Filed 5/5/15 D.L. v. Super. Ct. CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE

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




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


         1
         Father also filed a request to waive court fees. That request is granted as to the
filing fee only.
         2
             Minor’s mother’s unrepresented estate was the nominal adverse party named
below.
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       Father filed a petition in the superior court alleging the following facts. Minor
was born in May 1997 in Guatemala City. When she was fourteen years old her mother
died. Following her mother’s death, Father has been Minor’s sole caregiver. In June
2014, Minor, her two brothers, and Father fled Guatemala due to threats from a violent
gang, the Zetas, and came to the United States. After arriving in the United States, the
family has lived with a family friend in Menlo Park. Minor is doing well in this country,
excelling in her studies of English as a foreign language. Minor’s 18th birthday is in a
few days.
       Pursuant to the Act, a minor qualifies for SIJ Status if he or she: (1) is a
dependent of the juvenile court or committed to, or placed under the custody of, a state
entity or other court-appointed individual or entity; (2) cannot be reunified with one or
both parents due to abuse, neglect, abandonment, or a similar basis found under State
law; and (3) it is not in the minor’s best interest to be returned to his or her native
country. (In re Israel O. (2015) 233 Cal.App.4th 279, 284; 8 U.S.C. § 1101(a)(27)(J)(i).)
A superior court with jurisdiction to make child custody determinations under California
law “ ‘has the authority and duty to make [SIJ status] findings’ ” if the evidence supports
those findings. (In re Israel O, supra, at pp. 284–285.) After a state court makes SIJ
findings, the minor must include that order in the materials presented to the federal
authorities, who make the final decision concerning SIJ status. (Ibid.) Father requests
that the superior court enter an order making the above referenced findings pursuant to
the Act.
       The superior court denied Father’s request stating that it could not find
abandonment in this case3 because the mother died of natural causes. We conclude that
the superior court erred when it determined that a finding of willful abandonment was
required under the Act. To the contrary, “willfulness” is not a predicate requirement to
finding that a parent has abandoned a minor.


       3
           Abuse and neglect, potential alternate bases to satisfy the third factor, were not
alleged.
                                                2
       First, the plain language of the federal statute does not require that parental
abandonment be willful. It simply requires a finding that Minor cannot be reunified with
parents due to “abuse, neglect, abandonment, or a similar basis found under State law.”
(8 U.S.C. § 1101(a)(27)(J)(i).) Moreover, California statutes addressing the subject of
abandonment of minors does not require a finding of willful abandonment as a
prerequisite to the exercise of their jurisdiction. Family Code section 3402 defines
“abandoned”, for purposes of California’s Uniform Child Custody Jurisdiction and
Enforcement Act, as meaning “left without provision for reasonable and necessary care
or supervision.” (Fam. Code, § 3402, subd. (a).)
       Moreover, Welfare and Institutions Code section 300 delineates circumstances
pursuant to which juvenile courts can exercise jurisdiction and declare minors dependents
of the court. Section 300, subdivision (g) of the Welfare and Institutions Code describes
circumstances which support a finding that parents or guardians have left minors without
any provision for support (e.g., the child has been voluntarily surrendered and not been
reclaimed within 14 days) and situations where the abandonment was not willful (e.g., the
parent is incarcerated or institutionalized and cannot arrange for the child’s care).
(Welf. & Inst. Code, § 300, subd. (g).) The language of subdivision (g) does not
distinguish between willful and unintentional abandonment by a parent. (Ibid.) Thus, the
trial court erred when it determined that requirement of willful abandonment by the
parent is a required finding under the Act.
       The expedited procedure whereby an appellate court issues a peremptory writ in
the first instance, pursuant to Palma v. U.S. Industrial Fasteners, Inc. (1984)
36 Cal.3d 171, is justified where there is an urgent need. (See Lewis v. Superior Court
(1999) 19 Cal.4th 1232, 1240.) Here, exigency arises because Minor will soon turn 18
and her age could deprive the court of jurisdiction. In general, before issuing a
peremptory writ, an appellate court must solicit opposition to safeguard due process
concerns. (See Kernes v. Superior Court (2000) 77 Cal.App.4th 525, 529–530.) Here
because there is no adverse party, the immediate issuance of a peremptory writ will not
affect a party’s due process rights. Accordingly, we grant the petitioner’s request to issue

                                              3
a peremptory writ in the first instance reversing the superior court’s finding that the Act
required a showing of willful abandonment by Minor’s parent.
       In addition, the record before us does not address the court’s conclusions
regarding the other preliminary factors that are required to determine SIJ Status. Thus,
we remand this matter to the superior court for further proceedings consistent with this
opinion. To expedite the prompt resolution of this case, our decision is immediately final
as to this court. (Cal. Rules of Court, rule 8.490(b)(2)(A).) In addition to serving and
filing copies of this opinion, the clerk of the court is directed to provide the parties and
the respondent superior court with immediate notice of this decision telephonically or via
facsimile.




                                               4
                                _________________________
                                McGuiness, P.J.


We concur:


_________________________
Siggins, J.


_________________________
Jenkins, J.




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