M., BIANKA v. S.C.Amicus Curiae for Respondent, L. Rachel Lerman, Answer Brief on the MeritsCal.February 15, 2017SUPREME COURT COPY 9233757 IN THE SUPREME COURTOF CALIFORNIA SUPREME COURT BIANKA M., FILED Petitioner, FEB 15 2017 Uv. Jorge Navarrete Clerk THE SUPERIOR COURT OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, Deputy 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 BRIEF OF AMICUS CURIAE AT THE REQUEST OF THE CALIFORNIA SUPREME COURT BARNES & THORNBURG LLP *L,, RACHEL LERMAN(SBN 193080) JOSEPH WAHL(SBN 281920) 2029 CENTURY PARK EAST, STE 300 LOS ANGELES, CA 90067-2904 TELEPHONE: (310) 284-3880 FACSIMILE: (310) 284-3894 ATTORNEYS FOR AMICUS CURIAE $233757 IN THE SUPREME COURT OF CALIFORNIA BIANKA M., Petitioner, v. THE SUPERIOR COURT OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, Respondent; GLADYS M., Real Party in Interest. AFTER A PUBLISHED DECISION BY THE COURT OF APPEAL FOR THE SECOND APPELLATE DISTRICT, DIVISION THREE CASE No. B267454 BRIEF OF AMICUS CURIAE AT THE REQUEST OF THE CALIFORNIA SUPREME COURT BARNES & THORNBURG LLP *T,, RACHEL LERMAN(SBN 193080) JOSEPH WAHL(SBN 281920) 2029 CENTURY PARK EAST, STE 300 Los ANGELES, CA 90067-2904 TELEPHONE: (310) 284-3880 FACSIMILE: (310) 284-3894 ATTORNEYS FOR AMICUS CURIAE TABLEOF CONTENTS Page INTEREST OF AMICUS CURIAE...........0c cece ceeec eee eee eens 1 ISSUES PRESENTED.............ccceecec ners ee eee een e ee eeeeeee cree snes 2 INTRODUCTION...........cccccee eee ceenee ne eeeeeee sence eee eens nent es 2 STATUTORY BACKGROUND........cccccccecccee cece nent eee eeeneee 7 A. The SIJ Provision ..........::::cseeeseeeeeeeseeeeeeeeeesesseereces 7 B. California Parentage and Custody Statutes........ 9 1. The Uniform Child Custody Jurisdiction and Enforcement Act............:cccceceeeeeeeeeee ee ees 9 2. The Uniform Parentage Act. .......ee 11 STATEMENT OF THE CASE... ecccee ee cee een eeeenen ee enes 12 A. Bianka’s Petition for Custody and Request for SID Findings..........ccccceeeeeeeeeeeee ee eeneeeeeeenens 12 B. The Superior Court’s Decision...............:.ceee 14 C. The Court of Appeal’s Decision.................::.0 15 TABLE OF CONTENTS Page LEGAL DISCUSSION......... ccc cec ccc ec eee ree eee ee sense ene en 17 I. II. AS A MATTER OF FEDERAL AND CALIFORNIA STATE LAW, THE SUPERIOR COURT CAN AND MUST MAKESIJS FINDINGS WITHOUT CONSIDERING THE “BONAFIDE” NATURE OF THE PROCEEDING...cececeeccceeesceeeeeeetteeeeeeeneanees 17 A. Under Federal Law, the Federal Government Has Responsibility for Determining Whether an Application Is “Bona Fide.”............eeeeee 17 Under California Law, State Courts Are Not to Consider Motive in Making Preliminary Findings for SIJ Status Applicants... 20 A SUPERIOR COURT SHOULD ENSURE THAT AN ALLEGED FATHER IS AFFORDED DUE PROCESS — NAMELY, NOTICE AND AN OPPORTUNITY TO BE HEARD AND TO SEEK TO CHANGE HIS PARENTAL STATUS.........eee 21 A. An Alleged Father Is Entitled to Notice of Status, Custody, and Dependency Proceedings. ..........eccceeeseceeeeeeeceeeeeneeeeeseeseeeeeeeeeeees 22 An Alleged Father Is Also Entitled to an Opportunity to Be Heard and to Seek Presumed Father Status. ...........:::::ceeeeceeeeeeeeeeees 26 Bianka’s Due Process Rights, and the Interest of the State as Parens Patriae, Weigh in Favor of Prompt Adjudication and Must Be Taken into Account if Jorge Appears and Establishes Presumed Father Status...........:::ccceeceseteeeeeeeeeees 29 il TABLE OF CONTENTS Page D. The Superior Court Need Not Establish that Jorge is Bianka’s Biological Father Before Making SIJ Findings. «00.0.0... cece eeeseeseceese eee e nets 32 1. The Superior Court may confirm Bianka’s custodial status without establishing Jorge’s status as her biological parent.............:cceeeeeeeeeseeeeeeeeeeeeee 32 2. The Superior Court may find that Bianka was abandoned by Jorge without establishing his biological PALENTAZE. 000... eee eee cece cee ee cece essen eeeeseeeeeeeneeee 34 E. The Superior Court may make SIJ findings without joining or acquiring personal jurisdiction over a non-responsive alleged father....ceeecccccccceccecceseceecceeecceeecenecsecereseeseeeeeeesens 35 1. Joinder is neither indispensable for the court to make an order nor necessary to the enforcement of any judgment.............. 35 2. The Superior Court may make SIJ findings without establishing personal jurisdiction over a non-responsive alleged father. ..............ccceceeeeeeeeeeeeeneneeeeeeees 37 F. The Court of Appeal’s suggestion that Bianka seek a stipulation of parentage from Jorge is contrary to federal law and Bianka’s due PLOCESS PIGHtS. 0.0... e cece eeeeeee cece cece este eeseeeeeeeeeeesseeenee 4] CONCLUSION...ccc cee cece erence eee e eee ee ener een ene ee Eee 43 CERTIFICATE OF COMPLIANCE.........cccccccce ccc eee eee ee eens cree es 44 11 TABLE OF AUTHORITIES Page(s) Cases Bartsch v. Bartsch (lowa 2001) 636 N.W.2d 8 ooo. ccecceeeeeeeeteeeeeeeeeeeeeesseeeeseesssaeees 40 Bianka M. v. Superior Court (2016) 245 Cal.App.4th 406.000...eee eeeeeceeeeeeeeeseeeeeeeeepassim Caplan v. Donovan (Mass. 2008) 879 N.H.2d 117...cece eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeees 40 Christensen v. Harris County (2000) 529 U.S. 576 oo... cccceccccccceeeeeeeeeeesseeceeeaeeeeeeeeentesseeeeeeneeeee 19 County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215 ...cccccccccccccsessessescsesseesseesecen 37, 38 Eddie E. v. Superior Court (2015) 234 Cal.App.4th 319 ...cccscccsecsesssessessessessteesstesseesseeseen 20 Fenn v. Sherriff (2003) 109 Cal.App.4th 1466 .....ccccccccsccescesessesseesessessesseesnseees 30 Fox v. Fox (Vt. 2014) 106 A.3d 919.0... ccecceeeeeeeececeeeeeeeetneetesseesnseeeenaaees 41 Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586 .....cccccscsccecsessessessesssstesseeseseeees 26, 28 Gabriel P. v. Suedi D. (2006) 141 Cal.App.4th 850 ...cccccccccccesccsssssessessessesseessteseeeseeees 26 HS. v. N.S. (2009) 173 CalApp.4th 1131 ..cccccecccccsccssessessecsesseesstecssessteeeneeees 30 Hartford v. Superior Court (1956) 47 Cal.2d 447 oo. ccceccceeeeeeeeeceeseceeeeseeeereeeeeseneneeeereaees 37 lv TABLE OF AUTHORITIES Page(s) Hemenway v. Hemenway (Vt. 2010) 992 A.2d 575 oo. ececccccceseeceeseceseeeeceeeeetesstseneesettteeeess 40 Hudson v. Hudson (1983) 35 Wash. App. 822 ..........ccceeeeeeeeeeeeeeeeeeeetetessnnnesssseeeeees AO Inre A.C. (2005) 130 Cal.App.4th 854.0... ccccccccccccccneeeeeeeeeeeeeeeeeteseeeanens9 Inre AS. (2009) 180 Cal.App.4th 351 oo..c.cccccccccccececcceeeeeeeeeeeeees 6, 27, 28 In re Christopher M. (2008) 113 Cal.App.4th 155.0... ececcccccccecceeceeeeeeeteeteeeeees 27, 28 In re David B. (1979) 91 Cal.App.3d 184 oo... eccceccecececceeeeeseetennenteesenerens 29 In re Dakota H. (2005) 132 Cal.App4th 212 ooo. ccccccccccccessneeteeeeeeeeeeeees 20. 43 In re Hunter S. (2006) 142 Cal.App.4th 1497 .......ccecccccccccceeeeeeeeesssseesteteeeees 27 In re Israel O. (2015) 233 Cal.App.4th 279 .......ccceccccccccssnseeeeeeeeeeneeeteeeeeenaaeeeees 20 In re J.H. (2007) 158 Cal.App.4th 174 ......cccccccccccccceceeeeeeeeteteeerenseeeeens 25 In re Jasmon O. (1994) 8 Cal.4th 398.0... cccccccccccccccccceceeceeeeaacnaneeeeeeeeteeeteresenaa 30 In re Jason J. (2009) 175 Cal.App.4th 922 oo.ccccccccaeerseeeeeeeeseeeeeeeeeeea 28 In re Jesusa V. (2004) 32 Cal.4th 588.0000... ccccccccccccccceeceseeeeeeeeeseeeeeesssneeeaees 11, 30 TABLE OF AUTHORITIES Page(s) In re Karla C. (2010) 186 Cal.App.4th 1236 ....ccccccccscsseccsssesecessssesessesseeseeeeeees 10 In re Lucero L. (2000) 22 Cal.4th 1227.0... ccccccccceccecceeesssssessseeeeeeenaeeeeneeees 30 Inre MM. (2015) 240 Cal.App.4th 708 ...ccccccsscsecsccessessesssesssessesstssessesseseeees 24 In re Marilyn H. (1993) 5 Cal.4th 295 ..ccccccccccccscessccsecsessesessessesstessesssesstesteseeveseeses 30 In re Micah S. (1988) 198 Cal.App.3d 557 oo... cccccccc ccc eeceecssseeeseeeesaeaeeeees 30, 31 In re Nicholas H. (2002) 28 Cal.4th 56.00... ccccccccccccccaseceeeessssssnessssssseeeeesaneees 12 In re Ninfa S. (1998) 62 Cal.App.4th 808 200.0... ccceccccssseeeeeeeeeesesseeeeeeee 28 In re R.W. (Vt. 2011) 39 A.3d 682 cocccccccccccesecesecsesescecstestssessesesesseevesseeseeves 40 In re Spencer W. (1996) 48 CalApp.4th 1647 ..ccccccccccsscscsescsssssesstecsessessesseseseeeeees 28 Inre T.R. (2005) 132 Cal.App.4th 1202....ccccccccccsssessssecssesseessessessesseseseeee 12 In re Zacharia D. (1993) 6 Cal.4th 435 ...cccccccccsscccsscsssssesessesesstesseessesstestessen 4, 26, 27 In re Marriage of Fernandez-Abin (2011) 191 Cal.App.4th 1015 ....ccccccccccccscsessessesssesstestessesseseeseeees 11 In re Marriage of Fitzgerald & King (1995) 39 Cal.App.4th 1419.0...cccccsesseseeeeeeeereenees 39, 40 al TABLE OF AUTHORITIES Page(s) In re Marriage of Leonard (1981) 122 Cal.App.3d 448 oo...cece ccsscceeeeeeeeeeeeeeeeeespassim In re Marriage of Nurie (2009) 176 Cal.App.4th 478 .........cccccecccceecseceeeeenenereeees 10, 28, 39 In re Marriage of Sareen (2007) 153 Cal.App.4th 371... cccccccccccsceceeeeesseeeeeeeeeeeeteees 10 In re Marriage of Torres (2002) 62 Cal.App.4th 1867 00.0... cceeeeeeeeeees 6, 23, 28, 39 Jason P. v. Danielle S. (2014) 226 Cal.App.4th 167 ....cccccccsccscsssesssssseesesseesessteseeeeee 11, 12 KLM. v. E.G. (2005) 37 Cal.4th 130, 138.000...ccccee cess ceseseeseenteseneeaes 11 Lehr v. Robertson (1988) 463 U.S. 24800.ccccccccc ceca se seeeeeeeseeseesseessesteeeenaaes 28 Leslie H. v. Superior Court (2014) 224 CalApp.4th 340.0... eccseeceeeeeeeseeeeteeeeeeeaaaes 20 Mannise v. Harrell (N.C. 2016) 791 S.B.2d 658 oo...ccc ccccceeeeeeseeeeenessseeeeeeanes 4] McClung v. Employment Development Dept. (2004) 34 Cal.4th 467.000... cccccccccccceesccesssececeseeeeceeeeeeseeeeeenees 21 Satyadi v. W. Contra Costa Healthcare Dist. (2014) 232 Cal.App.4th 1022 00... cccceecceeececeeeeeeseeeeseenes 21 Schnabel v. Superior Court (1994) 30 Cal.App.4th 758 ..c.ccccccsccscsscsssesessecsesstesecsesstseeeeesee 36 vil TABLE OF AUTHORITIES Page(s) Schneerv. Llaurado (2015) 242 Cal.App.4th 1276 ...ccccccccssecssssesssssesseseseeestecseesteseesee 10 Scott v. Superior Court (2009) 171 Cal.App.4th 540 oo...cece ccccccceccceeeeeessssnseneceee 33 Shaffer v. Heitner (1977) 433 U.S. 186...ccece ccc cecceseeeessceseeceseesessntessneeeese 38 Stanley v. Illinois (1972) 405 U.S. 645 oo. ccccccccc cece cc scececessessseesessrseeceececeesstsssesenens 38 Western Security Bank v. Superior (1997) 15 Cal4th 232...cececeecessseeeeeteeensneeensensaneeee 21 Wipranik v. Superior Court (1998) 63 Cal.App.4th 315 20... ccccccsssssseeeceeseeeeeseeeeeeeees 31 Statutes 8 ULS.C. § LLOL (a)(2T)(S) ooo eeececcceecccccecssesseeeccsseceeaneececeseseeesspassim 8 U.S.C. § 1857 cecccccccsccscssecssessessesvevsseseessesssesstssessessestssesseesessesees 8, 42 Cal. Code Civ. Proc. § 15D cccccccccsccseceevesescsesseessescsessesssssessecssesstssesesseeseavsesaeeavee 6, 21, 22 § ALBAO. cccccccccecsesscssecsesssessessesssscsestesssessessussessessessestesesssessesseasen 23 vill TABLE OF AUTHORITIES Page(s) Cal. Fam. Code § BOLD ce ecccccesessessesssssssssessecsesssvsvsesssecsussressessesueesessessuessesssssesven 32 § 3402, subd. (A) ceccceccecsessessesessesesessessesecessesessessestessssecseseseeseeee. 11 § 3408, subd. (8) 2... eeeeccecccccceeeseseeeeeeessseeeeeeesetsesssseeeeeesseeseeenes 24 § 3409, Subd. (a) oo... ccceeeccccccccceceeccececeesceeeeeeesccessssuueessssesseeeeeeeeas 37 § 3421, subd. (a)(1) ......ccccccecccccecccccececccceecceeeceueeeseuceeneessseesuseeaaaas 10 § B25cccccc ececcececcesseceeeeesecuessseeeeseeseeeessssstsseesessessrsersrstentees 6, § 3425, subd. (a) ceccccseccseccsececcucsesesuessessessessecessesseesessessesseesecseaven 23 § 3445, subd. (C), (€) ....ccccccccccccecccecceeeseeeeeeececeeesceeesseesteeeeeeesaune 31 § 7610, Subd. (a) .o...cccccccccccceeeeseeeseeeceeeeesecseceeeeesseeeeeeeeeeess 11, 32 STOLL eeecece cece ceecseseceeesneesaeeeassesssseeeeecceeeceeeeceeeensnseeeesesspassim § 7635, Sub. (b) oo.ccccccccccesesssseceeeeeeeesseesseseesessesesensesseeeess 33 § 1666 .cccceccccsessessesssessesesessucssesersvsuesseessesaessesseasessessesssessesstsseseeasen 6 § 7666, SUD. (A) oo... ccccccccccccceeecccceneseceeceeeeseccesseesessestteeteeeceauaes 22 § 7666, subd. (b)(4) ooo... ccccccessessseeeceeceeeeecesseeeeseesesessees 22, 31 Cal. Welf. & Inst. Code § 290.2. eccccccccessecsecsesssecsuvsssssevavsussueseesensesesatsseesessessesseseesseasen 24 ‘§ 366.26, subd. (c)(1)(A) ooocccccceecsccceececccseteecceseeueeeeenas 27 Rules Cal. Rules of Court, rule 5.24(€)(2) ...ccecccee ce cceceecsscesaeeeeeceeueeees 29 Cal. Rules of Court, rule 5.24(e)(2) oo...eee ceeceeececceeteeeeeees 35, 36 Cal. Rules of Court, rule 5.24(e)(8) oieccececccceeccccseeeeeseceaaerees 36 Cal. Rules of Court, rule 5.667(b) 0...cece ceececccessseeeecceenee sees 26 Law Review Articles B. A. Atwood, Child Custody Jurisdiction and Territoriality (1991) 52 Ohio St. Lid. 869 ooo eeeeeeceec cece eeeseeceececceescssnesaneees 38 J. Baum et al., Most in Need But Least Served: Legal and Practical Barriers to Special Immigrant Juvenile Status for Federally Detained Minors (2012) 50 Fam Ct. Rev. 621 oo...cece cceececccceeeeecesseaaeeees 7,8 1x TABLE OF AUTHORITIES S. Daugherty, Special Immigrant Juvenile Status (2015) 80 Brook. L. Rev. 1087, 1092.0...eee A. A. Dorland, Civil Procedure-Orders for Child Protection and Nonresident Defendants: The UCCJA Applies and Minimum Contacts Are Unnecessary (1999) 25 Wm. Mitchell L. Rev. 965.............eee M.Fitzpatrick and L. Orloff, Abused, Abandoned, or Neglected: Legal Options for Recent Immigrant Women and Girls (2016) 4 Penn St. J.L. & Int'l Aff. 614oe. D. Nuefeld and P. Chang, Trafficking Victims Protection Reauthorization Act of 2008: Special Immigrant Juvenile Status Provisions (USCIS March 24, 2009) oo...ccc cece ccccccceeeeecceeeeceseuesensnaaas Note, Developments in the Law — The Constitution and the Family: State Interests in the Family (1980) 93 Harv. L. Rev. 1198.0...eeceec cece eeceees J. Shaughnessy, The Other Side of the Rabbit Hole: Reconciling Recent Supreme Court Personal Jurisdiction Jurisprudence with Jurisdiction to Terminate Parental Rights (2015) 19 Lewis & Clark L.Rev. 811............ceee Page(s) beveeeeeees 7,8 sevens 4], 42 eceaeeaaaeeeees8 beseeeeeeeees 18 veseeeeeeeees 41 beveeeeeneees 40 AMICUS CURIAE BRIEF INTEREST OF AMICUS CURIAE This amicus brief has been prepared andis beingfiled pursuant to this Court’s order of November 16, 2016, requesting an amicusbrief in place of a respondent’s brief in Bianka M.v. Superior Court (2016) 245 Cal.App.4th 406, 416, review granted and opinion superseded sub nom. M., Bianka v. S.C. (2016) 370 P.3d 1052. The brief was drafted by L. Rachel Lerman, a partner at the law firm of Barnes & Thornburg LLP, and the attorney to whom the order wasdirected. Assistance was provided by Barnes & Thornburgassociate Joseph Wahl. While the amicus brief is being submitted in place of a respondent’s brief as directed by the order, we are not advocates for any party. Instead, in keeping with the engagementletter that we drafted and this Court signed, we have taken a neutral approach. Wehavecarefully reviewed thebriefs filed to date, the lower court opinions, and relevant state and federal authorities. While we agree with someof the Court of Appeal’s rulings, we disagree with others. We also agree with Petitioner in some, but not all, respects. Our conclusions are summarized in the Introduction to this brief, below. Dated: February 14, 2017 BARNES & THORNBURG LLP » Mh— L. Rachel Lerman One of the Attorneys for Amicus Curiae ISSUES PRESENTED 1. Whether a Superior Court may deny a child’s request for Special Immigrant Juvenile (“SIJ”) classification findings on the ground that the request was not made during a bonafide child welfare proceeding. 2. Whether a Superior Court may deny a child’s request for SIJ classification findings on the ground that parentage of the child’s alleged, noncustodial father has not been adjudicated, whenthealleged father fails to respond after receiving all of the due process the law requires. a. Whetherjoinder of, and/or personal jurisdiction over, the child’s alleged father are necessary preconditions to making the SIJ status finding that her father abandoned her. b. Whetherit is appropriate for a Superior Court to ask a child seeking SIJ status findings to seek a stipulation of parentage from the alleged father she claims abandonedher. INTRODUCTION This case requires this Court to rule on issuesoffirst impression concerningthe role of California juvenile courts in making the findings that an undocumented minor must obtain before she can apply to the federal government(specifically, the United States Customs and Immigration Service, or “USCIS”) for SIJ classification under the federal Immigration and Nationality Act (“INA”). Originally enacted in 1990, the SIJ statute has been amended several times over the years. Most recently, in 2008, the statute was amendedtoclarify that it applies to children for whom “reunification with one or both ... parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law.” (8 U.S.C. § 1101 (a)(27)(J).)! Under the current version of the statute, children like Bianka M.(“Bianka”), who are able to reunite with a single parent living in the United States, may apply to the federal governmentfor SIJ classification if they obtain findings from a state juvenile court that: (1) the child is “dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed underthe custodyof, an agency or departmentof a State, or an individual or entity appointed by a State or juvenile court located in the United States’; (2) “reunification with 1 or both” parents is “not viable due to abuse, neglect, abandonment, or a similar basis found under State law”; and (3) “it would not be in the alien’s best interest to be returnedto the alien’s or parent’s previous country of nationality or country of last habitual residence.” (d.) Bianka left Hondurasby herself at the age of 10, and traveled to California to rejoin her mother, Gladys, wholeft Hondurasherself in 2005. As Bianka and her mothertestified, Bianka cannot go back to Hondurasto live withherbiological father, Jorge, because he abandoned Gladys(the motherof his 1 Originally, the statute required that a child seeking SIJ classification be “deemed eligible for long-term foster care.” The language “deemedeligible for long-term foster care” was defined through regulation to mean that a court made a determination that family reunification is not a viable option. (See 8 CFR § 204.11(a)(1998).) four children) while she was pregnant with Bianka, and declared he would rather see Bianka dead than be obliged to support her. Jorge never married Gladys, so heis classified by California law as Bianka’s “alleged” father, giving him limited due process rights. (In re Zacharia D. (1993) 6 Cal.4th 435, 449; Dkt. No.3, Petitioner’s Appendix of Exhibits (“AE”) 303.) Specifically, as an alleged father, Jorge is entitled to notice and an opportunity to be heard with respect to Bianka’s petition to be placed in Gladys’ sole custody. Ud.) Should he wish to be heard, he may seek to obtain “presumed”father status under California law. (See Fam. Code, § 7611 [outside of marriage, a presumedfatheris one who takes the child into his home and holds her out as his own].) Unless Jorge seeks and obtains presumedfather status, his due process and parental rights extend no further. Both of the lower courts were concerned that a parent might use the SIJ statute to kidnap a child from the custody of a parent living in another country. Noting these concerns, the Superior Court ruled that it could not grant Bianka’s request for an order placing her in her mother’s sole custody, or make a finding that Jorge abandonedher, withoutfirst determining Jorge’s paternity in a proceeding to which Jorge was joined asa party. The Court of Appeal granted writ review and affirmed the Superior Court based on its conclusions that (1) Bianka’s custody petition was not bonafide, but based solely on her desire to obtain the findings needed to apply for SIJ status; and (2) “a request for sole legal and physical custody 1n a parentage action necessarily requires a court to consider the parentage of both parents,” so the Superior Court did not abuseits discretion in requiring Bianka to join Jorge,who received inadequatenotice in this case. The Court of Appeal recognized that it could be difficult for Bianka to establish personal jurisdiction over Jorge, and suggested that Bianka might obtain a stipulation of parentage from him. As discussed in Bianka’s opening brief on the merits and in this brief, infra, the Court of Appeal’s first conclusion is mistaken. Federal authorities, and now California Code of Procedure Section 155, which the Legislatureclarified after the Court of Appeal’s decision in this case wasfiled, provide that the question of whether an application for SIJ classification is made pursuant to a bonafide state court proceedingis one for the federal authorities, not the state courts, to address and decide. The Court of Appeal’s second conclusion is correct in part and mistaken in part. First, it appears that the notice Jorge received in this case was inadequate, as the Court ruled. California’s custody and parentage statutes do not specify whetherJorge is entitled to notice that Bianka seeks a finding he abandoned her, but California dependency law strongly suggests that he is. California Rules of Court further suggest that Jorge is entitled to receive notice in Spanish, if he cannot read or understand English. Once notice has been corrected, however, there is no need for Bianka to join Jorge or demonstrate that he is subject to personal jurisdiction, as the Court further ruled. The due process protections already in place under California law ensure that California custody proceedingsare not used to deprive a presumptive parent of custody or parental rights. Indeed, the Uniform Child Custody Jurisdiction and Enforcement Act (the “UCCJEA”), codified in the California Family Code at §§ 3400 et seq., was drafted in part to protect against kidnappingof a child by one of her parents. The UCCJEArequires that “all persons entitled to notice underthelaw of this state as in child custody proceedings betweenresidents of this state” receive notice and an opportunity to be heard. (Fam. Code, § 3425.) The Uniform Parentage Act, codified in the California Family Code at §§ 7600 et seq., provides that “notice of [a parentage] proceeding shall be given to every person identified as the biological father or a possible biological father[.]” (Fam. Code, § 7666.) Upon receiving notice, an alleged father may exercise his right to be heard and seek to obtain presumedfather status. In keeping with these statutes, the California courts of appeal have consistently held, until now,that “[t]he requirements of due process of law are met in a child custody proceeding when, in a court having subject matter jurisdiction over the dispute [under the UCCJEA], the out-of-state parent is given notice and an opportunity to be heard.” (Un re Marriage of Torres (2002) 62 Cal.App.4th 1367, 1378 (‘Torres’), citing In re Marriage of Leonard (1981) 122 Cal.App.3d 4438, 459 (“Leonard”); see also In re A.S., (2009) 180 Cal.App.4th 351, 362 [holding that a court “does not err by terminating a biological father’s parental rights when he has had the opportunity to show presumedfather status and has not done so.”].) Once Jorge receives proper notice, it is up to him to respond in a timely fashion. If he does not, California law entitles him to nothing more. The sameis true if he comes forward but cannot establish presumedfather status. In either of these circumstances, amicus submits that the Superior Court may and should proceed to adjudicate Bianka’s custody case and makethe SIJ classification findings set forth in 8 U.S.C. § 1101 (a)(27)). STATUTORY BACKGROUND A. The SIJ Provision Congress enacted the SIJ provision of the INA in 1990 to protect undocumented minor immigrants who wereeligible for long-term foster care. Congress has amendedthe statute several times over the years, most recently in 2008. While the SIJ statute is federal law, and was enacted based on federal authority over immigration matters, it relies on state juvenile courts to determine several underlying issuesoffact.” 2 The SIJ statute originated as a narrow solution to a child welfare problem noted by California advocates. (See S. Daugherty, Special Immigrant Juvenile Status (2015) 80 Brook. L. Rev. 1087, 1092.) The statute provided children eligible for long-term foster care with the opportunity for a green card, federal benefits, and legitimate employment. (/d.) It incidentally benefited the State because federal benefits “decreased reliance on wholly state-funded services provided to undocumented immigrants.” (J. Baum et al., Most in Need But Least Served: The 1990 version of the statute extended to undocumented immigrant children who wereeligible for long-term foster care because their parents were unavailable to provide for them. (8 U.S.C. § 1101 (a)(27)@) (1990).) In 1997, Congress amendedthe law to specify that an immigrant child applicant be deemedeligible for long-term foster care due to abuse, neglect, or abandonment (Pub. L. 105-119, 111 Stat. 2460 (1997)), a concept that was implied but not expressly stated in the original version of the statute. In 2005, Congress added a provision relevant to SIJ classification proceedings in conjunction with the 2005 Reauthorization of the Violence Against Women Act “VAWA 2005”). (Dep’t of Justice Reauthorization Act of2005, Pub. L. No. 109-162, § 826, 119 Stat. 2960, 3065-66, Rule 12.4(a), (c), (e), pp. 116-117.) The new provision protects abused children by barring governmentofficials from making personal contact, or compelling immigrant minor applicants to make personal contact, with the parent whoallegedly abused or abandoned them. (8 U.S.C. § 13857(h) [providing that a child seeking SIJ classification “shall not be compelled to contact the alleged abuser’]; see M. Fitzpatrick and L. Orloff, Abused, Abandoned, or Neglected: Legal Legal and Practical Barriers to Special Immigrant Juvenile Status for Federally Detained Minors (2012) 50 Fam Ct. Rev. 621, 623, cited in Daugherty, supra.) Options for Recent Immigrant Women and Girls (2016) 4 Penn St. J.L. & Int'l Aff. 614, 628.) In 2008, Congress amendedthe SIJ statute again, this time pursuant to the William Wilberforce Trafficking Victims Protection Reauthorization Act (““TVPRA”) of 2008. (Pub. L. 110- 457, § 235, 122 Stat. 5044.) Under the 2008 version of the statute, which is the law today, state courts must find that “reunification with 1 or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law.” (8 U.S.C. § 1101 (a)(27)@).) B. California Parentage and Custody Statutes 1. The Uniform Child Custody Jurisdiction and Enforcement Act The UCCJEAis a revised form of the UCCJA, which was amended and renamed in 1997. Un re A.C. (2005) 130 Cal.App.4th 854, 860 [noting that cases interpreting the UCCJA are instructive in deciding cases under the UCCJEA except where there is a conflict between the two statutory schemes]; see also Jurisdiction and Litigation Choices, Cal. Prac. Guide Family L. Ch. 7-A [“The UCCJA and UCCJEAare similar but not 3 See 146 Cong. Rec. H9046 (2000), at 126, H.R. Rep. No. 109-233 (2000) (explaining that “Congress created special protections for victims of domestic violence against disclosure of information to their abusers and theuse of information provided by abusers... to ensure that immigration enforcement agents and government officials covered by this section do notinitiate contact with abusers, call abusers as witnessesor relying on information furnished by or derived from abusers to apprehend, detain and attempt to removevictims[.]”). identical. Notably, the UCCJEA eliminates inconsistencies with the preemptive [Federal Parental Kidnapping Prevention Act] ...; strengthensthe jurisdictional standards, thus removing the incentive underprior law to movechildren out of state for the purposeofrelitigating custody/visitation disputes; and establishes uniform methods for enforcing custody and visitation orders.”].) The UCCJEA has been adopted by nearly every state in the nation andis codified in the California Family Code at §§ 3400 et seq. The purpose of the UCCJEAis “to avoid jurisdictional competition between states or countries, promote interstate cooperation, avoid relitigation of another state’s or country’s custody decisions andfacilitate enforcement of another state’s or country’s custody decrees.” (Schneer v. Llaurado (2015) 242 Cal.App.4th 1276, 1287 (citation omitted); see also In re Marriage of Nurie (2009) 176 Cal.App.4th 478, 496-497 (“Nurie”) [UCCJEA also serves to deter parental kidnapping].) The UCCJEAis the “exclusive method of determining subject matter jurisdiction in custody disputes involving other jurisdictions[,]” including foreign jurisdictions. (In re Karla C. (2010) 186 Cal.App.4th 1236, 1268 (quoting In re Marriage of Sareen (2007) 153 Cal.App.4th 371, 376). A California court has subject matter jurisdiction when, as here, California is the “homestate” of the child at the start of the proceeding. (Ibid., citing Fam. Code, § 3421, subd.(a)(1).) The UCCJEA applies to any “child custody proceeding,” which the Act defines to include proceedings“for... the 10 termination of parental rights” and for “protection from domestic violence.” (Fam. Code, § 3402, subd.(d); see also In re Marriage of Fernandez-Abin (2011) 191 Cal.App.4th 1015, 1037-1038.) 2. The Uniform Parentage Act The Uniform Parentage Act governs determinations of parentage. (Jason P. v. Danielle S. (2014) 226 Cal.App.4th 167, 174, citing K.M. v. E.G. (2005) 37 Cal.4th 130, 138; see id. [the Act “provides a comprehensive schemefor judicial determination of paternity, and was intendedto rationalize procedure, to eliminate constitutional infirmities in then existing state law, and to improve state systems of support enforcement”], citation and quotations omitted.) Under the Uniform Parentage Act, a woman mayestablish parentage “by proof of her having given birth to the child, or under this part.” (Fam. Code, § 7610, subd. (a).) A man who is married to the motherat the time of birth is presumedto be the child’s father. (Fam. Code, § 7611.) A man who is not marriedto the child’s mother is not presumedto be the child’s father unless he marries or attempts to marry herafter the birth and/or “receives the child into his or her home and openly holds out the child as his or her natural child.” CUd., subd. (d).) The Section 7611 paternity presumptionsreflect “the . state’s interest in the welfare of the child and theintegrity of the family,” rather than the interestsof the alleged or biological father. Un re Jesusa V. (2004) 32 Cal.4th 588, 611, citation and quotations omitted.) “The statutory purpose [of section 7611] is to distinguish between those fathers who have entered into some li familial relationship with the mother and child and those who have not.” (Jason P., supra, 226 Cal.App.4th at pp. 177, quoting In re T.R. (2005) 132 Cal.App.4th 1202, 1209.) “The paternity presumptionsare 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 and stability.” (d., quoting In re Nicholas H. (2002) 28 Cal.4th 56, 65.) STATEMENTOF THE CASE- A. Bianka’s Petition to Be Placed in Her Mother’s Sole Custody and Her Request for SIJ Classification Findings Bianka, who is now 13 yearsold, traveled from Honduras to the United States alone and without documentation in 2013. (Bianka M. v. Superior Court (2016) 245 Cal.App.4th 406, 416, review granted and opinion superseded sub nom. M., Bianka v. S.C. (216) 370 P.3d 1052 (“Bianka M.”).) After a brief federal detention, she was reunited with her mother, Gladys, in California. (Ibid.) Gladysis a citizen of Honduras wholeft that country for the United States in 2005. ([bid.; AE 3.) Gladysleft Biankain the care of an older daughter; she contacted her daughters regularly by phone and sent money to support Bianka. (Bianka M., supra, 245 Cal.App.4th at p. 416; AE 3, 9.) Bianka left Honduras whenhersister was no longer able to care for her. (AE 9-10.) 12 According to Gladys, Bianka was fathered by Jorge, a resident of Honduras. (AE 331.) Gladys testified that she and Jorge never married, but were in a relationship for about fifteen years and had four children together, including Bianka. (AE 303.) Gladysalso testified that Jorge beat her while she was pregnant with Bianka,that he left her during the pregnancy, that he never contacted Bianka or provided for her, and that he said he would rather see Bianka dead than have to support her. (AE 332-342.) On December 12, 2014, Bianka filed a petition in the California Superior Court for the County of Los Angeles under the Uniform Parentage Act, seeking an order placing her in Gladys’ sole custody to ensure Bianka a stable home. (AE 11, 105.) She also asked the Superior Court to makethe three findings needed to seek SIJ classification from the federal government, namely: (1) that she is in her mother’s custody, (2) that her reunification with “1 or both” parents in Honduras“is not viable due to [her alleged father’s] abuse, neglect, abandonment,” and (3) that it would not be in her “best interest to be returned” to Honduras. (8 U.S.C. § 1101(a)(27)(J); Bianka M., supra, 245 Cal.App.4th at p. 417.) Jorge was not namedor otherwise identified in this petition and there is no evidencein the record indicating that Jorge was served at the timeof filing. (Bianka M., supra, 245 Cal.App.4th at p. 418.) Bianka did, however, serve Jorge with her request for 13 appointmentof a guardian adlitem to assist her in the Uniform Parentage Act action. ([bid.) On April 23, 2015, Biankafiled a pretrial request for order, seeking a custody order and an order containing SIJ findings, based on her representation that her father abandonedherbefore she was born and physically abused her mother during her pregnancy with Bianka. (/bid.) The request for order indicated that a hearing would take place on July 14, 2015. Ubid.) On June 3, 2015, Biankafiled a proof of service showing that her counsel had sent Jorge conformed copiesof the petition and request for order, together with the supporting documents, via regular U.S. mail, on May 28, 2015. (Ubid.; AE 125, 302.) Bianka’s counsel also advised Jorge by telephone of the hearing on the RFO. (Bianka M., supra, 245 Cal.App.4th at p. 418; AI 126, 301.) | On June 24, 2015, Biankafiled another proof of service, this time showing that Jorge had been personally served with copies of the petition, the RFO, and the supporting documents. (Bianka M., supra, 245 Cal.App.4th at p. 418.) Noneof the documents served on Jorge indicate that Bianka is seeking an abandonmentfinding. (/d. at p. 435.) Jorge never responded, appeared, or participated in the proceedings. (AE 302.) B. The Superior Court’s Decision The Superior Court held a hearing on July 14, 2015,at which Bianka and Gladys both testified, and issued a decision denying Bianka’s petition on August 24, 2015. (Bianka M., supra, 245 Cal.App.4th at p. 418.) The Superior Court “noted the 14 unusual procedural posture of the case and expressed concern that Bianka had not namedher alleged biological father as a party in the parentage action[.]” (/bid.) The Superior Court concluded that it could not grant Bianka’s request for an order placing her in her mother’s sole custody or makea finding that Jorge abandonedherwithout first determining Jorge's paternity. (Ibid.; see AE 309-310.) The Superior Court also opined (erroneously, as we explain at pages 38-41, below) that parentage actions are in personam actions. It therefore concluded that it could not make a custody determination unless and until Bianka joined Jorge and showed that he was subject to personal jurisdiction. (AE 305, 307; see Bianka M., supra, 245 Cal.App.4th at pp. 418-419.) The Superior Court “denied the [request for orders] regarding custody and making SIJ findings, without prejudice to further application after Jorge had been properly joined, personal jurisdiction issues had been resolved, and a determination of parentage had been made.” (Bianka M., supra, 245 Cal.App.4th at p. 419.) C. The Court of Appeal’s Decision The Court of Appeals affirmed the Superior Court’s decision in a published opinion dated March 2, 2016. (Bianka M., supra, 245 Cal.App.4th 406.) The Court of Appeal acknowledgedthat“[iJt is the federal government, through the [USCIS], which makes the determination to grant (or deny) the child’s petition for adjustment of status.” (Id. at p. 421.) But the Court added that 15 Congress and the USCIS appearto “rely upon ourstate courts to issue orders containing findings required to support an SIJ petition in the context of an ongoing, bonafide proceedings relating to child welfare, rather than through specially constructed proceedings designed mainly for the purposeof issuing orders concerning SIJ findings.” (Ud. at p. 422.) “Asa practical matter,” therefore, the Court concluded, “[California] courts ... should bear in mind the factors considered by the USCIS when[they] review[] a petition for SIJ status.” (Ud. at pp. 421-422.) Because the Court inferred that Bianka’s custody action was “brought only to obtain SIJ findings,” it held that it “was not a bonafide custody proceeding under the [Uniform Parentage Act].” (Ud. at p. 428.) The Court of Appeal also agreed with the Superior Court “that a request for sole legal and physical custody in a parentage action necessarily requires a court to consider the parentage of both parents[,]” and that, because Jorge’s identity and whereabouts were known, it was not an abuseof discretion to require his joinder. (Id. at p. 419; see id. at pp. 424-425, 430.) The Court recognized that it would bedifficult for Bianka to establish personal jurisdiction over Jorge, and suggested that she might obtain a stipulation of parentage from him. (/bid.)4 4 The Court agreed with Bianka that “abandoned” should be defined under Family Code Section 3402, subdivision (a), to mean “left without provision for reasonable and necessary care or supervision,” rather than under Family Code Section 7822, which requires a finding of intent to abandon. (Bianka M., supra, 245 Cal.App.4th at p. 424.) 16 This Court granted review on May 25, 2016, and Petitioner filed her openingbrief on the merits on July 25, 2016. On November 16, 2016, this Court requested that the undersigned amicusfile a brief in this case, to which Petitioner may respond. LEGAL DISCUSSION I. AS A MATTER OF FEDERAL AND CALIFORNIA STATE LAW, THE SUPERIOR COURT CAN AND MUST MAKE SIJS FINDINGS WITHOUT CONSIDERING THE “BONA FIDE” NATURE OF THE PROCEEDING. A. Under Federal Law, the Federal Government Has Responsibility for Determining Whether an Application Is “Bona Fide.” In admonishingtrial courts to “bear in mind the factors considered by the USCIS whenit reviewsa petition for SIJ status,” the Court of Appeal took note of the concerns Congress has expressed over potential abuses of the SIJ classification process. (Bianka M., supra, 245 Cal.App.4th at pp. 421-422.) But the authority to address these concernslies exclusively with the federal government. As noted above, the 1997 version of the SIJ statute provided for the U.S. Attorney General to consent to “the dependency order serving as a precondition to the grant of [SIJ] status.” (Dep’t of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act 1998, § 113, 8 U.S.C. § 1101 (a)(27)(J), Pub. L. 105-119, 111 Stat. 2440, 2460 (Nov.26, 1997).) In enacting that provision, Congress stated that it was for the Attorney General “to determine that neither the 17 dependency order nor the administrative or judicial determination of the alien’s best interest was sought primarily for the purposeof obtaining the status of an alien lawfully admitted for permanentresident, rather than for the purpose of obtainingrelief from abuse or neglect.” (H. Rept. 105-405, 1st Sess., § 113 (Nov. 13 1997).)® In 2008, Congress revised the consent provision to require the Department of Homeland Security (the “DHS”), through the USCIS, to “consent[] to the grant of special immigrant juvenile status” instead of the Attorney General. (TVPRA 2008,§ 235,8. U.S.C.§ 27(J)G), Pub. L. 110-457, 122 Stat. 5044, 5079-80.) A 2009 USCIS memorandum observesthat this consent constitutes “an acknowledgement that the request for SIJ classification is bonafide.” (D. Nuefeld and P. Chang, Trafficking Victims Protection Reauthorization Act of 2008: Special Immigrant Juvenile Status Provisions (USCIS March 24, 2009).) In 2011, the DHS proposed new Rules, which, although never enacted, charged the USCIS with determining “whether the alien has established ... that the State court order was sought primarily to obtain relief from abuse,[or] neglect, ... and not 5 Consistent with the traditional division of authority between the federal and state governments, the Committee also clarified that the involvement of the Attorney General was not intended to encroach upon the state court’s authority over child welfare determinations: “[t]he conferees intend that the involvement of the Attorney Generalis for the purposes of determining special immigrant juvenile status and not for making determinations of dependencystatus.” (H. Rept. 105-405, supra, § 113.) 18 primarily for the purpose of obtaining lawful immigration status; and that the evidence otherwise demonstrates that there is a bonafide basis for granting special immigrant juvenile status.” (76 Fed. Reg. 54978, 54985 (Sept. 6, 2011).) And on October 26, 2016 — after the Court of Appeal issued its opinion in Bianka M., afd after Petitioner filed her Opening Brief on the Merits in this appeal — the USCIS promulgated new policy guidelines explicitly stating that state courts should apply state law only, and should not usurp therole of the UCSIS in making SIJ determinations. (USCIS Policy Manual,vol. 6, Immigrants, pt. J, Special Immigrant Juveniles (Jan. 5, 2017).) The current USCIS Policy Manualstates that the state court’s factual findings must be predicated solely on considerations of state law: “[t]here is nothing in the Immigration and Nationality Act (INA) that allows or directs a juvenile court to rely upon the provisions of the INA or otherwise deviate from reliance upon state law and procedurein issuing state court orders.” (/d., ch. 1, § A, fn.1, emphasis added.) These interpretations of the SIJ statute makeclear that the federal governmentis the sole authority tasked with deciding whether a requestfor SIJ classification is bona fide. The Court 6 An agency’s position that has not been subject to the formal rulemakingprocess involving notice and commentis not entitled to deference, but may nevertheless serve as persuasive authority. (See Christensen v. Harris County (2000) 529 U.S. 576, 587 [agency interpretations that are not the product of formal rulemakingare entitled to respect ... but only to the 19 of Appeal thus erred as a matter of federal law in ruling that the California trial courts should decide whether an application for custody that requests SIJ classification findingsis bonafide. B. Under California Law, State Courts Are Not to Consider Motive in Making Preliminary Findings for SIJ Status Applicants. The Court of Appeal also erred as a matter of California law. Before the decision in Bianka M., California courts of appeal consistently cautioned state juvenile courts against encroaching on the role of the USCIS by evaluating the perceived merits of an immigrant’s application for SIJ classification.’ To the extent any question remains, the California Legislature amended Code of Civil Procedure Section 155 after the Court of Appeal’s decision wasfiled to clarify that “[t]he extent that those interpretations have the powerto persuade’], internal quotation marks omitted).) 7 See Leslie H. v. Superior Court (2014) 224 Cal.App.4th, 340, 351 (holding that “state court’s role in the SIJ process is not to determine worthy candidatesfor citizenship, but simply to identify abused, neglected, or abandonedalien children underits jurisdiction who cannot reunify with a parentor be safely returned in their best interests to their home country.”); In re Israel O. (2015) 233 Cal.App.4th 279, 289 (holding that therole of a state court in the SIJ process was to make the prerequisite child welfare factual findings, not to determine the motivation of the child making the application); Eddie E. v. Superior Court (2015) 234 Cal.App.4th 319, 329, 331 (holdingthat “[i]t is not the state court’s role to weed out applications based on a court’s perception of the lack of good faith of a particular applicant ... [I]t is the USCIS’s role to determine whether the petitioner has applied for SIJ status primarily for the purposeof obtainingrelief from abuse, neglect, or abandonment, not the state court’s role.”). 20 asserted, purported, or perceived motivation of the child seeking classification as a special immigrant juvenile shall not be admissible in makingthe findings underthis section.” (Code Civ. Proc., § 155, subd. (b)(2), emphasis added.) Furthermore, the trial court “shall not include nor reference the asserted, purported, or perceived motivation of the child seeking classification as a special immigrant juvenile in the court's findings underthis section.” (Ibid.; see 2015 Cal. Assembly Bill No. 1603, California 2015-16 Regular Session [identifying this revision as a clarification, not a substantive change].)8 Because the Legislature has clarified that California courts are not to consider motive or “bonafides” in making SIJ findings, the Court of Appeal’s decision to the contrary should be reversed. ll. ASUPERIOR COURT SHOULD ENSURE THAT AN ALLEGED FATHER IS AFFORDED DUE PROCESS- NAMELY, NOTICE AND AN OPPORTUNITY TO BE HEARD AND TO SEEK TO CHANGEHIS PARENTAL STATUS. The Uniform Parentage Act and the UCCJEA both provide that an alleged father is entitled to notice and an opportunity to be heard and/or to seek presumed father status, which will determine whether he has any further parental rights. If the 8 Because the amendmentclarifies existing law, rather than changingit, there is no issue of retroactivity. (See Satyadi v. W. Contra Costa Healthcare Dist. (2014) 232 Cal.App.4th 1022, 1028-1029, citing McClung v. Employment Development Dept. (2004) 34 Cal.4th 467, 471-472, and Western Security Bank v. Superior (1997) 15 Cal.4th 232, 243.) 21 alleged father does not come forward, due process entitles him to nothing more. A. An Alleged FatherIs Entitled to Notice of Status, Custody, and Dependency proceedings. Under the Uniform Parentage Act, [Notice of [a parentage] proceedingshall be given to every person identified as the biological father or a possible biological father in accordance with the Code of 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. (Fam. Code, § 7666, subd. (a).) “Proof of giving the notice shall be filed with the court before the petition is heard.” (bid.; see Code Civ. Proc., § 415.40 [service on a person outside the state of California may be made “in any mannerprovided bythis article or by sending a copy of the summonsand of the complaint to the person to be servedbyfirst-class mail, postage prepaid, requiring a return receipt”].)° 9 No notice is required under the Uniform Parentage Act when:(1) the “relationship to the child has been previously terminated or determined not to exist by a court”; (2) the “alleged father has executed a written form to waive notice, deny his paternity, relinquish the child for adoption, or consentto the adoption of the child”; (3) the “whereabouts or identity of the alleged father are unknownor cannot be ascertained’; or (4) “the alleged father has been served with written notice of his alleged paternity and proposed adoption, and he hasfailed to bring an action [to determine existence or nonexistence of parent and child relationship] pursuant to subdivision (c) of Section 7630 within 30 daysof service of the notice or the birth of the child, whichever is later.” (Fam. Code, § 7666, subd.(b).) 22 Under the UCCJEA,“[nJotice must be given in a manner reasonably calculated to give actual notice but may be by publication if other meansare noteffective.” (Fam. Code, § 3408, subd. (a).) “Proof of service may be made in the manner prescribed by the law of this state or by the law of the state in which the service is made.” (d., subd. (b); see also Fam. Code, § 3425, subd.(a) [“Before a child custody determination is made underthis part, notice and an opportunity to be heard in accordance with the standards of Section 3408 must be given to all personsentitled to notice under the law of this state as in child custody proceedings betweenresidentsof this state[.]”].) California courts have recognized that the rules for giving notice under the UCCJEAare not as “detailed and stringent as the rules for service of summonsandproof of service in ordinary civil actions[.]” In re Marriage of Torres (1998) 62 Cal.App.4th 1367, 1379.) California courts have thus approved notice in UCCJEA cases where notice was served by UPSorfax (id. at p. 1380) and where it was provided orally to the absent parent's attorney in open court (Nurie, supra, 176 Cal. App. 4th at p. 494). The mannerof service employed by Bianka here — via U.S. mail — was proper, as the courts implicitly recognized. The content of the notice provided, however, was probably deficient. First, as the Court of Appeal observed, Jorge did not receive notice that “Bianka seeks an orderspecifically finding that Jorge abandoned her and/or committed acts of domestic violence against Gladys,” because the documents served on him did not 23 set forth all of the requested SIJ findings. (Bianka M., supra, 245 Cal.App.4th at p. 435.) While the UCCJEA does not indicate whether an absent parent must be put on notice when a party seeks findings of abandonmentor abuse, California statutes regulating dependency proceedings, which are initiated by a probation officer or social worker seeking to removea child from parental custody or terminate the rights of a parent who abuses or abandonsher, are instructive. In such cases, California requires that the child’s mother and “the father or fathers, presumed andalleged,” be given notice of the petition. (Welf. & Inst. Code, § 290.2; see also id., § 300.2 [dependency statutes serve “to provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm.”].)!9 Dependency law further requires that “each alleged father” who can be identified and located “shall be provided notice ... that the child is the subject of proceedings under [Welf. & Inst. Code] Section 300 and that the proceedingscould result in the termination of parental rights[.]” (Ud., § 316.2.) 10 The UCCJEA appliesto allegations of abuse and abandonment, and covers dependency proceedings in interstate and international cases. (Un re M.M. (2015) 240 Cal.App.4th 703, 715.) 