Filed 9/2/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

Guardianship of S.H.R.

___________________________________

S.H.R.,

 Petitioner and Appellant,

 v.

JESUS RIVAS et al.,

 Objectors and Respondents.

 B308440

 (Los Angeles County

 Super. Ct. No. 19AVPB00310)

APPEAL from orders of the Superior Court of Los Angeles 

County, Scott J. Nord, Judge Pro Tempore. Affirmed.

Horvitz & Levy, Jason R. Litt, David S. Ettinger, Anna J. 

Goodman; Immigrant Defenders Law Center, Bhairavi Asher 

and Abigail Ward Lloyd for Petitioner and Appellant.

Akin Gump Strauss Hauer & Feld, Rex S. Heinke, Jessica 

M. Weisel, and Joshua D. Tate for Public Counsel as Amicus

Curiae on behalf of Petitioner and Appellant.

No appearance for Objectors and Respondents.
2

S.H.R. filed petitions in the superior court for the 

appointment of a guardian of his person (the guardianship 

petition; Prob. Code, § 1510.1) and for judicial findings that 

would enable him to petition the United States Citizenship 

and Immigration Services (USCIS) to classify him as a special 

immigrant juvenile (SIJ) under federal immigration law (the 

SIJ petition; Code Civ. Proc.,1 § 155). The court denied the SIJ 

petition and denied the guardianship petition as moot.

As we explain below, S.H.R. had the burden of proving by 

a preponderance of the evidence the facts supporting SIJ status. 

Because the trial court found his evidence did not support the 

requested findings, S.H.R. has the burden on appeal of showing 

that he is entitled to the SIJ findings as a matter of law. For 

the reasons discussed below, he has not met his burden. We 

therefore affirm the order denying the SIJ petition. Because 

the denial of the SIJ petition rendered the guardianship petition 

moot, we also affirm the order denying that petition.

SPECIAL IMMIGRANT JUVENILE STATUS

In the Immigration Act of 1990 and subsequent 

amendments, Congress established the SIJ classification

of immigrants and a path “to protect abused, neglected, and

abandoned unaccompanied minors through a process that 

allows them to become permanent legal residents.” (In re Y.M.

(2012) 207 Cal.App.4th 892, 915; see 8 U.S.C. §§ 1101(a)(27)(J), 

1153(b)(4), 1255(a) & (h); Bianka M. v. Superior Court (2018) 

5 Cal.5th 1004, 1012−1013.) The USCIS may consent to grant 

1 Subsequent unspecified statutory references are to the 

Code of Civil Procedure.
3

SIJ status to an unmarried immigrant under 21 years of age if 

the immigrant is in the custody of an individual appointed by a 

state court with jurisdiction to determine the custody and care 

of juveniles, and that court makes two findings: (1) reunification 

with one or both of the immigrant’s parents “is not viable due 

to abuse, neglect, abandonment, or a similar basis found under 

[s]tate law”; and (2) it is not in the immigrant’s best interest 

to return to his or her home country or the home country of his 

or her parents. (8 U.S.C. § 1101(a)(27)(J) & (b)(1); see 8 C.F.R. 

§ 204.11(a) (2021); Eddie E. v. Superior Court (2013) 223 

Cal.App.4th 622, 627−628.)

In 2014, the California Legislature enacted section 155 

(Stats. 2014, ch. 685, § 1, pp. 4485−4486), which confers 

jurisdiction on every California superior court—including 

its juvenile, probate, and family court divisions—to make the 

findings necessary to petition the USCIS for SIJ status. (§ 155, 

subd. (a); Bianka M., supra, 5 Cal.5th at p. 1013.) The statute 

further provides that “[i]f an order is requested from the superior 

court making the necessary findings regarding special immigrant 

juvenile status . . . , and there is evidence to support those 

findings, which may consist solely of, but is not limited to, a

declaration by the child who is the subject of the petition, the

court shall issue the order.” (§ 155, subd. (b)(1).) 

The following year, the Legislature enacted Probate Code 

section 1510.1, which grants courts the power to “appoint a 

guardian of the person for an unmarried individual who is 

18 years of age or older, but who has not yet attained 21 years of 

age, in connection with a petition to make the necessary findings 

regarding [SIJ] status.” (Prob. Code, § 1510.1, subd. (a); Stats. 

2015, ch. 694, § 3, p. 5330.) The appointment of a guardian 
4

under this statute may satisfy the requirement under the SIJ 

law that the immigrant be “placed under the custody of . . . 

an individual . . . appointed by a [s]tate or juvenile court.” 

(8 U.S.C.A. § 1101(a)(27)(J)(i); J.L. v. Cissna (N.D.Cal. 2019) 374

F.Supp.3d 855, 867; Matter of A-O-C-, USCIS Adopted Decision 

2019-03 (AAO, Oct. 11, 2019) 2019 WL 5260453, pp. *4−*5.)2

FACTUAL AND PROCEDURAL SUMMARY

S.H.R. was born in El Salvador in December 2001. He left 

El Salvador in June 2018 and arrived in the United States in 

August 2018. In January 2019, he moved in with his maternal 

cousin’s husband, Jesus Rivas, in Palmdale.

In September 2019, S.H.R.—then 18 years old—filed 

a petition in the superior court for appointment of Rivas as 

guardian of his person (the guardianship petition). S.H.R. 

stated in the petition that Rivas has been caring for him “since 

he arrived [in] the United States” and has provided him with 

“shelter, food, and other vital necessities.” The guardianship, he 

asserted, “will promote stability for [him] as he adjusts to life in 

2 The appointment of a guardian under Probate Code 

section 1510.1 and the judicial findings described in section 155 

do not guarantee USCIS’s consent to SIJ status. (See Reyes v. 

Cissna (4th Cir. 2018) 737 Fed.Appx. 140, 146 [USCIS may 

withhold its consent to SIJ status if the petitioner’s state court 

request for SIJ findings was not “bona fide”]; Matter of E-A-L-O-, 

USCIS Adopted Decision 2019-04 (AAO, Oct. 11, 2019) 2019 

WL 5260455, pp. *8−*9; id. at p. *9 [USCIS need not consent 

to SIJ status where petitioner failed to show that he sought the 

state court finding “for any reason other than to enable him to 

file his petition for SIJ classification”].)
5

the United States.” Rivas consented to be S.H.R.’s guardian and

S.H.R.’s parents consented to Rivas’s appointment as guardian.

On December 3, 2019, S.H.R. filed a petition for special 

immigrant juvenile findings (the SIJ petition) in the superior 

court. The SIJ petition states that reunification with S.H.R.’s 

“parents is not viable under California law because of . . . [¶] . . . 

[¶] neglect [and] [¶] abandonment,” and that it is not in his 

best interest to be returned to El Salvador.

S.H.R. supported the petition with his declaration setting 

forth the following facts.

Prior to coming to the United States, S.H.R. lived in 

El Salvador with his parents, two younger brothers, a younger 

sister, and his maternal grandfather. His two older sisters had 

left for the United States a few months before him and are living 

in San Francisco. His mother and grandfather do not work, and 

his father had been unable to find work for “a couple of years.”

The family depends mostly on S.H.R. and his older sisters for 

money.

Beginning at the age of 10 and continuing until he was 15, 

S.H.R. helped his grandfather by “working in the fields” during 

the summer, collecting fruit and vegetables “under the sun for six

to seven hours every day.” After work, he “would be completely 

exhausted.” He used the money his grandfather paid him to buy 

necessities, such as food, clothing, and shoes.

One day, when S.H.R. was in ninth grade, two gang 

members approached him outside of school. They told him he 

needed to join the gang, but S.H.R. refused. The men told S.H.R. 

that if he did not join the gang, they would kill him or his family. 

This made S.H.R. “very afraid,” and he told his parents about the 

incident. His father reported the incident to the police. S.H.R. 
6

did not hear from the police again and his parents did not follow 

up with them.

A few weeks later, the two gang members met S.H.R.

after school again and threatened to kill him and his family if 

he refused to join their gang. He reported the incident to his 

parents, who informed the police. As with the first incident, 

the police did nothing and his parents did not follow up. S.H.R. 

believes that 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. feared that gang members would wait for him again 

after school. His parents then “made [him] stop going to school 

and start working.” This meant that he would not graduate from 

high school.

S.H.R. began working at a car wash every day from 

8:00 a.m. to 6:00 p.m. He used half the money he earned “to 

buy food for [his] parents, grandfather, and younger siblings,” 

and saved the rest.

After a few months of working at the car wash, a gang 

member approached S.H.R. and asked him to pay a “gang tax.”

The man threatened that S.H.R. would “disappear” if he did not 

cooperate.

S.H.R. was afraid of the gang member and told his parents 

he wanted to leave the country. His parents told him “it would 

be too dangerous for [him] to go” and “insisted [he] stay.” He 

felt that his parents could not protect him, yet would not let him 

leave.

S.H.R. knew of three people in his neighborhood who had 

been killed by gang members and he “lived in constant fear that 
7

the gang members would return to [his] work and kidnap or kill 

[him].”

S.H.R. saved money to pay for a trip to the United States

and, in June 2018, he left El Salvador without telling his parents.

S.H.R. is afraid that if he returned to El Salvador, the 

“gang members will come after [him] again with threats of 

violence, or even kill [him],” and his “parents are not able to 

protect [him].”

At a hearing held on June 25, 2020, the court indicated that 

the SIJ petition provided no basis for granting the petition. The 

court, however, granted S.H.R.’s request to submit a brief and 

granted the guardianship petition.

S.H.R. thereafter submitted a brief in which he argued that 

his “parents neglected him under California law when they failed 

to provide for his support resulting in harm to [his] health and 

welfare.” In particular, his “parents consented to him spending 

his summers working in the fields when he was ten years old, 

doing difficult, exhausting work.” His parents also “forced him 

to stop attending school and to instead spend his childhood days 

working tirelessly,” including “working full-time at a car wash.”

