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 ...