E.P.L.
I.
M.L.P. was born in Guatemala in October 2009. It is unclear if her father ever *1004lived with her, but it is undisputed that he left Guatemala when she was six months old and did not see her again until 2016, when the court proceedings that are the subject of this appeal began. M.L.P.'s mother left Guatemala in 2012 and travelled to the United States, placing M.L.P. in the care of her sister, M.L.P.'s aunt, until M.L.P.'s mother could afford to pay for her sister to bring M.L.P. to the United States. M.L.P. illegally entered the United States in 2014 and was taken into custody by the United States Customs and Border Protection Agents. Mother and daughter were reunited after M.L.P.'s mother was designated M.L.P.'s sponsor by the Department of Homeland Security Office of Refugee Resettlement. In March 2016, M.L.P.'s mother filed a complaint for sole custody of M.L.P., and a motion for factual findings to support M.L.P.'s petition for Special Immigrant Juvenile Status, both of which she served on M.L.P.'s father, who was then residing in Pennsylvania. After failing to respond to M.L.P.'s mother's complaint for custody, M.L.P.'s father avoided default by appearing in court on the day of the scheduled April hearing and, although he conceded that he had not seen then-six-year-old M.L.P. since she was an infant, requested shared custody. The court continued the case for two months but directed the parties to go to the Superior Court Supervised Visitation Center in the meantime so that M.L.P.'s father, as a first step, could begin supervised visitation.
At the next hearing, in June, M.L.P.'s father failed to appear in person, but the court secured his appearance by telephone.
M.L.P.'s father and mother both appeared in person at the SIJS hearing, as did M.L.P. Although two more months had elapsed, M.L.P.'s father acknowledged that he still had not visited his daughter and it appeared that, when the court proceeding commenced, he had not yet introduced himself to her.
Before the court was M.L.P.'s mother's motion and attached affidavits in which she argued that M.L.P. qualified for SIJS because she met all the statutory factors, specifically, (1) she was under the age of 21 and unmarried; (2) she had been placed in the custody of another individual in the United States (her mother) pursuant to a court order; (3) her reunification with one of her parents, her father, was not viable due to abandonment; and (4) it was not in her best interest to be separated from her mother and to return to Guatemala. M.L.P.'s father never filed a response or otherwise contested the mother's allegations. Even so, the court noted at the start of the hearing that it had "problems" with the motion because, in the court's view, it did not "seem like typical facts that would qualify for a[ ] SIJS."
M.L.P.'s mother took the stand and testified consistently with the representations in her motion and in her affidavit that *1005M.L.P.'s father had been abusive, had abandoned her and M.L.P. in Guatemala when M.L.P. was an infant, and had provided them with no financial support since. She further testified that M.L.P. would not be able to identify the father "if she saw him on the street" and that since M.L.P. had come to the United States, the father had made no effort to "meet with or visit" M.L.P. Lastly, M.L.P.'s mother testified that M.L.P. was thriving in her care in the United States and that if M.L.P. were sent back to Guatemala she would have no one to care for her.
The court then asked M.L.P.'s father if he had any "comments" or "questions" for your wife."
In closing, counsel for M.L.P.'s mother focused on the question of abandonment and argued that the court should determine that reunification of M.L.P. with her father was not viable because he had abandoned her.
In its subsequently issued written SIJS findings, the court determined that M.L.P. met the first two SIJS criteria: (1) she was under the age of 21 and unmarried; and (2) she had been placed in the custody of another individual, her mother, pursuant to a court order. But the court concluded that M.L.P. did not satisfy the third and fourth criteria because (3) she was not an abandoned child (the court instead noted she had been reunified with her mother), and (4) even though the court determined it was in M.L.P.'s best interest to remain in the care and custody of her mother, there was insufficient evidence to find that it was not in M.L.P.'s best interests to return to Guatemala. This appeal followed.
*1006II.
The issues before this court are legal in nature. Specifically, we have been asked to assess whether the court correctly analyzed the question of abandonment and the sufficiency of the evidence that it was not in M.L.P.'s best interest to return to Guatemala, both in the SIJS context. Thus, our review of the court's order is de novo. See In re C.G.H. ,
As we explained in J.U. v. J.C.P.C. , "[u]nder the immigration laws of the United States, an immigrant juvenile, or someone acting on their behalf, may petition for SIJ status," which would allow them to reside in this country legally.
