No. 8233757
IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
BIANKA M., SUPREME COURT
Petitioner, FILE D
Vv.
THE SUPERIOR COURT OF CALIFORNIA APR 1 9 2017
FOR THE COUNTY OF LOS ANGELES,
Respondent; Jorge Navarrete Clerk
GLADYSM.,
Real Party in Interest. Deputy
After a Published Decision by the Court of Appeal, Second Appellate
District, Division Three, Case No. B267454
From the Superior Court, County of Los Angeles, Case No. BF052072,
The Honorable Holly J. Fujie, Judge Presiding
APPLICATION OF FAMILY VIOLENCE APPELLATE PROJECT
AND UNIVERSITY OF CALIFORNIA, IRVINE SCHOOL OF LAW
DOMESTIC VIOLENCECLINIC, ETAL., FOR PERMISSION TO
FILE AMICI CURIAE BRIEF AND AMICI CURIAE BRIEF IN
SUPPORT OF PETITIONER
Erin C. Smith (SBN 234852) Donald M.Falk (SBN 150256)
Jennafer D. Wagner (SBN 191453) Samantha Booth (SBN 298852)
Nancy Lemon (SBN 95627) Lilya Mitelman (SBN 307984)
Shuray Ghorishi (SBN 268232) MAYER BROWN LLP
Catherine Ongiri (SBN 246256) Two Palo Alto Square, Suite 300
Anya Emerson (SBN 289065) 3000 EI Camino Real
FAMILY VIOLENCE APPELLATE Palo Alto, CA 94306
PROJECT (650) 331-2000
1814 Franklin Street, Suite 805
Oakland, CA 94612 Jane K. Stoever (SBN 295489) 50"Se
(510) 858-7358 UNIVERSITY OF CALIFORNIA,
IRVINE SCHOOL OF LAW APR OD GG eau
DOMESTIC VIOLENCE CLINIC
PO Box 5479 CLERK SUPREME COURT
Irvine, CA 92616-5479
(949) 824-9646
Attorneysfor Amici Curiae Family Violence Appellate Project and
the University of California, Irvine School OfLaw Domestic
Violence Clinic, et al.
-l|-
CERTIFICATE OF INTERESTED ENTITIES OR PERSONS
Attorneys for Amici Curiae Family Violence Appellate Project and
the University of California, Irvine School Of Law Domestic Violence
Clinic, et al., certify that there are no interested entities or persons that must
be listed in this certificate under Cal. R. Ct. 8.208.
Dated: April 10, 2017 Respectfully submitted.
KE Uhl.
Lilya Mitelman (SBN 307984)
MAYER BROWN LLP
Attorneyfor Amici Curiae
APPLICATION OF FAMILY VIOLENCE APPELLATE PROJECT
AND UNIVERSITY OF CALIFORNIA, IRVINE SCHOOL OF LAW
DOMESTIC VIOLENCECLINIC, ETAL., FOR PERMISSION TO
FILE AMICI CURIAE BRIEF IN SUPPORT OF PETITIONER
To the Honorable Tani Cantil-Sakauye, Chief Justice:
Family Violence Appellate Project (“FVAP”), the University of
California, Irvine School of Law Domestic Violence Clinic (“UCI Clinic”),
Alternatives to Violence, the California Women’s Law Center (““CWLC’”),
Domestic Violence Legal Empowerment and Appeals Project (“DV
LEAP”), Professor Wendy M. Seiden, the Legal Aid Society of Orange
County and Community Legal Services in Southeast Los Angeles, the Los
Angeles Center for Law and Justice (“LACLJ”), and the San Diego
Volunteer Lawyer Program, Inc. (“SDVLP”) respectfully seek leave to file
the accompanying brief as amici curiae in support of the petitioner.! Amici
are nonprofit organizations and individuals who collectively work with
thousands of domestic violence survivors each year in California and
nationwide, including immigrants and undocumented children seeking
Special Immigrant Juvenile (“SIJ”) status. Amici are committed to ensuring
the safety and well-being of domestic violence survivors and their children.
FVAPis a nonprofit organization dedicated to working through the
appellate legal system to ensure the safety and well-being of domestic
violence survivors and their children. FVAP provides legal assistance to
domestic violence survivors at the appellate level through direct
No party or counsel for a party in this matter authored the proposed
amicus brief in whole or in part or made a monetary contribution intended
to fund the preparation or submission of the brief. No person or entity made
a monetary contribution intended to fund the preparation or submission of
this brief, other than the amici curiae and its members. (See Cal. Rules of
Court, rule 8.520(f)(4).)
representation, collaborates with pro bono attorneys, offers training and
advocates for domestic violence survivors on important legal issues.
FVAP’s work contributes to a growing body of case law that provides the
safeguards necessary for survivors of domestic violence and their children
to obtain relief from abuse through the California courts. Having spent five
years representing low-income survivors of domestic violence in high-
impact litigation, FVAP has unique expertise that will assist this Court in
understanding how the Court’s decision will affect one of the State’s most
vulnerable populations.
The UCI Clinic provides transformative legal representation to abuse
survivors and their children while educating law students to becomeclient-
centered, culturally competent, ethical, and effective attorneys. The UCI
Clinic’s holistic representation extends to civil, criminal, and immigration
interventions in abuse.
Alternatives to Violence offers services to victims of domestic
violence and child abuse in Tehama County. It hopes to spread awareness
and end the cycle ofviolence for the future of the community.
CWLCis a statewide, nonprofit law and policy center dedicated to
advancing the civil rights of women andgirls. Since its inception in 1989,
CWLC has placed a particular emphasis on eradicating all forms of
discrimination and violence against women.
DV LEAPprovides a stronger voice for justice by helping overturn
unjust trial outcomes, advancing legal protections for victims and their
children through expert appellate advocacy,training lawyers, psychologists,
and judges on the best practices, and spearheading domestic violence
litigation in the United States Supreme Court. DV LEAP also works to
ensure that federal and state courts understand the realities of domestic
violence and the law when deciding cases with significant implications for
domestic violencelitigants.
Professor Seiden is a Clinical Professor of Law at Chapman
University Fowler School of Law and Assistant Director of the Bette &
Wylie Aitken Family Protection Clinic. Professor Seiden has worked in the
field of family violence for 25 years. She spent 12 years representing
children of all ages in child welfare and high-conflict custody cases before
going to teach full-time. Professor Seiden currently teaches the Protection
Order Section of the Bette & Wylie Aitken Family Protection Clinic.
The mission of Legal Aid Society of Orange County and
Community Legal Services in Southeast Los Angeles County is to provide
civil legal services to low-income individuals and to promote equal access
to the justice system through advocacy, legal counseling, innovative self-
help services, in-depth legal representation, economic development, and
community education.
Founded in 1973, LACLJ has provided legal advocacy to low-
income and primarily immigrant and Latino populations in Los Angeles for
more than 40 years. Over time, LACLJ has evolved to focus on providing
direct services on behalf of domestic violence survivors, including those
who are teens and young adults. In 2003, the agency launched the only
teen-centered legal services program in Los Angeles for teenage and young
adults struggling with abuse and difficult co-parenting matters. LACLJ also
provides free legal representation to low-income families in high-conflict
custody disputes, a large percentage of which involve domestic violence. In
2013, LACLJ formalized a program of providing immigration services to
victims of interpersonal violence and unaccompanied minors.
SDVLP was established in 1983 as a private, not for profit,
charitable law firm which provides pro bono legal assistance to indigent
residents of San Diego County. One of SDVLP’s priority areas of service is
legal assistance to victims of domestic violence. |
The amici and their clients have a strong interest in a correct and
_5-
informed resolution of this case. Specifically, this Court’s decision will
broadly affect the ability of abused, neglected, and abandoned children to
obtain the SIJ status findings necessary for them to obtain relief from
domestic abuse. As the accompanying brief explains, the Court of Appeal’s
decision rested on the mistaken premise that SIJ status findings and a
custody order required a parentage determination for—andthusjurisdiction
over—an absent parent who abandonedthe child after abusing the proposed
custodial parent. California law plainly permits the entry of custody orders
without determining the parentage of an abuser. The Court of Appeal’s
ruling places children of abusive parents in the untenable and dangerous
position of having to solicit cooperation from their abusive parent in order
to establish entitlement to protection against being released back into that
abusive parent’s care. This contradicts fundamental principles of California
family and domestic violence law, which make the child’s interests
paramount and which require courts to mitigate (rather than enhance) the
abuser’s powerovervictims of domestic violence and child abuse.
CONCLUSION
The application for permission should be granted and the
accompanyingbrief of amici curiae filed.
Dated: April 10, 2017 Respectfully submitted.
LilyaMitelman (SBN 307984)
Donald M.Falk (SBN 150256)
Samantha Booth (SBN 298852)
MAYER BROWN LLP
TwoPalo Alto Square, Suite 300
3000 El Camino Real
Palo Alto, CA 94306
(650) 331-2000
Erin C. Smith (SBN 234852)
Jennafer D. Wagner (SBN 191453)
Nancy Lemon (SBN 95627)
Shuray Ghorishi (SBN 268232)
Catherine Ongiri (SBN 246256)
Anya Emerson (SBN 289065)
FAMILY VIOLENCE APPELLATE PROJECT
1814 Franklin Street, Suite 805
Oakland, CA 94612
(510) 858-7358
Jane K. Stoever (SBN 295489)
Michael McConnell (Certified Law
Student Intern)
UNIVERSITY OF CALIFORNIA, IRVINE
SCHOOL OF LAW DOMESTIC VIOLENCE
CLINIC
PO Box 5479
Irvine, CA 92616-5479
(949) 824-9646
Attorneysfor Amici Curiae Family
Violence Appellate Project and the
University of California, Irvine School of
Law Domestic Violence Clinic, et al.
Page
INTRODUCTION ..... ccc eecccccceceneeeeseeeeeeeeeeeseaseceeseeeeesseeeensnaeeesaeeseeetersaaes 19
BACKGROUND STATEMENT: ASPECTS OF DOMESTIC
VIOLENCE ESPECIALLY PERTINENT TO THIS CASE... 22
A. The Abuse Bianka’s Mother Endured During
Pregnancy Reflects A Common And Dangerous
PatterM ...... cc ccccececcccceeeesensenssnceececeeeeeessensenseeecceceeessnnneeeeeeeeeeess 23
B. Domestic Violence Is Widespread In Honduras,
Forcing Countless Victims Like Bianka To Flee To
Other Countries To Escape Abuse...........eeeeceeeseeeeereeeeeteees 24
C. Undocumented Immigrants Face Unique Challenges In
Fleeing And Reporting Domestic Violence... 26
ARGUMENT..0...cecceecccceeccceeeecceecececececeneeeeeeceaeecsacesaeeseaeseeaeeeseeseesieteeseates 27
I. FORCING DOMESTIC VIOLENCE SURVIVORS TO BEG
THEIR ABUSERS TO COOPERATE RETRAUMATIZES
VICTIMS AND PUTS THEM AT RISK OF FURTHER
ABUSE o00o.eeecceeecceeeccceeeeneeeencecneeeeaeeceseeccaeeeaeessaeennesesaneseeeteaeeetseeesies 28
A. Perpetrators Of Domestic Violence Use Power And
Control To Abuse Their Victims....0......:cceeeseceeeseeeesteeeesseees 28
B. Perpetrators Of Domestic Violence Often Use Child
Custody Proceedings To Abuse Their Partners...........0...... 30
C. Because Absent Or Abusive Parents Are Unlikely To
Cooperate, The Requirement Imposed Below Would
Increase Deportations Of Abused Children To Harmful
And Abusive Environments ...........ccccceseseeeeseneeeseeeeeeneeteees 32
D. Making Custody Determinations Contingent On
Renewed Contact With Abusive Parents Endangers
The Very Children That The SIJ Statute Is Intended To
PLOUECE oecece eee cenceeceseeeececenseceeesetaeeeeecesteaaaneeseterertesnanaeees 34
TABLE OF CONTENTS
II.
Til.
IV.
TABLE OF CONTENTS- Continued
Page
E. Requiring Abused Parents To Interact With Their
Abusers Puts Domestic Violence Victims At Risk Of
Further Abuse And Retraumatizes Them................0...000c.005 36
THE DVPA AUTHORIZES CUSTODY ORDERS
REGARDLESS OF WHETHER PARENTAGE OF THE
NONCUSTODIAL PARENT HAS BEEN ESTABLISHED........ 38
THE UCCJEA PERMITS COURTS TO ENTER ORDERS
NECESSARY TO PROTECT A SURVIVOR OF
DOMESTIC VIOLENCE WITHOUTFIRST
ESTABLISHING PERSONAL JURISDICTION OVER THE
ABUSER...cece cecccccssesecnescssseeceseeesssnessaaeeeeateseneessaseseseesaeestseensees 4]
BECAUSE THE ABUSER COURT COLLATERALLY
ATTACK FINDINGS MADEIN HIS ABSENCE, THERE
IS NO SOUND BASIS TO DENY SIJ STATUS AND
CUSTODIAL RELIEF TO CHILD (AND ADULT)
SURVIVORS WITHIN THE COURT’S JURISDICTION........... 44
CONCLUSION00ceeecsececcenececrseeeessnecenseceesaessasesecasesseneesaeenaeeeeatees 46
TABLE OF AUTHORITIES
Cases Page(s)
Babalola v. Superior Court (2011) 192 CalApp.4th 948oo39
Gonzalez v. Munoz (2007) 156 Cal.App.4th 413.0... cececeeeeeees 40, 41
Hanson v. Denckla (1958) 357 U.S. 235 ..cccccccccccecsesecceseeeesseecesssccessssennaes 44
Hernandez v. Ashcroft (9th Cir. 2003) 345 F.3d 824 oo.eee 22, 29
Inre Marriage ofFajota (2014) 230 Cal-App.4th 1487oe39
Inre Marriage ofLeonard (1981) 122 Cal.App.3d 443.0... 44, 45
In re Zacharia D. (1993) 6 Cal4th 435 woo. ccccccecscsscceeesseeeeeeesseeeresssenes 19
Noergaard v. Noergaard (2015) 197 Cal .App.4th 76 ........ccccccceceeeseeeees 22
People v. Am. Contractors Indemnity Co. (2004) 33 Cal.4th 653 ............. 44
Ritchie v. Konrad (2004) 115 Cal. App. 4th 1275wo.sesseesaeees 39
Titus v. Superior Court (1972) 23 Cal.App.3d 792 .o.....cccccccccceseeeessceceeees 45
Statutes Page(s)
8 ULS.C. § TOV (a)(Q7)DG)eee cece ceeeceeececeeeeseeeesneeeeesseesssesesaeeenssseeeeess 35
BULS.C. § 1357D) oo.cee ceccenceeeceeneeeeceeeaeeessccesseetsaeeteseeeneesseeeesseenses 28, 35
9D U_L.A. 8649 (1997) ooo cecececeececeeeseeeeeeeenaeeeseeceaeeseeeeenseecseeesseetsssessseeenses 42
Fam. Code § 3000, ef S69. ....ecceccccesceesseceeseeeceseceeeseeeeeneeeeceseetessesenteteseensas 43
Fam. Code § 3011 ooo... ceecccceeeseeeecceeseceeeseseeeeeeseseseeeeseeetsseeessseesenstes 28
Fam. Code § 301 10D) eee eeeecceeeececeeeseeceseeteeeeesseeeeceaseessseeceseseesseeeenease 39
Fam. Code § 30208)... cceccecccccccesseeesseeeseeeeeesseeeeeesenseseeessnseeceeaaas 28, 38
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TABLE OF AUTHORITIES- Continued
Statutes Page(s)
Fam. Code § 3044 ooo. ecccceecceeeneecessssesessecseeeeseseecsseecsssecessrevssesesieevens 39
Fam. Code § 3044(a).......cccccccccceccccsssseesceeessceessessesecsessssussaseceversaecesuteveress 39
Fam. Code § 3400, ef SQ. ...c.cclecccceccceceeteceesseseececcnseesssesenscecessetsissessreneees 20
Fam. Code § 3402(g) ......ccccccccecccecsssseeeccccescccesseeecccessssesussasesessnsaecenutereress 42
Fam. Code § 3406 oo... cceecceececeeeeseeeesscseseeeseesaseceessenseeuesesesusssseesseveneas 4S
Fam. Code § 3420 oo... eecccceeneecsseeeeesseeeeseessseeeeesseeenseesessssceseecssescenaees 44
Fam. Code § 3421 (a)... eceecsccsccesseeceeeeeseeeeseeeeecesaeessesseeesseeesnsneesesavsaas 42
Fam. Code § 3421 (a)(1) .....cccccccccceccccccsssccensecccecsecsssceseuccesersusesensaeeensess 42
Fam. Code § 342 1(C).....eceecccecccsesseseseeeesseeeseessesneeecessessnsessseessevssecsssegs 42, 45
Fam. Code § 3424(a)...ce ceecccceceseeeseeeeesetestestesenseeesnenseeesaeeeeees 42, 43, 44
Fam. Code § 3428(d) ooo... eceecceececesceeseseeeeseseeesseeeesseeseerseecessevsecseseens 43, 44
Fam. Code § 6200, ef S€Q. .....eeccceccesccceeeccesestestesceeesneeeseesseeesseesssseseseeseesaas 20
Fam. Code § 6203(a).......ccccccccccsccesesssecececcesecesseeceeccussscesssnseceseessesestaseeevers 29
Fam. Code § 6320(a)........cccccccccescccesseeeecsscecensacsseececesstesssesessseecesasevseeesaneees 29
Fam. Code § 6323(a)(1) ..ccccccccccccccccccececccessecesscceccecesssssssscsccessnseesseanesesess 40
Fam. Code § 6323(a)(2)(B)(1) .....eeecceeescceceeeeseeeeeeseseesseesseesseceesesestessesenaes 40
Fam. Code § 6323 (D)(1).....cccecccccccccccceeccsessececsscccecesssscussnssevesesstetsenseeesees 40
Fam. Code § 6340 ooo... ceeecceececcscceeneeeeeeecesecessesseeeeessesseenseseseesersesenens 40, 41
Fam. Code § 6340(a).......ccccccccecseeeseeeeseeecseeeseeseeeecscescessseessssessenseesseseaes 40
Fam. Code § 7600, @f S€Q. .....ecccceccececseeesseeeeseeeeseeeeessescaccseesseeeeeessenssensaase 27
-]]-
TABLE OF AUTHORITIES- Continued
Other Authorities Page(s)
Anderson, “Why Doesn’t She Just Leave?”A Descriptive Study of
Victim Reported Impediments to Her Safety (2003) 18(3)
Journal of Family Violence 151.0...ccc ccccccceeesseeenseesseeeees 36, 37
Appel & Holden, The Co-occurrence ofSpouse and Physical Child
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Family Psychology 578 o.....ecccccccccscecesecessceesesseesesececeeaeeeseseneeeeeseeess 23
Bachman & Saltzman, Bureau ofJustice Statistics, Violence Against
Women: Estimatesfrom the Redesigned Survey (August
1995)
.............. 31
Bancroft & Silverman, Assessing Risk to Childrenfrom Batterers
(2002), .........ecccecceeeeecceessceeseeceseeeessesseesesenseeses 31
Bemiller, When Battered Mothers Lose Custody: A Qualitative Study
ofAbuse at Home and in the Courts (2008) 5:3-4 Journal of
Child Custody 228 ooo... ceecccececseeesenecesseesececeeneeeeesensesesseesseeenseaeeens 31
Bookey,(2012), Domestic Violence as a Basisfor Asylum: An
Analysis of206 Case Outcomes in the United Statesfrom
1994 to 2072 (2013) 24 Hastings Women's L.J. 107
.........ccccccceceeeneees 43
Breiding et al., Prevalence and Characteristics ofSexual Violence,
Stalking, and Intimate Partner Violence Victimization —
National Intimate Partner and Sexual Violence Survey,
United States, 2011 (Surveillance Summaries, Sept. 5 2014),
oo.eeeeeeeeee 22
Camp, Coercing Pregnancy (2015) 21 Wm. & Mary J. Women & L.
