Bianka M. v. Superior Court of L. A. Cnty.

A.

The facts are taken from Bianka's petition and supporting documentation. Bianka was born in 2002 in Honduras to Gladys M. In 2005, Gladys moved to the United States in search of better employment opportunities, leaving

To guide implementation of these general joinder principles in the family law context, the Judicial Council has promulgated rule 5.24 of the California Rules of Court. As relevant here, rule 5.24, under the heading "Mandatory joinder," provides that a court must order that a person be joined as a party to a family court proceeding "if the court discovers that person has physical custody or claims custody or visitation rights with respect to any minor child of the marriage, domestic partnership, or to any minor child of the relationship." ( Cal. Rules of Court, rule 5.24(e)(1)(A).) Under the heading "Permissive joinder," rule 5.24 provides that a court may order that a person be joined as a party "if the court finds that it would be appropriate to determine the particular issue in the proceeding and that the person to be joined as a party is either indispensable for the court to make an order about that issue or is necessary to the enforcement of any judgment rendered on that issue." ( Id. , rule 5.24(e)(2).) "In deciding whether it is appropriate to determine the particular issue in the proceeding, the court must consider its effect upon the proceeding, including: [¶] (A) Whether resolving that issue will unduly delay the disposition of the proceeding; [¶] (B) Whether other parties would need to be joined to make an effective judgment between the parties; [¶] (C) Whether resolving that issue will confuse other issues in the proceeding; and [¶] (D)

In a family law action, the mandatory joinder provision of rule 5.24(e) of the California Rules of Court identifies one category of persons who, by definition, are materially interested in the action and are therefore necessary parties: those who have physical custody of the child or make a claim to custody or visitation after being served with notice of the pending action. ( Cal. Rules of Court, rule 5.24(e)(1)(A).) A person who claims custody or visitation rights is entitled to join himself or herself to the proceeding ( id. , rule 5.24(c)(2) ), and by the very fact of participation in the proceeding may consent to the court's exercise of jurisdiction (see, e.g., In re Marriage of Torres (1998) 62 Cal.App.4th 1367 , 1380, 73 Cal.Rptr.2d 344 ).

Here, however, after receiving notice of Bianka's action, Jorge has made no claim to custody or visitation rights, much less participated in the proceeding in any manner that could be interpreted as consent to the court's jurisdiction. Thus, as the superior court itself observed, there is no clear basis on which the court could exercise personal jurisdiction over Jorge. It is therefore not feasible to join him. And if it is not feasible to join Jorge as a party because he is beyond the court's personal jurisdiction, then the proper course is not simply to order that Jorge be joined anyway. Rather, as a general rule, when it is not feasible for an interested person to be joined, the law instructs the court to consider whether, "in equity and good conscience," the suit may proceed in the person's

The superior court's primary concern was that awarding sole custody to Gladys would effectively terminate any parental rights Jorge might wish to assert, and therefore should not be done in Jorge's absence. But Jorge was given an opportunity to assert those rights in response to the notice of the pendency of the

The permissive joinder rule, rule 5.24(e)(2) of the California Rules of Court, on which the Court of Appeal relied as an alternative basis for upholding the superior court's judgment, does not change the analysis. That rule states that a court may order that a person be joined to a proceeding if it finds that it would be appropriate to determine a particular issue in the proceeding and the court finds that the person "is either indispensable for the court to make an order about that issue or is necessary to the enforcement of any judgment rendered on that issue." ( Cal. Rules of Court, rule 5.24(e)(2).) All of this appears to presuppose that joinder is, in fact, feasible. The rule does not expressly address what should happen when joinder is infeasible because, for example, the person to be joined is beyond the court's jurisdiction. In the absence of any more specific direction, the Rules of Court make clear that the ordinary rules relating to joinder of parties in civil cases apply. ( Id. , rule 5.24(a)(1).) Those rules, as noted, do not authorize a court to order joinder when it is not feasible to join the nonparty and when the nonparty is not indispensable to the action. In any event, even where rule 5.24(e)(2) does apply, it directs courts to consider, among other things, whether "the joinder of a party to determine the particular issue will complicate, delay, or otherwise interfere with the effective disposition of the proceeding." ( Id. , rule 5.24(e)(2)(D).) Here, because Jorge is beyond the court's jurisdiction, requiring his joinder would not only "complicate" proceedings, but would likely end them altogether.

