M., BIANKA v. S.C.Amicus Curiae Brief of Harriett Buhai Center for Family Law and Association of Certified Family Law SpecialistsCal.April 14, 2017SUPREME COURT FILED APR 1 4 2017 5233757 IN THE SUPREME COURT OF CALIFORNIA Jorge Navarrete Clerk Deputy BIANKA M., Petitioner, Vv. THE SUPERIOR COURT OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, Respondent; GLADYSM., Real Party in Interest. AFTER A PUBLISHED DECISION BY THE COURT OF APPEAL FOR THE SECOND APPELLATE DISTRICT, DIVISION THREE CASE NO. B267454 APPLICATION ON BEHALF OF THE HARRIETT BUHAI (CENFER FOR FAMILY LAW AND THE ASSOCIATION OF CERTIFIED FAMILY LAW SPECIALISTS FOR LEAVE TO FILE ANAMICUS CURIAE BRIEF IN SUPPORT OF PETITIONER’S BRIEF CLAUDIA RIBET, ESQ. (SBN:156512) RIBET & SILVER 1875 CENTURY PARK EAST, SUITE 2200 LOS ANGELES, CA 90067 : TELEPHONE: (424) 281-5566 MAX: (424) 281-5567 cribet@ribetsiver.com 1 $233757 IN THE SUPREME COURT OF CALIFORNIA BIANKA M., Petitioner, Vv. THE SUPERIOR COURT OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, Respondent; GLADYSM., Real Party in Interest. AFTER A PUBLISHED DECISION BY THE COURT OF APPEAL FOR THE SECOND APPELLATE DISTRICT, DIVISION THREE CASE NO.B267454 APPLICATION ON BEHALF OF THE HARRIETT BUHAI CENTER FOR FAMILY LAW AND THE ASSOCIATION OF CERTIFIED FAMILY LAW SPECIALISTS FOR LEAVE TO FILE ANAMICUS CURIAE BRIEF IN SUPPORT OF PETITIONER’S BRIEF CLAUDIA RIBET, ESQ. (SBN:156512) RIBET & SILVER 1875 CENTURY PARKEAST, SUITE 2200 LOS ANGELES,CA 90067 TELEPHONE:(424) 281-5566 FAX:(424) 281-5567 cribet@ribetsilver.com 1 TABLE OF CONTENTS APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF ....... 0.00.0 cece eee eens8 PROPOSED AMICUS BRIEF OF THE HARRIETT BUHAI CENTER FOR FAMILY LAW AND THE ASSOCIATION OF CERTIFIED FAMILY LAW SPECIALISTS .............----. 17 BACKGROUND.......... 0.2 cece tenet n nen eens 17 ARGUMENT ...... 0... c cece tent e teen beens19 A. The Family Code Provides for Different Parentage Statuses. Bianka's Father is a Mere "Alleged Parent" With Limited Rights. ........ 0.6 ce cece ee eee eee eee ee 19 B. No Personal Jurisdiction Is Necessary To Make an Initial Custody Decision. .......... 6.06 eee reece eee 25 C. Alleged Parents Are Entitled Merely to Notice, Which Bianka Gave To Her Father............. 4c e erence ee 29 D. The Appellate Decision Ignores the Best Interests of Bianka........... Doce ccc ence ee eee eee teenies 31 E. The Holding in Bianka M. Puts SIJS Applicants Like Bianka in an Impossible Position, and the Solution of the Answering Brief Should be Rejected..............-+-- 34 CONCLUSION .......... 0.2. ccceeeens 42 CERTIFICATION OF WORD COUNT............-00 ee eee eee43 PROOF OF SERVICE ....... 0... 2cceenee44 TABLE OF AUTHORITIES California Cases Adoption of Kelsey S. (1992) 1 Cal.4th 816, 825... 0... 2.eee eee eee20 In re Baby Girl M.(1984) 37 Cal. 3d 65.0... cccee teen tenn nees24 Bianka M. v. Superior Court (2016) 245 Cal.App.4th 406........... 9, 12, 15, 17, 19, 25, 32-386 In re Marriage of Burgess (1996) 18 Cal.4th 25... 0... cece ce eee eens 34 County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215 2...cceee35 Elisa B. v. Superior Court (2005) 37 Cal.4th 108, 116... .. 0...ee ee eee21 In re Jason J. (2009) 175 Cal.App.4th 922.0... 0ccee ee eee ees23 Jason P. v. Danielle S, (2014) 226 Cal.App.4th 167 2.0... ccc terete eee 22 Jesusa V. (2004) 32 Cal.4th 588, 611 ..... 0...eeee 22 Leslie H. v. Superior Court (2014) 224 Cal.App.4th 840 0... ee eee eee ees 31, 35 Neil S. v. Mary L. (2011) 199 Cal.App.4th 240 2... 0.ceeee 19 In re Marriage of Nurie (2009) 176 Cal.App.4th 478 2.2... 0. cceteeee27 In re Marriage of Torres (1998) 62 Cal.App.4th 13867... 0...eeeeee29 In re Zacharia D. (1993) 6 Cal.4th 435 0... cccee eee teen eens 23 Federal Cases Lehr v. Robertson (1983) AGS U.S. 248, 260 20...eenee23 STATUTES BUG.C.§§ 1101... cece cece eet nee enna 10, 31 Code of Civil Procedure section155...........0 00+ eee 10, 12, 31 Code of Civil Procedure section 413.10....... ....+---+ eee 30, 41 Code of Civil Procedure section 415.10...........5 5 eee eee 30 Family Code section 3010 ....... 0... eee ee teeters 24, 32 Family Code section 3020 ....... 0.0... eee eee eee eens 32 Family Code section 3022 ....... 0... eect eee eee 30 Family Code section 3408 ....... 0... cece eee eee eens 30 Family Code section 3421 .... 00... eeeee ees 26, 27 Family Code section 7610...... 0.0... ce cece eee eee 20 Family Code section 7611 .............0 eee eee 21, 22, 24, 30, 33 Family Code section 7635.1... 06. cece eee eee ees30 Family Code section T666 . 0.cceee tee eens 26, 30 COURT RULES California Rule of Court 5.180 ......... 0... c cee eee eee eee 41 California Rule of Court 8.520 ....... 0. 0c cece eee eee 8 OTHER AUTHORITIES Fitzpatrick and Orloff, Abused, Abandoned, or Neglected: Legal Options for Recent Immigrant Women andGirls, 4 Penn. St. J.L. & Int'l Aff. 614, 617 (2016). 2... 2. ee ceee eee 11 Guide to Translation of Legal Material (April 2011) Consortium ofLegal Accessin the Courts, Professional Issues Committee http://www.ncsc.org/education-and-careers/state-interpreter- certification/~/media/files/pdf/education%20and%20careers/state 6 %20interpreter™20certification/guide%20to%20translation%20pr actices%206-14-11.ashx Deen bee bebe bbb be bebe eee eben eben e eee e eee nee eeeae 38 HHSPoverty Guidelines, 81 Fed. Reg. 4036, 4037 (Jan. 25, 2016) ......... 6... eee eee eee 11 National Conference of Commissioners on Uniform State Laws, Commentto Section 201, Uniform Child Custody Jurisdiction and Enforcement Act (1997) 2.0.0... cee cee tt ee eens 28 Office of Refugee Resettlement, Unaccompanied Children Released to Sponsors by State (March 25, 2016). 