275
2.0... ccccccccccesssessssssseseseeeeecevsessseseess 23, 24
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TABLE OF AUTHORITIES- Continued
Other Authorities Page(s)
Carello & Butler, Potentially Perilous Pedagogies: Teaching
Trauma is Not the Same as Trauma-Informed Teaching
(2014) 15 Journal of Trauma-& Dissociation 153.00... 34
Domestic Abuse Intervention Program: Homeofthe Duluth Model,
Post Separation Power and Control Wheel (2013),
..........00...cceeeeeeee 31
Family Violence Appellate Project, 2016 Survey ofDomestic
Violence Service Providers (2016)
occccccccccecccccccesecessaceeessseeessseessnseeessssessereens 33, 35
Fossion et al., Beware ofMultiple Traumas in PTSD: The Role of
Reactivation Mechanism in Intrusive and Hyper-arousal
Symptoms (2016) 19(3) Aging & Mental Health 258.0000. 34
Futures Without Violence, The Facts on Immigrant Women and
Domestic Violence,
00.0... ceccccccceeeees 26
Gazmararian et al., Prevalence of Violence Against Pregnant Women
(1996) 275 J. Am. Med. Assoc. 1915 (1996) oo... eeeeeeseeeees 24
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TABLE OF AUTHORITIES- Continued
Other Authorities Page(s)
Goelman, Shelterfrom the Storm: Using Jurisdictional Statutes to
Protect Victims ofDomestic Violence after the Violence
Against Women Act of2000 (2004) 13 Colum. J. Gender & L.
LOD eee eee ecceeeeceeeceneeesseneeeceseaeceaneesaaeeeeesaaeeteesageseeesseenssecseeeeeeesaes 43
Goelman & Mitchell, Protecting Victims ofDomestic Violence
Under the UCCJEA (2010) 61 Juv. & Fam. Court J. 1 oe. 43
Haggeblom & Moller, Fightingfor Survival and Escapefrom
Violence: Interviews with Battered Women (2007) 2 Int’1 J.
Qualitative Studies on Health & Well-being 169... 36, 37
Jaffe & Juodis, Children as Victims and Witnesses ofDomestic
Homicide: Lessons Learnedfrom Domestic Violence Death
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Keller-Dupree, Understanding Childhood Trauma: Ten Reminders
for Preventing Retraumatization (2013) 2 Journal of
Counseling and Professional Psychology | ........ceccceeeseessseeeseeee 34
Kohn, The Justice System & Domestic Violence: Engaging the Case
but Divorcing the Victim (2008) 32 N.Y.U. Rev. L. & Soc.
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...........c ce cecccceeesseeecersecceceeeees 29
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.............. 27
Leoneet al., Effects ofIntimate Partner Violence on Pregnancy
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TABLE OF AUTHORITIES- Continued
Other Authorities Page(s)
Letter from Chief Justice Cantil-Sakauye to Attorney General
Sessions and Secretary Kelly (Mar. 16, 2017)
ooo...cc cccccccccsscsussssssscseeeceueusenerscseeeeees 26
Lindgren, /ntimate Partner Violence and the Leaving Process (2008)
3 Int’! J. Qualitative Studies on Health & Well-Being 113............ 36
National Center for Injury Prevention & Control, Centers for
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and Sexual Violence Survey (2010)
oo... ecccecseesenseesssessevesssssseseeeesens 22
National Center on Domestic and Sexual Violence, Immigrant
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ooo...cece eeeecseeeeseeeeeneeeeeeeestseeeseeeesssseeens 26
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Osofsky, The Impact of Violence on Children (Winter 1999) 9 The
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..0.. occccecseccseneeeeeees 23
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TABLE OF AUTHORITIES- Continued
Other Authorities Page(s)
Powerset al., Childhood Trauma, PTSD, and Psychosis: Findings
from a Highly Traumatized, Minority Sample (2016) 58 Child
Abuse & Neglect 111 oo... cceecccesessceeesneeeesseenseeeeseesseaeeeeeeerecsns 33
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oo...cececeeeeseeeeeees 27
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0.0.0.0eeecceececccceeecceeeeees 27
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............ 23
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United Nations, Report ofthe Special Rapporteur on Violence
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Manjoo, Mission to Honduras, March 31, 2015.0...ee 25
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TABLE OF AUTHORITIES- Continued
Other Authorities Page(s)
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finalized country mission to Honduras and callsfor urgent
action to address the culture ofimpunityfor crimes against
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0... ecccsccceecesesseeeeessseeeccesssuesecsssseeessaees 24, 25
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...eee 23, 29
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............. 25
United States Customs and Border Protection, United States Border
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...... 25
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Violence Against Women 166 ..........cceccceeceeceseceeesseeceseeeceeeeeneeeens 30
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TABLE OF AUTHORITIES- Continued
Other Authorities Page(s)
Wong & Mellor, /ntimate Partner Violence and Women’s Health
and Wellbeing: Impacts, Risk Factors and Responses (2014)
46(2) Contemporary Nurse 170 .......cccceeccccsccceeseceensseeensseeeseens 23, 37
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... 22, 23, 37
Zapotosky, Top U.S. Officials Defend Courthouse Arrests of
Undocumented Immigrants in Escalating Feud with
California Justice, (Mar. 31, 2017) Washington Post,
......0. 26
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INTRODUCTION
Bianka M. is where she is today because of domestic violence and
abusive paternal neglect. Bianka was abandoned before she was born by a
father who beat her pregnant mother with a machete, and taunted her
mother when she begged him for food for herself and her unborn daughter.
(See Ct. App. Opn. at pp. 5-6; Opening Brief on the Merits (““OBM?”)at pp.
9, 37-38.) To the extent Bianka avoided direct physical abuse from her
father—her“alleged father” under California law Un re Zacharia D. (1993)
6 Cal.4th 435, 449 fn. 15)—1t was only because he would have nothing to
do with her, averring that he would rather see her die than provide milk
moneyfor her. (See OBM 9, 37.)
In resolving this matter, the Court should take into account the
domestic violence that underlies this case, and the statutory protections for
victims of abuse that the decision below largely disregards and thoroughly
undermines. Bianka is far from alone in her predicament. Congress created
Special Immigrant Juvenile (“SIJ’) status to protect the thousands of
abandoned, abused, and neglected undocumented children who havefled to
the United States. The California Legislature likewise has repeatedly
enacted protections for abused children (and the children of abused
parents), explicitly providing for custody orders without requiring the
presence of an abuser, let alone one outsidetheterritorial jurisdiction of the
court.
The decision below turns those legislative policies on their head by
forcing abused or abandoned children seeking SIJ status to beg their
abusive parents to stipulate to parentage or consent to personaljurisdiction
before the children can obtain relief. That alone is enough reason to reverse
the decision below. If not reversed by this Court, however, the decision
could impair an even broader range of custody proceedings under other
statutes as well, including the Domestic Violence Prevention Act
-19-
(“DVPA”), codified at Family Code section 6200, et seq., and the Uniform
Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), codified at
Family Code section 3400, et seq., both of which include special
protections for domestic violence survivors and their children. If the
parentage of the abusive parent must be adjudicated before custody can be
awarded to the abused parent, countless survivors of domestic violence will
be unable to obtain custody over their children, and thus will find it difficult
or impossible to leave their abusers. That will result in further abuse, and,
in somecases, death.