The Court of Appeal did briefly acknowledge this problem, but suggested there may be a workaround: Jorge could stipulate to parentage, which would

Bianka sought appellate review by petition for writ of mandate. The Court of Appeal denied the petition. As an initial matter, the court held that Bianka's request for order was premature because the superior court had yet to determine Gladys's parentage, a prerequisite to an order granting custody to Gladys. But because the record evidence suggests that there is unlikely to be a dispute regarding whether Gladys is in fact Bianka's mother, the court went on to address the merits of the superior court's ruling on joinder.

The Court of Appeal observed that Bianka's petition is unusual in that it involves an uncontested parentage action between a child and her natural

Despite being notified of the action, however, Jorge has taken no steps to participate. The question is whether Bianka must nevertheless join Jorge as a party in order to proceed. The superior court held that she must-even though the court also acknowledged that the record contains no basis for exercising personal jurisdiction over Jorge, who resides out of the country. The Court of Appeal upheld the ruling on alternative grounds, concluding that the superior court acted within its discretion in ordering Jorge's joinder under the permissive joinder provision of rule 5.24(e)(2) of the California Rules of Court. We conclude that both courts erred.

1.

Under the compulsory joinder statute, the basic rule is that, " '[w]henever feasible, the persons materially interested in the subject of an action ... should be joined as parties so that they may be heard and a complete disposition made.' " (

Second, the courts below cited the potential prejudice to Jorge if the finding is made in his absence. It is, the superior court noted, only a short step from finding that Jorge is Bianka's father to concluding that Jorge must assume greater responsibility for her support. The court also expressed concern about the finding of abandonment, emphasizing that Jorge should be given an adequate opportunity to rebut the allegations. Bianka argues these concerns are overstated: She has not sought child support in this case, nor is it clear that it would be feasible for her to seek child support from Jorge, who is beyond the court's jurisdiction. Any decision issued in Jorge's absence could not bind him in any event. ( In re Wren (1957) 48 Cal.2d 159 , 163, 308 P.2d 329 ["It is the general rule that a judgment may not be entered either for or against a person who is not a party to the proceeding, and any judgment which does so is void to that extent."].) And while both the superior court and Court of Appeal were certainly correct to be concerned about potential prejudice to Jorge and his opportunity to respond to the allegations of abandonment, Jorge was notified of the allegations and had the opportunity to respond if he so chose; he did not, however, take any steps to participate in the pending proceeding.

Ultimately we need not decide here whether the courts' concerns about prejudice would justify Jorge's joinder as a necessary party if it were feasible to join him. We instead assume, without deciding, that Jorge is a necessary party as to the SIJ finding of abandonment. Because Jorge's joinder is not feasible, the central question under the mandatory joinder statute is whether the court can, "in equity and good conscience," make the finding in Jorge's absence. Under section 389, subdivision (b), the potential prejudice that may flow from a judgment rendered in Jorge's absence must be weighed alongside other factors: whether the prejudice can be lessened by the shaping of relief; whether a judgment rendered in Jorge's absence will be adequate; and, as particularly important here, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder. ( Code Civ. Proc., § 389, subd. (b).)

Although the superior court did not squarely address the last question, the answer is no: Bianka has no way to obtain a state court finding on the matters relevant to an application for SIJ status, as section 155 of the Code of Civil Procedure entitles her to do, other than to ask the state court for the finding. There is no available alternative forum that could provide the relief

Reading this passage as effectively a secondary basis for upholding the superior court's denial of her requested order, Bianka urges us to make clear that a court cannot deny a child's request for SIJ findings on the basis of its conclusion that the findings are the child's central motivation in filing the action. As it happens, the Legislature has already supplied the clarification Bianka seeks. Shortly after the Court of Appeal issued its decision in this case, the Legislature in 2016 amended Code of Civil Procedure section 155 to make clear that a court must issue findings relevant to SIJ status, if factually supported, regardless of its assessment of the child's perceived motivations in invoking the court's jurisdiction: "The asserted, purported, or perceived motivation of the child seeking classification as a special immigrant juvenile shall not be admissible in making the findings under this section. The court

The superior court denied Bianka's requests. The court concluded it could not issue either a custody order or findings relevant to special immigrant juvenile status unless Bianka

Bianka's father is Jorge L., a resident of Honduras. Gladys and Jorge had a 15-year relationship but were never married. During

C.