0.0...eeeees10 Translation Protocol Judicial Council of California (July 2016) http://www.courts.ca.gov/documents/lap-Translation-Protoc oL.pdf cece cee tent beeen eee ee teen cere eee eee ee eees 39, 40 US Census Bureau data (October 2015), http://www.census.gov/data/tables/2013/demo/2009-2013-lang- tables.html cee beeen eee b beeen eee eee een eee eee ene neee 37 9233757 IN THE SUPREME COURT OF CALIFORNIA BIANKA M., Petitioner, Vv. THE SUPERIOR COURT OF CALIFORNIA ~ FOR THE COUNTY OF LOS ANGELES, Respondent; GLADYSM., Real Party in Interest. AFTER A PUBLISHED DECISION BY THE COURT OF APPEAL FOR THE SECOND APPELLATEDISTRICT, DIVISION THREE CASE NO. B267454 APPLICATION ON BEHALF OF THE HARRIETT BUHAI CENTER FOR FAMILY LAWAND THE ASSOCIATION OF CERTIFIED FAMILY LAW SPECIALISTS FOR LEAVE TO FILE ANAMICUS CURIAE BRIEF IN SUPPORT OF PETITIONER’S BRIEF APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF Pursuant to rule 8.520, subdivision (f) of the California Rules of Court, the Harriett Buhai Center for Family Law (“the Center”) and the Association of Certified Family Law Specialists (“ACFLS”) request leaveto file the accompanying amicus curiae brief in support of Bianka M. Put simply, under Bianka M. andthe suggestion in the Respondent’s Brief, | Bianka and other SIJS applicants would be faced with impossible roadblocks hampering or preventing their paths to freedom anda betterlife in this country where, as here, one of their parents is ready, willing and able to provide that path and has already begun to do so. The Center represents a numberof willing single parents in the United States. Abandonedbyheralleged father before birth, Bianka left Honduras in August 2013 when she wasten yearsold to escape gang violence and reunite with her mother in the United States. As her OpeningBrief on the Merits (“OB”) states, Biankalives in a safe family environment that promotes her health, safety and welfare, in stark contrast to the situation she left behind in Honduras. (OB 2-3.) Becauseshelackslegal status, however, Bianka remains in jeopardy of deportation. The Center is a well known and respected non-profit organization in Los Angeles providing free family law and domestic violence assistance. The Center was established in 1982 and has helped some 30,000 people since it openedits doors. Special Immigrant Juvenile status (“SIJS”) is intended to provide relief for children like Bianka, many of whom, along with their parents, may be the Center’s clients. (8 U.S.C. §§ 1101, et seg.) Code of Civil Procedure section 155 gives the trial courts an importantrole in facilitating federal SIJS status. According to the Office of Refugee Resettlement, since October 2013, more than 12,000 children apprehended by U.S. Customs and Border Protection (CBP) have been released to a sponsor in California. (Office of Refugee Resettlement, Unaccompanied Children Released to Sponsors by State (March 25, 2016).) Some forty percent of Central American children qualify for SIJS status, and 10,000 entered the United States last year alone. These children,like Bianka, are often undocumented, unaccompaniedchildren entering the United States who have been the victims of 10 parental abuse, neglect, or abandonment. SIJS status is a form of humanitarian relief aimed at protecting the most vulnerable children (often girls), who have been mistreated or abandoned.(Fitzpatrick and Orloff, Abused, Abandoned, or Neglected: Legal Options for Recent Immigrant Women and Girls, 4 Penn.St. J.L. & Int’l Aff. 614, 617 (2016).) Manyof the parents of these children will become clients of the Center. The circumstances of many of the Center’s clients are remarkably similar to those of Bianka and her mother. Many have experienced and witnessedviolence in their homes and communities in Central and South America. Theyoften lack the support and involvementof one of their two parents. The Center’s clients are poor and, like Bianka and her mother, seek stability, security and better futures. The 2016 United States Federal Poverty Guidelines (also known as the Federal Poverty Level) for a family of two (one parent and one child) was $1,328 per month, or $15,930 per year. (Annual Update of the HHS Poverty Guidelines, 81 Fed. Reg. 4036, 4037 (Jan. 25, 2016).) The Center’s clients are in more dire straights. 11 The Center’s most recently-compiled client data reflect that the average incomefor a household of two is substantially lower than the federal guideline: $1,000 per month,or $12,000 per year. Manyof the children of the Center’s clients have traveled from Central or South Americato be in the United States with one parent. In some instancesthe other parent, while known, may not be subject to the jurisdiction of the court. Others may not be knownor cannotbelocated. Because of the thousands of impoverished mothers and children whoselives parallel that of Bianka and her mother, the Center has a clear interest in the Court’s decision whether single parents should and can obtain findings under Code of Civil Procedure section 155 and custody orders in situations bearing similarities to Bianka’s. The Centeris also concerned about the impactof the Bianka M.decision even wherethere is no foreign country component. Manyof the Center’s clients have difficulty obtaining a custody order from thetrial court when there are insufficient grounds to obtain personal jurisdiction against 12 the other, alleged, parent, even within the United States. Therefore, the Center has a strong interest in preventing overly-expensive or onerousbarriers to obtaining any custody orders where the Family Code does not mandateor justify these hurdles. As we explain below, the requirement of an adjudication of the father’s paternity for persons over whom the trial court does not have personaljurisdiction is without support in family law, and could potentially affect many of the Center’s clients who seek custody over children where an alleged parent is in Central America-- or in Central Kansas. Joinder of absent, alleged parents over whom thecourt lacks personal jurisdiction is one such onerousbarrierin all parentage cases, domestic or international. The amicus brief filed with this Court in place of a Respondent’s Brief (ARB) suggests that this Court could hold that if the trial court finds that Bianka’s father does not speak or read English,it should require Bianka to serve him with copies of “the relevant documents,” including the requested SIJS statusfindings, translated into Spanish. (ARB 5,25- 26.) This requirement would be cost-prohibitive and daunting for the Center’s 13 clients. As Bianka’s Reply Brief (RB) argues,it is also without proper legal support. (RB 12-21.) The Association of Certified Family Law Specialists (ACFLS)is a nonprofit, statewide bar association with 656 memberscertified by the State Barof California, Board of Legal Specialization as family law specialists. Sinceits founding at the inceptionofthecertification of family law specialists by the State Bar, ACFLS has played an active public policy role when the appellate courts, legislature and Judicial Council consider matters of significance to family courts, family court populations or the family law bar. ACFLS has appeared as amicus in many family law appellate cases, including cases where the organization’s participation was invited by the appellate court. Its briefs have been cited in appellate opinions. ACFLShas anactive amicus committee that reviews cases, and makes recommendationsto the Executive Committee and Board of Directors regardingletters in support of publication or de-publication of opinions, letters supporting or opposing California Supreme Court review, and 14 amicus briefs. The membersof the amicus committee of ACFLSare all volunteers. The amicus committee includesall three lawyers in the state who are dual-certified as family law and appellate law specialists. ACFLS membersrepresent family law litigants, many of whom are parents. Some of its membershavealso served as court-appointed minors’ counsel in California family courts. ACELShasnodirectties to or interest in the litigants in the Bianka M. case. ACFLS’sinterest is to promote the welfare of children, like Bianka, whoselives and care are governed by orders of California Family Courts. The Center and the ACFLS seek an Order reversing and remandingthe matter to the trial court with instructions to make the SIJS findings and custody order that Bianka requested. 15 Accordingly, the Harriett Buhai Center for Family Law and the ACFLSrespectfully request leave to file this amicus brief in support of Petitioner Bianka M. Date: April 6, 2017 Claudia Ribet, Esq. Attorneys for Proposed Amici Harriett Buhai Center for Family Law andthe Association of Certified Family Law Specialists 16 PROPOSED AMICUSBRIEF OF THE HARRIETT BUHAI CENTER FOR FAMILY LAW AND THE ASSOCIATION FOR CERTIFIED FAMILY LAW SPECIALISTS BACKGROUND The Court of Appeal approved the family court’s refusalto place Bianka in her mother’s custody, despite Bianka’s best interests, or to make the SIJS findings Bianka requested and supported with evidence, until it adjudicated her alleged father’s paternity. (Bianka M.v. Superior Court (2016) 245 Cal.App.4th 406, rev. granted and opinion superseded sub nom (2016) 370 P.3d 1052.) (“Bianka M.”) This holding means that Bianka would “not only need to join [her alleged father] to the action but must also establish a basis for personal jurisdiction over him.” (/d., at pp. 430-431.) Because the family court lacked, and could not compulsorily obtain, personal jurisdiction over Bianka’s alleged father, however, this condition effectively ended Bianka’s chances of obtaining a custody order or SIJS findings (and therefore 17 SIJS). (Please see OB 4-5.) These requirementsresult in an inappropriate andlegally unjustifiable shifting of the burden to a SIJS applicant, a juvenile, or her parent, to demonstrate that an abandoning, “alleged” parent has been joined or attempted to be joined, or that he or shefiled a stipulation agreeingto the jurisdiction of the trial court. The requirements impose a greater duty towards alleged parents thanis required by the California Family Code and the Code of Civil Procedure, which only requiresservice of the moving papers — service that Bianka accomplished “in spades.” Bianka’s fatheris just an “alleged” parent who has received all the due process to which heis entitled. The trial court’s failure to make the requisite findings to allow her to seek SIJS status flies in the face of her best interests. A requirement that documents be translated into Spanish is unsupported by the law and sets up yet anotherbarrierto access to the courts for Bianka and her mother. 18 ARGUMENT A. The Family Code Provides for Different Parentage Statuses. Bianka’s Father is a Mere “Alleged Parent” With Limited Rights. Bianka’s fatheris an alleged parent, namely, one who, while a possible biological parent, has done nothingto step forward and take responsibility as a parent. Under the Bianka M.decision he is invested with greater parental rights than exist under the Family Code, the Code of Civil Procedure, and case law. Asa mere alleged parent, Bianka’s father was givenall the process that he was due; specifically, notice and an opportunity to be heard with respect to Bianka's petition to be placed in her mother’s sole custody. Should he wish to be heard, he may seek to obtain “presumed”father status under California law. More particularly, the Uniform Parentage Act (UPA), enshrined in the California Family Code (“the Code”), provides the framework by which California courts make parentage determinations. (Neil S. v. Mary L. (2011) 199 Cal.App.4th 240, 19 246.) The Code addresses the conceptsof biological, presumed andalleged parents. The statutory schemecreates three classifications of parents: mothers,biological fathers who are presumedfathers, and biological fathers who are not presumed fathers(i.e., natural fathers), like Bianka’s father in this case. (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 825.) A biological parent is one who has a genetic relationship with the child. (Section 7610, subd.(a).)' A presumedfather is one who “is presumedto be the natural fatherof a child...” if the man meets anyof several conditions set forth in the ' All future references are to the Family Code, unless noted. Section 7610 , subdivision (a) providesin full as follows: “The parent and child relationship may be established as follows: (a) Between a child and the natural parent, it may be established by proof of having givenbirth to the child, or underthis part.” 20 statute. (Section 7611.) Moreparticularly, “[a] man is presumedto be the natural father of a child,” if he is the husband ofthe child's mother,is not impotentor sterile, and was cohabiting with her(section 7540); if he signs a voluntary declaration of paternity stating he is the “biological father of the child” (section 7574, subd. (a)(6)); or if “Th]e receives the child into his home and openly holds out the child as his natural child” (section 7611, subd. (d)). (Elisa B.v. 2 Section 7611 states in relevant part as follows: “A person is presumedto be the natural parent of a child if the person meets the conditions provided in Chapter 1 (commencing with Section 7540) or Chapter 3 (commencing with Section 7570) of Part 2 or in any of the following subdivisions: (a) The presumed parent andthechild's natural mother are or have been married to each other and the child is born during the marriage, or within 300 daysafter the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a judgmentof separation is entered by a court. RE*K (c) After the child's birth, the presumed parent and the child's natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, andeither of the following is true: (1) With his or her consent, the presumed parentis named as the child's parent on the child's birth certificate. (2) The presumed parentis obligated to support the child undera written voluntary promise or by court order. (d) The presumed parentreceives thechild into his or her home and openly holds out the child as his or her natural child .. .” 21 Superior Court (2005) 37 Cal.4th 108, 116). As the responding amicus recognizes (ARB 11-12), section 7611 paternity presumptions reflect “the state's interest in the welfare of the child and the integrity of the family,” rather than the interests of the alleged or biological father. (In re Jesusa V. (2004) 32 Cal.4th 588, 611, citation and quotations omitted.) “The statutory purpose [of section 76ll]is to distinguish between those fathers who have entered into some familial relationship with the mother and child and those who have not.” (Jason P.v. Danielle S. (2014) 226 Cal.App.4th 167, 177, quoting Jn re T.R. (2005) 132 Cal.App.4th 1202, 1209.) “The paternity presumptions are driven by state interest in preserving the integrity of the family and legitimate concern for the welfare of the child. The state has an ‘interest in preserving and protecting the developed parent-child ... relationships which give young children social and emotional strength andstability.” (Id., quoting In re Nicholas H. (2002) 28 Cal.4th 56, 65.) (Please see AB 11-12.) The facts of this case demonstrate that Bianka’s fatheris not a presumed father. He was not married to Bianka’s mother; 22 he did not sign a voluntary declaration of paternity, and he did not bring Biankainto his home. To the contrary, he did not want her to be born in thefirst place and had nothing to do with her after she was born. Therefore, Bianka’s father, who maybeherbiological father, has not achieved presumed father status, and is an alleged father. (In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn.15; In re Jason J. (2009) 175 Cal.App.4th 922, 932, fn. 4.) Because he never attempted to exercise his right to be heard or attempted to exercise parental duties, he has no parental rights. Onthis point Bianka’s Reply Brief states: “Bianka’s alleged father has no parental rights. He is not entitled to the privileges of parenthood, such as custody or visitation, because he has not accepted his parental responsibilities. (OB 42.) As Bianka explained in her OpeningBrief, ‘Parental rights do not spring full-blown from the biological connection between parent andchild’ (and Bianka’s alleged father has not even established this connection). (Id., citing Lehr v. Robertson (1983) 463 USS. 248, 260.) Only by demonstrating a full commitmentto the 23 responsibilities of parenthood by ‘com|[ing] forward to participate in the rearingof his child,’ does an alleged father’s ‘interest in personal contact with his child acquire substantial protection under the dueprocessclause.’ (/d., citations omitted.)” (RB 18-14.) Under Section 3010, both the mother and presumed father, but not the natural father, “are entitled to custody of their minor children.” (In re Baby Girl M. (1984) 37 Cal.3d 65,71-72 [superseded on other grounds by statute], emphasis supplied.)