Filed 2/25/20 Pichinte de Martinez v. Superior Court CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

MARITZA PICHINTE DE MARTINEZ,

Petitioner,

v.

THE SUPERIOR COURT OF CONTRA COSTA COUNTY,

Respondent;

MIREYA NAYELI MARTINEZ-PICHINTE,

Real Party in Interest.

A159646

(Contra Costa County

Super. Ct. No. D1905410)

BY THE COURT:

Petitioner Maritza Pichinte de Martinez seeks writ review of an order of the superior court denying her request for an award of physical and legal custody of her biological daughter, real party in interest Mireya Nayeli Martinez-Pichinte (Nayeli), and a related request for special immigrant juvenile status (SJIS) findings. Petitioner asks that we issue a peremptory writ of mandate in the first instance pursuant to Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 (Palma). We will grant the request and issue a peremptory writ in the first instance.

FACTUAL AND PROCEDURAL BACKGROUND

Respondent superior court and the parties are well acquainted with the facts, and no purpose would be served by an extended recitation. It suffices to say that in December 2019, petitioner, who is from El Salvador, filed in the Contra Costa County Superior Court a Petition for Custody and Support of Minor Children seeking physical and legal custody of Nayeli, who is a citizen of El Salvador. Petitioner also filed a request for order and confidential request for SIJS findings (FL-356). In support of the request for SIJS findings, petitioner submitted a declaration from her daughter Nayeli. Petitioner later submitted a legal memorandum explaining Nayeli’s eligibility for SIJS, and the memorandum was accompanied by declarations from Nayeli and petitioner.

After respondent superior court continued the noticed hearing in this case to a date after Nayeli’s eighteenth birthday, petitioner sought writ review. In case No. A159471, we issued a “suggestive Palma” notice (Brown, Winfield, & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1238) explaining that respondent would have jurisdiction to make the requested findings only until Nayeli turns 18. (See 8 C.F.R. § 204.11(a) [defining “juvenile court” as “a court located within the United States having jurisdiction under State law to make judicial determinations about the custody and care of juveniles”] & (c)(3) [requirement for SIJS eligibility is that the noncitizen child “was under the jurisdiction of the [juvenile] court” when the order was issued]; Fam. Code, § 3022 [California family courts have statutory authority to “make an order for the custody of a child during minority that seems necessary or proper.”]; see Fam. Code § 6500 [“A minor is an individual who is under 18 years of age.”].) Accordingly, Nayeli would lose SIJS eligibility if respondent did not make an order for child custody and SIJS findings before her eighteenth birthday on February 28, 2020. We therefore granted respondent the power and jurisdiction to vacate its prior order denying petitioner’s ex parte application to advance the hearing on petitioner’s requests for custody and SIJS findings and to enter a new and different order granting the ex parte application and setting a hearing to occur on, or preferably before, February 21, 2020, at which time the court was to finally determine the merits of the custody and SIJS petitions.

Respondent superior court held a hearing on February 14, 2020. Although petitioner’s counsel repeatedly offered to have petitioner and Nayeli testify, respondent did not take any testimony. Respondent did not rule on petitioner’s requests and took the matter under submission.

On February 24, 2020, with Nayeli’s eighteenth birthday fast approaching and after failing to obtain a ruling from the superior court, petitioner filed the instant petition in this court. The petition gave notice that, pursuant to Palma, petitioner was seeking issuance of a peremptory writ in the first instance. Petitioner asked that we command respondent to: (1) award her physical and legal custody of Nayeli and (2) issue the requested SIJS findings.

On February 21, 2020, respondent signed an order (filed February 24, 2020) denying both petitioner’s petition for sole legal and physical custody of Nayeli and petitioner’s request for SIJS findings.

DISCUSSION

We conclude that respondent abused its discretion both in denying the petition for custody and in denying the request for SIJS findings.

A. Respondent Abused Its Discretion in Denying Petitioner’s Request for Physical and Legal Custody.

As to custody, petitioner submitted uncontradicted evidence that she is Nayeli’s mother. She also submitted uncontradicted evidence that Nayeli’s father is deceased. Nayeli stated in a declaration that she wanted to remain with her mother. In awarding custody, respondent must give priority to the child’s parents. (Fam. Code, § 3040, subd. (a).) Where, as here, one parent is deceased, the surviving parent “is entitled to custody of the child.” (Fam. Code, § 3010, subd. (b).)

Respondent found that granting custody to petitioner would not be in Nayeli’s best interests. Respondent based this finding on its belief that petitioner had “essentially abandoned” Nayeli because petitioner had left her daughter in El Salvador when petitioner immigrated to the United States to find work. Furthermore, respondent suggested that the abandonment was such as to be “generally considered child abuse.” This finding of abandonment was an abuse of discretion, as it rests on an incorrect standard for determining abandonment under California law. (See Fam. Code, § 3402, subd. (a) [“Abandoned’ means left without provision for reasonable and necessary care or supervision.”]; § 7822, subd. (a)(3) [child abandoned if “[o]ne parent has left the child in the care and custody of the other parent for a period of one year without any provision for the child’s support.”]; see also In re Marriage of Fajota (2014) 230 Cal.App.4th 1487, 1497 [court abuses its discretion if it applies improper criteria or makes incorrect legal assumptions].) In this case, there was no evidence that petitioner had left Nayeli without any provision for her care or support. Indeed, the uncontradicted evidence was to the contrary.

We therefore conclude that this is an exceptional case “in which the record so strongly support[s] a party’s claim to custody that a denial of that claim by the trial court . . . constitute[s] an abuse of discretion.” (In re B.G. (1974) 11 Cal.3d 679, 699.) Thus, in this case, we may decide that petitioner should be granted custody. (Ibid.) Accordingly, our disposition and peremptory writ will order respondent to vacate its February 21, 2020 order denying petitioner’s December 6, 2019 petition for custody and direct respondent to enter a new and different order granting that petition.