After filing her petition, Bianka requested the appointment of a guardian ad litem to represent her interests; she served both Gladys and Jorge with the application via mail. ( Fam. Code, § 7635, subd. (a).) Bianka's counsel also notified Jorge by telephone, in Spanish, and informed him of the hearing date. Bianka later submitted a request for order, asking the court to grant sole custody to Gladys and to issue findings relevant to SIJ eligibility. Bianka's counsel served Jorge by mail with a copy of the petition, the proposed order of custody, which contained the SIJ findings, and supporting documents. Counsel again called Jorge to advise him of the upcoming hearing on the request for order. Jorge neither responded to the petition nor participated in the hearing, which took place more than a month later.

Because the determination of whether a person or entity must be joined as a party to a civil action is a case-specific inquiry that " 'weighs "factors of practical realities and other considerations," ' " a trial court's ruling on joinder is reviewed for abuse of discretion. ( TG Oceanside, L.P. v. City of Oceanside (2007) 156 Cal.App.4th 1355 , 1366, 68 Cal.Rptr.3d 320 .)

B.

In this parentage action, Bianka seeks to establish a parent-child relationship with her mother, Gladys, as well as SIJ findings concerning, among other things, her alleged father, Jorge. By statute, she was required to notify Jorge of the pendency of the action, and she complied with this requirement by mailing her petition and supporting documents to him and following up by telephone. Although the Court of Appeal suggested in passing that the notice was inadequate because it did

To begin with, Jorge is not necessary-much less indispensable-to the resolution of Bianka's request that sole custody be awarded to Gladys. Such an award would impose no obligation on Jorge, nor is

We turn, then, to the matter of the SIJ findings. Consistent with the federal statute and section 155 of the Code of Civil Procedure, Bianka asked the superior court to find that (1) she is in the court-ordered custody of Gladys; (2) she cannot reunite with her alleged father, Jorge, due to his abandonment; and (3) it is not in her best interest to return to Honduras. (See 8 U.S.C. § 1101 (a)(27)(J).) Of these findings, the record makes clear that neither the first nor the last requires Jorge's participation as a party; indeed, although the court expressed some misgivings about making the finding in Jorge's absence, the superior court has already found that it is not in Bianka's best interest to be returned to Honduras, given "both the overall violence of her city and the lack of available relatives to care for her." Both courts below, however, concluded that Jorge must be joined as a party before the court may make findings about whether reunification with Jorge is not viable due to abandonment. In support of that conclusion, they offered two reasons.

First, the courts below appeared to believe that Bianka, by seeking findings relevant to SIJ status, is also seeking the equivalent of a parentage determination under the UPA concerning Jorge. 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." If, as the courts appeared to believe, Bianka were seeking to establish a father-child relationship with Jorge under the UPA, then, as a matter of due process, she would be required to join her alleged father as a party to the action. (

We now turn to a second issue raised by the Court of Appeal's decision. In its opinion, the Court of Appeal expressed concern that findings issued in the context of an uncontested custody proceeding would not be useful to Bianka's SIJ application in any event. The court pointed to an excerpt from a 1998 House of Representatives conference report, a USCIS memorandum citing the same report, and a 2011 proposed rule (yet to be finalized), all of which contain language suggesting that USCIS will approve SIJ status only when the findings are issued in bona fide proceedings, meaning actions that are sought to obtain relief from abuse, neglect, or abandonment, and not primarily to obtain immigration relief. (See H.R.Rep. No. 105-405, 1st Sess., p. 130 (1997); USCIS, mem. on Trafficking Victims Protection Reauthorization Act of 2008: Special Immigrant Juvenile Status Provisions (Mar. 24, 2009), superseded by USCIS Policy Manual, vol. 6, pt. J, ch. 2, D.5. (May 23, 2018); 76 Fed. Reg. 54978 , 54985 (Sept. 6, 2011).) The court suggested that any findings issued in this case are unlikely to meet this standard, reasoning that Bianka had not demonstrated a practical need to establish her mother's sole custody and must therefore