W.R.A.H. VS. D.M.A.H. (FD-11-0866-16, MERCER COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 9, 2018
• Docket: A-4440-16T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4440-16T2

W.R.A.H.,

Plaintiff-Appellant,

v.

D.M.A.H.,

Defendant-Respondent. __________________________________

Submitted January 22, 2018 – Decided July 9, 2018

Before Judges Whipple and Rose.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FD-11-0866-16.

Cesar Martin Estela, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

Appellant W.R.A.H. (Wyatt)1 appeals the trial court's May 3,

2017 amended order, finding that L.E.A.H. (Luke) could viably be

1 For ease of reference and to protect the identities of the parties, we refer to the parties by pseudonyms. reunified with his mother, respondent D.M.A.H. (Diane). Following

our review of the record and applicable legal principles, we

reverse and remand for further proceedings.

We discern the following facts from the record. Luke was

born on August 14, 1996, to Diane, who resides in Guatemala.

Luke's father is unknown and is not named on his birth certificate.

Wyatt, Luke's uncle, has raised and provided care for him since

May 2014, when Luke entered the United States. Luke currently

attends Mercer County Community College, pursuing a GED and

aspiring to be an auto mechanic.

Throughout his adolescence, Diane attempted to shield Luke

from gang violence in Guatemala. After Luke refused to join a

local gang, its members began to harass and threaten him. Luke

changed schools multiple times and eventually began working in the

mountains to avoid the gang. Unfortunately, the harassment

persisted, and the gang gave Luke an ultimatum, requiring him to

join by May 8, 2014. Fearing the consequences of refusing and

knowing she could no longer protect Luke, Diane allowed him to

flee Guatemala to live with his uncle, Wyatt, in New Jersey. Wyatt

paid "some coyotes" who helped Luke get to the United States on a

trip that took two months. When Luke arrived in the United States,

he was held in a Texas detention center for minors for about two

2 A-4440-16T2 weeks. He was then released to Wyatt in New Jersey, where he

remains today.

On January 30, 2017, Wyatt filed a petition for sole legal

custody of Luke and for special factual findings for Special

Immigrant Juvenile (SIJ) status. On March 15, 2017, the Family

Part judge ruled the court did not have jurisdiction under N.J.S.A.

9:17B-3 to grant Wyatt custody of Luke because Luke was over

eighteen. The judge declined to make any findings of abuse,

neglect, or abandonment against Diane because "under the

circumstances she did the best she could to avert the gang violence

. . . and when that wasn't enough she acceded to him coming to the

United States and consented to him being under the care of his

uncle." The judge also determined Luke could not be reunited with

his mother because of gang violence and it was not in his best

interest to return to Guatemala.

Wyatt thereafter moved for reconsideration. On May 3, 2017,

the Family Part judge reconsidered and determined N.J.S.A. 9:17B-

3 permitted "the court to take any action it deems appropriate and

in the interest of a person under 21 years of age." Additionally,

"under Title 9, a placement may be made or continued . . . under

N.J.S.A. 9:6-8.54 beyond the child's eighteenth birthday with the

child's consent." O.Y.P.C. v. J.C.P., 442 N.J. Super. 635, 643

(App. Div. 2015) (citing N.J.S.A. 9:6-8.54(c)).

3 A-4440-16T2 The court then made the required finding whether

"reunification with one or both of [Luke's] parents is not viable

due to abuse, neglect, or abandonment or similar basis under state

law." The court found reunification with Diane was viable and

concluded she did not abuse, neglect, or abandon Luke. Despite

her best efforts, Diane was unable to protect Luke in Guatemala

and sent him to live with Wyatt for protection. Additionally, the

court determined Luke's father abandoned him and reunification was

not viable. Lastly, it concluded it was not in Luke's best

interest to return to Guatemala because of the continued gang

threats.

On appeal, Wyatt argues the Family Part judge erred finding

it was viable for Luke to return to his mother. Wyatt asserts

Luke was abandoned or neglected because Diane had not emotionally

or financially supported him since he left Guatemala. He further

contends that, while in Guatemala, Diane could not secure his

safety, and Luke was forced to stop attending school. Wyatt asks

us to reverse the decision of the Family Part and determine that

Diane abandoned her son so that he may perfect his petition for

Luke to be granted SIJ status.

"SIJ status is a form of immigration relief permitting alien

children to obtain lawful permanent residency and, eventually,

citizenship." H.S.P. v. J.K., 223 N.J. 196, 200 (2015). An alien

4 A-4440-16T2 child may apply for SIJ status under the Immigration and

Nationality Act of 1990, as amended by the William Wilberforce

Trafficking Victims Protection Reauthorization Act of 2008, Pub.

L. No. 110-457, 122 Stat. 5044. Id. at 199-200. "The process for

obtaining SIJ status is 'a unique hybrid procedure that directs

the collaboration of state and federal systems.'" Id. at 209

(quoting In re Marisol N.H., 979 N.Y.S.2d 643 (N.Y. App. Div.

2014)). A two-step process is required to obtain such status.

Id. at 200. First, the juvenile, or someone acting on his or her

behalf, must petition the Family Part for an order finding the

juvenile satisfies the following SIJ criteria:

(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.[ ] § 1101(a)(27)(J)(ii); 8 C.F.R. § 204.11(a), (d)(2)(iii).

5 A-4440-16T2 [Id. at 210 (citation omitted).]

In making these findings, the Family Part "is not rendering

an immigration determination." Ibid. (citations omitted).

