Opinion
DOCKET NO. A-5171-14T1
06-21-2016
M.E.R., Plaintiff-Appellant, v. J.P.A., Defendant-Respondent.
Reed Smith, L.L.P., attorney for appellant (Paul Bond, on the brief). Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and O'Connor. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FD-20-1582-15. Reed Smith, L.L.P., attorney for appellant (Paul Bond, on the brief). Respondent has not filed a brief. PER CURIAM
Plaintiff M.E.R. is the mother and defendant J.P.A. the father of Kelly and Warren, presently nineteen and seventeen years of age. As an initial step toward obtaining special immigrant juvenile status (SIJS) for the children from the United States Citizenship and Immigration Services (USCIS) under the Immigration and Nationality Act (Act), 8 U.S.C.A. § 1101(a)(27)(J), plaintiff filed a complaint in the Family Part seeking sole custody of both children. Following a final hearing, the court entered an order on June 3, 2015 awarding plaintiff sole custody of Warren only and denying her application for SIJS on behalf of the children. Plaintiff appeals all provisions of this order but for that which grants her custody of Warren. With the exception of that provision, we reverse the June 3, 2015 order and remand for further proceedings.
The children's names are fictionalized to protect their privacy.
I
The pertinent facts are set forth in certifications submitted by plaintiff and the children, as well as plaintiff's testimony at the final hearing. Although served, defendant neither appeared nor proffered any evidence at the hearing.
After the children were born, defendant moved from El Salvador to the United States in 2001. Plaintiff moved here one year later, leaving the children behind in the care of a family friend. In 2006, defendant was deported and resumed living in El Salvador; plaintiff remained in the United States. When defendant returned to El Salvador, he did not seek to regain physical custody of the children, made no effort to have a relationship with them, and failed to support them financially.
The reason for defendant's deportation is not in the record but is immaterial to the issues on appeal.
According to plaintiff's testimony, defendant does not have a home "or anything." In her certification she claimed she regularly sent money and clothes to the friend caring for the children and spoke to Kelly and Warren by telephone two to three times a week. In January 2014, the children entered the United States illegally. After they crossed the border in Texas, they were detained by the Department of Homeland Security and ultimately released to plaintiff's care pending deportation proceedings.
The children certified that defendant sought to see them only six times after he returned to El Salvador in 2006. Each time he was "very drunk" and stood outside of their home "yelling until he finally passed out." On one occasion, he forced his way into their home and threatened to kill them with a machete. Although they did not specify the source of their knowledge, the children claimed their father failed to support them financially. The children wish to remain with their mother. Both are enrolled in and are doing well in high school.
The court placed Warren in plaintiff's sole custody because he was living with her and was under the age of eighteen. The court determined Kelly could not be placed in her mother's custody because she was eighteen years of age, the age of majority under N.J.S.A. 9:17B-3. The court found unavailing most of the exceptions in the statute that permit, under certain circumstances, a finding that a child has not reached adulthood. However, the court failed to address the exception that authorizes a court "to take any action it deems appropriate and in the interest of a person under 21 years of age." Ibid.
The factors in 8 C.F.R. § 204.11(c) on which a state court is obligated to make findings when a child seeks SIJS status are as follows:
(1) The juvenile is under the age of 21 and is unmarried;
(2) The juvenile is dependent on the court or has been placed under the custody of an agency or an individual appointed by the court;
(3) The "juvenile court" has jurisdiction under state law to make judicial determinations about the custody and care of juveniles;
(4) That reunification with one or both of the juvenile's parents is not viable due to
abuse, neglect, or abandonment or a similar basis under State law; and
(5) It is not in the "best interest" of the juvenile to be returned to his parents' previous country of nationality or country of last habitual residence within the meaning of 8 U.S.C.A. § 1101(a)(27)(J)(ii); 8 C.F.R. § 204.11(a), (d)(2)(iii) [amended by TVPRA 2008].
[H .S.P. v. J.K., 223 N.J. 196, 210 (2015) (quoting In re Dany G., 117 A.3d 650, 655 (Md. Ct. Spec. App. 2015)) (internal citations omitted) (citing 8 C.F.R. § 204.11(a), (c) & (d); 8 U.S.C.A. § 1101(a)(27)(J)).]
Here, the court found the children were under the age of twenty-one; although their marital status was not addressed, there is no dispute both are unmarried. The court did not address the second factor. The court did find it has jurisdiction over this matter.
With respect to the fourth factor, the court found neither parent had abused, neglected, or abandoned the children and thus, there was no basis to conclude reunification with one or both parents was not viable. Specifically, relying upon N.J.S.A. 9:6-8.21(c)(4), the court concluded the father had not abandoned the children because there was no evidence he had the financial ability but declined to support the children. In addition, the court found the mother's claim the father had failed to provide for the children's financial support was devoid of personal knowledge and was thus unreliable. The mother does not challenge the court's finding the father had not abandoned the children.
Although the fourth factor states that "reunification with one or both of the juvenile's parents is not viable due to abuse, neglect, or abandonment or a similar basis under State law," as the trial court appropriately did here, a state court must make findings as to both parents. H.S.P., supra, 223 N.J. at 213.
N.J.S.A. 9:6-8.21(c)(4) provides that an abused or neglected child includes one
whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian . . . to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so.
Relying upon N.J.S.A. 9:6-1, which sets forth those acts that constitute abuse and neglect of a child, the court found the claim in the children's certifications that defendant had threatened to kill them insufficient proof he had abused them. Plaintiff challenges that finding.
As for the fifth factor, the court determined that because the children were reunified with the mother in the United States, it was not required to make a finding about whether or not it would be in the best interests of the children to be returned to El Salvador, defendant's habitual residence.
II
On appeal, plaintiff contends the court erred by denying her motion for custody of Kelly on the ground she had reached the age of eighteen. Plaintiff argues there are circumstances under which a person may not be deemed an adult under N.J.S.A. 9:17B-3 even though he or she is eighteen years of age or older. Plaintiff also contends that because defendant abused the children, reunification with him in El Salvador is neither viable nor in their best interest. Finally, she maintains the court failed to address all of the factors in 8 C.F.R. 204.11(c).
If a non-citizen child obtains SIJS status, he may seek lawful permanent residency, a step toward citizenship. H.S.P. v. J.K., 223 N.J. 196, 200 (2015). A child who has SIJS status is protected from deportation. Id. at 209. But before a non-citizen child can submit an application to the USCIS for SIJS status, he (or an individual acting on his behalf) must petition a state court and request that it make findings on the factors set forth in 8 C.F.R. § 204.11(c). Id. at 210. The state court must address all five findings in 8 C.F.R. § 204.11(c), even if the court finds the child has not been placed in the custody of another. O.Y.P.C. v. J.C.P., 442 N.J. Super. 635, 641 (App. Div. 2015). Once the findings in 8 C.F.R. § 204.11(c) are made and incorporated into an order, the child must submit the order to the USCIS if he seeks SIJS status. A state court may not make the decision whether an application for SIJS status can be granted; that task is entrusted only to the USCIS. Id. at 212.
An alien is eligible for SIJS classification as long as he is under twenty-one years of age. O.Y.P.C. v. J.C.P., 442 N.J. Super. 635, 638 (App. Div. 2015). In O.Y.P.C., the trial court denied the plaintiff's SIJS-related petition for custody of her eighteen-year old brother on the ground he had reached the age of majority. We reversed, observing "it would defeat the purpose of the hybrid federal-state scheme Congress created if state family courts decline to hear these cases solely because a juvenile is over the age of eighteen, so long as the juvenile is still under the age of twenty-one." Id. at 640.
Although N.J.S.A. 9:17B-3 provides that, in general, one is deemed an adult at the age of eighteen, this statute also "excepts from its definition of adulthood-at-age-eighteen 'the right of a court to take any action it deems appropriate and in the interest of a person under 21 years of age.'" Id. at 643 (quoting N.J.S.A. 9:17B-3). We remanded the matter for the court to consider this other source of jurisdiction. We further pointed out that, even if a court denies a petitioner custody of a non-citizen child pursuant to a SIJS petition, as mandated by the Court in H.S.P., the trial court must still make the required findings in 8 U.S.C.A. § 1101(a)(27)(J) and 8 C.F.R. § 204.11(c). Id. at 641.
Here, the court denied plaintiff custody of Kelly because she had reached the age of majority, but the court did not consider whether the circumstances warrant taking any appropriate action in Kelly's interest. See N.J.S.A. 9:17B-3. We note that reaching the age of eighteen merely creates the presumption a child is emancipated. Newburgh v. Arrigo, 88 N.J. 529, 543 (1982). "Parents are expected to support their children until they are emancipated," see Colca v. Anson, 413 N.J. Super. 405, 414 (App. Div. 2010) (quoting Burns v. Edwards, 367 N.J. Super. 29, 39 (App. Div. 2004)), and children are emancipated when they have "moved 'beyond the sphere of influence and responsibility exercised by a parent and obtain[ed] an independent status of [their] own.'" Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997) (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995)). This fact-sensitive evaluation must include consideration of issues such as the "child's need, interests, and independent resources, the family's reasonable expectations, and the parties' financial ability, among other things." Dolce v. Dolce, 383 N.J. Super. 11, 18 (App. Div. 2006). Accordingly, we remand this matter for the court to consider whether in fact Kelly is emancipated under settled law.
The court found defendant had not abused the children. N.J.S.A. 9:6-1 provides that one abuses a child if he engages in any unlawful act that may tend to endanger or degrade the morals of the child. The children certified that on one occasion defendant forced his way into their home and threatened to kill them with a machete. These certifications, which were undisputed, are competent evidence. R. 1:6-6. In our view, threatening to kill a child - with a machete in hand no less - constitutes abuse under N.J.S.A. 9:6-1. Accordingly, we reverse the trial court's finding defendant did not abuse the children.
The trial court denied the application for SIJS status. However, because only the USCIS has the authority to determine whether an application for SIJS status can be granted, see O.Y.P.C., supra, 442 N.J. Super. at 212, we are constrained to reverse that provision in the June 3, 2015 order denying this particular relief. Finally, as the trial court is required to address all of the factors in 8 C.F.R. § 204.11(c), we remand this matter so the court may complete this task.
Accordingly, with the exception of that part of the June 3, 2015 order that grants plaintiff custody of Warren, we reverse and vacate the June 3, 2015 order and remand this matter to the Family Part for further proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded in part. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION