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E.P.L. v. J.L.-A.

Court of Appeals of The District of Columbia

August 9, 2018

E.P.L., Appellant,
v.
J.L.-A., Appellee.

          Submitted December 12, 2017

          Appeal from the Superior Court of the District of Columbia (DRB-1013-16) Hon. Michael K. O'Keefe, Trial Judge

          Randy J Prebula, Sean Marotta, and Laura N. Ferguson were on brief, for appellant.

          No brief was filed on behalf of appellee.

          Before Blackburne-Rigsby, Chief Judge, Easterly, Associate Judge, and Ferren, Senior Judge.

          EASTERLY, ASSOCIATE JUDGE.

         E.P.L.[1] (hereinafter "M.L.P.'s mother") appeals from a Superior Court order declining to make the requisite findings for her daughter M.L.P. to qualify for Special Immigrant Juvenile Status (SIJS or SIJ status) pursuant to 8 U.S.C.A. § 1101 (a)(27)(J) and 8 C.F.R. § 204.11 (c)(1), (2). Specifically, she challenges the court's asserted inability under the requisite SIJS criteria to find both that reunification of M.L.P. with her biological father is not viable due to abandonment, and that it is not in the best interest of M.L.P. to return to her country of origin, Guatemala. M.L.P.'s father has never contested M.L.P.'s mother's arguments.[2] We agree with M.L.P.'s mother that, on the record before us, such findings are mandated. See J.U. v. J.C.P.C., 176 A.3d 136, 138 (D.C. 2018) (likewise concluding that SIJS findings were mandated on the record established in Superior Court).

         I.

         M.L.P. was born in Guatemala in October 2009. It is unclear if her father ever lived with her, but it is undisputed that he left Guatemala when she was six months old and did not see her again until 2016, when the court proceedings that are the subject of this appeal began. M.L.P.'s mother left Guatemala in 2012 and travelled to the United States, placing M.L.P. in the care of her sister, M.L.P.'s aunt, until M.L.P.'s mother could afford to pay for her sister to bring M.L.P. to the United States. M.L.P. illegally entered the United States in 2014 and was taken into custody by the United States Customs and Border Protection Agents. Mother and daughter were reunited after M.L.P.'s mother was designated M.L.P.'s sponsor by the Department of Homeland Security Office of Refugee Resettlement. In March 2016, M.L.P.'s mother filed a complaint for sole custody of M.L.P., and a motion for factual findings to support M.L.P.'s petition for Special Immigrant Juvenile Status, both of which she served on M.L.P.'s father, who was then residing in Pennsylvania. After failing to respond to M.L.P.'s mother's complaint for custody, M.L.P.'s father avoided default by appearing in court on the day of the scheduled April hearing and, although he conceded that he had not seen then-six-year-old M.L.P. since she was an infant, requested shared custody. The court continued the case for two months but directed the parties to go to the Superior Court Supervised Visitation Center in the meantime so that M.L.P.'s father, as a first step, could begin supervised visitation.

         At the next hearing, in June, M.L.P.'s father failed to appear in person, but the court secured his appearance by telephone.[3] M.L.P.'s father confirmed that he had not visited with M.L.P. since the initial hearing. After an off-the-record conversation, the parties reached an agreement as to custody, and the court entered an order awarding sole legal and primary physical custody of M.L.P. to her mother. With respect to M.L.P.'s SIJS motion, counsel for M.L.P.'s mother represented to the court that M.L.P.'s father was "willing to consent that he previously abandoned" M.L.P. The parties agreed that they could address the SIJS motion at a separate evidentiary hearing, and the court continued the case until August 24, 2016.

         M.L.P.'s father and mother both appeared in person at the SIJS hearing, as did M.L.P. Although two more months had elapsed, M.L.P.'s father acknowledged that he still had not visited his daughter and it appeared that, when the court proceeding commenced, he had not yet introduced himself to her.

         Before the court was M.L.P.'s mother's motion and attached affidavits in which she argued that M.L.P. qualified for SIJS because she met all the statutory factors, specifically, (1) she was under the age of 21 and unmarried; (2) she had been placed in the custody of another individual in the United States (her mother) pursuant to a court order; (3) her reunification with one of her parents, her father, was not viable due to abandonment; and (4) it was not in her best interest to be separated from her mother and to return to Guatemala. M.L.P.'s father never filed a response or otherwise contested the mother's allegations. Even so, the court noted at the start of the hearing that it had "problems" with the motion because, in the court's view, it did not "seem like typical facts that would qualify for a[] SIJS."

         M.L.P.'s mother took the stand and testified consistently with the representations in her motion and in her affidavit that M.L.P.'s father had been abusive, had abandoned her and M.L.P. in Guatemala when M.L.P. was an infant, and had provided them with no financial support since. She further testified that M.L.P. would not be able to identify the father "if she saw him on the street" and that since M.L.P. had come to the United States, the father had made no effort to "meet with or visit" M.L.P. Lastly, M.L.P.'s mother testified that M.L.P. was thriving in her care in the United States and that if M.L.P. were sent back to Guatemala she would have no one to care for her.[4]

         The court then asked M.L.P.'s father if he had any "comments" or "questions" for your wife."[5] M.L.P.'s father appeared not to understand the purpose of the proceeding and indicated that he thought it was a continuation of the custody matter. He stated that when M.L.P.'s mother had first come to the United States without M.L.P., he and she had "lived in the same house for three months";[6]after they separated, he was "never able to speak to [his] daughter again and [he is] not bothered by this," and that he would "sign the papers for the custody of the baby." Focusing on the question of abandonment, the court asked whether he had provided any financial support to M.L.P. He testified that he "would like to" and vaguely asserted that he had done so when she was in Guatemala. But he then agreed that he had "abandoned and neglected" M.L.P. "these past three years, yes." He further conceded that "in the last four months since [he had] known where" M.L.P. was, he had not provided her any support, nor had he tried to do so; similarly, he admitted that he had not visited M.L.P. nor had he tried to do so.

         In closing, counsel for M.L.P.'s mother focused on the question of abandonment and argued that the court should determine that reunification of M.L.P. with her father was not viable because he had ...


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