24 Although Bianka does not expressly seek termination of Jorge’s parental rights (if any), and it is not clear that SIJ findings result in termination of parental rights in any event, she does seek findings that Jorge abandoned her and abused her mother. The Court of Appeal thus properly ruled that “Bianka must provide Jorge with notice of the specific findings of abuse, neglect or abandonmentshe seeks.” (Bianka M., supra, 245 Cal.App.4th at pp. 435-436 [observingthat, “[:]t would be extremely problematic for our courts to make a factual finding of abuse ... where the alleged abuser did not have notice of and an opportunity to rebut the allegation.”]; but cf. In re J.H. (2007) 158 Cal.App.4th 174, 183-185 [holding that, “[u]nless there is no attempt to serve notice on a parent, ... errors in notice do not automatically require reversal but are subject to the harmless beyond a reasonable doubt standard of prejudice[,]” and concluding that failure of notice was harmless where father “knew about the dependency proceedings at some point” but “expressed no interest or willingness to reunify with [the child]’J, citations omitted.) The Court of Appeal also expressed concern that, while Biankafiled a proof of service representing that Jorge was “personally served with copies of the petition, the RFO and the supporting documents,” “[t]here is no indication in the record these legal documents were translated from English into Spanish.” (Bianka M., supra, 245 Cal.App.4th at p. 418.) The Court of Appeal said nothing further about this matter, but California dependency law recognizes a parent’s right to receive 29 notice in a language he understands. California Rules of Court, Rule 5.667(b), as amended in 2006, requires that a parent or guardian who does not read English must receive notice in the language heis believed to speak. This Court could therefore conclude that, if the Superior Court finds that Jorge does not speak or read English, it should require Bianka to serve him with copies of the relevant documents, including the requested SIJ status findings, translated into Spanish. B. An Alleged FatherIs Also Entitled to an Opportunity to Be Heard and to Seek Presumed Father Status. As the Court of Appeal recognized, California law accords additional due processrights to fathers in parentage, custody, and dependency actions based on their status as presumed, biological, or alleged fathers. (Bianka M., supra, 245 Cal.App.4th at p. 426, citing Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 595 [discussing father’s status in dependency action]; Zacharia D., supra, 6 Cal.4th at pp. 448-449 [same]; see also Gabriel P. v. Suedi D. (2006) 141 Cal.App.4th 850, 857 [discussing unwed father’s status in his paternity action].) An “alleged” father is one “who maybe the fatherof a child, but whosebiological paternity has not been established,or, in the alternative, has not achieved presumedfather status.” (Zacharia D., supra, 6 Cal. 4th at p. 449, fn. 15.) “A biological or natural father is one whose biological paternity has been established, but who has not achieved presumedfather status” as defined in Family Code Section 7611. bid.) A “presumed” fatheris one can show that he was married to the mother at the timeof birth; 26 that he signed a voluntary declaration of paternity; that he married or attempted to marry the child’s motherafter the child is born, and agreed either to have his nameon the birth certificate or to provide child support; or that he “receiv[ed] the child into his or her home and openly [held] the child [out] as his ... natural child.” (Fam. Code, § 7611.)" | As the Court of Appeal here recognized, “[p]resumed fathers are vested with greater parental rights than alleged or biological fathers.” (Bianka M., supra, 245 Cal.App.4th at p. 426, citing Zacharia D., supra, 6 Cal.4th at pp. 448-449.) Alleged or biological fathers have limited due processrights: they are entitled only to notice, an opportunity to be heard, and an opportunity to seek presumed father status. An alleged father’s “desire to establish a personal relationship with [his] child, without more, is not a fundamentalliberty interest protected by the due process clause.” (In re A.S. (2009) 180 Cal.App.4th 351, 359, quoting In Re Christopher M. (2003) 113 Cal.App.4th 155, 160 [observing that “[p]arental rights do not spring full-blown from the biological connection between parent and child. They 11 Similar rules apply in dependency cases. A parent seeking to establish a parent-child relationship sufficient to avoid the termination of parental rights must show that he or she has “maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (Welf. & Inst. Code, § 366.26, subd. (c)(1)(A); see In re Hunter S. (2006) 142 Cal.App.4th 1497, 1504 [“lack of visitation may virtually assure[ ] the erosion (and termination) of any meaningful relationship between [parent] and child.”], citation and quotations omitted.) 27 require relationships more enduring.”], quoting Lehr v. Robertson (1983) 463 U.S. 248, 260.) California courts have repeatedly and consistently held that, where an alleged father is concerned, due process “requires only that he ‘be given notice and ‘an opportunity to appear and assert a position and attempt to changehis paternity status.” (Christopher M., supra, at pp. 159-160; see also FranciscoG., supra, 91 Cal.App.4th at p. 596 [“An alleged father is entitled to notice of [dependency] proceedings, which provides an opportunity for him to appear and assert a position.”], citation omitted; Torres, supra, 62 Cal.App.4th at p. 1378 [“The requirements of due process of law are met in a child custody proceeding when,in a court having subject matter jurisdiction over the dispute, the out-of-state parent is given notice and an opportunity to be heard.”], citing Leonard, supra, 122 Cal.App.3d at p. 459; A.S., supra, 180 Cal.App.4th p. 362 [“This court has consistently held that a biological father’s rights are limited to establishing his right to presumed father status, and the court does not err by terminating a biological father’s parental rights when he has had the opportunity to show presumedfather status and has not done so.”], citing In re Ninfa S. (1998) 62 Cal.App.4th 808, 811; In re Spencer W. (1996) 48 Cal.App.4th 1647, 1652- 1655; In re Jason J. (2009) 175 Cal.App.4th 922, 935.) An alleged father may seek to alter his parental status by establishing one or more of the rebuttable presumptionsset forth in Family Code Section 7611 (listed above). An alleged father mayalso seek to join a custody or dependency proceeding. (Cal. 28 Rules of Court, rule 5.24(c)(2) [“A person who hasor claims custody or physical control of any of the minor children subject to the action, or visitation rights with respect to such children, may apply to the court for an order joining himself or herself as a party to the proceeding.”].) If the alleged father fails to come forward (or tries but fails to establish presumed father status), his rights extend no further. In sum, contrary to the Court of Appeal’s ruling, California law places the burden on Jorge to come forward and show that he is a presumed father, should he wish to do so, and not on Bianka to prove that he is her biological or presumed father. C. Bianka’s Due Process Rights, and the Interest of the State as Parens Patriae, Weigh in Favor of Prompt Adjudication and Must Be Taken into Account if Jorge Appears and Establishes Presumed Father Status. Even if Jorge could establish presumed father status, and nothing in the record suggests he can, the Superior Court would need to balance Jorge’s parental rights against the rights of Bianka andthe interests of the State as parens patriae. California courts have repeatedly held that “each child has a compelling interest to live free from abuse and neglect in a stable, permanent placement with an emotionally committed caregiver.” (In re Dakota H. (2005) 132 Cal.App.4th 212, 223, citing In re David B. (1979) 91 Cal.App.3d 184, 192-193.) The State, too, has a compelling interest in seeing that children are protected. (Id. [““The welfare of a child is a compelling state interest that a state has not only a right, but a duty, to protect.”], 29 quoting In re Marilyn H. (1993) 5 Cal.4th 295, 307; see also In re Lucero L. (2000) 22 Cal.4th 1227, 1252 (Chin, J., concurring) [“a parent has important interests at stake, but so too does the child and the state as parens patriae.”].) These interests, like all due process interests, are subject to balancing. “Children have constitutional rights ... and [t]he interest of parents in maintaining their relationship with their children must be balanced with theinterests of the child in secure and sufficient parenting.” (Fenn v. Sherriff (2003) 109 Cal.App.4th 1466, 1485-86, citations omitted.) Even the right of a presumed fatherto custody ofhis children “is not absolute and must be balanced against a child’s fundamental right ... to have a placement that is stable [and] permanent.” (H.S. v. N.S. (2009) 173 Cal.App.4th 1131, 1139-1140,citing, inter alia, In re Jasmon O. (1994) 8 Cal.4th 398, 419; In re Marilyn H. (1993) 5 Cal.4th 295, 306.) If Jorge comes forward and succeeds in establishing presumed parenthood, the Superior Court will need to balance his interests against those of Bianka and the State. If he does not come forwardor if he comes forward but fails to establish presumedparent status, his interests are “largely abstract” and are fully covered by notice and an opportunity to be heard. (See Jesusa V., supra, 32 Cal.4th at p. 611.) Whetheror not Jorge responds, the Superior Court should proceed with alacrity given the minorchild’s “need for prompt resolution” in matters concerning the family. (n re Micah S. (1988) 198 Cal.App.3d 557, 566 (Brauer, J., concurring) [urging 30 courts to consider “the child’s, not the adult’s, sense of time”; see id. at p. 567 [“[I]]t is clear that in the balancing process which inheres in any Due Process analysis, the pendulum must swing farther away from preoccupation with parents’ rights and towards the protection of the waifs.”].)!? 12 The Uniform Parentage Act establishes that an alleged father must come forward within 30 days. (See Fam. Code, § 7666, subd. (b)(4) [notice requirement waived as to an] “alleged father [who] has been served with written notice of his alleged paternity and the proposed adoption, and ... has failed to bring an [parentage] action ... within 30 days of service of the notice”]; see also Cal. Rules of Court, rule 5.24(e)(8) [an “appropriate response” mustbe filed within 30 days].) The UCCJEAsets no time limit for responding to notice of a custody proceeding, but provides that a party wishing to challenge registration of a foreign custody determination must come forward within 20 days. (Fam. Code, § 3445, subd. (0), (e); ef. Wipranitk v. Superior Court (1998) 63 Cal.App.4th 315, 319 [holding 10 days wassufficient as a matter of due process to prepare for a Hague Convention hearing].) In light of these authorities and the due process concerns stated above, amicus respectfully suggests that this Court instruct the Superior Court to establish on remand a reasonable deadline for Jorge to respond, not to exceed 30 days. 31 D. The Superior Court Need Not Establish that Jorge is Bianka’s Biological Father Before Making SIJ Findings. 1. The Superior Court may confirm Bianka’s custodial status without establishing Jorge’s status as her biological parent. Bianka seeks a finding that she has been “placed under the custody of ... an individual” — namely, her mother — “by a State or juvenile court located in the United States,” as required by the SIJ statute, 8 U.S.C. § 1101(a)(27)(J).12 The Court of Appeal properly concluded that, because “the record appearsto contain sufficient evidence to establish Gladys is Bianka’s natural mother, the question of her parentage is unlikely to present a significant obstacle in this case.” (Bianka M., supra, 245 Cal.App.4th at p. 425.) The Court of Appeal also correctly observed that, “so long as notice and a meaningful opportunity to be heard are provided, a custodial order may be madeat any point in the proceedings.” (/bid., citing Fam. Code, § 3022 [authority to issue custody order at any time}].) The Court of Appeal thus appeared to recognize that California law does not require the Superior Court to establish the parentage of an alleged non-custodial parent before making a finding that a child is in her mother’s custody. Indeed, it noted 13 As the Superior Court properly found, “[Gladys’] testimony and declaration that she is Bianka’s natural mother “is sufficient to establish that she is [Bianka’s] mother.” (AE031; see Fam. Code, § 7610, subd. (a) [a woman’s status as a child’s natural motheris established by proof of her having given birth to her].) 32 that the Uniform Parentage Act does not require the courts to establish the parentage of both parents to make custody orders. (Bianka M., supra, 245 Cal.App.4th at p. 428 [“Bianka was not required to name Jorge as a respondentin heraction to establish a parentalrelationship with Gladys.”], citing Fam. Code, § 7635, subd. (b); see also Scott v. Superior Court (2009) 171 Cal.App.4th 540, 544 [“parentage in favor of the party seeking custody/visitation must be established” under the UPA], emphasis added,citations omitted.) Yet the Court of Appeal also opined that “an uncontested action under the [Uniform Parentage Act] between a child and one parentis not an appropriate means by whichto adjudicate both parents’ custody rights.” (Bianka M., supra, 245 Cal.App.4th at p. 427.) Amicus respectfully disagrees. As discussed above, the SIJ statute expressly allows the Secretary to accord special immigration status to a child who finds a home in the United States with only one parent. (See 8 U.S.C. § 1101(a)(27)(J) (2008).) As a result, state courts may, as here, find themselves presiding over non-adversarial proceedings in which SIJ findings are requested. While such proceedings are not typical, the Court of Appeal recognized they are not precluded by law. (See Bianka M., supra, 245 Cal.App.4th at p. 427 [stating that, while Bianka’s parentage action “is certainly a novel use” of the Uniform Parentage Act, it “is not expressly prohibited under the UPA or the applicable rules of court.”].) Because California law allows courts to make custody orders in favor of a natural mother without demandingproof of 33 the alleged father’s parentage, this Court should conclude that the Superior Court need not consider the parentage of an alleged father before making an SIJ finding that a child is in her mother’s custody. By the same token, this Court should conclude that the Superior Court may not decline to make a custody finding based on Bianka’s failure to establish the parentageof her alleged father. 2. The Superior Court mayfind that Bianka was abandoned by Jorge without establishing his biological parentage. Bianka seeksa finding that “reunification with [one] or both of [her] parents is not viable due to abuse, neglect, [or] abandonment,” as set forth in the SIJ statute, 8 U.S.C. § 1101(a)(27)(J). The Court of Appeal decided that, “in an action under the [Uniform Parentage Act], it would be inappropriate for a court to find that Bianka’s father abandoned her withoutfirst determining paternity.” (Bianka M., supra, 245 Cal.App.4th at p. 427.) Amicus once again respectfully disagrees. First, as the Court of Appeal recognized, the Uniform Parentage Act does not require both parents to be namedin a parentage action. (Bianka M., supra, 245 Cal.App.4th at p. 428.) Second, we have found nothing in the law that requires the Superior Court to make a finding that an alleged fatheris a biological father before it makes a finding of abuse or abandonment. As discussed above, a superior court may terminate the parental rights of an alleged or biological father who fails to come forward or is unable to change his parental status after receiving proper notice. 34 Accordingly, if Jorge fails to come forward after receiving proper notice, the Superior Court should proceed to make the second SIJ finding based on the undisputed testimony of Bianka and Gladys.!4 E. The Superior Court may makeSIJ findings without joining or acquiring personal jurisdiction over a non-responsive alleged father. 1. Joinder is neither indispensable for the court to make an order nor necessary to the enforcement of any judgment. The Court of Appeals recognized that if Bianka’s alleged father could not “be located or identified, joinder would be inappropriate.” (Bianka M., supra, 245 Cal.App.4th at p. 430- 434.) The Court nevertheless ruled that it was appropriate for the Superior Court to order that Jorge be joined, albeit under the permissive joindersection of California Rules of Court, rule 5.24(e)(2), because he can be located and identified. Ud. at p. 429 [disagreeing with Superior Court that joinder was mandatory under Cal. Rules of Court, rule 5.24(e)(1)].) The permissive joinder provision of the California Rules of Court providesthat “[t]he court may order that a person be joined as a party to the proceedingif the court finds that it would be appropriate to determine the particular issue in the proceeding 14 The SIJ statute also requires a finding that SIJ classification is in the best interest of the child. (8 U.S.C. § 1101(a)(27)(J).) The Superior Court found that it would not be in Bianka’s best interests to be returned to Honduras. (AE 311.) 35 and that the person to be joined as a party is either indispensable for the court to make an order about that issue or is necessary to the enforcement of any judgment rendered on that issue.” (Rule 5.24(e)(2), emphasis added.) The Court of Appeal appeared to believe that Bianka must join Jorge in orderto protect his due process rights, “especially... given the serious nature of the allegations (abandonment, neglect, domestic violence)[.]” (Bianka M., supra, 245 Cal.App.4th at p. 419.) But due process does not require joinder of both parents in a parentage, custody, or dependency proceeding, even if the proceedings mayresult in findings of abuse or abandonment and/or lead to termination of parental rights. Because the Superior Court may accord Jorge due process without making him a party, joinderis not “indispensable for the court to make an order’; noris it “necessary to the enforcement” of any judgment. (Cal. Rules of Court, rule 5.24(e)(2).) This Court could thereforefind that the Court’s decision was an abuse of discretion, based on these legal conclusions. (Schnabelv. Superior Court (1994) 30 Cal.App.4th 758, 763.) If this Court decides that joinder was not an abuse of discretion, however, it should instruct the Superior Court on remandto “direct that a summonsbe issued” pursuant to California Rules of Court, rule 5.24(e)(3). Pursuant to that rule, Jorge will have 30 days after service to file an appropriate response. (/d.) If he fails to do so, the Superior Court may and should proceed without him. 36 2. The Superior Court may make SIJ findings without establishing personal jurisdiction over a non-responsive alleged father. The Court of Appeal ruled that “Bianka will not only need to join Jorge to the action but must also establish a basis for personal jurisdiction over him,” although it acknowledged that this “may provedifficult for Bianka and other similarly situated children seeking SIJ status.” (Bianka M., supra, 245 Cal.App.4th at pp. 430-431.) The Court reasonedthat, “in the absenceofpersonal jurisdiction over Jorge, any order regarding his parentage and any default judgment would necessarily be void and subject toa motion to vacate inthe future.” (Id. at p. 431, citing Cownty of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1227 [holding judgment of paternity void in the absence of personal jurisdiction over father].) But Gorham does not hold so broadly. Gorham wasa case involving an orderof child support, as were the cases on whichit relied. (See Gorham, supra, 186 Cal.App.4th at p. 1227 [“in any action ‘to enforce a duty of support or someother personal obligation growing out of the parent-child relationship, personal jurisdiction over [a] defendant [is] essential.”], quoting Hartford v. Superior Court (1956) 47 15 As the Court of Appeal recognized, “the UCCJEAallows a parent to participate in pendingchild custody proceedings without submitting to personal jurisdiction in this state.” (Bianka M., supra, 245 Cal.App.4th at p. 432, citing Fam. Code, § 3409, subd.(a).) 37 Cal.2d 447, 454.) Gorham does not speak to “status” determinationslike custody, whichis at issue here. As the court in Marriage of Leonard, supra, explained more than thirty-five years ago, “status” is “a relationship between two persons, which is not temporary in its nature, is not terminable at the merewill of either and with which the State is concerned. Marriage is a status ... and so too is the relationship of parent and child, whether natural or adoptive.” (122 Cal.App.3d at pp. 453-454, citing Shaffer v. Heitner (1977) 433 U.S. 186, 208 fn.30.) The concept of “status” in a child custody proceeding “implies more than the state’s concern with the relationship of the parties. It encompassesthe right and obligation of the state in its parens patriae role to consider the welfare of the child subject to its jurisdiction and to make a determinationthat is in the best interests of the child.” (Ud. at p. 454, citing, interalia, Stanley v. Illinois (1972) 405 U.S. 645, and observingthat“there are many custody proceedings where an absent parent cannot be located and a requirement of personal jurisdiction would prevent a valid custody order”].) The drafters of the UCCJEA likewise remarked that, “(t]here is no requirement for technical personal jurisdiction, on the traditional theory that custody determinations, as distinguished from support actions, are proceedings in rem or proceedingsaffecting status.” (UCCJA (1988) § 12 comment, 9 U.L.A. 274 (1988); see Barbara Ann Atwood, Child Custody Jurisdiction and Territoriality, 52 Ohio St. L.J. 369, 403 (1991); Fam. Code, § 3421 , subd.(c) [“Physical presence of, or personal 38 jurisdiction over, a party or a child is not necessaryor sufficient to make a child custody determination.”].)16 California courts have thus (until now) uniformly held that a trial court with subject matter jurisdiction need not establish personal jurisdiction over an absent parent before ruling on custody issues. As the court in Marriage of Leonard, supra, stated: Personal jurisdiction over the out-of-state parent is not required to make a binding custody determination, entitled to recognition by other states under both the UCCJA requirement of comity ... and - the standards of the Full Faith and Credit Clause of the United States Constitution. (122 Cal.App.3d at p. 459, citation omitted; accord Torres, supra, 62 Cal.App.4th at pp. 1378-1379; In re Marriage of Fitzgerald & King (1995) 39 Cal.App.4th 1419, 1428-1429; see also Nurie, supra, 176 Cal.App.4th at p. 494 [rejecting absent mother’s claims that order awarding custody to father violated due process, because motherreceived propernotice but forfeited her rights when she “simply failed to avail herself’ of her opportunity to be heard].) “Indeed,” one court ruled, “requiring personal jurisdiction] would thwart the purpose of the [UCCJA], which is 16 “TW]ith the exception of adoption, ... virtually all cases that can involve custody of or visitation with a child” are “custody determination[s]” under the UCCJEA. (Preamble to UCCJEA,§ 4 [cases may involve “neglect, abuse, dependency, wardship, guardianship, termination of parental rights, and protection from domestic violence proceedings’].) 39 to provide a forum to resolve custody issues.” (Fitzgerald, supra, 39 Cal.App.4th at p. 1429.) The Vermont Supreme Court recently followed Marriage of Leonard in its decision in In re R.W. (Vt. 2011) 39 A.3d 682, citing the case for the proposition that “status jurisdiction applies to cases involving termination of parental rights.... andisa matter of state concern.” (Ud. at p. 698, citing Leonard, supra; see id. [concluding that “a child’s homestate has jurisdiction to adjudicate the status of a child present there even if the parents lack minimum contacts with the forum.”]; see also id. at pp. 692, 696-697, and 694[listing cases applying status jurisdiction to both custody and termination proceedings]; accord Hudson v. Hudson (1983) 35 Wash. App. 822, 833 [holding that “a petitioner need not demonstrate minimum contacts ... between the absent parent and the forum in custody proceedings” underthat state’s enactment of the UCCJA]; see also J. M. Shaughnessy (2015) The Other Side of the Rabbit Hole: Reconciling Recent Supreme Court Personal Jurisdiction Jurisprudence with Jurisdiction to Terminate Parental Rights, 19 Lewis & Clark L.Rev. 811 [817- 827 [discussing jurisdiction under the UCCJEA].)!" 17 While Bianka does not seek a protective orderin this case, a numberof out-of-state courts have applied status jurisdiction in actions seeking such orders. (E.g., Hemenway v. Hemenway (Vt. 2010) 992 A.2d 575, 581-582 [“A protective order which‘prohibits the defendant from abusingtheplaintiff ... serves a role analogous to custody or marital determinations, except that the order focuses on theplaintiffs protected status”’], quoting Caplan v. Donovan (Mass. 2008) 879 N.E.2d 117, 122- 124; see also Bartsch v. Bartsch (lowa 2001) 636 N.W.2d 38, 6-10 40 Because Bianka does not seek to impose any obligations, financial or otherwise, on Jorge through this action, personal jurisdiction is not required here under the UCCJEA as enacted in California and interpreted by California courts. In sum, a superior court need not join or establish personal jurisdiction over an alleged father to make a binding custody or dependency decision that imposes no obligations on him. This Court should conclude that the Superior Court in this case need not join or establish jurisdiction over Jorge to make SIJ classification findings. F, The Court of Appeal’s suggestion that Bianka seek a stipulation of parentage from Jorgeis contrary to federal law and Bianka’s due processrights. Mistakenly believing that SIJ classification findings made by a superior court lacking personaljurisdiction over Jorge would be void, the Court of Appeal suggested that a child could ask “the nonresident parent [to] stipulate[] to parentage.” (Bianka M., supra, 245 Cal.App.4th at p. 481 [“that stipulation constitutes a general appearance, and establishes personal jurisdiction, in the lawsuit.”].) [same]; but cf. Mannise v. Harrell (N.C. 2016) 791 S.E.2d 653, 660; Fox v. Fox (Vt. 2014) 106 A.3d 919, 927 [disagreeing]; see also Note, Developments in the Law — The Constitution and the Family: State Interests in the Family (1980) 93 Harv. L. Rev. 1198; A. A. Dorland, Note, Civil Procedure-Orders for Child Protection and Nonresident Defendants: The UCCJA Applies and Minimum Contacts Are Unnecessary (1999) 25 Wm. Mitchell L. Rev. 965.) 41 As set forth above, the Superior Court need not establish personal jurisdiction over Jorge before making the SIJ classification findings, so the proposed stipulation is not necessary. It is also contrary to the INA, which provides that a child seeking SIJ classification “shall not be compelled to contact the alleged abuser”: An alien described in section 1101(a)(27)(J) of this title who has been battered, abused, neglected, or abandoned, shall not be compelled to contact the alleged abuser (or family memberof the alleged abuser) at any stage of applyingfor special immigrant juvenile status, including after a request for the consent of the Secretary of Homeland Security under section 1101(a)(27)(J)Gii)() of this title. (8 U.S.C. § 1357(h).) The purpose of this provision is “to ensure that abusers and criminals cannot use the immigration system against their victims,” e.g., by “interfering with or underminingtheir victims’ immigration cases, and encouraging immigration enforcement officers to pursue removalactions against their victims.” (146 Cong. Rec. H9046 (2000), at 126, H.R. Rep. No. 109-233 (2000) [“This Committee wants to ensure that immigration enforcement agents and governmentofficials ... do not initiate contact with abusers, call abusers as witnessesor rely[] on information furnished by or derived from abusers to apprehend, detain and attempt to removevictims[.]”].) This reasoning applies with equal weight at the state court level. The Superior Court and Court of Appeal were properly concerned with protecting Jorge’s due process rights. But California also has a compelling interest in protecting Bianka’s 42 rights. As discussed above, California courts have repeatedly held that “each child has a compelling interest to live free from abuse and neglect in a stable, permanent placement with an emotionally committed caregiver.” (In re Dakota H., supra, 132 Cal.App.4th 212, 223.) “The welfare of a child is a compelling state interest that a state has not only a right, but a duty, to protect.” (bid., citation omitted.) CONCLUSION For the foregoing reasons, this Court should reverse the Court of Appeal’s decision denying Bianka’s request for writ relief. It should order the Court of Appeals to remand with instructions to the Superior Court to grant Bianka’s custody request and makethe requested SIJ findings, once Jorge has received proper notice of the order and findings that Bianka seeks and has had a reasonable amountof time in which to respond. Dated: February 14, 2017 BARNES & THORNBURG LLP By Mo L. Rachel Lerman Oneof the Attorneys for Amicus Curiae 43 CERTIFICATE OF COMPLIANCE [Cal. Rules of Court, Rule 8.204(c)] This brief consists of 12,791 words as counted by the Microsoft Word version 2010 word processing program used to generate the brief. Dated: February 14, 2017 BARNES & THORNBURG LLP ny Mem L. Rachel Lerman Oneof the Attorneys for Amicus Curiae 44 PROOF OF SERVICE BY OVERNIGHT MAIL [(C.C.P. § 1013(c)] STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I, Jessica L. Stephens, declare as follows: I am employed in the County of Los Angeles, State of California, and over the age of eighteen years. I am not a party to the within action. Iam employed by Barnes & Thornburg LLP, and my business address is 2029 Century Park East, Suite 300, Los Angeles, California 90067. I am readily familiar with the firm’s practice of collection and processing correspondence for mailing with an overnight/express mail carrier. Underthat practice it would be deposited with an overnight/express mail carrier on that same day thereon fully prepaid at Los Angeles; California in the ordinary courseof business. The envelope was sealed and placedfor collection and mailing on that date following ordinary business practices. On February 14, 2017 I served the within document entitled: BRIEF OF AMICUS CURIAE AT THE REQUEST OF THE CALIFORNIA SUPREME COURTonthe parties in the action by placing a true copy thereof in an envelope addressed asfollows: SEE ATTACHED SERVICE LIST I declare under penalty of perjury underthe lawsof the State of California that the foregoing is true and correct and that this declaration was executed on February 14, 2017 at Los Angeles, California. Jessica L. Stephens Print Name: Jessica L. Stephens SERVICE LIST Party Attorney Petitioner Bianka M: Respondent Superior Court of Los Angeles County Joshua C. Lee ‘Miller Barondess, LLP 1999 Avenue of the Stars, Suite 1000 ‘Los Angeles, CA 90067 Nickole Gretta Miller Immigrant Defense Law Center 634 South Spring Street, Third Floor Los Angeles, CA 90014 Judith London Public Counsel 610 South Ardmore Avenue Los Angeles, CA 90005 Frederick Bennett 111 North Hill Street, Room 546 Los Angeles, CA 90012 | i Superior Court of Los Angeles County |} Respondent Superior Court of Los ‘Angeles County Hon. Holly Fujie Los Angeles Superior Court 111 North Hill Street, Dept. 87 Los Angeles, CA 90012 Real Party in Interest Gladys M. Gladys M. 760 East 50th Street Los Angeles, CA 90011 SERVICE LIST (cont'd) 7 i Party Attorney Pub/Depublication Requestor Central Allison W. Meredith American Resource Center & Vedder Price Pub/Depublication Requestor Legal (1925 Century Park East, Suite 1900 ‘Aid Society of San Mateo County Los Angeles, CA 90067 Court of Appeal, Second AppellateMs. Zaida Clayton / District, Division Three ‘Clerk, Division Three ‘Court of Appeal, Second Appellate ‘District 300 South Spring Street Los Angeles, CA 90013