3

S.H.R. also submitted proposed SIJ findings that include 

the finding, among others, that his “parents neglected and 

abandoned him by failing to provide him with adequate care and 

3 S.H.R. attached to his supplemental brief a purported 

psychological evaluation of S.H.R. The document is not 

authenticated and it was neither offered nor admitted into 

evidence at the hearing. Nor does it appear from our record that 

the probate court considered it. Because it was not authenticated 

or introduced into evidence, we do not consider it. 
8

protection” and that he “was forced to work starting from a young 

age using dangerous equipment.”4

On August 25, 2020, the probate court denied the SIJ 

petition. In its statement of decision, the court explained that 

“nothing in [S.H.R.’s] petition or declaration supports any finding

that he was abandoned in any respect under California law”

(capitalization omitted), and the conduct of S.H.R.’s parents 

did not “meet the definition of ‘neglect’ under California law.”

The court further stated that “[t]he [p]etition does not state, and 

no evidence is provided, which suggests that[,] should [S.H.R.] 

be returned to El Salvador[,] reunification with one or both 

parents[,] absent a finding of other factors[,] is not possible or 

viable.” Moreover, the facts S.H.R. alleged “dealt with issues 

that arose while he was a minor. However, he is no longer a 

minor. As such, the [c]ourt cannot conclude that those issues 

will continue to exist.”

Based on the denial of the SIJ petition, the court denied 

the guardianship petition as moot.

S.H.R. filed a notice of appeal from the probate court’s 

August 25, 2020 order, as well as a petition in this court for writ 

of mandate or prohibition. We granted his request to treat his 

writ petition as his opening brief on appeal and the exhibits 

accompanying the writ petition as his appellant’s appendix. No 

respondent’s brief has been filed.

4 S.H.R. submitted his proposed findings on Judicial 

Council form No. FL-357/GC-224/JV-357 [rev. July 1. 2016].
9

We granted a request by Public Counsel to file an amicus 

brief in support of S.H.R.

5

DISCUSSION

A. Appealability

At least one appellate court has reviewed the denial of a 

petition for SIJ findings as an appealable order. (In re Israel O. 

(2015) 233 Cal.App.4th 279, 283.) Other courts have done so

through writ proceedings. (Bianka M., supra, 5 Cal.5th at

p. 1015; O.C. v. Superior Court (2019) 44 Cal.App.5th 76, 82

(O.C.); Leslie H. v. Superior Court (2014) 224 Cal.App.4th 340, 

343 (Leslie H.).) The cases do not discuss whether an appeal or a 

writ petition is the proper vehicle to obtain appellate review of an 

order denying a petition for SIJ findings. We hold that the order 

is appealable.

“A reviewing court has jurisdiction over a direct appeal 

only when there is (1) an appealable order or (2) an appealable 

judgment.” (Griset v. Fair Political Practices Com. (2001) 25 

Cal.4th 688, 696.) “A judgment is the final determination of the 

5 Amicus Public Counsel filed in this case a request for 

judicial notice of three documents: A declaration filed by certain 

California legislators filed in another California appellate court 

proceeding; a declaration filed by a social worker in a federal 

district court; and so-called “compliance reports” filed by USCIS 

in a federal district court. The documents are offered for the 

truth of statements made therein. Therefore, although the first 

was filed in a state court and the other two were filed in federal 

courts (Evid. Code, § 452, subd. (d)), we deny the request for 

judicial notice by separate order. (See Bennett v. Regents of 

University of California (2005) 133 Cal.App.4th 347, 358, fn. 7; 

Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564−1565, 1568.)
10

rights of the parties.” (Id. at p. 697.) An order by the superior 

court may constitute an appealable judgment if it disposes 

of all causes of action pending in the case. (See ibid.) “As a 

general test,” an order is final and appealable when “no issue 

is left for future consideration except the fact of compliance or 

noncompliance with the terms” of the order. (Id. at p. 698.)

Here, S.H.R. filed his SIJ petition pursuant to section 155 

for the purpose of obtaining the findings authorized by that 

section. The court’s order denying the requested findings

completely disposes of the matter before it and leaves no further 

issues to be resolved. (See Estate of Miramontes-Najera (2004) 

118 Cal.App.4th 750, 755 [holding that a probate court’s order 

denying a request to set aside community property transfers was 

appealable as a final judgment because it had “all the earmarks 

of a final judgment,” leaving nothing further for judicial 

consideration].) Thus, the court’s order denying the SIJ petition 

is the equivalent of a final, appealable judgment and we therefore 

consider S.H.R.’s appeal from the order.6 In doing so, we 

recognize that review by writ petition also may be appropriate 

under the circumstances of a given case. (See 9 Witkin, Cal. 

Procedure (5th ed. 2008) Appeal, § 91, p. 153 [even if a judgment 

or order is appealable, review by writ may be available where the 

remedy by appeal is inadequate].)

6 We will deny the writ petition in S.H.R. v. Superior Court

(case No. B308307) as moot by separate order.
11

B. The Order Denying the SIJ Petition

1. Burden of proof and standard of review

As the party requesting SIJ findings, S.H.R. had the 

burden of proof in the trial court. (Evid. Code, § 500; see Aguilar 

v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 861 [generally, 

“the ‘party desiring relief’ bears the burden of proof”].) Because 

section 155 does not specify a burden of proof, the burden is 

“proof by a preponderance of the evidence.” (Evid. Code, § 115.)7

Here, the trial court concluded that S.H.R. had not met his 

burden of proving the facts necessary to make the SIJ findings 

under section 155, including the finding that his reunification 

with one or both parents is not viable “because of abuse, neglect, 

abandonment, or a similar basis pursuant to California law.” 

