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.

,

P etitioner and Appellant,

v.

JESUS RIVAS et al.

,
Objectors and Respondent s

. 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 P etitioner and Appellant. Akin Gump Strauss Hauer & Feld, Rex S. Heinke, Jessica M. Weisel, and Joshua D. Tate for Public Counsel as Amic us Curiae on behalf of Petitioner and Appellant. No appearance for Objectors and Respondent s

.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 classif y 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 fact s 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

t he reasons discussed below, he has n ot 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 peti tion.

SPECIAL IMMIGRANT JUVENILE STATUS In the Immigration Act of 1990 and subsequent amendments, Congress established the SIJ classification
of i mmigrants and a path “ to protect abused, neglected, and abandoned unaccompanied minor s 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 jurisdict ion 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 necessa ry 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 yea r, 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 petit ion 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 guardian4

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

- 0 3 (

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. H e left
El Salvador in Jun e 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 1 8 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 bee n carin g for him “since
he arrived [in] the United States” and has provided him with

“ shelt er , food, and other vital necessities.” T he guardianship , he
asserted , “will promote stabilit y for [him] as he ad j usts 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 consent ed 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 tha t 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 depend s 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, coll ect ing 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, w hen S.H.R. was in ninth grade, two gang members approached him outside of school

. They told him he
need ed 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 hea r 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 parent s , 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 work ing 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 “gan g 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 member s and he “lived in constant fear that7

the gang members would return to [his] work and kidnap or kill [him].”
S.H.R. save d money to pay for a trip to the United States and, in June 2018, he left El Salvador with out 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, 20 20
, the court indicated that
the SIJ petition provided no basis for granting the peti tion. 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 Ca lifornia 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 aut henticated or introduced into evidence, we do not consider it.8

protect i on ” 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 , t he court ex plained that

“ nothing in [ S.H.R. ’s] p etition or d eclaration 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 can not conclude that those issues
will continue to exist. ”
Based on the denial of the SIJ petition, t he 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 [ r ev. 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 a n order denying a petition for SIJ findings. We hold that the order is appealable. “A review ing 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 feder al 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 judicia l 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 p arties.” ( 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 futu re 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 o rder 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 judicia l consideration].) Thus

, the court’s order den ying 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 appropria te 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. B 308307) as moot by separate order.11 B. The Order Denying the SIJ Petition

1. Burden of p roof and s tandard of r eview

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 relie f ’ bears the burden of proo f ” ] .) 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 C alifornia 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 g overned 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. [Citatio ns.] 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

. . . whet her 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 find ings is mandatory .” ( Id. at p. 83 .) We disagree.
T he 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 play ed 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 th erefore 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, w e decline to follow it.
For th e quoted statement, t he 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

non viability 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 mot ivation 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 finding s

. (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 fin d 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 ’ ” ].) T he SIJ petitioner must thus present “ evidence
of a judicial determination that the juvenile was subjected to ” parental maltrea tment , 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 sta tus under federal law, we reject

a construction of the statute that would no t 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 could15

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 f

ailure to p rove p arental

a bandonment or n eglect

S.H. R. and amicus rely on S.H. R. ’s declaration evidence in arguing that his parents abandon ed and neglect ed him because : (1) between the ages of 10 and 15, he was required to perform exhausting agricultural field work during the summer s under
difficult conditions ; (2) gang members threatened him and his family and, because of these threats, his parents required that
he discontin ue 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 hi s 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 eve r 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 throw16

off all obligations growing out of the same ” ’ ”] .) Indeed, w hen
S.H. R. raised the subject of leaving the count r y, 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 t he 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 welfa re 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 h aving 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 t o 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 context17

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 fie lds 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

wo rking 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

, suffer ed sunburn, dehydration, and exhaustion

, was exposed to pesticides

, snakes, scorpions, and harmful insects

, and worked without running
water or to ilet 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 wi th 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 the ir children t o 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 sc hool 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 gang s 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
reflect s 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 h is parents left him “unprotected from multiple credible threats of gang violence.” The threats themselves cannot reasonably be viewed as constituting parental19

neglect. S.H. R. suggests, however, that his parents should
have done somethi ng 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 depen dence 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 parent s 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, therefor e, consider other possible grounds.20 3. S.H. R. ’s f

ail ure to s how that r eunification

was n ot v iable

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 , o r 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. ( Ne b

. 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 ; USCI S

, Policy Manual (2021) Immigrant s , v ol. 6, p t. 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 connot es “ 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 enti re 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 phrase s , “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 reunifica tion

. (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 visit ed 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 d ay

- to

- day decisions regarding [ the child ]

. All financial support came from his mother22

and grandfather. ” ( I

bi d. , fn. omitted. ) Although “ the father recognized [the minor ] as his son, he never helped the mother to financially care for him or helped to tak e 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.

, e ven 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 o f ” 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 minor23

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
render s 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

ea rlier 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 no t 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 pare nts’ 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 mino r . 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

no t 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 h e 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 su pport for a child or that he would be unable to contribute to the family’s income.
It is eviden t 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 becaus e of any parental neglect or a purport ed 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

. A pp

. 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 viab le 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 petit ion was rendered

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

. Probate Code s ection 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 immigran t 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 th e [US C IS] 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 express ed intent that the statute grant s superior courts jurisdiction to appoi nt a guardian for
unmarried individuals who are at least 18 years old and less
than 2 1 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 long e r 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 order s 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.