Opinion
DOCKET NO. A-4209-14T1
02-24-2016
C.M., Plaintiff-Appellant, v. M.N.M., Defendant-Respondent. IN THE MATTER OF S.O.N.M., a minor.
Sodette K-M Plunkett, P.C. attorney for appellant (Renee LaRosee, on the brief). Respondent has not filed a brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges O'Connor and Suter. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FD-20-001395-15. Sodette K-M Plunkett, P.C. attorney for appellant (Renee LaRosee, on the brief). Respondent has not filed a brief. PER CURIAM
Plaintiff C.M. filed a verified complaint seeking custody of S.O.N.M. (Sam), the grandson of a friend who lived in Guatemala. Plaintiff also requested the court to make the findings necessary under 8 U.S.C.A. § 1101(a)(27)(J) and its implementing regulation, 8 C.F.R. § 204.11(c), so that Sam could apply for "special immigrant juvenile" (SIJ) status from the United States Citizenship and Immigration Services (USCIS) pursuant to 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). If a non-citizen child obtains SIJ status, he may seek lawful permanent residency, a step toward citizenship. H.S.P. v. J.K., 223 N.J. 196, 200 (2015). In addition, a child who has SIJ status is protected from deportation. Id. at 209.
The child's name is fictionalized to protect his privacy. --------
Before a non-citizen child can submit an application to the USCIS for SIJ status, he (or an individual acting on his behalf) must petition a state court and request that it make findings on certain factors set forth in 8 U.S.C.A. § 1101(a)(27)(J) and 8 C.F.R. § 204.11(c). Id. at 210. Once those findings are made and incorporated into an order, the child is required to submit the order to the USCIS if he seeks SIJ status. A state court may not make the decision whether an application for SIJ status can be granted; that task is entrusted only to the USCIS. Id. at 212. The factors in 8 U.S.C.A. § 1101(a)(27)(J) and 8 C.F.R. § 204.11(c) on which a state court must make findings are:
(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., 223 Md. App. 707, 714-15 117 A.3d 650, 655 , 2015 Md. App. LEXIS 90 at *8 (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)).]
The state court must address all five findings, 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). As for the fourth factor, the state court must make findings as to both parents. H.S.P., supra, 223 N.J. at 213. When addressing the five factors and any request for custody, the law of the state is to be applied. Id. at 215 (citing USCIS, Immigration Relief for Abused Children 2 (2014), available at http://www.uscis.gov/sites/default/files/USCIS/Green%20Card/Green%20Card%20Through%20a%20Job/Immigration_Relief_for_Abused_Children-FINAL.pdf).
Here, the trial court denied plaintiff's application for custody. It also found Sam had not been abused, neglected or abandoned, but failed to address the remaining necessary factors in 8 U.S.C.A. § 1101(a)(27)(J) and 8 C.F.R. § 204.11(c). Plaintiff appeals from the court's April 7, 2015 order embodying these rulings. Following our review of the record and applicable law, we vacate that order and remand for further proceedings.
I
According to his certification, Sam was born and raised in Guatemala. He had never met his biological father and does not even know his name. When Sam was six years old, M.N.M., who is his mother, left him and two younger siblings in the care of his maternal grandparents, and did not hear from his mother for over two years. Sam saw his mother for a visit when he was eight, but thereafter his mother contacted him only sparingly. Sam asserts his mother failed to provide him with any emotional or financial support throughout his life.
Sam certified that his grandparents were poor; at times, the members of the household had no food. His grandfather eventually could not work due to illness, so Sam quit school when he was in the eighth grade to work full time on a farm. In August 2014, he left home to move to the United States.
After crossing the border from Mexico, he was apprehended by the United States Border Patrol and put into the custody of the Office of Refugee Resettlement. In September 2014, Sam was placed with plaintiff, who resides in New Jersey, and has been living with him since. Presently Sam attends high school, where he is in the tenth grade. Plaintiff certified that he has been and is willing to support Sam financially for as long as necessary, which is why he seeks to acquire custody of him.
The court denied plaintiff custody on the ground Sam had turned eighteen by the time of the hearing and, as an adult, could not be placed in the custody of another. The trial court also found Sam could fend for himself, especially since plaintiff had been supporting him without a custody order. In addition, the court repeatedly stated that the sole reason plaintiff was seeking custody was to help Sam gain an advantage in his immigration status.
The court addressed only the fourth factor in 8 U.S.C.A. § 1101(a)(27)(J) and 8 C.F.R. § 204.11. Specifically, the court found Sam had not been subject to any abuse, neglect, or abandonment while living in Guatemala because Sam's grandparents had cared for him from the time he was six to the time he began to work, at which time, the court concluded, Sam "was pretty much taking care of himself." The court did not address whether Sam's parents in particular had abused, neglected, or abandoned him.
II
On appeal, plaintiff argues the trial court erred by (1) denying his application for custody on the ground Sam had turned eighteen years of age; (2) concluding plaintiff sought custody solely to enhance his immigration status; (3) determining Sam had not been abandoned; and (4) failing to make a determination it was not in Sam's best interests to return to Guatemala.
As for denying plaintiff's application for custody because Sam had reached the age of majority, "[g]enerally, New Jersey statutes provide for the granting of custody for juveniles under eighteen years old." O.Y.P.C. v. J.C.P., 442 N.J. Super. 635, 642 (App. Div. 2015) (citing N.J. Div. of Youth & Family Servs. v. W.F., 434 N.J. Super. 288, 295-96 (App. Div.), certif. denied, 218 N.J. 275 (2014)). However, our courts may have jurisdiction when one seeks custody over a person who is between the ages of eighteen and twenty-one. Id. at 643.
Specifically, although N.J.S.A. 9:17B-3 provides, in general, that a person eighteen years of age or more is an adult, the 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.'" Ibid. (quoting N.J.S.A. 9:17B-3). In O.Y.P.C., we observed "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. Here, the trial court did not consider whether jurisdiction existed under this alternate source.
The trial court also rejected plaintiff's application for custody on the ground he was merely seeking to enhance Sam's chances of attaining SIJ status. However, as we held in O.Y.P.C., "the trial court should not concern itself with whether the applicant filed the petition primarily to obtain legal immigration status for the juvenile, or whether the federal immigration authorities should or should not grant SIJ status." Id. at 642.
The trial court failed to make any findings about whether the parents abused, neglected, or abandoned Sam. See 8 U.S.C.A. § 1101(a)(27)(J)(i); 8 C.F.R. § 204.11(c)(6). The regulation also requires there be a finding about both parents. Ibid. The trial court reasoned that because the grandparents stepped forward and took care of him, Sam cannot be deemed to have been abandoned. But the issue the court was to address is whether his father and mother abandoned him. Whether a third party came forward and took care of Sam is immaterial on the question whether his parents abandoned him.
As for failing to make a determination on whether or not it would be in Sam's best interests to return to Guatemala, see 8 U.S.C.A. § 1101(a)(27)(J)(ii); 8 C.F.R. § 204.11(c)(6), it is settled that a court must make findings on each factor, even if a court has determined a child cannot be placed in the custody of another. O.Y.P.C., supra, 442 N.J. Super. at 642.
Accordingly, we vacate the April 7, 2015 order, and remand this matter to the Family Part for further proceedings consistent with this opinion.
Remanded. 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