(§ 155, subds. (a)(2) & (b)(1)(B).) The court therefore rejected 

S.H.R.’s request to make this finding, and denied S.H.R.’s 

petition.

When an appellant challenges a trial court’s factual 

findings on appeal, our review will ordinarily be governed by 

the substantial evidence standard of review. (See generally 

Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs 

(The Rutter Group 2020) ¶¶ 8:43 to 8:44.) When, as here,

however, “the party who had the burden of proof in the [trial] 

court contends the court erred in making findings against [him], 

‘the question for a reviewing court becomes whether the evidence 

compels a finding in favor of the appellant as a matter of law. 

[Citations.] Specifically, the question becomes whether the 

7 Evidence Code 115 provides: “Except as otherwise 

provided by law, the burden of proof requires proof by a 

preponderance of the evidence.”
12

appellant’s evidence was (1) “uncontradicted and unimpeached”

and (2) “of such a character and weight as to leave no room for 

a judicial determination that it was insufficient to support a 

finding.” ’ ” (Estate of Herzog (2019) 33 Cal.App.5th 894, 904; 

quoting, In re I.W. (2009) 180 Cal.App.4th 1517, 1527−1528; 

accord, Patricia A. Murray Dental Corp. v. Dentsply Internat., 

Inc. (2018) 19 Cal.App.5th 258, 270.)

8

S.H.R. views the role of the trial court under section 155 

and, consequently, our standard of reviewing the court’s ruling,

differently. According to him, the “role of the superior court” in 

evaluating a SIJ petition under section 155 is “to determine . . . 

whether there is evidence that could support a ruling in favor of 

the petitioner.” For this assertion, S.H.R. relies on a statement 

in O.C., supra, 44 Cal.App.5th 76, that, “if substantial evidence 

supports the requested SIJ findings, the issuance of the findings 

is mandatory.” (Id. at p. 83.) We disagree.

The O.C. court had no occasion to consider either the 

petitioner’s burden of proof in the trial court or the trial court’s 

standards for evaluating the petitioner’s evidence. Indeed, 

the petitioner’s evidence played no part in the court’s analysis. 

The statement from the opinion that S.H.R. relies upon—“if 

substantial evidence supports the requested SIJ findings, the 

issuance of the findings is mandatory”—is therefore dicta. (O.C., 

8 S.H.R. and amicus devote much of their briefs to 

challenging the trial court’s reasoning and its reliance on cases 

addressing the termination of parental rights under juvenile 

dependency law. We review the court’s order, however, not its 

reasoning, and may affirm the order if it is correct on any theory 

of applicable law. (D’Amico v. Board of Medical Examiners (1974) 

11 Cal.3d 1, 18−19.)
13

supra, 44 Cal.App.5th at p. 83.) For the following reasons, we 

decline to follow it. 

For the quoted statement, the O.C. court relied solely on 

subdivision (b)(1) of section 155, set forth above, which makes 

no reference to “substantial” evidence. The court’s statement is 

otherwise made without analysis or citation to authority. (O.C., 

supra, 44 Cal.App.5th at p. 83.) Indeed, there is nothing in the 

statute’s text or its legislative history to support the statement, 

and it has not been followed in any other published decision.9

The O.C. court’s reference to “substantial evidence” also 

suggests a standard that is inconsistent with the trial court’s 

factfinding task under section 155. Under that section, the court 

must determine whether the petitioner has proved particular 

facts, such as parental maltreatment of the petitioner and the 

nonviability of reunification. (See J.L. v. Cissna, supra, 374 

F.Supp.3d at p. 866 [the reunification finding under section 155 

“is inherently factual”].) “The substantial evidence test,” 

however, “does not ask what proposed facts are more likely than 

not to be the true facts” (Wollersheim v. Church of Scientology

(1999) 69 Cal.App.4th 1012, 1017); rather, it is aimed at 

9 S.H.R. also relies on the Supreme Court’s statement in 

Bianka M. that, under section 155, subdivision (b)(1), “a superior 

court ‘shall’ issue an order containing SIJ findings if there is 

evidence to support them.” (Bianka M., supra, 5 Cal.5th at 

p. 1025.) The Bianka M. court, however, was concerned with 

the question whether the trial court could consider evidence of 

the petitioner’s motivation in seeking SIJ findings, and concluded 

that such evidence is irrelevant. (Ibid.; see § 155, subd. (b)(2).) 

The court did not address the petitioner’s burden of proof or 

suggest that that burden was less than proof by a preponderance 

of evidence. 
14

determining a legal issue: Whether there is substantial evidence 

to support factual findings. (See Smith v. Selma Community 

Hospital (2008) 164 Cal.App.4th 1478, 1515 [the existence or 

nonexistence of substantial evidence is a question of law].) Thus, 

a determination by the trial court that the petitioner has 

produced substantial evidence that could support a finding under 

section 155 is not a factual finding at all. Because section 155 

requires factual findings, we reject the O.C. court’s “substantial 

evidence” standard at the trial court level.

Furthermore, a substantial evidence standard would not 

satisfy the federal requirement that the state court actually find 

the required facts. (See Osorio-Martinez v. Att, Gen. U.S. of 

America (3d Cir. 2018) 893 F.3d 153, 169 [SIJ eligibility “requires 

the state court to find” that reunification “ ‘is not viable due to 

abuse, neglect, abandonment, or a similar basis found under 

State law’ ”].) The SIJ petitioner must thus present “evidence 

of a judicial determination that the juvenile was subjected to” 

parental maltreatment, not a determination that the juvenile 

could have been subjected to maltreatment. (Matter of E-A-L-O-, 

USCIS Adopted Decision 2019-04, supra, 2019 WL 5260455, 

p.*6, italics added; see Reyes v. Cissna, supra, 737 Fed.Appx. 

at p. 146; id. at p. 144 [affirming summary judgment against 

SIJ applicant where the state court failed to make “ ‘specific

factual findings regarding the basis for finding abuse, neglect, 

or abandonment’ ”].) Because section 155 was enacted to aid 

juveniles in obtaining SIJ status under federal law, we reject 

a construction of the statute that would not support the federal 

standard for SIJ status.

For the foregoing reasons, we reject S.H.R.’s argument that 

he needed merely to produce “substantial evidence” that could 
15

support the required findings, and hold that he was required 

to prove by a preponderance of the evidence the existence of the 

facts specified in section 155. Under these circumstances, where 

the court considered the evidence and concluded that S.H.R. had 

failed to prove the existence of such facts, we review the court’s 

ruling denying the requested findings to determine whether 

S.H.R. is entitled to the requested findings as a matter of law.

2. S.H.R.’s failure to prove parental 

abandonment or neglect

S.H.R. and amicus rely on S.H.R.’s declaration evidence in 

arguing that his parents abandoned and neglected him because:

(1) between the ages of 10 and 15, he was required to perform 

exhausting agricultural field work during the summers under 

difficult conditions; (2) gang members threatened him and his 

family and, because of these threats, his parents required that 

he discontinue his high school education and work at a car wash;

and (3) his parents did not provide him with financial support.

We may quickly dispose of the argument that S.H.R.’s 

parents abandoned him. According to S.H.R., he lived with both 

of his parents from his birth until he left El Salvador in June 

2018. Although he stated that his mother does not work and 

his father had “not been able to find work for a couple of years,” 

he does not state that his parents had ever left him without 

provision for his care or supervision. (See Fam. Code, § 3402, 

subd. (a).) Nor is there any evidence that either parent ever

deserted or intended to abandon S.H.R. (Fam. Code, § 7822, 

subd. (b); see In re Guardianship of Rutherford (1961) 188

Cal.App.2d 202, 206 [abandonment requires “ ‘ “an actual 

desertion, accompanied with an intention to entirely sever, so 

far as it is possible to do so, the parental relation and throw 
16

off all obligations growing out of the same” ’ ”].) Indeed, when

S.H.R. raised the subject of leaving the country, his parents 

insisted that S.H.R. stay with them. Ultimately, S.H.R.

disregarded his parents’ advice and left home “without telling 

them.” His separation from his parents was thus the fulfillment 

of his intention and action, not the result of abandonment by 

his parents. 

We also conclude that S.H.R. has failed to satisfy his 

burden on appeal of showing that, as a matter of law, his

parents committed neglect against him. Neglect is not defined 

in section 155. S.H.R. and amicus point to several definitions of 

neglect under California law. For purposes of the Child Abuse 

and Neglect Reporting Act, neglect is defined as “the negligent 

treatment or the maltreatment of a child by a person responsible 

for the child’s welfare under circumstances indicating harm or 

threatened harm to the child’s health or welfare.” (Pen. Code, 

§ 11165.2.) The same law distinguishes “ ‘[s]evere neglect’ ” 

and “ ‘[g]eneral neglect,’ ” and defines the latter as “negligent 

failure of a person having the care or custody of a child to provide 

adequate food, clothing, shelter, medical care, or supervision 

where no physical injury to the child has occurred.” (Id., 

subd. (b).) 

Under a law enacted for protection of the elderly, neglect 

is defined to include “[t]he negligent failure of any person having 

the care or custody of an elder or a dependent adult to exercise 

that degree of care that a reasonable person in a like position 

would exercise.” (Welf. & Inst. Code, § 15610.57, subd. (a)(1).)

Although the statutes describing the circumstances 

supporting juvenile dependency jurisdiction do not define neglect, 

our Supreme Court has interpreted the term in that context 
17

as having its “commonly understood” meaning of a “ ‘failure or 

inability . . . to adequately supervise or protect’ ” the parent’s 

child. (In re R.T. (2017) 3 Cal.5th 622, 629; see also In re 

Ethan C. (2012) 54 Cal.4th 610, 627−628.)