Rather, the findings serve as a prerequisite that enables the

juvenile to submit his or her application for SIJ status to the

United States Citizenship and Immigration Services (USCIS). Ibid.

If the USCIS approves the application, the juvenile will then be

granted SIJ status. Ibid. (citations omitted). Thereafter, the

juvenile is permitted to seek lawful permanent residency, and

eventually citizenship. Id. at 200.

Our Supreme Court emphasized "[t]he Family Part's sole task

is to apply New Jersey law in order to make the child welfare

findings required by 8 C.F.R. § 204.11." Id. at 200. In performing

this function, the Family Part must apply its expertise "regardless

of its view as to the position likely to be taken by the federal

agency or whether the minor has met the requirements for SIJ

status." Id. at 200-01. When addressing these factors, the law

of the State must be applied. Id. at 212-13 (citing 8 U.S.C. §

1101(a)(27)(J)(i)). "[T]he SIJ evidence must be viewed through

the lens of New Jersey law, not the law of the juvenile's country

of origin." O.Y.P.C., 442 N.J. Super. at 641.

6 A-4440-16T2 In reviewing the Family Part's determinations, we "give

deference to the trial court that heard the witnesses, sifted the

competing evidence, and made reasoned conclusions." Griepenburg

v. Twp. of Ocean, 220 N.J. 239, 254 (2015) (citing Rova Farms

Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974)).

We "should 'not disturb the factual findings and legal conclusions

of the trial judge' unless convinced that those findings and

conclusions were 'so manifestly unsupported by or inconsistent

with the competent, relevant and reasonably credible evidence as

to offend the interests of justice.'" Ibid. (quoting Rova Farms

Resort, 65 N.J. at 484). However, we owe no deference to legal

conclusions drawn by the trial court. Manalapan Realty, LP v.

Twp. Comm., 140 N.J. 366, 378 (1995) (citations omitted).

We disagree with the Family Part's legal conclusion that

Diane did not abuse, neglect, or abandon Luke under the lens of

New Jersey law. A child is abused or neglected under N.J.S.A.

9:6-8.21(c)(4)(a) if: "(1) the child's physical, mental, or

emotional condition has been impaired or is in imminent danger of

becoming impaired; and (2) the impairment or imminent impairment

results from the parent's failure to exercise a minimum degree of

care." N.J. Div. of Child Prot. & Permanency v. A.B., 231 N.J.

354, 369 (2017). In G.S. v. Department of Human Services, the

Supreme Court found "a guardian fails to exercise a minimum degree

7 A-4440-16T2 of care when he or she is aware of the dangers inherent in a

situation and fails adequately to supervise the child or recklessly

creates a risk of serious injury to that child." 157 N.J. 161,

181 (1999). In determining whether a parent did not exercise a

minimum degree of care, a judge must also "account for the

surrounding circumstances" because "[a]buse and neglect cases are

fact-sensitive." Dep't of Children & Families, Div. of Child

Prot. & Permanency v. E.D.-O., 223 N.J. 166, 180 (2015) (citations

omitted).

The testimony adduced at trial illustrates how, after

multiple attempts to protect Luke, Diane deliberately allowed him

to flee Guatemala unaccompanied for a two month trek north. Under

N.J.S.A. 9:6-1, abandonment consist of a parent "willfully

forsaking a child." The statute further directs that a parent

abandons a child by "failing to care for and keep the control and

custody of a child so that the child shall be exposed to physical

or moral risk without proper and sufficient protection." Ibid.

Undeniably, under New Jersey law, a parent could be considered to

have neglected or abandoned a child if he or she voluntarily

allowed the child to freely travel for thousands of miles

unsupervised, even if the parent did so for the benefit of the

child's well-being. In Lavigne v. Children's Society, the Supreme

Court explained:

8 A-4440-16T2 [t]he statutory notion of abandonment does not necessarily, we think, imply that the parent has deserted the child, or even ceased to feel any concern for its interests. It fairly may, and in our judgment does, import any conduct on the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child.

[11 N.J. 473, 480 (1953) (citation omitted).]

Even though Diane may have had Luke's best interest in mind,

the questions of neglect and abandonment require further

discussion under New Jersey law. Diane directed Luke to flee

Guatemala on his own and exposed him to considerable perils

potentially visited upon an unaccompanied minor to the United

States from Central America. Moreover, Diane's actions may

demonstrate a clear intention to forego her parental

responsibilities and place Luke's welfare entirely in the hands

of his uncle. In addition, the Family Part judge's conclusion

Luke could be reunited with Diane is not supported by evidence in

the record. In particular, the court does not explain how Luke

might be reunited with Diane if it is too dangerous for him to

return to Guatemala.

Accordingly, we reverse and remand with instruction to the

Family Part to determine whether Diane abandoned or neglected Luke

under New Jersey law, decide the application for custody of Luke,

and make all of the requisite 8 C.F.R. § 204.11(c) findings. The

9 A-4440-16T2 court shall make its findings based on the evidence adduced at the

March 15, 2017 hearing and shall set forth the findings in a

written decision within forty-five days. Wyatt shall have fifteen

days from the day he receives the court's written decision to file

a supplemental brief with this court if deemed necessary, which

shall not exceed ten pages.

Reversed and remanded for further proceedings consistent with

this opinion. We retain jurisdiction.

10 A-4440-16T2