H.S.P. v. J.K.

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1121-12T1

H.S.P.,
APPROVED FOR PUBLICATION
Petitioner-Appellant, March 27, 2014

v. APPELLATE DIVISION

J.K.,

Respondent-Respondent.
________________________________

Argued November 4, 2013 – Decided March 27, 2014

Before Judges Ashrafi, St. John and Leone.

On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Passaic County, Docket No. FD-16-163-13.

Francis X. Geier argued the cause for
appellant (Basaran Law Office, attorneys;
Melinda M. Basaran, on the brief).

Respondent has not filed a brief.

The opinion of the court was delivered by

LEONE, J.S.C. (temporarily assigned).

Petitioner H.S.P. filed a complaint and a motion in the

Chancery Division, Family Part, seeking custody of his

seventeen-year-old nephew, M.S., and factual findings that would

assist M.S. in obtaining Special Immigrant Juvenile ("SIJ")
status from the United States Citizenship and Immigration

Services ("USCIS") of the Department of Homeland Security. A

September 27, 2012 order of the Family Part awarded petitioner

custody of M.S., but denied or did not make the factual findings

requested. Petitioner appeals. We affirm in part and reverse

and modify the court's order in part.

I.

The proceedings have been non-adversarial. The facts were

presented by petitioner without participation by any opposing or

neutral party. We recite the pertinent facts with an assumption

of their accuracy.

Petitioner H.S.P. is a United States citizen and lives with

his wife and children in Passaic County. He works as a taxi

driver in New York City. M.S. is a citizen of India, born there

in December 1994 to J.K. (his mother) and B.S. (his father). In

July 2011, at the age of sixteen, M.S. entered the United States

without documentation, that is, illegally.

In India, M.S. was raised by his mother. He has no

recollection of ever meeting his father. He lived in poverty-

stricken, disease-ridden slums. His older brother and sister

died of unknown causes when they were about seventeen years old.

Medical care was not available in their community, and his

mother could not afford to travel and to pay for medical

2 A-1121-12T1
treatment for her children. His mother also suffered from ill

health. They went to live with his maternal grandmother, who

was also ill. M.S. left school and, at the age of fifteen,

worked long hours in construction jobs. He developed back pain

and a skin condition.

In an effort to save M.S. from unsanitary and potentially

deadly living conditions, his mother and grandmother determined

to send him to the United States to live with petitioner, who is

the mother's brother. The mother arranged and paid for M.S. to

be transported by ship to Turkey and then to Mexico. M.S.

walked across the United States border in July 2011 without

being admitted and without entry documentation.

He has been living in New Jersey with petitioner's family,

and now considers them to be his family. Although he dropped

out of school in New Jersey because he was too far behind the

other students, he has obtained a General Educational

Development (GED) diploma and hopes to go to college. He

maintains weekly telephone contact with his mother in India.

Petitioner's complaint, filed in the Family Part in May

2012, stated that M.S. "is in need of an order granting custody

of him to [petitioner] so that he may regularize his immigration

status pursuant to" 8 U.S.C.A. § 1101(a)(27)(J) ("Subparagraph

J") of the Immigration and Nationality Act (INA), 8 U.S.C.A. §§

3 A-1121-12T1
1101-1537. Subsequently, petitioner filed a sworn

acknowledgement of service from M.S.'s mother, in which she

declined to answer the complaint and requested that default be

entered against her. She said she did not oppose the petition,

and she "abandoned" M.S. to petitioner.1

Petitioner asked the Family Part judge to make findings

referenced in Subparagraph J of the federal statute and its

implementing regulation, 8 C.F.R. § 204.11(d) ("the

Regulation"). Specifically, petitioner asked the court to find

that M.S. was dependent on the New Jersey family court, that he

had been abandoned or neglected by his father and mother, and

that it was not in his best interest to return to India. At a

hearing on September 27, 2012, the judge heard testimony from

petitioner and M.S., and reviewed the documentary evidence

submitted by petitioner. Finding that the Family Part had

jurisdiction to consider the petition because M.S. was a minor

residing in New Jersey, the court awarded physical custody of

M.S. to petitioner. However, the court found insufficient

evidence that M.S. was neglected or abandoned by either of his

parents, and therefore, a "best interest analysis is not

required."

1
Although J.K. is named as a respondent in the caption of this
case, she and petitioner have acted cooperatively in bringing
the petition before the Family Part.

4 A-1121-12T1
 Petitioner appeals from the Family Part's order to the

extent it denied or did not make the findings he sought.