For example, temporary restraining orders under the DVPA and
accompanying custody orders are typically granted in emergency situations
to the abused parent who has established a parent-child relationship,
regardless of whether the parentage of the abuser can be established.
Requiring a parentage determination of both parents before a custody order
could be entered would slow the process significantly, putting the health,
safety, and welfare of domestic violence victims and their children at risk.
Even if parentage determinations for both parents were not required for
temporary custody orders, requiring a parentage determination of the abuser
before granting permanent custody to the abused parent would have two
significant harmful effects: not only would it give abusers the power to
delay custody proceedings by refusing to participate in or to stipulate to
parentage, but it would also offer abusers more opportunities to perpetuate
the abuse. The problem is especially acute where, as here, the abusive
parent lives outside the jurisdiction of the California courts and cannot be
compelled to appear.
That is not an idle concern. Domestic violence survivors often flee
with their children across state lines and national borders to escape abuse.
The Court of Appeal’s decision places them, and countless other victims, at
the mercy of their abusers. After escaping abusive relationships, domestic
20 -
violence survivors and their children would be forced to plead with abusive
parents for stipulations of paternity or consent to personal jurisdiction in
order to obtain custody. Domestic violence survivors often struggle to leave
abusive relationships. Even after victims leave, perpetrators of domestic
violence often use custody proceedings to control and abuse their former
partners. The Court of Appeal’s decision merely gives abusers morelasting
powerovertheir victims.
Faced with the prospect of having to importune their abusers to
obtain custody overtheir children, victims may be forced to leave the safety
of California to return to the state or country of the abusive parent to
determine custody, putting victims in proximity to their abuser and
potentially jeopardizing their immigration status. That added burden may
deter other victims from leaving abusive relationships, placing themselves
and their children in grave danger.
These significant and deleterious practical consequences underscore
the fundamental error of the decisions below. It makes no sense for a
California court to decline to enter SIJ findings and a custody order over a
child whois plainly within its jurisdiction merely becausethe alleged father
who abandonedheris not, especially when he has been afforded the proper
due process requirements of notice and an opportunity to be heard.
Certainly no legal principle compels a court addressing custody to give
short shrift to a minor within its jurisdiction merely because one alleged
parent—and an abusive one at that—is beyondits jurisdictional reach. As
we explain below, statutes addressing domestic violence allow custody
orders in exactly those circumstances. An absent parent can always assert
his parental rights later.
Children seeking relief through SIJ status are likely to have already
suffered significant physical, emotional, and psychological harms as
survivors of abuse, neglect, or abandonment, and the rule articulated below,
-2?1-
if allowed to stand, would further exacerbate those problems. The decision
of the Court of Appeal failed to strike a proper balance between the rights
of child and adult survivors and their abusers, and favors non-residents over
California residents. That decision should be reversed.
BACKGROUND STATEMENT: ASPECTS OF DOMESTIC
VIOLENCE ESPECIALLY PERTINENT TO THIS CASE
Some context on the characteristics, prevalence, and effects of
domestic violence may illuminate the practical impact of the Court of
Appeal’s decision. California state and federal courts have recognized the
harmful effects of domestic violence. (See Hernandez v. Ashcroft (9th Cir.
2003) 345 F.3d 824, 836-38; Noergaard v. Noergaard (2015) 197
Cal.App.4th 76, 84-85.) Yet domestic violence is a widespread,
international issue. The World Health Organization considers domestic
violence a global threat to public health and women’s human rights.’
Approximately one in three women have experienced domestic violence in
the United States and worldwide.’ It is “one of the most commoncausesof
injury in women,”andit is “estimated that half of women whoexperience
* World Health Organization, Violence Against Women: Intimate Partner
and Sexual Violence Against Women Fact Sheet, (Updated November
2016) [as of April
3, 2017].
’ Ibid.; Breiding et al., Prevalence and Characteristics ofSexual Violence,
Stalking, and Intimate Partner Violence Victimization — National Intimate
Partner and Sexual Violence Survey, United States, 2011 (Surveillance
Summaries, Sept. 5 2014), [as of April 3, 2017]; see
also National Center for Injury Prevention & Control, Centers for Disease
Control & Prevention, The National Intimate Partner and Sexual Violence
Survey (2010), p. 2. [as of April 3, 2017] [nationally, more than 1 in 3
women, and | in 4 men experience domestic violencein their lifetimes].
-22-
[domestic violence] are physically harmed.” * Domestic violence also
affects children. Perpetrators of domestic abuse commonly perpetrate both
child abuse and intimate partner violence; these types of abuse occur
together 60 to 75 percent of the time.” Many domestic violencevictims are
trapped in cycles of violence by a very real fear of death or serious harm to
themselves or their children if they try to leave their abuser.® In fact, as
many as 38 percent of murders of women are committed by a male intimate
partner.’
A. The Abuse Bianka’s Mother Endured During Pregnancy
Reflects A Common And Dangerous Pattern
Similarly, the domestic violence alleged here is not isolated.
Bianka’s father abandoned her before she was born after viciously abusing
her mother during pregnancy. That pattern is distressingly common.
Domestic violence often begins or intensifies during pregnancy or
immediately following the birth of a child.* Nearly one-third of domestic
“Wong & Mellor, Intimate Partner Violence and Women’s Health and
Wellbeing: /mpacts, Risk Factors and Responses (2014) 46(2)
Contemporary Nurse 170, 171.
° Osofsky, The Impact of Violence on Children (Winter 1999) 9 The Future
of Children: Domestic Violence and Children 33, 34 [as of April 3, 2017]; Appel & Holden, The Co-
occurrence ofSpouse and Physical Child Abuse: A Review and Appraisal,
(Dec. 1998) 12:4 Journal of Family Psychology, 578, 578-99.
© United Nations High Commissionerfor Refugees, Women on the Run,
First-Hand Accounts ofRefugees Fleeing El Salvador, Guatemala,
Honduras, and Mexico, (Oct. 2015) at p. 27, [as of April 3, 2017].
’ World Health Organization, supra, at p. 1.
$ Camp, Coercing Pregnancy (2015) 21 Wm. & Mary J. Women & L. 275,
291 [as of April 3, 2017]; see also Stoever, Enjoining Abuse:
The Case for Indefinite Domestic Violence Protection Orders, (2014) 67
-23-
violence survivors report that the first incident of abuse occurred during
their pregnancy,’ and as many as 20 percent of women in the United States
experience domestic violence during pregnancy.'°
The health effects of domestic violence are particularly acute during
pregnancy.'! Intimate partner violence is often targeted at a woman’s
womb,and includes kicking or punching the pregnant woman’s abdomen.”
Domestic violence during pregnancy is associated with significant health
consequences including low weight gain, anemia, kidney infections, first
and second trimester bleeding, low birth weight, preterm birth, increased
risk of cesarean delivery, uterine rupture, hemorrhage, placental abruption,
antenatal hospitalization, femicide, and neonatal death.’°
B. Domestic Violence Is Widespread In Honduras, Forcing
Countless Victims Like Bianka To Flee To Other
Countries To Escape Abuse
Bianka and her mother fled from Honduras, where—the United
Nations Special Rapporteur on Violence Against Women concluded—
violence against womenis “widespread and systematic.”!* While reporting
VAND. L. REV. 1015, 1060-61 [as of April 3, 2017]
[“Pregnant women experience domestic violence at rates that are twice as
frequent and severe in injury as the rates for nonpregnant abuse survivors,
and research showsthat abuse escalates as the pregnancy progresses.”
9 Camp, supra, at p. 291.
'© Gazmararian et al., Prevalence of Violence Against Pregnant Women
(1996) 275 J. Am. Med. Assoc. 1915, 1918 (1996).
" Camp, supra, at p. 294.
Ibid.
'S Leone et al., Effects ofIntimate Partner Violence on Pregnancy Trauma
and Placental Abruption, (2010) 19 J. Women’s Health 1501, 1501-02.
‘4 United Nations, Special Rapporteur on violence against women finalized
country mission to Honduras and calls for urgent action to address the
-24 -
rates in Honduras are high, conviction rates are dismal. The resolution rate
for domestic violence cases in Honduras is only 2.55 percent.'* Moreover,
the government of Honduras does not provide victims with sufficient
protection, legal and financial resources, or shelters.'°
The lack of governmentresourcesis one of the reasons why so many
victims have been forced to leave the country to escape violence. Indeed,
more than 200,000 unaccompanied children, including more than 40,000
children from Honduras, have fled to America over the last four years to
escape violence in other countries.’’ A quarter of unaccompanied children
from Honduras fled to America to escape abuse at home.'* Tens of
thousandsof these abused, abandoned, and neglected children file SIJ status
“ae ]
petitions every year. ,
culture of impunity for crimes against women and girls, (July 7, 2014)
[as of April 3, 2017].
° Ibid.
'© United States Department of State, Honduras 2015 Human Rights
Report, [as of
April 3, 2017].
