(Super. Ct. No. NJ14327) CONSOLIDATED APPEALS from orders of the Superior Court of San Diego County, Michael Imhoff, Commissioner.
The opinion of the court was delivered by: Haller, J.
CERTIFIED FOR PUBLICATION
Affirmed in part, reversed in part and remanded with instructions.
Y.M. is a special needs child who was born and raised in Guatemala. When she was 14 years old, her father (Father), who lived in California, arranged for her abduction and illegal entry into the United States. Father then sexually and physically abused Y.M., and made her available to other men for sex. Y.M. was declared a dependent of the juvenile court after she suffered a head injury during a violent altercation between Father and a family member, and social workers with the San Diego County Health and Human Services Agency (Agency) learned of her circumstances. Later, federal authorities determined that Y.M. was a victim of human sexual trafficking and was entitled to protection under federal law. (See Trafficking Victims Protection Act of 2000, 22 U.S.C. § 7101 et seq. (TVPA); William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, 8 U.S.C. § 1232 et seq. (Wilberforce Act).)
The federal authorities arrested Father on federal sexual trafficking charges and the Guatemalan authorities initiated an investigation to determine her mother's role in Y.M.'s victimization.
At the Agency's request, and initially with Y.M.'s concurrence, Y.M. was placed in a federal program for "unaccompanied alien children."*fn1 Several months later, and over Y.M.'s objection, the juvenile court terminated Y.M.'s dependency case, concluding that a Guatemalan Protocol pertaining to victims of human sexual trafficking was equivalent to an international treaty that deprived it of jurisdiction. As her principal appellate contention, Y.M. challenges this ruling.
As we shall explain, the Guatemalan Protocol is not a treaty and federal laws pertaining to children who are the victims of human sexual trafficking do not preempt state dependency law. Instead, concurrent jurisdiction exists, triggering similar, but not identical, statutory provisions that govern the juvenile court's consideration whether to terminate state dependency court jurisdiction. Although both systems protect children and seek to facilitate family reunification and/or repatriation, the focus of each system differs and the respective systems are not entirely commensurate. In contrast to the child-centered focus of the California dependency system (Welf. & Inst. Code,*fn2 § 300.2; see § 300 et seq.), the purpose of the TVPA and Wilberforce Act is to combat human trafficking, ensure just and effective punishment of traffickers and protect their victims. (22 U.S.C. § 7101(a).) Here, Y.M., who was both a dependent of the California juvenile court and a victim of human sexual trafficking, was entitled to protections afforded by both systems.
Because the juvenile court erred when it dismissed Y.M.'s dependency case premised on the erroneous belief it lacked jurisdiction, remand is necessary to allow the juvenile court to make findings required under relevant provisions of sections 366.21, subdivision (e), and 366. In doing so, the court shall consider federal and state programs available to Y.M. as a victim of human sexual trafficking, and its decisions shall be guided by Y.M.'s best interests. However, the court shall not change Y.M.'s custody or placement without the approval of federal authorities.
Y.M. and her mother M.M. (Mother) also appeal several rulings the juvenile court made before terminating jurisdiction. We conclude the court erred when it (1) denied Y.M.'s petition to terminate reunification services to her father and (2) declined to make findings relevant to Y.M.'s potential eligibility for Special Immigrant Juvenile (SIJ) status (which can lead to permanent residency). We also determine the court did not err when it (1) denied Mother's petition to return Y.M. to her custody in Guatemala and (2) denied Y.M.'s petition to remove her from federal custody and place her in a foster home in San Diego.
FACTUAL AND PROCEDURAL BACKGROUND
Y.M., now 17 years old, is a native of Guatemala. She is intellectually disabled, illiterate, partially deaf and appears physically younger than her age. When Y.M. was one year old, Mother left her in the care of her maternal grandmother, who lived nearby. Shortly after Y.M.'s birth in 1995, Father left his home country for California, where he worked, married and had a family. He did not maintain contact with Y.M.
In approximately March 2010, when Y.M. was 14 years old, Father telephoned Mother and sent her $400. A short time later, Y.M. was abducted from her home by a paternal uncle. Mother did not notify the Guatemalan authorities of Y.M.'s disappearance. With the assistance of another paternal uncle, Y.M. was illegally brought to San Diego County to live with Father, his wife and their children.
Father routinely forced Y.M. to have sexual relations with him and subjected her to physical abuse when she objected. He hit her to prevent her from leaving the home. In July Y.M. was raped by her stepmother's cousin, who was arrested and incarcerated. Y.M. said at times Father took her to a " 'house where there were a lot of men and women' " and a large number of rooms and beds. There, Father " 'let other men do bad things' " to her and hit her when she refused to comply.
Mother telephoned Y.M. one month after her abduction and asked her when she was going to send money. Y.M. responded that she did not have any money.
On September 2, 2010, Y.M. came to the attention of the San Diego County Health and Human Services Agency (Agency) after she suffered a head wound during a violent altercation between Father and his brother-in-law. The family told police the stepmother had witnessed Father and Y.M. in an inappropriate sexual situation. Y.M.'s physical examination was abnormal with findings indicative of acute and chronic sexual abuse.
Father was arrested on charges of lewd and lascivious acts with a child. A week later the charges were dropped and Father was deported to Mexico.
Y.M.'s stepmother produced a Mexican birth certificate for Y.M. Father said Mother lived in Chiapas, Mexico. The Agency initiated a parent search for Mother but did not locate her before the jurisdictional and dispositional hearings.
In October, the juvenile court sustained the petition filed on behalf of Y.M. under section 300, subdivisions (b) and (d), removed her from the custody of her parents, and ordered a plan of family reunification services for Father.
The Agency initially placed Y.M. in foster care and facilitated biweekly visitation with her three younger half-sisters. Due to behavioral problems, Y.M. was transferred to a group home. She became assaultive with staff and peers and was admitted to an inpatient psychiatric facility. Y.M. was diagnosed with posttraumatic stress disorder and depression. She disclosed she had been physically abused since she was a young child.
Several weeks after the dispositional hearing, the Agency learned that Y.M.'s Mexican birth certificate was a forgery and that Y.M. was from Guatemala. The Agency contacted the Consulate General of Guatemala, who interviewed Y.M. in December and initiated a parent search for Mother. When the social worker confronted Father with information that Y.M. was from Guatemala, Father provided Mother's telephone number to the social worker, who immediately contacted her. Mother said she wanted Y.M. to be returned to her custody to cook, clean and care for her younger siblings. She also reported that Y.M. would not attend school in Guatemala and said Y.M. was more useful as a housekeeper and caregiver for her younger siblings.
In February, the results of a DNA test indicated that Father and an unknown individual had had sexual relations with Y.M. Father was arrested by federal authorities at the international border and charged with transportation of a minor with the intent to engage in criminal sexual activity. He faced a minimum sentence of 10 years to life. (18 U.S.C. § 2423(a).) The Consulate General of Guatemala referred the case to its authorities to determine whether Mother had violated Guatemalan law prohibiting sexual violence, exploitation, and human trafficking.
The Agency was working with the United States Immigration and Customs Enforcement (ICE), the Office of Refugee Resettlement in the United States Department of Health and Human Services*fn3 (ORR or federal agency), and the Bilateral Safety Corridor Coalition (BSCC)*fn4 to provide services appropriate to Y.M.'s needs as a victim of human sexual trafficking. In March, ORR determined that Y.M. was eligible to apply for benefits and services under any federal or state program pursuant to the TVPA. Y.M. also qualified for services with ORR's Division of Unaccompanied Children's Services (DUCS) under the Unaccompanied Refugee Minor (URM) program.*fn5 The Agency informed the court that, as a victim of human sexual trafficking, Y.M. was eligible for T-visa status which would stay her deportation proceedings. The Agency did not inform the juvenile court at that time that Y.M. may also apply for SIJ findings that would allow her to adjust her immigration status in the United States to lawful permanent resident within one year.*fn6 (See Discussion, Part III, post.) The social worker also reported that ORR had specialized resources to assist Y.M. and asked the juvenile court to transfer the case to the federal agency and terminate dependency jurisdiction.
Minor's counsel said Y.M. did not want to return to Guatemala and it appeared the federal program would be better able to meet Y.M.'s needs because it addressed issues specific to victims of human sexual trafficking. Counsel further noted the Agency had not been able to find a stable placement for Y.M., and had placed her in a federal shelter care facility for refugee youth.
In March, over Mother's objection, the juvenile court authorized Y.M.'s placement in a federal refugee resettlement program. The placement order was not appealed. The court deferred a ruling on the Agency's recommendation to dismiss dependency jurisdiction.
The Consulate General of Guatemala, noting the juvenile court had "turned over jurisdiction to the corresponding federal authorities," consented to Y.M.'s transfer to federal custody. The Consulate General said based on Y.M.'s status as a possible victim of human trafficking, the child's best interest should control all stages of the proceedings in accordance with its "Inter-Institutional Protocol for the Repatriation of Victims of Human Trafficking of the Republic of Guatemala" (Guatemalan Protocol or Protocol).
In April, ORR placed Y.M. in a residential treatment facility in Florida, where she received psychiatric care, therapy and schooling. Y.M. was diagnosed with an adjustment disorder with depression and anxiety, mood disorder, impulse control disorder and mild mental retardation. She could not hear high pitches and received hearing aids. According to the ORR clinical supervisor, Y.M. did not appear to understand abstract concepts such as family reunification and other legal matters and would benefit from the services of a court-appointed guardian ad litem.
In July, Y.M. filed an objection to the Agency's earlier recommendation to terminate dependency jurisdiction. She asked the juvenile court to make findings that would allow her, as a dependent of the juvenile court, to obtain SIJ status. Father objected to the request, which required judicial findings that reunification with one or both parents was not viable, and that it was not in Y.M.'s best interests to be returned to Guatemala.
Y.M.'s counsel informed the juvenile court the federal agency had placed Y.M. in a locked psychiatric facility. Y.M. objected to the placement and filed a section 388 petition asking the juvenile court to remove her from the federal program and return her to San Diego. She also asked the court to terminate family reunification services to Father.
Mother filed a section 388 petition asking the juvenile court to place Y.M. in her care or, alternatively, order a plan of family reunification services. The Consulate General of Guatemala informed the court that in view of Mother's circumstances, if the juvenile court decided to reunify the family, there was no guarantee Y.M. would receive the necessary care in Guatemala to overcome the trauma she had suffered.
At the six-month review hearing on August 25, the juvenile court heard Y.M.'s and Mother's petitions for modification; Y.M.'s request for SIJ findings; and the Agency's request to terminate jurisdiction. The juvenile court admitted the Agency's reports in evidence, including a translated portion of the Guatemalan Protocol, and correspondence and explanatory materials from ORR about its programs for refugee youth.
The social worker testified that she did not believe it was in Y.M.'s best interests to be returned to Mother's care. When Y.M. was a baby, Mother left her in her grandmother's care. Y.M. said her mother hit her and pulled her hair. The social worker believed that Y.M. would likely be abducted again if returned to her mother's care in Guatemala. Mother had reported that one of Y.M.'s paternal uncles had been to her home several times, demanding her identification papers and Y.M.'s birth certificate.
The juvenile court denied Mother's request for custody, finding that Y.M. had suffered great trauma from being physically abused when she was a child. However, the court noted Mother was statutorily entitled to reunification ...