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Benitez v. Doe

Court of Appeals of The District of Columbia

September 6, 2018

Glenda Del Carmen Benitez, Appellant,
John Doe, Appellee.

          Submitted June 29, 2017

          Appeal from the Superior Court of the District of Columbia (DRB-4307-15) Hon. Hiram E. Puig-Lugo, Trial Judge

          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.


         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 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]

         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." 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 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 ...

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