(1) the juvenile is under the age of twenty-one and unmarried;8
(2) the juvenile "has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States";9
(3) the juvenile's "reunification with 1 [one] or both of the immigrant's parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law;"10 and
(4) "it would not be in the [juvenile's] best interest to be returned to the [juvenile's] or parent's previous country of nationality or country of last habitual residence[.]"11
In the case before us, the court determined that M.L.P., then age six, satisfied the age and marital status criterion, as well as the "court-involvement" criterion because she had been placed in the custody of her mother pursuant to a court order. See J.U. ,
A juvenile satisfies the third SIJS criterion if "reunification with 1 [one] ... of the immigrant's parents is not viable due to abuse, neglect or abandonment."
Examining the question of abandonment from this distinct perspective, we conclude that, much as in J.U. , the court "applied too demanding a standard of both viability and abandonment" in this case.
As to whether reunification of M.L.P. with her father was viable, the court determined that it was not, but only because of "the custodial arrangement agreed upon by the parties"-not because M.L.P.'s father had abandoned her. The custody order, however, simply acknowledged as a legal matter the "realistic ... facts on the ground,"
The court's predicate factual findings do not support a different conclusion with respect to its findings regarding the third SIJS criterion. The court found that M.L.P.'s father had been unable to visit with her during the pendency of the case "allegedly due to transportation problems" and that he "would like to have a relationship with" her but had been stymied from doing so over the years because his inquiries to learn her whereabouts were unsuccessful. Setting aside that the court's findings are at least in tension with other *1008aspects of M.L.P.'s father's testimony,
Turning to the fourth SIJS criterion, whether it would be in M.L.P.'s best interest to return to Guatemala, the court stated that "there is insufficient evidence to find that it is not." The court misunderstood the analysis and its conclusion did not comport with the record evidence. Having determined that "[t]he evidence indicates that it is in the minor child's best interest to remain in the care and custody of her mother, wherever that may be,"
Accordingly, we vacate the court's Special Immigrant Juvenile Status Findings and remand this case to the court to enter amended findings consistent with this opinion.
So ordered.
"As is customary in appeals involving juvenile matters, we use here the initials of the minor and the parties." J.U. v. J.C.P.C. ,
M.L.P.'s father, J.L.-A. (hereinafter "M.L.P.'s father") appeared pro se in the Superior Court, but has not joined this appeal. M.L.P.'s mother attempted to serve her brief on him, but it was returned marked "return to sender, unable to forward," and he did not respond to this court's scheduling order giving him the timeframe within which to file a brief.
M.L.P.'s father explained that he had not come to court (1) because he had had an accident at some earlier time and since then had been too nervous to drive and (2) because he did not have the money for gas.
This testimony prompted the court to ask M.L.P.'s mother why she could not return to Guatemala with M.L.P. M.L.P.'s mother explained that she could not return because of the "threats of those people who beat me when I was there." M.L.P.'s mother's counsel immediately noted, however, that her reasons for moving to the United States were not part of the SIJS inquiry. Infra n.16.
The trial court also granted the parties a divorce as part of this proceeding.
This testimony is inconsistent with M.L.P.'s father's later statement to the court in which he agreed that "everything [M.L.P.'s mother had] said [was] correct," after she informed the court as part of the divorce inquiry that the parties had not cohabitated since 2010.
Counsel cited
M.L.P. expresses concern that the court, in analyzing the issue of abandonment, relied on
See also De Guardado v. Menjivar ,
Among other things, M.L.P.'s father conceded that he had abandoned M.L.P. at least for "these past three years," and testified that he was "not bothered by" his lack of contact with his daughter.
See In re Ta.L. ,
The court's finding "that the family made a conscious decision to emigrate to the United States," is unsupported by the evidence. There was no testimony that M.L.P.'s father and mother decided, as a family, to move to the United States. The undisputed evidence was that they each left Guatemala separately and years apart. The record is silent as to why the father left, while the mother indicated that she fled for her personal safety. Lack of record evidence aside, the reason(s) or methods by which either parent of a SIJS applicant might be in the United States is simply not relevant to the SIJS inquiry. See
We note that courts in other states use mandatory fillable form orders for SIJS findings. See, e.g. , Cal. Jud. Council Form FL-357 (Rev. July 1, 2016); N.Y. Comp. Codes R. & Regs. tit. 22, § Subt.D, Ch.IV, Subch.A, Form 42 (2018); Washington State Court Forms, JU 11.0500 (rev. June 2018), https://www.courts.wa.gov/forms/?fa=forms.contribute&formID=46. It may be that development of a similar order would be helpful to the Superior Court both to guide the court's analysis and to facilitate the disposition of these motions. See e.g. , Cristina Ritchie Cooper, A Guide for State Court Judges and Lawyers on Special Immigrant Juvenile Status, 36 No. 2 Child L. Prac. 25, 33 (ABA 2017) (explaining that a SIJS order need only contain "brief, illustrative facts that reflect [the trial court's] informed decisions about the child in the case before the court").