S.H.R. contends that his parents committed neglect 

because, between the ages of 10 and 15, he “spent [his] entire 

summers working in the fields helping [his] grandfather” 

for six to seven hours every day “under the hot weather.”10

As S.H.R. asserts, such work may be prohibited under California 

law. (See Lab. Code, § 1290.)11 Nevertheless, a violation of that 

prohibition does not necessarily constitute neglect by the child’s 

parents under the foregoing definitions. S.H.R. was apparently 

working with his parents’ consent under the auspices of his 

grandfather and for the purpose of helping his parents provide 

for his family. Even if a court could reasonably infer parental 

neglect from such evidence, the court could also reasonably infer 

that, because his parents were impoverished, allowing S.H.R.

to earn money by helping his grandfather in the fields during 

10 S.H.R. asserts in his brief on appeal that during his time 

as a child farmworker, he used a machete, suffered sunburn, 

dehydration, and exhaustion, was exposed to pesticides, snakes,

scorpions, and harmful insects, and worked without running 

water or toilet facilities. These facts, however, are not found 

in S.H.R.’s declaration and are apparently based on statements 

in an inadmissible “psychological evaluation,” which we do not 

consider. (See fn. 3, ante.) 

11 Although a child is permitted to work on a farm owned, 

operated, and controlled by the child’s parent (Lab. Code, 

§ 1394, subd. (a)), it does not appear from the record that S.H.R.’s 

parents owned, operated, or controlled the farm on which S.H.R. 

was “helping [his] grandfather.”
18

summers was, under the circumstances, a reasonable parental 

decision that enabled the family to provide for S.H.R. without 

interfering with his education. The evidence of S.H.R.’s 

childhood summer work does not, therefore, establish parental 

neglect under any of the foregoing definitions of neglect as a 

matter of law.

We reach a similar conclusion as to S.H.R.’s argument 

regarding his parents’ decision to remove him from school in light 

of the gang threats against him and his family. Although, under 

California law, parents of children between the ages of 6 and 18 

are generally required to send their children to public school 

(Ed. Code, § 48200), whether a decision to pull the child from 

school constitutes neglect must take into consideration the

circumstances surrounding that decision. Here, S.H.R.’s 

declaration implies that his parents took him out of high school 

because of repeated threats by gang members against S.H.R.’s 

life. The threats were made at or near the school and, despite 

S.H.R.’s father’s reports of the incidents to police, it appeared 

that the police were unwilling or unable to prevent the gangs 

from carrying out their threats. Under these circumstances,

keeping S.H.R. from school, where he would face substantial 

risk of being killed, appears to have been the most reasonable 

and prudent action to take. Rather than neglect, the decision 

reflects the parents’ commitment to protect S.H.R. from “harm 

or threatened harm to the child’s health or welfare.” (Pen. Code, 

§ 11165.2.) At a minimum, the parents’ actions do not constitute 

neglect as a matter of law.

S.H.R. also argues that his parents left him “unprotected 

from multiple credible threats of gang violence.” The threats 

themselves cannot reasonably be viewed as constituting parental 
19

neglect. S.H.R. suggests, however, that his parents should 

have done something more than report the threats to the police. 

Other than “follow[ing] up” with the police, however, S.H.R. does 

not indicate what more his parents could have done to protect 

him from gangs; and failing to follow up with police does not 

constitute neglect. Indeed, S.H.R. apparently believes that any 

follow-up would have been futile because, he asserts, the police 

are afraid to investigate complaints about gang members.

Lastly, S.H.R. argues that his parents “did not financially 

support” him. He points to his statements that his mother does 

not work, his father had “not been able to find work for a couple 

of years,” and his “family depends mostly on [his] older sisters 

and [himself] to provide money.” His parents’ lack of employment 

or their partial dependence on others, however, does not, without 

more, constitute neglect toward S.H.R. as a matter of law. A 

parent can provide for a child indirectly as well as through the

parent’s employment income. Indeed, even an incarcerated 

parent may avoid a finding of neglect if the parent can arrange 

for the child’s care while the parent is in prison. (In re S.D.

(2002) 99 Cal.App.4th 1068, 1077.) Although S.H.R. states that 

his family depended in part on his siblings and himself, he does 

not state that his parents failed to provide him with food, shelter, 

clothing, or medical care.12

12 Although SIJ status may be based on a finding that 

reunification is not viable because of parental “abuse,” as well 

as “neglect, abandonment, or a similar basis,” S.H.R. based his 

petition solely on grounds of neglect and abandonment. We do 

not, therefore, consider other possible grounds.
20

3. S.H.R.’s failure to show that reunification 

was not viable

Even if S.H.R. had established that his parents were guilty 

of neglect towards him, he was further required to show that 

reunification with one or both of his parents is not viable because 

of such neglect. (§ 155.) The trial court determined he had not 

made that showing. Whether we review the court’s ruling under 

the test we applied above to the court’s neglect and abandonment 

findings or, as S.H.R. argues, under a de novo standard, we reach 

the same conclusion as the trial court.

Reunification involves the child’s return to the parents’ 

custody and care. (In re K.L. (2012) 210 Cal.App.4th 632, 642; 

see In re Welfare of D.A.M. (Minn.Ct.App. Dec. 12, 2012, 

No. A12-0427) 2012 WL 6097225, p. *5 [“ ‘reunification’ ” under 

the SIJ law “appears to mean returning the child to successfully 

live with his or her parent”].) The meaning of “not viable” under 

the SIJ law is unsettled. Some courts and the USCIS have 

interpreted the phrase as requiring the petitioner to prove that 

reunification with his or her parents cannot occur, or is not 

possible. (See, e.g., O.C., supra, 44 Cal.App.5th at pp. 82−83; 

Leslie H., supra, 224 Cal.App.4th at p. 351; In re Erick M. (Neb. 

2012) 820 N.W.2d 639, 645; D-Y-S-C-, USCIS Adopted Decision 

2019-02 (AAO, Oct. 11, 2019) 2019 WL 5260454, p. *2; USCIS,

Policy Manual (2021) Immigrants, vol. 6, pt. J, ch. 2, § A, 

pp. 408-409.) Some courts, however, have interpreted the phrase 

as requiring proof only that reunification is not practicable 

or workable. (See, e.g., Lopez v. Serbellon Portillo (Nev. 2020) 

469 P.3d 181, 184; see also J.U. v. J.C.P.C. (D.C. 2018) 176 A.3d 

136, 140 (J.U.) [viability connotes “common-sense practical 

workability”]; accord, Kitoko v. Salomao (Vt. 2019) 215 A.3d 698, 
21

708; Romero v. Perez (Md.Ct.App. 2019) 205 A.3d 903, 914−915.) 

For purposes of our analysis, we will assume that S.H.R. was 

required to meet the less demanding, practical or workable 

standard. This standard “calls for a realistic look at the facts 

on the ground in the country of origin and a consideration of 

the entire history of the relationship between the minor and the 

parent in the foreign country.” (J.U., supra, 176 A.3d at p. 140.) 

The finding of nonviability must be made as of the present time. 

(Perez v. Cuccinelli (4th Cir. 2020) 949 F.3d 865, 874.)

The phrases, “due to” in the federal statute (8 U.S.C. 

§ 1101(a)(27)(J)(i)) and “because of” in section 155 (§ 155, 

subd. (b)(1)(B)) indicate a causal connection between the parents’ 

maltreatment and the nonviability—or practical unworkability—

of reunification. (See Leslie H., supra, 224 Cal.App.4th at p. 349

[“ ‘a court must find that reunification is not possible because of 

abuse, neglect, or abandonment’ ”].) 

The link between the parents’ maltreatment and the 

nonviability of reunification was addressed in J.U., supra, 

176 A.3d 136, a case S.H.R. relies on. In that case, the minor

petitioning for SIJ status, grew up in El Salvador apart from 

his father, who “was a non-supportive and distant figure.” (Id.

at p. 142.) Although the father regularly visited the paternal 

grandparents’ house where the child lived, he “never fed him, 

gave him clothes, took him to school, cared for him when he was 

sick, or showed him any affection. . . . The father never invited 

[the minor] to live with him even after discovering that [the 

child] had nowhere to live in El Salvador, nor did the father 

ever provide any financial support or assume any significant 

parental responsibility for making necessary day-to-day decisions 

regarding [the child]. All financial support came from his mother 
22

and grandfather.” (Ibid., fn. omitted.) Although “the father 

recognized [the minor] as his son, he never helped the mother to 

financially care for him or helped to take care of him, and . . . the 

father does not have a parent-child relationship with [the minor] 

as he has never participated in his life or shown him love. Once 

[the minor] entered the United States and took up residence with 

his mother, [the child] . . . never had any contact with his father.” 

(Ibid.) The District of Columbia Court of Appeals held that 

reunification was not viable due to the father’s abandonment 

of the child. It explained that “sending a seventeen-year-old 

boy back to the care of a father who has never fulfilled any 

day-to-day role in the support, care, and supervision during the 

boy’s lifetime cannot be a ‘reunification’ that is ‘viable,’ that is, 

‘practicable[,] workable.’ ” (Id. at p. 143; see also Leslie H., supra, 

224 Cal.App.4th at p. 352 [reunification with parents was not 

viable due to “mother’s lifelong abuse” of child and “father’s 

abandonment”].)

In contrast to J.U., even if we assume that S.H.R.’s parents 

neglected him under our state law standards, S.H.R. presented 

no evidence in this case to support a finding that reunification 

with his parents is not presently viable “because of” such neglect. 

(§ 155, subd. (b)(1)(B).) The fact that S.H.R.’s parents required 

S.H.R. to work in agricultural fields during summers as a child 

until the age of 15 to help support the family does not imply 

that reunification is presently not viable.