* Bianka’s father is one such natural father, thus lacking in an automatic right to custody. As we discuss below,he receivedall the process to which he was due. Thetrial court and the appellate court should not have invested him with greater rights by the stroke of their pens. 3 Section 3010, subdivision (a) states: “The mother of an unemancipated minorchild and the father,if presumedto be the father undersection 7611, are equally entitled to the custody of the child.” 24 B. No Personal Jurisdiction Is Necessary To Make an Initial Custody Decision. The Court of Appeal in Bianka M.held that: “The [trial] court was understandably reluctant to permit the action to proceed in that fashion, particularly where Jorge was namedas a respondentin the dismissed action, Gladys (the petitioner in the dismissed action) personally served him, Jorge never responded but was not defaulted, and no evidence waspresented that Jorge was unwilling to enter into a stipulation concerning parentage or custody. Simply put, an uncontested action under the UPA between a child and one parentis not an appropriate means by which to adjudicate both parents' custody rights. Further, in an action under the UPA, it would be inappropriate for a court to find that Bianka's father abandoned her without first determining paternity.” (Bianka M., supra, 245 Cal.App.4th at p. 427.) The Court of Appeal wasincorrect that Bianka’s action under the UPAis not an appropriate forum to adjudicate custody 25 rights because Bianka’s father was not present. As Bianka’s briefs demonstrate, he wasgiven all the notice that was required to be given to him and hedid not need to be present. (Section 7666.)* The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA’”) provides a California court “the exclusive jurisdictional basis for making a child custody determination.” (Section 3421, subd. (b).) Under the UCCJEA physical presence is not mandatory before a custody decision can be made. All that is required is that the requirements of Section 3421 are met.” Section 7666 providesin full as follows: “(a) Except as provided in subdivision (b), notice of the proceeding shall be given to every person identified as the biological father or a possible biological father in accordance with the Codeof Civil Procedure for the service of process in a civil action in this state at least 10 days before the date of the proceeding, except that publication or posting of the notice of the proceedingis not required, and service on the parent or guardianof a biological fatheror possible biological father who is a minoris not required unless the minorhaspreviously provided written authorization to serve his or her parent or guardian. Proofof giving the notice shall be filed with the court before the petition is heard.” 5 Section 3421 states: “Except as otherwise provided in Section 3424, a court of this state has jurisdiction to make aninitial child custody (continued...) 26 “Physical presenceof, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.” (Section 3421, subd.(c); In re Marriage of Nurie (2009) 176 Cal.App.4th 478, 493 [The requirementsof due process of law are met in a child custody proceeding when,as here, with a 5(.. continued) determination only if any of the following are true: (1) This state is the homestate of the child on the date of the commencementofthe proceeding, or was the homestate of the child within six months before the commencementof the proceeding andthechild is absent from this state but a parent or person acting as a parent continuestolive in this state. (2) A court of another state does not have jurisdiction under paragraph(1), or a court of the homestate of the child has declined to exercise jurisdiction on the grounds thatthis state is the more appropriate forum under Section 3427 or 3428, and both of the following are true: (A) The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence. (B) Substantial evidenceis available in this state concerningthe child's care, protection, training, and personal relationships. (3) All courts having jurisdiction under paragraph (1) or (2) have declined to exercise jurisdiction on the ground thata court of this state is the more appropriate forum to determine the custody of the child under Section 3427 or 3428. (4) No court of any other state would havejurisdiction under the criteria specified in paragraph(1), (2), or (3). (b) Subdivision(a) is the exclusive jurisdictional basis for making a child custody determination by a courtof this state. (c) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.” 27 court with subject matter jurisdiction over the dispute, the out-of- state parent is given notice and an opportunity to be heard. Personaljurisdiction over the parentsis not required to make a binding custody determination, and a custody decision made in conformity with due process requirementsis entitled to recognition by other states.].) The National Conference of Commissioners on Uniform State Laws clearly stated in 1997 in passing the UCCJA (the predecessor to the UCCJEA)that: “Subsections (b) and(c) clearly state the relationship between jurisdiction under this Act and other forms of jurisdiction. Personaljurisdiction over, or the physical presenceof, a parentor the childis neither necessary nor required underthis Act. In other words neither minimum contacts nor service within the State is required for the court to have jurisdiction to make a custody determination. Further, the presence of minimum contacts or service within the State does not confer jurisdiction to make a custody determination.” (National Conference of Commissioners on Uniform State Laws, Commentto 28 Section 201, Uniform Child Custody Jurisdiction and Enforcement Act (1997) at 26, available at http://www.uniformlaws.org/Acts.aspx ) In short, it was not necessary for Bianka’s alleged father to appearin person or to have minimum contacts with the state of California in orderfor the court to makethe custody ruling. See also In re Marriage of Torres (1998) 62 Cal.App.4th 1367, 1379-80 [The more relaxed notice requirements of the UCCJA contribute to the UCCJA's stated objective of “[d]iscouragling] continuing controversies over child custody in the interest of greater stability of home environmentand of secure family relationships for the child.”]. Cc. Alleged Parents Are Entitled Merely to Notice, Which Bianka Gave To Her Father. Bianka need only have providednotice of the proceeding to any alleged, natural, or presumed parent and an opportunity to 29 be heard, in accordance with California law. (Section 7635.)° Bianka accomplished this notice. As Bianka argued in her merits brief, notice to a parent residing in Honduras,like Bianka’s alleged father, may be accomplished “by personal delivery of a copy of the summonsandofthe complaint” (Civil Code, sections 413.10, 415.10), at least 10 days before the proceeding. (Sections 3408, subd. (a), 7635, subd. (b), 7666, subd. (a).) Assumingthesecriteria are met, the court may “during the pendencyof a proceedingor at any time thereafter, make an order for the custody of a child during minority that seems necessary or proper.” (Section 3022.) The case law and statutes clearly provide that no personal jurisdiction over Bianka’s father and nojoinder of him were 6 Section 7635, subd.(b) states: “(b) The natural parent, each person presumedto be a parent under Section 7611, and each manalleged to be the natural father, may be madeparties and shall be givennoticeof the action in the mannerprescribed in Section 7666 and an opportunity to be heard. Appointmentof a guardian ad litem shall not be required for a minor whois a parentof the child who is the subject of the petition to establish parentalrelationship, unless the minor parent is unable to understand the nature of the proceedingsor to assist counsel in preparing the case.” 30 necessary. Bianka gaveheralleged father adequatenotice. Nothing else was required. D. The Appellate Decision Ignores the Best Interests of Bianka. The SIJS findings are that: (1) the child is “dependent” upon a juvenile court or “committed to, or placed under the custody of” the State or other court- appointed individualor entity; (2) the child cannot be reunified with one or both parents “due to abuse, neglect, abandonment,or a similar basis found under State law,” and (3) it is not in the child’s “best interest” to be “returned”to her country of origin. (Leslie H. v. Superior Court (2014) 224 Cal.App.4th 340, 349, citing 8 U.S.C.section 1101(a)(27)(J); see also Code Civ. Proc., section 155, subd. (b)(1).) The trial court found “both the overall level of violence in [Bianka’s] city and the lack of available relatives to care for her, is untenable, and supports a finding that it would not be in the best interest[]of [Bianka] to be returned” to Honduras, 31 satisfying the third SIJS finding. (OB 14-15, emphasis in original.) While the Bianka M. decision thusgives “lip service” to the requirement that family courts look to Bianka’sbestinterests,it then failed to consider those interests because her father was not present.’ Specifically, the court held that: “(I]n the context of a custody proceeding, a court properly considers a wide range of factors bearing on a child's best interests, including in this case Jorge's paternity and presumedfatherstatus, if any, as well as his ability and desire to have a relationship with Bianka,if any. (See §§ 3020, subd. (b) [noting the importance of frequent and continuing contact between a child and both parents], 3010 [noting a The appellate court noted: “Federal law imposes requirements on state dependency plans and recognizes‘the institutional competenceof state courts as the appropriate forum for child welfare determinations regarding abuse, neglect, or abandonment, anda child's best interests.’ [Citations.] (In re Y.M., supra, 207 Cal.App.4th at p. 908, 144 Cal.Rptr.3d 54.)” (Bianka M., supra, 245 Cal.App.4th at p. 421, emphasis supplied.) 32 child’s natural mother andfather,if the father is a presumedfather under§ 7611, are equally entitled to custodyof their child].) Although the declarations from Bianka and Gladys indicate Jorge has not fostered a relationship with Bianka and has no interest in doing so in the future, it was within the court's discretion to attempt to give Jorge a meaningful opportunity to refute those allegations before making the orders requested by Bianka in this case.” (Bianka M. v. Superior Court, supra, 245 Cal.App.4th at pp. 429-430.) Nowhere does the appellate decision directly address what ought to happen in Bianka’s best interests, even though the benchmarkof custody law in California is consideration of the best interests of the child. “Family Code section 3011 lists specific factors, ‘among others,’ that the trial court must consider in determiningthe‘best interest’ of the child in a proceeding to determine custody andvisitation: ‘(a) The health, safety, and welfare of the child. [{] (b) Any history of abuse by one parent against the child or against the other parent.... [{] 33 (c) The nature and amountof contact with both parents.” (In re Marriage of Burgess (1996) 13 Cal.4th 25, 31-32, emphasis supplied.) Nowhere does the Bianka M.opinion explain how thetrial court’s failure to make the requested SIJS findings could possibly be in Bianka’s best interest. Her alleged father never accepted his parentage duties. He never soughta relationship with Bianka. He received adequate notice of the proceedings but did nothing. Bianka, in contrast, cameto this country for a secure life and foundit. The trial court’s failure to the requested findings, and the appellate court’s approval, stand the best