Opinion
DOCKET NO. A-0590-14T2
01-12-2016
R.H.-E., Plaintiff-Appellant, v. E.P.-V. and A.A.P.-M., Defendants-Respondents.
Elizabeth M. Trinidad argued the cause for appellant (Trinidad Law Office, LLC, attorneys; Ms. Trinidad, on the brief). Respondents have not filed briefs.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Higbee. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FD-06-001045-14. Elizabeth M. Trinidad argued the cause for appellant (Trinidad Law Office, LLC, attorneys; Ms. Trinidad, on the brief). Respondents have not filed briefs. PER CURIAM
Plaintiff R.H.-E. appeals from an August 28, 2014 Family Part order denying his motion to reconsider an April 29, 2014 order, requesting a finding in accordance with 8 U.S.C.A. § 1101(a)(27)(J) to show M.P., plaintiff's nephew, was abused by defendants, M.P.'s parents, in order to apply for "special immigrant juvenile" status (SIJ).
These findings are the necessary first steps in achieving SIJ status under the Immigration Act of 1990, as amended by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No. 110-457, 122 Stat. 5044 (2008). O.Y.P.C. v. J.C.P., ___ N.J. Super. ___, ___ (2015) (slip op. at 2). --------
We discern the following facts from the record on appeal. M.P. is a Guatemalan native born on August 29, 1997. He lived in Guatemala with defendants, his grandparents, and six siblings. M.P. contended at the age of twelve, he left school and began performing agricultural work. He claimed this agricultural work subjected him to injury. He also claimed his father would hit him, and his mother did nothing to stop this abuse.
M.P. left Guatemala to escape his home life and sought refuge in the United States. M.P. entered the United States illegally in 2012, and has resided with plaintiff in New Jersey ever since.
In March 2014, plaintiff filed a complaint against defendants seeking an order granting him custody of M.P. He also requested an order stating the predicate findings that M.P.'s parents neglected and abandoned him to secure SIJ status for M.P.
The Family Part judge held a hearing on April 29, 2014. Defendants were not present. Without the benefit of testimony, the Family Part judge denied plaintiff's application, stating:
I find the facts in your case are quite similar [to H.S.P. v. J.K., 435 N.J. Super. 147 (App. Div. 2014), rev'd, 223 N.J. 196 (2015)]. The facts you have cited in the certifications do not suggest that the parent -- or either of the parents chose not to provide for their child, or, willfully, recklessly, or with gross negligence refused to do so. You have cited and described a picture of poverty, which, again, I am not unsympathetic to the young man; but, I would agree with the Appellate Division who rendered the H.S.P. case, that there is some concern as to whether that the was [sic] intention of the federal law, to allow children, such as your client's nephew, to seek refuge in the United States because their parents are very poor, thus rendering them very poor, and unable to obtain an education.
Plaintiff filed a motion for reconsideration on both claims, and for the first time, presented evidence M.P. suffered abuse from his parents. Upon reconsideration, the Family Part judge issued an order on August 28, 2014, where she granted custody of M.P. to plaintiff, but found there was no evidence of abuse. The Family Part judge explained her decision in an August 28, 2014 written opinion.
In the opinion, the Family Part judge made factual findings determining the agricultural work M.P. engaged in was not dangerous, and his father and mother did not abuse him. She did analyze whether M.P. was abused under this state's child welfare laws, something she did not do in her original April 29, 2014 decision. But in making her findings, the Family Part judge noted "this court is bound by the principles of H.S.P. [supra, 435 N.J. Super. at 147] . . . ."
In this uncontested appeal, plaintiff argues the Family Part judge erred in finding M.P. did not suffer abuse and failed to make specific findings to justify her decision. Plaintiff also argues the Family Part judge was biased against M.P. because he is a Central American child. Plaintiff does not appeal the custody grant.
The Supreme Court recently reviewed this court's opinion in H.S.P. and reversed, clarifying the procedure to be followed when considering an application for predicate SIJ findings. See H.S.P. v. J.K., 223 N.J. 196, 201 (2015); see also O.Y.P.C. v. J.C.P., ___ N.J. Super. ___, ___ (2015) (slip op. at 4). The Court held the Family Part must make the following findings:
(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 . . . .
[H.S.P., supra, 223 N.J. at 210 (citations omitted) (quoting In re Dany G., 117 A.3d 650, 655 (Md. Ct. Spec. App. 2015)).]
The H.S.P. Court made it clear the Family Part must use New Jersey law in making its child welfare findings. H.S.P., supra, 223 N.J. at 200; O.Y.P.C. v. J.C.P., ___ N.J. Super. ___, ___ (2015) (slip op. at 8-9). And when determining whether reunification with "one or both" parents is not viable under prong four, the Family Part must make separate findings as to each parent. H.S.P., supra, 223 N.J. at 201.
The Family Part judge in this matter did not have the benefit of the Supreme Court's guidance and was bound at that time by this court's opinion. In light of the Supreme Court's recently issued holding, we reverse and remand for the judge to consider plaintiff's application in light of the new standards. We do not retain jurisdiction.
Reversed and remanded. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION