decision to remove son from school was reasonable considering circumstances. . .
The panel held that S.H.R. failed to show that reunification with one or both parents is not viable due to the asserted grounds of abandonment or neglect. They reasoned that S.H.R.'s parents did not abandon him since S.H.R. lived with them until he moved out of their home in order to relocate to the U.S. The justices next found that S.H.R.'s parents did not neglect him, finding that their decision to remove him from school was reasonable considering that he was facing a "substantial risk of being killed." Instead, the justices noted this decision demonstrated S.H.R.'s parents' commitment to protect him. The justices did not give much weight to the fact that his parents did not follow up with local police after they initially reported these threats since S.H.R. himself noted that the police are afraid to investigate gang activity. The justices also found that S.H.R.'s parents' partial financial dependence on him "does not, without more, constitute neglect." Accordingly, the Second District affirmed the trial court's orders denying S.H.R.'s SIJ petition and denying as moot his guardianship petition.





Readers familiar with CCP §155 may note that S.H.R. could have had his petition for SIJ status considered on grounds other than parental abuse or neglect. In a footnote, the justices noted that SIJ status may be based on a finding that reunification is not viable because of parental abuse or "neglect, abandonment, or similar basis" (emphasis added). They then noted that S.H.R. based his petition solely on the grounds of neglect and abandonment and, therefore, the justices did not consider other possible grounds.


Library References
16 Witkin, Summary of Cal. Law (11th ed. 2021) Juvenile, §468



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