interest requirementon its head. E. The Holding in Bianka M. Puts SIJS Applicants Like Bianka in an Impossible Position, and the Solution of the Answering Brief Should be Rejected. Although it “appreciate[d] that [the] process may prove difficult for Bianka and othersimilarly situated children seeking 34 SIJ status,” the Court of Appeal offered no viable solution to the dilemmaits holding created. (Bianka M., supra, 245 Cal.App.4th at pp. 429-430.) Without personal jurisdiction over her alleged father, a default judgment adjudicating his paternity is void. (County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1234.) Thus, Biankais left in truly inequitable and untenable situation. She was abandoned by someone who wantedher dead before she was born (herfather attacked her pregnant mother with a machete), yet now he is supposedto be joined as an indispensable party to Bianka’s request to be reposed in her mother’s safe care and custody. (AE 332-342; AE 23 { 4.) The absurdity of the situation is underscored by the appellate court’s comments that-“a state court’s role in the SIJ processis not to determine worthy candidates for citizenship, but simply to identify abused, neglected, or abandonedalien children underits jurisdiction [like Bianka] who cannot reunify with a parent or be safely returned in their best interests to their home country.” (Bianka M., supra, 245 Cal.App.4th at p. 421, citing Leslie H., supra, 224 Cal.App.4th at p. 351, 168 Cal.Rptr.3d 729.) 35 Yet in the face of undisputed evidence that Bianka’s merely alleged father abandoned and neglected her,the appellate court nonetheless was concerned abouthis visitation rights, a true reductio ad absurdumsince her father was entitled to no parentage rights.° By requiring joinder, the Court of Appeal opinion thus places the burdenon children like Bianka to protect their parents’ hypothetical parental rights, instead of letting those parents assert them. This holding puts far too great a burden on the victim and gives far too much powerto the victimizer. The solution of the responding amicus to its due process concern over the service afforded to the father — namely, requiring translation of the “operative documents”into Spanish The appellate court reasoned: “(A]lthough Bianka's petition takes no position on visitation, asa practical matter she would have to oppose any visitation rights for Jorge, as visitation is incompatible with the requested SIJ finding that reunification is not viable. Substantial geographic separation, which will often(if not always) be present in cases in which SIJ findings are requested, further exacerbates the effect of a sole custody orderin this case. In our view, the court was reasonably concerned about making such an order ina nonadversarial proceeding to which the noncustodial parentis not a party, as is the case here.” (Bianka M. v. Superior Court, 245 Cal.App.4th at p. 430.) 36 — should be rejected as violating the law and notfully briefed (points discussed in Bianka’s Reply Brief). From these amici's perspectives it should be rejected on the independent ground that translation creates an unduly expensive and unworkable barrier to redress of grievances in the family court system for SIJS applicants — indeedfor all of the Center’s clients where one parent speaksanother language. In California, 19.4 percent of our population report that they do not speak English as their primary language and have a limited ability to read, write, speak, or understand English. In Los Angeles County, that percentage is 26.2 percent. (October, 2015 US Census Bureau data, http://www.census.gov/data/tables/2013/demo/2009-2013-lang- tables.html) Requiring Biankaat her cost to translate “operative documents” (whichever those are) into Spanish would be cost prohibitive and, therefore, represents a chill on her right to seek redress from the family courts,i.e., the necessary prerequisites to SIJS status. Depending on what documents are deemed “relevant” or “operative,” translation could involve thousandsof 37 words and many hundredsof dollars. The Guide to Translation of Legal Materials states: “Financial Considerations — While high prices do not necessarily guarantee high quality, keep in mind the adage, ‘You get what you pay for.’ The party seeking the translation should expect to negotiate various costs associated with the translated product [including]: [1] minimum charge (average between $50- $100) [2] per word charge: (for Spanish the average is $.10 to $.25 per word); for Languages other than Spanish the average is $.27 to $.30 per word); [3] per hour depending on marketrates (average $40- $50 per hour) editing reviewing/proofreading formatting.” http://www.ncsc.org/education-and- careers/state-interpreter- certification/~/media/files/pdf/education%20and%20ca reers/state%20interpreter™%20certification/guide%20t 38 0%20translation%20practices%206-14-11.ashx (Page 8, footnote omitted.)° The California Judicial Council cautions that: “Consideration of Translation Costs Translation workconsists of a great deal more than the standard ‘per word’ charge (or ‘per hour’ depending on the translation provider), which itself can vary widely between translators and languagesto be translated. In addition to charges per wordoforiginal text or per hourof work, other commoncosts to expect as part of a translation contract (or to ensure are included in the quoted ‘per word’ or ‘per hour’ charge) include: e Editing, including tailoring language to readers; ensuring smoothnessof text; checking syntax and idioms,style, spelling, typography, and punctuation; and copyediting and proofreading for consistency. 