'7 United States Customs and Border Protection, United States Border
Patrol Southwest Family Unit Subject and Unaccompanied Alien Children
Apprehensions Fiscal Year 2016, Statement by Secretary Johnson on
Southwest Border Security (Oct. 18, 2016), [as of
April 3, 2017].
'8 United Nations, Report of the Special Rapporteur on Violence Against
Women, its Causes and Consequences, Rashida Manjoo, Mission to
Honduras, March 31, 2015, at § 27.
'? United States Citizenship and Immigration Services, Number ofI-360
Petitions for Special Immigrant with a Classification ofSpecial Immigrant
Juvenile (SIJ) by Fiscal year and Case Status 2010-2017 (March 28, 2017),
[as of April 3, 2017].
-25-
Cc. Undocumented Immigrants Face Unique Challenges In
Fleeing And Reporting Domestic Violence
Undocumented immigrants are particularly vulnerable to domestic
violence in the United States. The abuser may manipulate the victim’s
immigration status by not filing legal documents to establish residency or
citizenship, or may threaten to have the victim deported if she reports
abuse.”” And partners accused of abuse mayretaliate by withdrawing from
immigration proceedings, destroying documents showing the victim’s legal
status, or alerting employers or immigration officials to the victim’s
undocumented status.”’ |
Among other barriers, language and poverty inhibit access to U.S.
court systems for immigrants who are financially dependent on abusive
partners.” To make matters worse, the Chief Justice has acknowledged,
California trial courts have reported “that immigration agents appear to be
stalking undocumented immigrants in our courthouses to makearrests.””°
9 National Center on Domestic and Sexual Violence, Immigrant Power
And Control Wheel, adapted from the Power and Control Wheel developed
by the Domestic Abuse Intervention Project, Duluth, MN
[as of April 3, 2017].
*" Tbid, .
* Futures Without Violence, The Facts on Immigrant Women and
Domestic Violence, [as of April 3, 2017].
* Tetter from Chief Justice Cantil-Sakauye to Attorney General Sessions
and Secretary Kelly (Mar. 16, 2017), [as of April 3, 2017]; see also Zapotosky, Top U.S.
Officials Defend Courthouse Arrests of Undocumented Immigrants in
Escalating Feud with California Justice, (Mar. 31, 2017) Washington Post,
[as of April 3, 2017].
*4 Queally, JCE Agents Make Arrests at Courthouses, Sparking Backlash
from Attorneys and State Supreme Court, (Mar. 16, 2017) Los Angeles
Times, [as of April 3, 2017]; Stern, Bad for
Undocumented Immigrants, a Gift to Domestic Abusers, (Mar. 8, 2017)
Slate, [as of Apri] 3, 2017]; KUSA, Denver City Attorney:
Deportation Fears Impacting Criminal Cases, (Feb. 26, 2017),
[as of April 3, 2017].
-27-
parent to renew contact with an abusive parent, and to beg for that parent’s
cooperation on pain of likely deportation of the child, runs a serious risk of
harm to the child and the abused parent. That result should be avoided, and
can be through a more reasonable interpretation of the governing statutes
here.
I. FORCING DOMESTIC VIOLENCE SURVIVORS TO BEG
THEIR ABUSERS TO COOPERATE RETRAUMATIZES
VICTIMS AND PUTS THEM AT RISK OF FURTHER ABUSE
As the Requested Amicus Curiae pointed out (Req. Am. Br. 42),
because the present case arises from a request for SIJ status findings, the
imposition below of a requirement that Bianka find her alleged father and
bring him-——or a stipulation from him—into court contravenes the INA,
which provides that a child requesting SIJ status “shall not be compelled to
contact the alleged abuser.” (8 U.S.C. § 1357(h).) Should the contrary
holding below remain in place, the very harm Congress sought to prevent
will cometo pass.
Congress’s determination that an abused or abandoned child seeking
SIJ status should not be forced to re-establish contact with the abusive
parent was well-founded. Forcing victims to interact with their abusers to
attempt to establish personal jurisdiction over them or to ask them to
stipulate to parentage would vest abusive parents with overwhelming power
and control over their children and the abused parent. That renewed power
imbalance is conducive to retraumatization and further abuse, including
serious bodily injury or death. It would certainly endanger the health,
safety, and welfare of the child, which the Legislature has made clearis the
primary concern for family courts in making custody determinations. (Fam.
Code, §§ 3020(a), 3011.)
A. Perpetrators Of Domestic Violence Use Power And
Control To Abuse Their Victims
The dynamics of domestic abuse already create a significant power
- 28 -
imbalance between victims of domestic violence and their abusers.
Domestic violence, or intimate partner violence, is a pattern of
physical, sexual, or emotionally abusive behavior perpetrated by one
intimate partner to gain or maintain power and control over another
intimate partner.”° (See Hernandez v. Ashcroft, supra, 345 F.3d at pp. 836—
38 [discussing the dynamics of power and control and the pattern of
violence and abuse of domestic violence].)
Power and control motivate domestic violence. Indeed, an “abusive
partner’s behavior stems more from a psychological need to dominate and
»26 The Power and Controlcontrol than it does from a desire to inflict pain.
Wheel, developed by the Domestic Abuse Intervention Project in Duluth,
Minnesota in the 1980s, 1s a widely used tool for understanding the pattern
of abusive behaviors used by abusers to establish and maintain control over
their victims.2” The wheel includes eight spokes, covering typical abusive
behaviors: coercion and threats; intimidation; emotional abuse; isolation;
minimizing, denying, and blaming; using children; economic abuse; and
male privilege.”® Since its creation, the wheel has also been adapted top & p
*> United Nations High Commissioner for Refugees, supra,at p. 35. The
DVPAdefines abuseas (1) intentionally or recklessly causing or attempting
to cause bodily injury; (2) sexual assaulting; (3) placing a person in
reasonable apprehension of imminentserious bodily injury to that person or
to another; or (4) molesting, attacking,striking, stalking, threatening,
battering, harassing, telephoning, destroying personal property, contacting,
or disturbing the peace of the other party. (Fam. Code §§ 6203(a), 6320(a).)
*° Kohn, The Justice System & Domestic Violence: Engaging the Case but
Divorcing the Victim (2008) 32 N.Y.U. Rev. L. & Soc. Change 191, 210,
[as of April 3, 2017].
*7 National Center on Domestic and Sexual Violence, Power and Control
Wheel,
[as of April 3, 2017].
°8 Thid.
-29-
address special concerns of certain communities, such as immigrants, who
face unique vulnerabilities to domestic violence.”
Given that abuse stems from a need to exert power and control over
a victim, forcing victims and their children to solicit cooperation with the
abuser would empowerabusers, thus gravely harming the health, safety,
and welfare of children.
B. Perpetrators Of Domestic Violence Often Use Child
Custody Proceedings To Abuse Their Partners
Custody proceedings offer another opportunity for abusers to gain
access to and leverage over their victims. For that reason, the insistence of
the courts below that an absent and abusive parent must be brought into
court before a child custody proceeding can proceed—even though the
abusive parent already declined to participate after being given notice and
an opportunity to be heard—wasespecially misdirected.
Abusers often use the legal system, and especially custody
proceedings,as a tool to exert control and authority over the abused parent
after separation.*° They sometimes seek custody over children they have
abandoned merely to avoid having to pay child support, or file meritless,
retaliatory claims against their victim. The renewed contact resulting from a
custody dispute provides an opportunity for harassment, intimidation,
*? National Center on Domestic and Sexual Violence, “Wheels” Adapted
jrom the Power and Control Wheel Model,
[as of April 3, 2017].
*° Watson & Ancis, Power and Control in the Legal System: From
Marriage/Relationship to Divorce and Custody (2013) 19(2) Violence
Against Women 166, 167-68, 180-82; Family Violence Appellate Project,
2016 Survey of Domestic Violence Service Providers (2016), at p. 7,
[as of April 3, 2017]
[finding that nearly 90 percent of California survey respondents reported
use of the legal process to continue abuse against domestic violence
survivors].
- 30 -
withholding of financial support, endangerment of the children, and
disruption to the victim’s relationship with the children.*’ And abusive
parents seeking custody often win the battle against non-abusive parents, in
part because ofgenderbias in the legal system.**
Custody disputes can actually increase the risks to survivors because
of the high rate of serious violence by perpetrators of domestic violence
after a separation.’ The victimization rate of women who are separated
from their husbandsis three times higher than that of divorced women, and
25 times higher than that of married women.** When domestic violence
results in the murderof a child, a breakupis often the precipitating factor.”
Bringing a victim face to face with her abuser, while necessary in some
circumstances, should not be a goal of the courts when the abuseris safely
outside the jurisdiction and has shownnoinclination to enterit.
*! Domestic Abuse Intervention Program: Homeofthe Duluth Model, Post
Separation Power and Control Wheel (2013), [as of April 3, 2017].
*° Bemiller, When Battered Mothers Lose Custody: A Qualitative Study of
Abuse at Home and in the Courts (2008) 5:3—4 Journal of Child Custody
228, 244-47.
°° Bancroft & Silverman, Assessing Risk to Children jrom Batterers (2002),
{as of April 3, 2017].