13 There is nothing in 

13 Arguably, S.H.R. and his parents cannot “reunify” 

because reunification has meaning only in the context of parents 

and their minor children (see In re K.L., supra, 210 Cal.App.4th 

at p. 642), and the 19-year-old S.H.R. is, generally, not a minor
23

S.H.R.’s declaration to suggest that if he returned to the home 

of his parents that his childhood experience working in the fields 

renders reunification with his parents unworkable. There is no 

evidence, for example, to suggest that he left his parents in 2018 

because his parents made him work in the fields several years 

earlier or that his parents would attempt to compel him to 

resume such work upon his return home. Indeed, the fact that 

he stopped working in the fields when he was 15 years old and 

subsequently worked at a car wash indicates that his parents 

would not insist that he work as a farm laborer again.

Nor does S.H.R.’s parents’ decision to pull him from 

high school to protect him from gang violence suggest that 

reunification with his parents is not presently viable. It appears

that S.H.R.’s parents made the decision to remove him from 

school not to harm him in any way, but rather to protect him 

from harm. Even if S.H.R. disagrees with the decision, it appears 

from his declaration that he understands his parents’ protective 

intentions. Thus, even if the parents’ decision constituted neglect 

at that time, the decision would not render reunification with his 

parents unworkable now.

under the law of either California or El Salvador. (See Fam. 

Code, § 3901, subd. (a)(1); Código Civil [Civil Code], art. 26 

(El Sal.); but see Prob. Code, § 1510.1, subd. (d) [for purposes of 

SIJ-related guardianship petition, “minor” includes an unmarried 

person 18 years of age or older and younger than 21 years of 

age].) If this argument is accepted, reunification is not viable as 

a matter of law not because of any maltreatment by the parents, 

but because S.H.R. is not a minor. We will assume arguendo 

that S.H.R.’s age is not per se an impediment to reunification for 

purposes of the SIJ law. (See R.F.M. v. Nielsen (S.D.N.Y. 2019) 

365 F.Supp.3d 350, 380.)
24

The alleged failure to provide S.H.R. with financial support 

while he lived in El Salvador, even if it constituted neglect, does 

not prove that reunification is not currently viable. Although 

S.H.R.’s declaration states that his parents are unemployed and 

depend “mostly” on others for money, he does not indicate that 

his parents’ financial situation renders reunification unworkable

as a matter of law. He does not suggest that he left his parents 

because of a failure to support him and there is nothing in his 

declaration to indicate that he, as an adult, would need the level 

of support for a child or that he would be unable to contribute to 

the family’s income.

It is evident from S.H.R.’s declaration that he does not 

desire to return to El Salvador because he is fearful of violence 

against him from gangs in that country, not because of any 

parental neglect or a purported inability to reunify with his 

parents. Although S.H.R.’s fear of gangs may be well-founded,

that alone–absent evidence of parental neglect, abuse or 

abandonment—is not among the grounds for finding reunification 

with his parents is not viable for purposes of the SIJ law. (See 

8 U.S.C. § 1101(a)(27)(J)(i); In re Jeison P.-C. (N.Y.App.Div. 

2015) 132 A.D.3d 876, 877 [SIJ petitioner failed to establish 

that reunification was not viable where he left his impoverished 

parents in Guatemala to escape gang violence and pursue 

education].)

Because 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, the court did not err in denying his SIJ 

petition. 
25

C. The Order Denying the Guardianship Petition

Amicus Public Counsel contends that the court erred in

concluding that S.H.R.’s guardianship petition was rendered 

moot by the court’s denial of the SIJ petition. We disagree.

Probate Code section 1510.1, subdivision (a) provides: 

“With the consent of the proposed ward, the court may appoint 

a guardian of the person for an unmarried individual who is

18 years of age or older, but who has not yet attained 21 years 

of age, in connection with a petition to make the necessary 

findings regarding special immigrant juvenile status pursuant 

to subdivision (b) of [s]ection 155 of the Code of Civil Procedure.” 

In a statement accompanying the enactment of the statute, 

the Legislature declared its “intent . . . to give the probate court 

jurisdiction to appoint a guardian for a person between 18 and 

21 years of age in connection with a special immigrant juvenile 

status petition” and “to provide an avenue for a person between 

18 and 21 years of age to have a guardian of the person appointed

beyond 18 years of age in conjunction with a request for the 

findings necessary to enable the person to petition the [USCIS] 

for classification as a special immigrant juvenile.” (Stats. 2015, 

ch. 694, § 1(b), p. 5329.) It thus appears from the statute’s plain 

language and the Legislature’s expressed intent that the statute 

grants superior courts jurisdiction to appoint a guardian for 

unmarried individuals who are at least 18 years old and less 

than 21 years old when the guardianship is sought “in connection 

with” a SIJ petition. (Prob. Code, § 1510.1, subd. (a)(1).) The 

requirement of a “connection with” a SIJ petition indicates 

that the court’s jurisdiction is limited; the statute does not grant 

courts the power to grant a guardianship under this provision in 

the absence of a SIJ petition. 
26

Here, once the court denied the SIJ petition, there was 

no longer a SIJ petition with which the guardianship could be 

connected. It was therefore proper for the court to dismiss the 

guardianship petition as moot. 

DISPOSITION

The court’s orders denying appellant’s petition for special 

immigrant juvenile findings and denying as moot appellant’s 

petition for appointment of guardian are affirmed.

ROTHSCHILD, P. J.

We concur:

CHANEY, J.

BENDIX, J.