9 The approximate word countsfor just a handful of the parentage formsare as follows: FL-001: 1,093 words; FL-311: 806 words; FL-341: 873 words; FL- 341(c): 535 words; FL-341(d): 956 words; FL-250: 529 words; F'L-195: 1,361 words; FL-191: 2,185 words; and FL-105 UCCJEA: 680 words. 39 e Reviewing, which ensures that the translated text accurately reflects the original text, meets the readability criteria appropriate for the text in question, and is culturally competent. The reviewer must compare the source text with the translation, making corrections and editorial improvements where necessary. ¢ Proofreading, whichis the final check for any typographical, spelling, or other errors. It does not address the accuracy of the translation, which should already be complete and accurate. Formatting, which results in uniformity in the presentation, organization and arrangementof the document, as well as its layout and style. Formatting mayalso include the redesign of a documentso that a bilingual format can be followed, as opposed to the more standard monolingual format.” Judicial Council of California July 2016 http://www.courts.ca.gov/documents/lap-Translation- Protocol.pdf (Pages 10-11.) 40 In addition to being cost prohibitive, translation is unwarranted by California Rule of Court 5.130, effective July 1, 2016, which prescribes the procedures to request the judicial findings neededasa basis forfiling a federal petition for classification as a Special Immigrant Juvenile. As Bianka notes in her RB, Rule 5.130 was adopted after Bianka served her alleged father with notice of her parentage action and request for SIJS findings. (Cf. 1 AE 116.) Hadit applied, it would have required Biankato serve a copy of her request for order and appropriate supporting documents in accordance with Code of Civil Procedure section 413.10 et seg. Bianka complied with those requirements, none of which mandate translation into Spanish, by personally serving her request for order and other documents on her alleged father more than 10 days in advanceof the hearing. While Rule 5.130 would have required service of the English languageversion of form FL-356, it would not have required Bianka to serve the Spanish language version. (Rule 5.130(b)(2).) 41 CONCLUSION Accordingly, the Harriett Buhai Center for Family Law and the Association for Certified Family Law Specialists respectfully request an Order reversing and remanding the matter to the trial court with instructions to make the SIJS findings and custody order that Bianka requested. Date: April 6, 2017 LalLil ]audia Ribet, Esq.~ Attorneys for Proposed Amici Harriett Buhai Center for Family Law and the Association of Certified Family Law Specialists 42 CERTIFICATION OF WORD COUNT [Cal. Rules of Court, Rule 8.204( c)(1)] I, Claudia Ribet, declare: 1. I am an attorney at law duly licensed to practice law before all the Courts of the State of California, and that I am the appellate counsel for proposed amici Harriett Buhai Centerfor Family Law and the Association for Certified Family Law Specialists. 2. The Application for Leave To File an Amicus Brief and Proposed Amicus Brief was generated by computer which showsthat the text of the document contains approximately 7,128 | words. I declare under penalty of perjury underthe lawsof the State of California that the foregoing is true andcorrect. Executed this 6" day of April, 2017, at Los Angeles, California. Date: April 6, 2017 Aer Claudia Ribet, Esq. Attorneys for Proposed Amici Harriett Buhai Center for Family Law andthe Association of Certified Family Law Specialists 43 PROOFOF SERVICE STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) I am employed in the County of Los Angeles, State of California. I am over the age of eighteen and not a party to the within action; my business address is: 1875 Century Park East, Suite 2200, Los Angeles, CA 90067; my e-mail address is christineh@ribetsilver.com. On April 6, 2017, I served or caused to be served a true and correct copy of the foregoing document described as - APPLICATION ON BEHALF OF THE HARRIETT BUHAI CENTER FOR FAMILY LAW AND THE ASSOCIATION OF CERTIFIED FAMILY LAW SPECIALISTS FOR LEAVE TO FILE AN AMICUS CURIAE BRIEF IN SUPPORT OF PETITIONER’S BRIEF-- to the interested parties/party in this action, as follows: [Continue on following page] 44 Joshua C. Lee Miller Barondess, LLP 1999 Avenueof the Stars, Suite 1000 Los Angeles, CA 90067 JLee@millerbarondess.com Nickole Gretta Miller Immigrant Defense Law Center 634 South Spring Street, 37? Floor Los Angeles, CA 90014 nickole@immdef.org Judith London Public Counsel 610 South Ardmore Avenue Los Angeles, CA 90005 jlondon@publiccounsel.org Attorneys for Bianka M. — via electronic mail L. Rachel Lerman Joseph Wahl Barnes & Thornburg, LLP 2029 Century Park East, Suite 300 Los Angeles, CA 90067 Attorneys for Amicus Curiae —via US Mail Frederick BennettSuperior Court of Los Angeles County111 North Hill Street,Room 546Los Angeles, CA 90012Respondent —via US Mail 45 Hon. Holly Fujie Superior Court of Los Angeles County 111 North Hill Street, Department 87 Los Angeles, CA 90012 Respondent — via US Mail Zaida Clayton California Court of Appeal 24 Appellate District Division 3 300 South Spring Street Los Angeles, CA 90013 California Court of Appeal, Second Appellate District, Division Three —via US Mail Yolanda Martin The Aguirree Law Firm 3807 Wilshire Blvd., Suite 910 Los Angeles, CA 90010 Guardian Ad Litem —via US Mail Jorge /\N WM Lo Address withheld a —via US Mail [Continue on following page] 46 Gladys M. - via US Mail Address withheld Real Party in Interest Gladys M. Executed on April 6" , 2017, at Los Angeles, California. I declare under penalty of perjury underthe lawsofthe State of California that the,above is true and correct. Christine Huynh 47
