1 Filed 5/5/15 D.L. v. Super. Ct. CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

D.L., Petitioner,

v. THE SUPERIOR COURT OF SAN MATEO COUNTY, Respondent; D.L., Real Party in Interest. A144960
(San Mateo County Superior Court Case No. FL 128406)

D.L. (Father), father of 17- year-old D.L. (Minor), file d the instant petition for writ relief in this court seeking review of the San Mateo County Superior Court’s denial of his request for preliminary factual findings, pu rsuant to the Immigration Act of 1990,
codified as section 1101 of title 8 of the United States Code (Act), that would qualify Minor for special immigrant juvenile status (“SIJ Status”). 1 For the reasons set forth below, we grant Father’s request for extraordinary writ relief ( Palma procedure) and remand the matter for further proceedings. 2

1 Father also filed a request to waive court fees. That request is granted as to the filing fee only.

2 Minor’s mother’s unrepresented estate was the nominal adverse party named below.2 Father filed a petition in the superior co urt alleging the following facts. Minor was born in May 1997 in Guatemala City. Wh en she was fourteen years old her mother died. Following her mother’s death, Father has been Minor’s sole caregiver. In June 2014, Minor, her two brothers, and Father fl ed Guatemala due to threats from a violent gang, the Zetas, and came to the United States . After arriving in the United States, the family has lived with a family friend in Menl o Park. Minor is doing well in this country, excelling in her studies of English as a forei gn language. Minor’s 18th birthday is in a few days. Pursuant to the Act, a minor qualifies fo r SIJ Status if he or she: (1) is a dependent of the juvenile court or committed to, or placed under the custody of, a state entity or other court-appointed individual or entity; (2) cannot be reunified with one or both parents due to abuse, neglect, abandonme nt, or a similar basis found under State law; and (3) it is not in the minor’s best inte rest to be returned to his or her native country. ( In re Israel O. (2015) 233 Cal.App.4th 279, 284; 8 U.S.C. § 1101(a)(27)(J)(i).) A superior court with jurisdiction to make child custody determinat ions under California law “ ‘has the authority and duty to make [SIJ status] findings’ ” if the evidence supports those findings. ( In re Israel O, supra, at pp. 284–285.) After a state court makes SIJ findings, the minor must include that order in the materials presented to the federal authorities, who make the final de cision concerning SIJ status. ( Ibid .) Father requests that the superior court enter an order making the above referenced findings pursuant to
the Act. The superior court denied Father’s request stating that it could not find
abandonment in this case 3 because the mother di ed of natural causes. We conclude that the superior court erred when it determined that a finding of willful abandonment was required under the Act. To the contrary, “w illfulness” is not a predicate requirement to finding that a parent has abandoned a minor.

3 Abuse and neglect, potential alternate base s to satisfy the third factor, were not alleged.3 First, the plain language of the federa l statute does not require that parental abandonment be willful. It simply requires a finding that Minor cannot be reunified with parents due to “abuse, neglect, abandonment, or a similar basis found under State law.” (8 U.S.C. § 1101(a)(27)(J)(i).) Moreover, Ca lifornia statutes addressing the subject of abandonment of minors does not require a finding of willful abandonment as a prerequisite to the exercise of their juri sdiction. Family Code section 3402 defines “abandoned”, for purposes of California’ s Uniform Child Custody Jurisdiction and Enforcement Act, as meaning “left without provision for reasonable and necessary care or supervision.” (Fam. Co de, § 3402, subd. (a).) Moreover, Welfare and Institutions Code section 300 delineates circumstances pursuant to which juvenile c ourts can exercise jurisdicti on and declare minors dependents of the court. Section 300, subdivision (g) of the Welfare and Institutions Code describes circumstances which support a finding that pa rents or guardians have left minors without any provision for support (e.g ., the child has been voluntar ily surrendered and not been reclaimed within 14 days) and situations where the abandonme nt was not willful (e.g., the parent is incarcerated or institutionalized and cannot arrange for the child’s care). (Welf. & Inst. Code, § 300, subd. (g).) Th e language of subdiv ision (g) does not distinguish between willful and uninten tional abandonment by a parent. ( Ibid. ) Thus, the
trial court erred when it determined that requirement of willful abandonment by the parent is a required finding under the Act. The expedited procedure whereby an appe llate court issues a peremptory writ in the first instance, pursuant to Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, is justified where th ere is an urgent need. (See Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1240.) Here, exigency arises b ecause Minor will soon turn 18 and her age could deprive the court of juri sdiction. In general, before issuing a peremptory writ, an appellate court must solicit opposition to safeguard due process concerns. (See Kernes v. Superior Court (2000) 77 Cal.App. 4th 525, 529–530.) Here
because there is no adverse party, the immediate i ssuance of a peremptory writ will not affect a party’s due process rights. Accordin gly, we grant the petitioner’s request to issue4 a peremptory writ in the first instance reversing the superior court’s finding that the Act required a showing of willful aban donment by Minor’s parent. In addition, the record before us does not address the court’s conclusions regarding the other preliminary factors that are required to determine SIJ Status. Thus, we remand this matter to the superior court fo r further proceedings consistent with this opinion. To expedite the prompt resolution of this case, our decisi on is immediately final as to this court. (Cal. Rules of Court, ru le 8.490(b)(2)(A).) In addition to serving and filing copies of this opinion, the clerk of the court is directed to provide the parties and the respondent superior court with immediate notice of this decision telephonically or via
facsimile.5 _ ____________ ____________ McGuiness, P.J.

We concur:

_____________ ____________ Siggins, J.

_____________ ____________ Jenkins, J.