Bachman & Saltzman, Bureau of Justice Statistics, Violence Against
Women: Estimates from the Redesigned Survey (August 1995) p. 4,
[as of April 3,
2017].
> Jaffe & JSuodis, Children as Victims and Witnesses of Domestic
Homicide: Lessons Learned from Domestic Violence Death Review
Committees (2006) 57 Juv. & Fam. Court J. 13, 15.
-3]-
Cc. Because Absent Or Abusive Parents Are Unlikely To
Cooperate, The Requirement Imposed Below Would
Increase Deportations Of Abused Children To Harmful
And Abusive Environments
The Court of Appeal’s decision produces a senseless result: it forces
children to seek a stipulation of personal jurisdiction from abusive parents
who have no incentive to cooperate and who have already demonstrated a
propensity to act against the child’s best interests. Child abuse, like
domestic violence, stems from a parent’s desire to assert power and control
in the child’s life.** As a result, abusers are unlikely to participate in court
proceedings that would help their victims escape the abuser’s control. This
phenomenon often manifests in custody proceedings, but the Court of
Appeal’s ruling makesit likely that abusive parents will use the SIJ status
process as yet another.means of exerting power and control over their
children. In other words, because of the power dynamics of child abuse,it
is highly unlikely that an abusive parent will grant the stipulation required
by the Court of Appeal’s ruling. The practical consequences are dire: a
parent’s refusal to stipulate will effectively doom the abused, neglected, or
abandoned child’s SJJ status petition, thereby frustrating the child’s effort
to flee to safety, and leading to the deportation of the child back into an
unsafe environment.
The harmful effects to children of abusive home environments are
well-documented. In addition to the immediate physical, psychological, and
emotional harms that flow from abuse, research has identified “strong and
cumulative” impacts that continue to plague child victims throughout their
°° Straka & Montminy, Family Violence: Through the Lens of Power and
Control (2008) 8:3 Journal of Emotional Abuse 255, 268.
_32-
adult lives.°’ Children raised in violent homes are significantly morelikely
to develop long-term health problems, such as ischemic heart disease,
chronic lung disease, liver disease, or cancer.*® And they are more likely to
suffer from motor, cognitive, linguistic, and socio-emotional developmental
deficits. *? Physical abuse in childhood is also strongly correlated with
behavioral and psychological disorders, such as aggressive behavior and
delinquency in adolescence and adulthood, depression, anxiety, post-
traumatic stress disorder (“PTSD”), suicidal tendencies, behavioral
disorders, and risk-seeking behaviors.“° Many children who experience
physical abuse also experience sexual abuse, which can lead to anxiety,
depression, insomnia, poor self-confidence, drug use, and suicide
attempts.”
And the negative impacts of child abuse aggregate with each new
instance of abuse.”’ All new instances of abuse suffered by the children
deported back to the abusive conditions in their home countries will only
compoundthe ruinous physical and mental effects of any previous abuse.”
*7 Felitti, et al., Relationship ofChildhood Abuse and Household
Dysfunction to Many ofthe Leading Causes ofDeath in Adults: The
Adverse Childhood Experiences (ACE) Study (1998) 14(4) American
Journal of Preventative Medicine 245, 251-56 [as of April
3, 2017].
*8 Ibid.
* Tuscic et al, The Consequence ofChildhood Abuse (2013) 9(1) Pediatrics
Today 24, 27.
*° Tbid.; Felitti et al; supra, at pp. 249-50.
*! Tuscic etal, supra, at p. 29.
** Felitti et al, supra, at pp. 245, 251-56.
3 Powerset al., Childhood Trauma, PTSD, and Psychosis: Findings from a
Highly Traumatized, Minority Sample (2016) 58 Child Abuse & Neglect
111, 114.
-33-
To avoid that deeply undesirable result, the decision below should be
reversed.
D. Making Custody Determinations Contingent On Renewed
Contact With Abusive Parents Endangers The Very
Children That The SIJ Statute Is Intended To Protect
Children seeking SIJ status have been abused, neglected, or
abandoned. Forcing them to contact their abusers before they can obtain SIJ
findings from ‘a court would expose children to further abuse and
retraumatize them. Retraumatization occurs when a situation reminiscent of
an earlier traumatic event (a “retraumatization mechanism’) reactivates
trauma-related symptoms arising from the earlier trauma (“reactivation of
traumatic memories”).”“ In the context of child abuse, contact with a former
abuser can trigger retraumatization, leading a child to feel unsafe. As a
result, where a parent has previously abused or neglected a child, “it is
imperative [to] . . . consider the ramifications of helping the child establish
relationships with the offender,” in order to prevent reactivation of
traumatic memories.” Reactivation of traumatic memories, moreover, may
also reactivate the physical symptoms of trauma, such as hyperarousal and
hypervigilance, sleep and eating disorders, inability to learn, and difficulty
getting along with others.”°
“ Carello & Butler, Potentially Perilous Pedagogies: Teaching Trauma is
Not the Same as Trauma-Informed Teaching (2014) 15 Journal of Trauma
& Dissociation 153, 156; Fossion et al., Beware of Multiple Traumas in
PTSD: The Role of Reactivation Mechanism in Intrusive and Hyper-
arousal Symptoms (2016) 19(3) Aging & Mental Health 258, 261.
“> Keller-Dupree, Understanding Childhood Trauma: Ten Reminders for
Preventing Retraumatization (2013) 2 Journal of Counseling and
Professional Psychology 1, 4.
“° Fossion et al., Beware ofMultiple Traumas in PTSD: The Role of
Reactivation Mechanismin Intrusive and Hyper-arousal Symptoms (2016)
19:3 Aging & Mental Health 258, 261.
-34-
The practice required by the decision below—which forces children
seeking SIJ status to contact their absent, abusive, or neglectful parents for
stipulations of parentage or personal jurisdiction—creates a high risk of
retraumatizing the very children Congress intended to protect when it
created SIJ status and specifically provided that they “shall not be
compelled to contact the alleged abuser.” (8 U.S.C. §1357(h) [emphasis
added].) Under the decision below, a child’s fate rests entirely in the
abusive parent’s hands, and that parent—by mere inaction—canforeclose a
child’s ability to seek SJJ status findings under the UPA. That groundless
legal framework gives abusive parents immense power and control over
their children.
Because parental abuse of childrenitself is often a means of exerting
powerand control, a legal rule that gives so much powerto an abusive or
neglectful parent is highly likely to place children in a situation akin to the
abusive power dynamics from which they are trying to escape.*’ This
situation carries a high risk of triggering retraumatization.
As explained above (at pp. 22—23), adverse childhood experiences
have a “strong and cumulative” impact on long-term health. ”
Retraumatization can only exacerbate that impact. The SIJ statute provides
protection specifically for children who cannot reunite with at least one
parent due to “abuse, neglect, abandonment, or a similar basis.” (8 U.S.C.§
1101(a)(27)(J)G).) It would frustrate the purpose of the statute to put
children at further risk of harm from their abusers in order to obtain SIJ
status.
“” Indeed, child abuseis often rooted in the feeling of chaos experienced by
abusive parents when they “feel they have less power and control overtheir
children.” (Straka & Montminy, supra, at p. 268.)
8 Felitti, supra, at pp. 251-56.
-35-
E. Requiring Abused Parents To Interact With Their
Abusers Puts Domestic Violence Victims At Risk Of
Further Abuse And Retraumatizes Them
In addition to the potential harm to abandoned, abused, and
neglected children, the decision below exposes victims of intimate partner
violence to harm by forcing them to beg their abuser to enter into a
stipulation for parentage or submit to personal jurisdiction before a custody
determination can be made.
The process of seeking a stipulation from the absent, neglectful, or
abusive parent may jeopardize the safety of the parent seeking custody,
whohasto re-engage with the abusive parent after successfully separating
and achieving safety. It is already very difficult for the non-abusive partner
to escape the abuse safely and endthe relationship.” It takes survivors an
average of five to seven attempts at leaving the abusive situation before
they fully succeed in doing so.°° Abusive partners often escalate abuse
when the victim attempts to leave in order to intimidate the victim into
staying or returning after leaving. °’ And merely exiting an abusive
relationship is not the final step for a victim, who must work to stay safe.>*
As a consequence, re-engaging with an abusive partner is dangerously
53counterproductive.
” Hagegblom & Moller, Fighting for Survival and Escape from Violence:
Interviews with Battered Women (2007) 2 Int’! J. Qualitative Studies on
Health & Well-being 169, 170.
°° Lindgren, Intimate Partner Violence and the Leaving Process (2008) 3
Int’! J. Qualitative Studies on Health & Well-Being 113, 122.
>! Anderson, “Why Doesn’t She Just Leave?”: A Descriptive Study of
Victim Reported Impediments to Her Safety (2003) 18(3) Journal of Family
Violence 151, 151-53.
»* Ornstein & Rickne, When Does Intimate Partner Violence Continue After
Separation? (2013) 19(5) Violence Against Women 617, 627-29.
°3 Thid.
