GLENDA DEL CARMEN BENITEZ, APPELLANT, v. JOHN DOE, APPELLEE.
No. 16-FM-929
DISTRICT OF COLUMBIA COURT OF APPEALS
September 6, 2018
Appeal from the Superior Court of the District of Columbia (DRB-4307-15) (Hon. Hiram E. Puig-Lugo, Trial Judge)
Before THOMPSON and BECKWITH, Associate Judges, and WASHINGTON, Senior Judge.
Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
(Submitted June 29, 2017 Decided September 6, 2018)
Michael E. Zielinski was on the brief for appellant.
No brief was filed for the appellee.
I. The Trial Court‘s Ruling
J.V.B. was born on May 31, 2004, in El Salvador and lived with her mother and maternal grandmother for the first year of her life. In 2005, J.V.B.‘s mother moved to the United States, where she has since resided with J.V.B.‘s two half-siblings. Prior to her departure, the mother arranged for J.V.B.‘s maternal grandmother to care for J.V.B. In the years they lived apart, the mother sent the maternal grandmother $100-150 every fifteen days to support J.V.B., and spoke on the phone with J.V.B. “two or three times a week.”
In 2012, while residing in the United States, the mother was assaulted by the brother of her former boyfriend. After reporting the assault to the police, the mother‘s former boyfriend informed the mother that “he knew [she] had family in El Salvador and, if his brother was deported,” her family “would pay for it.” The mother interpreted his comments “as a threat to do physical harm to her family in El Salvador.” In 2013, due to these threats, as well as general gang activity that threatened the safety of J.V.B., J.V.B. came to the United States to live with her mother where she has resided since her arrival.
Based on the belief that Mr. Alvarado was J.V.B.‘s biological father, the mother initiated a custody action in Superior Court, naming Mr. Alvarado as the defendant. After receiving notice of the proceedings, Mr. Alvarado “questioned that he was the father” of J.V.B., and a subsequent “paternity test reportedly excluded him as the father.” The mother attested that she initially “wanted the test repeated, in a process that would ensure that all test participants were present and provided samples at the same time,” as she was “shocked by the test result.”
However, after reviewing “pictures taken of the participants when samples were given,” she “decided not to challenge the test result.” Because Mr. Alvarado was excluded as J.V.B.‘s biological father, the trial court dismissed the first custody action without prejudice.
J.V.B.‘s mother subsequently initiated the instant case against John Doe by filing a verified complaint for custody in the Superior Court seeking sole physical and legal custody of J.V.B., as well as a Motion for Special Immigrant Juvenile Status Predicate Order. After Mr. Alvarado was excluded as J.V.B.‘s father, the mother sought to serve “John Doe” by posting because “despite her best diligent efforts, the identity of [J.V.B.‘s] biological father and his last known place of residence [were] unknown.” On February 22, 2016, Judge Michael O‘Keefe of the Superior Court granted the mother‘s motion and ordered that the “notice shall be posted in the Clerk‘s Office of the Family Division of the Superior Court of the District of Columbia for a period of twenty-one calendar days in order to serve” John Doe. In granting the motion, the trial court explained that it “may authorize service by publication or posting when the plaintiff has shown that diligent efforts to locate the defendant are futile.” Because the development from the recent DNA testing of Mr. Alvarado “was unexpected,” and “in light of the distance in time and location of the minor child‘s conception in El Salvador,” the trial court determined
that service by posting was the appropriate course of action to ensure John Doe received notice. The Clerk of the Court subsequently entered a default judgment against John Doe for his failure to respond.
After a hearing before Judge Hiram Puig-Lugo, during which both J.V.B. and the mother testified, the trial court granted the mother sole physical and legal custody
II. Abandonment Under “State” Law
The SIJ statute provides, in relevant part:
[A special immigrant juvenile is] an immigrant who is present in the United States—(i) who 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, and whose reunification with 1 or both of the immigrant‘s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law; (ii) 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; and (iii) in whose case the Secretary of Homeland Security consents to the grant of special immigrant juvenile status[.]
not possible,” J.V.B. had failed to present any “evidence that the lack of viability is due to abandonment or neglect.” The court reasoned that “in order to abandon a child, a parent must know he is a father.” Thus, because paternity was unknown, it was impossible “for [J.V.B.‘s] father to have made reasonable, or indeed any, efforts to maintain a parental relationship when he was unaware of her existence.”
In concluding that John Doe had not abandoned J.V.B., the trial court viewed abandonment, at least in part, in the context of termination of parental rights, as evidenced by his May 26, 2016, order. See, e.g., In re M.N.M., 605 A.2d 921, 926-27 (D.C. 1992) (putative father‘s due process rights violated in termination of parental rights proceeding); In re H.R. (Baby Boy C.), 581 A.2d 1141, 1162-63, 1166 (D.C. 1990) (same). However, in J.U. v. J.C.P.C., we explicitly distinguished SIJ status cases from termination proceedings, noting that “[h]ere, the concept of abandonment is being considered not to deprive a parent of custody or to terminate parental rights.” 176 A.3d 136, 141 (D.C. 2018).3 Nor do we simply consider the “abstract question [of] whether the minor has been neglected or abandoned by the father.” Id. at 140. Rather, our focus is “whether reunification with the father in El Salvador is ‘viable’ due to ‘abandonment,‘”
calling for “a realistic look at the facts on the ground in the country of origin and a consideration of the entire history of the relationship between the minor and the parent in the foreign country.” Id.; see also E.P.L. v. J.L.-A., No. 16-FM-991, 2018 WL 3764144, at *4 (D.C. Aug. 9, 2018).
Within this framework, like in J.U., we conclude that “the trial court applied too demanding a standard of . . . abandonment.” Id. at 142 (internal quotation marks omitted). In denying the petition for SIJ status, the trial court found, as a matter of law, that knowledge of parentage is a prerequisite to abandonment. However, we have never endorsed the view that an abandonment finding in the neglect context can be impeded simply because paternity is not yet established, and we decline to impose such a requirement in the SIJ status context where abandonment is to be interpreted broadly. See In re Je.A., 793 A.2d 447, 449 (D.C. 2002) (noting that in our neglect cases “the test of abandonment . . . is an objective one, asking whether the parent has made . . . reasonable effort[s] to maintain a parental relationship,” emphasizing that it is not “necessary to prove that the parent . . . intended to abandon the child“) (quoting
could prove abandonment and satisfy the requirements of the SIJ status statute.
III. “Viable Reunification” and “Abandonment”
As for reunification, the trial court determined that it was not viable, but that the lack of viability was not due to John Doe‘s abandonment of J.V.B. The record reveals, however, that John Doe has made no effort to assume any parental responsibility for J.V.B., never “participate[ed], directly or indirectly, in [her] care and upbringing,” and has never made himself known. In re Je.A., 793 A.2d at 448-49. Moreover, “what is at issue here is not ‘reunification’ with the father but rather initial ‘unification’ itself.” J.U., 176 A.3d at 143. All things considered, reunification of J.V.B. with her father — who has never been involved in her life — is not viable, i.e., “practicable; workable” due to abandonment.4 Id.
In reaching this conclusion, we acknowledge the difficult position in which
IV. Conclusion
For the foregoing reasons, we vacate the April 26, 2016, and May 26, 2016,
orders appealed and remand this case to the trial court to enter an amended order consistent with this opinion that includes the requisite SIJ status finding that J.V.B.‘s reunification with her father is not viable due to abandonment under District of Columbia law.
So ordered.