CA Supreme Court Greenlights International Child Abduction

August 20, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization

Returning to the California Supreme Court case begun yesterday, the allegations of Bianka M. are worth remembering.  She claimed that her father, Jorge L. was violent to her older sisters and had abandoned her, i.e. failed to act as a father to her despite being able to do so.  Now, those claims didn’t relate to her request for a court order establishing a parent-child relationship between her and Gladys M. who everyone seems to agree is in fact her mother despite not having been in her life for seven of its first 10 years. 

No, those claims relate to Bianka’s “SIJ” (special immigrant juvenile) petition.

Under the law as amended, a child is eligible for SIJ status if: (1) the child is a dependent of a juvenile court, in the custody of a state agency by court order, or in the custody of an individual or entity appointed by the court; (2) the child cannot reunify with one or both parents due to abuse, neglect, abandonment, or a similar basis found under state law; and (3) it is not in the child’s best interest to return to his or her home country or the home country of his or her parents.

So, in order to attain status as an SIJ under federal immigration law, Bianka had to allege “abuse, neglect or abandonment” by Jorge.  Why would she want SIJ status?

Once granted, SIJ status permits a recipient to seek lawful permanent residence in the United States, which, in turn, permits the recipient to seek citizenship after five years.

In short, for Bianka, SIJ status was of incalculable value.  Wearing the label “SIJ” means she travels a wide and straight road to becoming a citizen of the United States.  So what did anyone do to investigate whether her allegations were true?  Apparently no one did anything.  Sufficient unto that inquiry were Bianka’s allegations and her mother’s concurrence.

As an initial matter, should the court to which the case is remanded order SIJ status for Bianka, the matter of abandonment would become res judicata, i.e. a judicially decided matter.  Any future attempts to overturn that finding would come to naught because of that.  As a practical matter too, that finding would void Jorge’s parental rights due to his judicially-established abandonment of her.  Indeed, that’s exactly what the two lower courts held.

Bianka, the Court of Appeal reasoned, “has placed Jorge’s paternity squarely at issue by requesting an order containing a factual finding that her father abandoned her.”

Amazingly, the Supreme Court again and again states that Bianka’s application is nothing more than a request to establish a legal relationship with her mother and her SIJ status.  It does so as if there could be no other consequences to so finding.  But the simple fact is that the matter of abandonment will be unassailable in any forum should the SIJ finding be made.

That of course returns us to the astonishingly minimal “due process” afforded Jorge by the trial court.  Essentially, two mailings of documents written in English and two telephone calls sufficed for the Supreme Court to conclude that he wants no part of the case.  He may not, but there are plenty of other possibilities, such as a financial inability to do so.

Neither I nor anyone reading this blog knows the reality of whether Jorge gives a tinker’s “damn” about Bianka.  Her claims may be the solid gold truth.  What’s more important though is the precedent this case sets.  Depend on it; in the future, enterprising attorneys will cite the case of Bianka M. vs. Superior Court as standing for the proposition that it’s legally acceptable to extinguish a father’s rights if he’s not a U.S. citizen and he’s received a couple of telephone calls informing him of a legal action underway in the U.S.  Plus of course mere allegations of abandonment, abuse and the like will be sufficient to establish SIJ status.

Finally, this gets close to a judicial rubber stamp of international child abduction.  The difference between Gladys M.’s departure for the U.S. in 2005 and her daughter’s following her seven years later, and a mother’s simultaneous removal of a child seems to be of no legal import.  Why not simply take the child to California, claim abuse and, if Dad doesn’t have the money to contest the matter, then – presto! – permanent residency leading to citizenship is all but guaranteed.

It’s interesting to remember that, just three weeks ago, the country was up in arms about immigrant children separated from their parents.  But, as the saying goes, that was then, this is now.

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