- 36 -
Moreover, domestic violence can impair victims’ physical,
reproductive, and mental health.’ The harmful impact of domestic violence
on victims “may be immediate and direct (such as death andinjury), longer
term and direct (such as disability and chronic illness), indirect (such as
9 Te may alsoself-perceived health and health behaviors), or all three.
cause “mental health problems such as depression, . . . PTSD, generalized
anxiety disorder, phobias, obsessive compulsive disorder, panic disorders,
somatization, attempted suicide, and substance-related disorders.””°
The Court of Appeal’s decision effectively forces the parent seeking
custody to re-engage with the abusive parent in a context that will put the
parent seeking custody at risk of further abuse and retraumatization, by
creating a dynamic of power and control similar to that suffered by the
victim during the romantic involvement with the abuser.°’ Forcing the
abused parent to bargain for the abusive parent’s cooperation re-initiates a
relationship that was dangerous and difficult to end.°’ In some cases, the
non-abusive parent may be compelled to agree to resume an unsafe and
unhealthy relationship in exchange for the abuser’s consentto a stipulation
of parentage or voluntary submission to the court’s jurisdiction, risking the
victim’s safety (and quite possibly that of the child as well).°? In other
cases, it may trigger a new wave of abuse, putting the victim at risk of
harm.
4 World Health Organization, supra.
°° Wong & Mellor, supra, at p. 171.
°° Td. at p. 173.
°’ Valpied et al, “Sometimes Cathartic. Sometimes Quite Raw”: Benefit and
Harm in an Intimate Partner Violence Trial (2014) 19 Aggression and
Violent Behavior 673, 679.
8 Haggblom & Moller, supra, at pp. 175-77.
*? Anderson, supra, at pp. 151, 153.
_37-
In short, the Court of Appeal’s decision jeopardizes the safety of
both the parent seeking custody, and the child over whom custody is
sought. That result flies in the face of the public policies established by the
state and federal laws that properly govern the issues presented here.
I. THE DVPA AUTHORIZES CUSTODY ORDERS
REGARDLESS OF WHETHER PARENTAGEOF THE
NONCUSTODIAL PARENT HAS BEEN ESTABLISHED
The principal briefs on the merits explain why, under the UPA, the
Superior Court had full authority to make SIJ status findings, and the
attendant custody order, without first adjudicating the paternity of Bianka’s
alleged father.®’ This Court’s resolution of the issue under the UPA should
also take into account the pertinent provisions of the DVPA, given the
detrimental impact the rule set forth below would have on these matters.
The DVPAauthorizes a court to make a binding custody order where only
one parent has established a parent-child relationship with the child, and
where the other party has received notice and an opportunity to be heard.*!
Affirmance of the decision below might draw that aspect of the DVPAinto
question, with significant and deleterious practical effects.
The Legislature has made clear that courts making child custody
determinations should be primarily concerned with “assur[ing] . . . the
health, safety, and welfare of children.” (Fam. Code § 3020(a).) Indeed, the
Legislature specifically found and determined that domestic violence is
detrimental to children. (/bid.)
°° See OBM 30-44; Req. Am.Br. 32-34.
°' The Requested Amicus Curiae Brief suggested that all of the documents
Jorge was served with should have beentranslated into Spanish. (Req. Am.
Br. 25-26.) Ofthe listed 7,099 living languages in the world, about 3,233
are likely unwritten languages, so that translation of a document may not
alwaysbe possible. (Simons & Fennig, Ethnologue: Languagesofthe
World, SIL International (2017), [as of
April 3, 2017].)
_ 38 -
Accordingly, courts are required to consider any history of child
abuse or domestic violence by a parent when making custody
determinations. (Fam. Code § 301 1(b).) Indeed, a finding that a parent has
committed domestic violence within the previous five years triggers a
rebuttable presumption against awarding custody to that parent. (See Fam.
Code § 3044(a); In re Marriage of Fajota (2014) 230 Cal_App.4th 1487,
1498.) The presumption places the burden on the abusive parent to show
that awarding him custody is in the child’s best interest. (Fam. Code
§ 3044(a).)”
Although the present case was not brought under the DVPA,the
DVPA clearly indicates the Legislature’s policy of protecting victims of
domestic violence and their children. (Ritchie v. Konrad (2004) 115 Cal.
App. 4th 1275, 1287 [“The overall purpose of our ‘domestic violence’
legislation is . . . to prevent future acts of abuse.”]}; see also Babalola v.
Superior Court (2011) 192 Cal.App.4th 948, 963 [noting “the Legislature’s
consistent and repeated efforts to ensure the courts utilize all available tools
... to safeguard victims of domestic abuse”’].) The DVPA allows courts to
grant custody and visitation orders when issuing temporary, long-term, and
permanent domestic violence restraining orders. If a party seeking a
restraining order has established a parent-child relationship and the other
party has not, a court may award temporary custody on an ex parte basis to
° As explained below (at pp. 34-36), to the extent that the lower courts
were concerned that SIJ findings of abandonmentand abuse wouldtrigger
the application of Family Code section 3044’s rebuttable presumption
against awarding custody to Jorge, their concerns were misplaced. First,
Family Code section 3044 would not apply here becausethe statute covers
only abandonmentand abusethat occurred within the previousfive years.
More importantly, to the extent that any such findings purport to bind
Jorge, he could collaterally attack those findings in later proceedings
because the court lacked personaljurisdiction over him.
- 39 -
the party that has established the parent-child relationship. (Fam. Code
§ 6323(a)(1); see also id. § 6323(a)(2)(B)G) [party can establish a parent-
child relationship by giving birth to the child].) Then, upon notice and a
hearing, the court can extend the custody order. (Fam. Code § 6340(a).)
Critically, the DVPA permits courts to issue custody awards without
making any finding of parentage as to the noncustodial parent. (Fam. Code
§§ 6323(a)(1), 6340(a).) And in ex parte proceedings, the DVPA ensures
that any custody order issued will have no effect in any other action to
establish a parent-child relationship—thus adequately protecting the absent,
noncustodial parent’s rights. (Fam. Code § 6323(b)(1).) In fact, the court
cannot even make a finding of paternity in an ex parte DVPA proceeding
unless paternity is both stipulated and uncontested. (bid. )
To illustrate, a Court of Appeal in Gonzalez v. Munoz held that
courts can award custody even when the parentage of a noncustodial party
has not been established. (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413.)
In Gonzalez, a domestic violence victim sought a DVPA temporary
restraining order against the abuser and asked for an order awarding her
custody of their child. Ud. at p. 417). The victim had established a parent-
child relationship with the child; the abuser had not. W/bid.) Thetrial court
granted both temporary orders, but (after notice and a hearing) extended
only the restraining order for one year, concluding that it lacked the
authority to extend the temporary child custody order as well. (/d. at pp.
416-17.)
The Court of Appeal reversed, holding that Family Code section
6340 authorizes the extension of any orders madeat the time of the ex parte
request, including custody orders. (/d. at p. 422.) Section 6340 also
specifically requires the court to consider “whether failure to make any of
these orders may jeopardize the safety of the petitioner and the children for
whom the custody or visitation orders are sought.” (/bid. (quoting Fam.
- 40 -
Code § 6340).)
The Gonzalez court’s conclusion that “[c]ourt procedures, however
well-intentioned, should not be imposedat the expense ofthe parties’ basic
rights to have their matters fairly adjudicated” is particularly apt here. (/d.
at p. 424.) In its efforts to preserve the due process rights of Bianka’s
alleged father, the Court of Appeal’s decision strips Bianka of her due
process right to a hearing on her application for SIJ status. Adjudication of
parentage is simply not required before issuing a custody order if the parent
seeking the custody order has established a parent-child relationship, as
Bianka’s motherhas here.
In addition, denying the requested custody order contravenes the
policy expressed in section 6340, which requires courts to consider whether
failure to issue a custody order in a domestic-violence setting may
“jeopardize the safety” of the child and the petitioning parent. As explained
above(at pp. 24-28), forcing Bianka to contact the man who abandonedher
and abused her mother could place both mother and daughter at risk.
Moreover, simply by refusing either to participate in the proceedingsor to
stipulate that he is Bianka’s father, Jorge could prevent Bianka from
applying for SIJ status and effectively force her to return to Honduras
where her safety would be in jeopardy. That is not what the Family Code
requires, or permits.
WI. THE UCCJEA PERMITS COURTS TO ENTER ORDERS
NECESSARY TO PROTECT A SURVIVOR OF DOMESTIC
VIOLENCE WITHOUTFIRST ESTABLISHING PERSONAL
JURISDICTION OVER THE ABUSER
Courts’ authority under the DVPA to make custody determinations
in connection with protective orders supplements the broader authority
conferred by the UCCJEA to issue binding custody determinations without
personal jurisdiction over an out-of-state parent.
The UCCJEA (and its precursor, the Uniform Child Custody
_A] -
Jurisdiction Act) were enacted to harmonize state child custody laws to
provide a uniform procedure for establishing and modifying child custody
orders across jurisdictions.© To that end, the UCCJEA vests California
courts with jurisdiction to make initial child custody determinations for a
child whose home state is California. (Fam. Code § 3421(a)(1).) The
relevant inquiry—-and source of power—under the UCCJEA is the
residence of the child, not the parents. (Fam. Code § 3421(a).) Indeed, the
UCCJEA expressly states that “physical presence of, or personal
jurisdiction over, a party . . . is not necessary or sufficient to make a child
custody determination.” Ud. § 3421(c).)
