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.
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 ...