Friday, August 17, 2018
Page 4
California Supreme Court:
Father Need Not Be Party to Child’s Case Alleging Abandonment
From staff and wire service reports
The California Supreme Court held yesterday that a girl’s father in Honduras, who had abandoned her, need not be joined as party to a state-court proceeding in which findings were sought aimed at avoiding her deportation.
In an opinion for a unanimous court, Justice Leondra R. Kruger wrote that it was sufficient to adequately notify the absent parent of the court proceedings.
The decision reverses a decision of the Court of Appeal for this district which affirmed a judgment by Los Angeles Superior Court Judge Holly J. Fujie.
The decision came in the case of a girl, identified only as Bianka M., who arrived in the U.S. at age 10 in 2013. Her mother had been in the U.S. for several years, and the two were reunited.
The girl sought an order granting her mother sole custody. She also asked Fujie to declare that she could not reunite with her father because he abandoned her and that returning to Honduras was not in her best interest.
These findings were aimed at Bianka gaining “special immigrant juvenile” (“SIJ”) paving the way for her to apply for lawful permanent residency, and eventually citizenship.
Two Issues
Kruger wrote:
“We granted review to determine whether the superior court properly required the child’s nonresident, noncustodial parent to be joined as a party in her parentage action seeking special immigrant juvenile findings. We also consider whether, as certain language in the Court of Appeal’s opinion might suggest, the child’s perceived immigration-related motivations for filing the action have any bearing on whether the action may proceed. Our answer to both questions is no. Provided that the absent parent has received adequate notice, the action may proceed even if the parent is beyond the personal jurisdiction of the court and cannot be joined as a party. The action may also proceed regardless of whether the court believes it was filed primarily for the purpose of obtaining the protections from abuse, neglect, or abandonment that federal immigration law provides.”
Bianka’s mother testified that the father, Jorge W. M. Lazo, left her when she was pregnant with Bianka and said he would rather see Bianka dead than have to support her. The girl’s attorneys noted that California courts could not establish authority over an “unwilling foreign resident,” so she would have to convince the man to attest that he was her father.
Attorney Comments
Kristen Jackson, an attorney for Bianka, remarked yesterday:
“In her case and a lot of other cases, California family courts were putting up insurmountable barriers to these children. We’re thrilled that the California Supreme Court made sure that vulnerable immigrant children in California are able to access the protection they need and which both federal and state law mandate.”
Kruger noted that the Uniform Parentage Act (“UPA”) does not “mandate that all parents be made parties” to a parentage action, elaborating:
“As a rule, of course, a court may adjudicate the rights and responsibilities only of the parties before it; a parent therefore must be named as a party if the parentage action seeks to establish a legal relationship between that parent and the child.…Beyond that basic background rule, however, the UPA imposes no general requirement of parental participation: While a child who is 12 or older ‘shall...be made a party to the action,’ the statute provides that parents—whether natural, presumed, or alleged—and younger children ‘may be made parties,’ depending on the circumstances.”
Mandatory Joinder Rules
Kruger noted that the California Rules of Court, rule 5.24(e)(1), sets forth the guidelines courts are to follow for mandatory joinder in family law cases. She wrote:
“In a family law action, the mandatory joinder provision of rule 5.24(e) of the California Rules of Court identifies one category of persons who, by definition, are materially interested in the action and are therefore necessary parties: those who have physical custody of the child or make a claim to custody or visitation after being served with notice of the pending action.”
But Lazo, who did not have physical custody of Bianka, had been served notice and did not make any claims to custody or visitation, she pointed out.
In such a case, Kruger explained, Code of Civil Procedure §389(b) requires a determination of “whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed without prejudice, the absent person being thus regarded as indispensable.”
The jurist assumed, as Fujie had found, that Lazo was a necessary party, and noted that it was unfeasible to join him as the court had no personal jurisdiction over him. She wrote:
“Under section 389, subdivision (b), the potential prejudice that may flow from a judgment rendered in Jorge’s absence must be weighed alongside other factors: whether the prejudice can be lessened by the shaping of relief; whether a judgment rendered in Jorge’s absence will be adequate; and, as particularly important here, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder….
“Although the superior court did not squarely address the last question, the answer is no: Bianka has no way to obtain a state court finding on the matters relevant to an application for SIJ status, as section 155 of the Code of Civil Procedure entitles her to do, other than to ask the state court for the finding.”
The case is Bianka M. v. Superior Court, 2018 S.O.S. 4025.
Copyright 2018, Metropolitan News Company