This authority to take care of children within the court’s jurisdiction,
without regard to the court’s inability to assert jurisdiction over one or both
parents, has particular resonance whena child flees across state borders to
escape abuse. When a child’s “homestate” is outside of California, the
UCCJEA generally gives jurisdictional priority to make custody
determinations to courts situated in the child’s “homestate.” (Fam. Code
§3402(g) [defining “homestate” as the state in which a child has lived with
a parent for at least six consecutive months immediately prior to the
custody proceeding].) Consistent with California’s strong interest in
protecting survivors of domestic violence, however, the UCCJEA provides
an exception to that rule in cases of domestic violence, abuse, or
abandonment. (Fam. Code § 3424(a).) Thus, a California court has
“temporary emergency jurisdiction if the child is present in this state and
the child has been abandonedorit is necessary in an emergency to protect
the child because the child, or a sibling or parent of the child, is subjected
to, or threatened with, mistreatment or abuse.” (/bid.)
This express authority is important because victims of domestic
°° See UCCJEA Prefatory Note, § 9 U.L.A. 649, 650 (1997).
-42-
violence often flee with their children across state lines and national borders
to escape abuse.Evenafter a parent or child has fled to safety, however,
establishing custody over minor children is often necessary to rebuild the
family unit, to prevent harassment by the former abuser, to prevent the
abused parent from being prosecuted for child abduction, and to afford
survivors of abuse access to the legal protections and benefits that an award
of custody confers upon the affected child. An award of physical custody
determines where the child will live, and legal custody enables parents to
make decisions regarding their child’s education, religion, health care, and
general welfare. (See generally, Fam. Code §3000 et seq.) Custody
determinations are particularly important for undocumented immigrant
parents, who may need to makelegal arrangementsto care for their children
in case the parents are deported.
The UCCJEA not only grants jurisdiction over children fleeing
domestic violence (see Fam. Code § 3424(a)); it also prohibits courts from
declining jurisdiction based on “unjustifiable conduct” if, “as a result of
domestic violence,” the party seeking custody took the child away from one
who lawfully had custody over that child. (Fam. Code § 3428(d).)
By declining to determine Bianka’s custody unless she could
establish personal jurisdiction over the man who abandoned her and abused
her mother, the courts below disregarded the plain meaning of Family Code
* See Bookey, (2012), Domestic Violence as a Basis for Asylum: An
Analysis of 206 Case Outcomes in the United States from 1994 to 2012
(2013) 24 Hastings Women's L.J. 107, [as of April 3, 2017];
Goelman, Shelter from the Storm: Using Jurisdictional Statutes to Protect
Victims of Domestic Violence after the Violence Against Women Act of
2000, (2004) 13 Colum. J. Gender & L. 101; Goelman & Mitchell,
Protecting Victims of Domestic Violence Under the UCCJEA (2010) 61
Juv. & Fam. Court J. 1.
43 -
section 3421] and prior authority construing it. It is settled that personal
jurisdiction over a nonresident parent is not required to make a custody
determination. (See /n re Marriage ofLeonard (1981) 122 Cal.App.3d 443,
459.) And the Family Code repeatedly reinforces the principle that
survivors of domestic violence should not be penalized for fleeing into
California to escape an abuser. (Fam. Code §§ 3424(a), 3428(d).)
If the Court of Appeal’s decision is upheld, survivors of domestic
violence fleeing with their children to California would no longerbe able to
rely on this state’s protections. They could be forced to return to the state or
nation oftheir abuserto litigate the custody of their children. And abused or
abandoned children residing in California—over whom only California
properly has jurisdiction to determine custody—would be placed in
indefinite limbo under the custody of no oneat all. Those results cannot be
reconciled with the domestic violence protections of the UCCJEA.
IV. BECAUSE THE ABUSER COULD COLLATERALLY
ATTACK FINDINGS MADEIN HIS ABSENCE, THERE IS
NO SOUNDBASIS TO DENY SIJ STATUS AND CUSTODIAL
RELIEF TO CHILD (AND ADULT) SURVIVORS WITHIN
THE COURT?’S JURISDICTION
The courts below appear to have been motivated in part by a
misplaced concern that the abandoning or abusive parent would face
potential consequences if the SIJ findings and custody order were issued.
Yet there is no genuine risk that SIJ findings of abandonment or abuse
made without the participation of the accused parent could prejudice that
parent’s ability to assert parental rights in the future. It is well-established
that judgments “purporting to bind . . . [a] person . . . over whom the court
ha[s] not acquired in personam jurisdiction [are] void” as against the party
over whom the court lacks jurisdiction and are subject to collateral attack at
any time. (Hanson v. Denckla (1958) 357 U.S. 235, 250; People v. Am.
Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660.) That principle of
44.
federal constitutional law would preclude any contrary effects that
otherwise might flow from statutory rule.
To be sure, the UCCJEA states that custody determinations bind
persons whohavereceived notice and an opportunity to be heard. However,
it also states that personal jurisdiction is not required to make a custody
determination. (Fam. Code §§ 3406, 3421(c).) Those provisions may be
construed, consistent with the Due Process Clause, as making a custody
determination under the UCCJEA “binding” only in the sense that any
court judgmentthat properly decides the rights of the parties beforeit (i.e.
the rights of Bianka and her mother, Gladys) is binding. Because the court
lacked personal jurisdiction over Jorge, the custody determination would
not preclude him from seeking an adjudication of his own parental rights in
the future.
But the potential availability of a later collateral attack would not
preclude the court in this case from awarding custody to Gladys and
making the SJJ status findings. The court had subject-matter jurisdiction
under the UCCJEA, UPA, and INA,and personal jurisdiction over Bianka
and Gladys.Its lack of personaljurisdiction over Jorgeis irrelevant because
the relief did not determine Jorge’s rights vis-a-vis Bianka or impose any
affirmative duty or responsibility upon him. SIJ status proceedings address
| the minor’s rights vis-a-vis federal immigration authorities, qualifying the
minor to seek further immigration relief through the United States
Citizenship and Immigration Services’ SIJ petition process. And custody
awards simply determine a child’s status with respect to the custodial
parent. (See Titus v. Superior Court (1972) 23 Cal.App.3d 792, 797-798: In
re Marriage of Leonard, supra, 122 Cal.App.3d at pp. 458-459.) A
noncustodial, abandoning parent who changed his mind would not be
precluded from asserting his parental rights in the future and seeking to
modify any custody orders.
-45-
The court’s inability to make orders that would conclusively bind a
person outside its jurisdiction does not vitiate its ability to make orders that
affect only persons within its jurisdiction. A misplaced concern for effects
on the absent parent provide no basis to deny relief to the parties properly
before the court. And that phantom concern surely provides no reason to
force distressed parties within the jurisdiction to expose themselves to
danger from an abuser outsideit in order to obtain relief to which they are
entitled.
CONCLUSION
Requiring abused, neglected, and abandoned children to establish
personal jurisdiction over their abusive parents, or otherwise appeal to their
abusers for a stipulation of parentage, in order to obtain custody orders and
SIJ status findings exposes the children and abused parents to further harm
and is contrary to the UPA, DVPA, UCCJEA, and the INA. The judgment
of the Court of Appeal should be reversed with instructions to issue a writ
of mandate directing the Superior Court to make the SIJ status findings and
enter the custody order Bianka M.requested.
_ A6 -
Dated: April 10, 2017 Respectfully submitted.
Donald M. Falk (SBN 150256)
Samantha Booth (SBN 298852)
Lilya Mitelman (SBN 307984)
MAYER BROWN LLP
TwoPalo Alto Square, Suite 300
3000 El Camino Real
Palo Alto, CA 94306
(650) 331-2000
Erin C. Smith (SBN 234852)
Jennafer D. Wagner (SBN 191453)
Nancy Lemon (SBN 95627)
Shuray Ghorishi (SBN 268232)
Catherine Ongiri (SBN 246256)
Anya Emerson (SBN 289065)
FAMILY VIOLENCE APPELLATE PROJECT
1814 Franklin Street, Suite 805
Oakland, CA 94612
(510) 858-7358
Jane K. Stoever (SBN 295489)
Michael McConnell (Certified Law
Student Intern)
UNIVERSITY OF CALIFORNIA, IRVINE
SCHOOL OF LAW DOMESTIC VIOLENCE
CLINIC
PO Box 5479
Irvine, CA 92616-5479
(949) 824-9646
Attorneys for Amici Curiae Family
Violence Appellate Project and the
University ofCalifornia, Irvine School of
Law Domestic Violence Clinic, et al.
_AT-
CERTIFICATE OF WORD COUNT
(California Rule of Court 8.520(c)(1))
According to the word count facility in Microsoft Word 2007, this
brief, including footnotes but excluding those portions excludable pursuant
to Rule 8.520(c)(3), contains 6,337 words, and therefore complies with the
14,000-wordlimit contained in Rule 8.520(c)(1).
Dated: April 10, 2017 Respectfully submitted.
xéWold.
Lilya Mitelman (SBN 307984)
MAYERBROWN LLP
Attorneyfor Amici Curiae
_ Ag -