B. Respondent Abused Its Discretion by Failing to Make the Requested SIJS Findings.

Respondent also abused its discretion in denying petitioner’s request for SIJS findings. Under Code of Civil Procedure section 155, subdivision (b)(1), “[i]f an order is requested from the superior court making the necessary findings regarding special immigrant juvenile status pursuant to Section 1101(a)(27)(J) of Title 8 of the United States Code, and there is evidence to support those findings, which may consist solely of, but is not limited to, a declaration by the child who is the subject of the petition, the court shall issue the order.” (Italics added.) “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 before it supports those findings.” (In re Israel O. (2015) 233 Cal.App.4th 279, 284–285, italics added.)

Petitioner submitted uncontradicted evidence, in Nayeli’s declaration and in petitioner’s, that Nayeli is eligible for SIJS. First, Nayeli is an unmarried 17-year-old citizen of El Salvador who is present in the United States. (See 8 C.F.R. § 204.11(c)(1)-(3) [eligibility for classification as a special immigrant juvenile].) Second, Nayeli’s father, who is deceased, has abandoned her, as defined under California law. (See B.F. v. Superior Court (2012) 207 Cal.App.4th 621, 624, 629 [minors whose parents had died were “eligible for SIJ status”].) Third, petitioner presented uncontradicted evidence that it would be contrary to Nayeli’s best interest to return to El Salvador, her country of nationality. (See 8 U.S.C. § 1101(a)(27)(J)(ii) [“special immigrant” is one “for whom it has been determined in administrative or judicial proceedings that it would not be in the alien’s best interest to be returned to the alien’s or parent’s previous country of nationality or country of last habitual residence”]; Fam. Code §§ 3011 [factors used in determining best interests of child].)

Petitioner requested an order making SIJS findings, and her declaration and Nayeli’s provided “evidence to support those findings.” (Code Civ. Proc., § 155, subd. (b)(1).) “[S]ince its enactment, [Code of Civil Procedure section 155] has made clear that a superior court ‘shall’ issue an order containing SIJ findings if there is evidence to support them.” (Bianka M. v. Superior Court (2018) 5 Cal.5th 1004, 1025.) Respondent therefore abused its discretion in refusing to make the requested SIJS findings. Accordingly, our disposition and peremptory writ will order respondent to vacate its February 21, 2020 order denying petitioner’s request for SIJS findings and direct respondent to enter a new and different order making the requested findings.

C. A Peremptory Writ in the First Instance Is Appropriate.

Petitioner has requested issuance of a peremptory writ in the first instance. In her petition, she gave notice of this request. (See Palma, supra, 36 Cal.3d at p. 180 [“[A] peremptory writ of mandate or prohibition not issue in the first instance unless the parties adversely affected by the writ have received notice, from the petitioner or from the court, that the issuance of such a writ in the first instance is being sought or considered.”], italics added.) In addition, we find that this case presents “exceptional circumstances” that justify issuance of a peremptory writ in the first instance without having received preliminary opposition. (Ibid.)

As a general rule, this court will employ “the accelerated Palma procedure . . . only when petitioner’s entitlement to relief is so obvious that no purpose could reasonably be served by plenary consideration of the issue . . . or when there is an unusual urgency requiring acceleration of the normal process.” (Ng v. Superior Court (1992) 4 Cal.4th 29, 35.) Here, we find both factors present. As our discussion makes clear, petitioner’s entitlement to relief is obvious. Moreover, Nayeli will turn 18 in a few days, at which point the superior court will lose jurisdiction to make the requested SIJS findings. This case therefore presents an exceptional temporal urgency justifying the use of the Palma procedure. Given the press of time, we emphasize that we will not countenance even the slightest delay in compliance with our peremptory writ of mandate.

DISPOSITION

Let a peremptory writ of mandate issue directing respondent superior court, on or before noon on Wednesday, February 26, 2020, to:

(1) vacate its order of February 21, 2020, denying the December 6, 2019 petition of petitioner, Maritza Pichinte de Martinez, for physical and legal custody of real party in interest, Mireya Nayeli Martinez-Pichinte (Judicial Council Form No. FL-260), and to enter a new and different order granting that petition and awarding physical and legal custody of Mireya Nayeli Martinez-Pichinte to petitioner, and,

(2) vacate its order of February 21, 2020, denying petitioner’s December 17, 2019 Confidential Request for Special Immigrant Juvenile Status Findings (Judicial Council Form No. FL-356), and to enter a new and different order finding that:

(a) Mireya Nayeli Martinez-Pichinte was placed under the custody of petitioner, an individual appointed by the court, on the date on which physical and legal custody is awarded pursuant to the foregoing paragraph (1). (Code Civ. Proc., § 155, subd. (b)(1)(A)(ii).)

(b) Reunification with Mireya Nayeli Martinez-Pichinte’s father was determined not to be viable because of abandonment as that term is defined in California law. (Code Civ. Proc., § 155, subd. (b)(1)(B).)

(c) It is not in Mireya Nayeli Martinez-Pichinte’s best interest to be returned to El Salvador, her country of nationality and country of last habitual residence (Code Civ. Proc., § 155, subd. (b)(1)(C)), and,

(3) provide notice to the deputy clerk of this division, by both telephone and electronic mail, of the timely entry of the new orders described in the foregoing paragraphs (1) and (2), as well as copies of said orders.

To prevent further delays in the superior court proceedings, this decision shall be final as to this court immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).)

Dated:

___________________________

Humes, P.J.