II.

SIJ status brings significant advantages for an

undocumented juvenile. The INA contains special provisions for

the issuance of immigrant visas to special immigrants, including

juveniles. 8 U.S.C.A. §§ 1153(b)(4), 1204. SIJ status provides

exemption from deportation on certain grounds, including for

being "present in the United States" unlawfully. 8 U.S.C.A. §

1227(a)(1)(B), (c). A juvenile granted SIJ status is deemed "to

have been paroled into the United States" for purposes of

discretionary adjustment of his status "to that of an alien

lawfully admitted for permanent residence." 8 U.S.C.A. §

1255(a), (h)(1). In determining the admissibility of such a

juvenile as an immigrant, certain grounds of inadmissibility do

not apply (including unlawful entry into the United States) and

other grounds may be waived by the Attorney General. 8 U.S.C.A.

§ 1255(h)(2); see 8 U.S.C.A. § 1182.

In Subparagraph J, the INA defines the term "special

immigrant" to include:

an immigrant who is present in the United
States —

(i) who has been declared dependent on
a juvenile court located in the United
States or whom such a court has legally

5 A-1121-12T1
 committed to, or placed under the custody
of, an agency or department of a State, or
an individual or entity appointed by a State
or juvenile court located in the United
States, and whose reunification with 1 or
both of the immigrant's parents is not
viable due to abuse, neglect, abandonment,
or a similar basis found under State law;

(ii) for whom it has been determined in
administrative or judicial proceedings that
it would not be in the alien's best interest
to be returned to the alien's or parent's
previous country of nationality or country
of last habitual residence; and

(iii) in whose case the Secretary of
Homeland Security consents to the grant of
special immigrant juvenile status[.]

[8 U.S.C.A. § 1101(a)(27)(J).]

The implementing Regulation requires a petition for SIJ

status to have attached a juvenile court order with findings as

set forth in the statute. 8 C.F.R. § 204.11(b), (d)(2).2 Thus,

Subparagraph J creates "a special circumstance 'where a state

juvenile court is charged with addressing an issue relevant only

to federal immigration law.'" E.C.D. v. P.D.R.D., 114 So. 3d

2
The Regulation was adopted before Subparagraph J was amended in
2008. The proposed regulations to reflect the 2008 amendment's
criteria have not yet been adopted. See Special Immigrant
Juvenile Petitions, 76 Fed. Reg. 54,978 (proposed Sept. 6,
2011). We will ignore those portions of the Regulation based on
the former criteria of Subparagraph J that were removed by the
2008 amendment of the statute.

6 A-1121-12T1
33, 36 (Ala. Civ. App. 2012) (quoting In re J.J.X.C., 734 S.E.2d

120, 124 (Ga. Ct. App. 2012)).

III.

To fulfill his objectives in this case, petitioner first

asked the Family Part to find that M.S. "has been declared

dependent on a juvenile court located in the United States or

whom such a court has legally committed to, or placed under the

custody of, an agency or department of a State, or an individual

or entity appointed by a State or juvenile court." 8 U.S.C.A. §

1101(a)(27)(J)(i).3 Although the court exercised jurisdiction

over M.S. and placed him in the custody of petitioner, we are

concerned at the invocation of the Family Part's jurisdiction to

obtain custody with no apparent purpose other than to seek

immigration benefits.

The petition was not brought in an adversarial proceeding

for custody, or initiated by any juvenile court or child welfare

agency seeking to protect the health and well-being of M.S.

Petitioner is M.S.'s uncle, and already had physical custody of

him with the consent and approval of the boy's only available

parent. M.S. was living in petitioner's home in the United

3
"Juvenile court means a court located in the United States
having jurisdiction under State law to make judicial
determinations about the custody and care of juveniles." 8
C.F.R. § 204.11(a).

7 A-1121-12T1
States, sent voluntarily to this country by his mother to be

cared for by petitioner. No showing was made that a judicial

declaration of custody was needed for any reason related to the

custody statutes of this State. Most important, the only reason

the Family Part's jurisdiction was invoked was petitioner's

declaration that M.S. was "in need of . . . regularizing his

immigration status." We question whether Congress intended

Subparagraph J to apply to juveniles who are placed in the

custody of an individual not because necessity was shown under

State law, but because custody was requested for immigration

purposes. Cf. In re C.G.H., 75 A.3d 166, 172-74 (D.C. 2013)

(finding the court had jurisdiction and was required to make SIJ

findings when called upon to approve a child's adoption).

In a case with facts similar to this matter, our Family

Part expressed doubt that the court's jurisdiction was being

invoked for proper purposes. D.C. v. A.B.C., 417 N.J. Super.

41, 47 (Ch. Div. 2010). A juvenile's step-mother sought to be

appointed his guardian so the juvenile could establish the first

prerequisite for SIJ status. Id. at 44. The plaintiff could

offer no reason why she should have received guardianship or

custody, because the juvenile was already living with his

father. Id. at 47-48. The court ruled that "it is not

necessary to appoint plaintiff as [the juvenile's] guardian as

8 A-1121-12T1
the child is thriving in the custody of his father. There is no

need for this court to exercise jurisdiction . . . ." Id. at

51.

Petitioner did not cite any New Jersey statute in support

of his request for custody. The trial court in D.C. cited as

its jurisdictional authority N.J.S.A. 9:2-9, which allows a

third party to bring an action regarding a child. Id. at 47.4

"N.J.S.A. 9:2-10 then allows a court, in an action brought by a

third party pursuant to N.J.S.A. 9:2-9, to award custody of the

child to that third party." Watkins v. Nelson, 163 N.J. 235,

4
That State statute is headed "Unfit parents and custodians,
court action to grant relief," and it provides:

When the parents of any minor child or the parent
or other person having the actual care and custody of
any minor child are grossly immoral or unfit to be
intrusted with the care and education of such child,
or shall neglect to provide the child with proper
protection, maintenance and education, or are of such
vicious, careless or dissolute habits as to endanger
the welfare of the child or make the child a public
charge, or likely to become a public charge; or when
the parents of any minor child are dead or cannot be
found, and there is no other person, legal guardian or
agency exercising custody over such child; it shall be
lawful for any person interested in the welfare of
such child to institute an action in the Superior
Court, Chancery Division, Family Part, in the county
where such minor child is residing, for the purpose of
having the child brought before the court, and for the
further relief provided by this chapter. The court
may proceed in the action in a summary manner or
otherwise.

[N.J.S.A. 9:2-9.]

9 A-1121-12T1
244 (2000). In a proceeding under N.J.S.A. 9:2-9 and 9:2-10, "a

presumption of custody exists in favor of the parent," which a

third party can overcome "by satisfying the standard required

for termination of the rights of a non-consenting parent,"

including abandonment or neglect. Id. at 244-45. Here, the

family court awarded custody of M.S. to petitioner even though

it did not find that M.S.'s mother had abandoned or neglected

him.

We are also concerned that petitioner asked the Family Part

to find that M.S.'s father neglected and abandoned him, and to

award custody of M.S. to petitioner, without naming the father

in the complaint, or even attempting to serve him. A parent

normally must be given the opportunity to oppose an accusation

of abandonment and neglect, or an award of custody of a child to

a third party, which in many respects resembles the termination

of parental rights. Id. at 253-54. Service on the parent is

generally required, R. 5:4-4(a); N.J.S.A. 2A:34-69, even if the

parent is out of state, N.J.S.A. 2A:34-60, or out of the

country, R. 4:4-4(b)(1)(B). "[W]here the adverse party cannot

be located," our rules require diligent inquiry to locate a

parent for service. R. 5:4-4(c).5

5
See also N.J.S.A. 9:6-8.38(c), -8.41(b) (requiring reasonable
efforts to serve a parent accused of abuse or neglect); N.J.S.A.
(continued)
10 A-1121-12T1
 We note, however, that the INA states that a juvenile "who

has been battered, abused, neglected, or abandoned, shall not be

compelled to contact the alleged abuser (or family member of the

alleged abuser) at any stage of applying for special immigrant

juvenile status." 8 U.S.C.A. § 1357(h); see 151 Cong. Rec. S

13,749 (2005) (Sen. Biden) ("This section assures that

immigration authorities are not required to contact abusive

parents or family members," and "prevents abusive parents from

keeping their children from accessing help and support in the

United States"). Thus, there may be a conflict between this

section and our State laws that require efforts to provide

notice to an absent parent.

We do not attempt in this appeal to resolve that apparent

conflict. Despite our concerns, we will assume that the judge's

custody determination is sufficient to satisfy the first

precondition for SIJ status, and we will examine the judge's

other findings under Subparagraph J.

IV.

The second finding petitioner sought was that M.S.'s

"reunification with 1 or both of the immigrant's parents is not

(continued)
30:4C-15.1(b)(1)(b) (requiring "reasonable efforts to locate the
parent" accused of abandonment); N.J.S.A. 30:4C-17(b) (requiring
"adequate effort to serve notice on the parent" whose
whereabouts are unknown).

11 A-1121-12T1
viable due to abuse, neglect, abandonment, or a similar basis

found under State law." 8 U.S.C.A. § 1101(a)(27)(J)(i)

(emphasis added). The Family Part found that neither the mother

nor the father had abused, neglected, or abandoned the juvenile.

We agree with the court's finding as to the mother, but disagree

as to the father.

There was no allegation that the juvenile had been

intentionally abused by his parents. We will therefore focus on

neglect and abandonment.

Petitioner argued that the mother's neglect of M.S. was

shown by his lack of medical care and schooling. The judge

declined to find that the mother committed an act of neglect

under N.J.S.A. 9:6-1, which includes: "(a) willfully failing to

provide proper and sufficient food, clothing, maintenance,

regular school education as required by law, medical attendance

or surgical treatment, and a clean and proper home, or (b)

failure to do or permit to be done any act necessary for the

child's physical or moral well-being."

Though "willfully" does not require an "evil intent or bad

motive," it does require that the parent deny proper care

"intentionally or purposely as distinguished from inadvertently

or accidentally." State v. Burden, 126 N.J. Super. 424, 427

(App. Div.), certif. denied, 65 N.J. 282 (1974). Other New

12 A-1121-12T1
Jersey statutes similarly define neglect to include a parent's

failure "to exercise a minimum degree of care . . . in supplying

the child with adequate food, clothing, shelter, education,

medical or surgical care though financially able to do so."

N.J.S.A. 9:6-8.9(d); N.J.S.A. 9:6-8.21(c)(4). Failure to

exercise a minimum degree of care "at least requires grossly

negligent or reckless conduct." N.J. Div. of Youth & Family

Servs. v. T.B., 207 N.J. 294, 306 (2011).

The evidence submitted by petitioner did not show that the

mother had the financial means to provide better care to M.S.

but refused to do so willfully, recklessly, or with gross

negligence. Rather, petitioner's evidence showed that the

mother was financially unable to provide better care for M.S.

See N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17,

37-38 (2011) (finding failure to provide heat or medical

checkups is not neglect where parents lack the financial means

to do so).

In D.C., supra, 417 N.J. Super. at 49, the petitioner

similarly alleged that the juvenile's ill mother in Guatemala

had abused and neglected him by failing to provide adequate

food, clothing, and education. The D.C. court concluded that

mother's inability to provide for the child "was not the result

of intentional neglect but was caused by her inability to earn

13 A-1121-12T1
enough money to adequately support the family." Ibid.

Moreover, the mother had also paid to transport the juvenile to

the United States to be reunited with his father. Id. at 45.

The court concluded: "These are not the actions of an abusive or

neglectful parent; instead, they describe a caring mother

[living in poverty] who is trying to provide better living

conditions for her son." Id. at 49. We agree, and find the

same conclusions applicable to this case.

Petitioner stresses that, because M.S. was the only person

in the household who was physically able to work, he stopped

going to school and, at the age of fifteen, worked long hours

doing manual labor in construction. As a result, he developed

back and skin problems, and became very thin, ill, and

depressed. The judge found that M.S. had done harsh work for at

least a year, causing back problems, but the judge did not find

any protracted impairment to M.S. or any abuse or neglect by the

mother.

New Jersey law considers it to be abuse for a parent to

"permit[] a child to be employed in any vocation or employment

injurious to its health or dangerous to its life or limb, or

contrary to the laws of this State." N.J.S.A. 9:6-1. However,

M.S. was employed in India, not New Jersey, and petitioner has

not shown that M.S. was employed contrary to the laws of India.

14 A-1121-12T1
Similarly, petitioner has not shown that M.S.'s employment

exposed M.S. to danger to life or limb or injured his health in

a serious or protracted way. See N.J.S.A. 9:6-8.9(b); N.J.S.A.

9:6-8.21(c)(2). We cannot conclude on this record that M.S.'s

employment in India, which has not been shown to violate that

country's child labor laws, shows that his mother has willfully

or grossly negligently abused or neglected him within the

meaning of our State child welfare laws. See D.C., supra, 417

N.J. Super. at 49-51.

Finally, petitioner asserted that the mother's neglect of

M.S. was corroborated by the fatal illnesses of his two older

siblings. In his testimony, M.S. was vague about the causes of

the deaths of his sister and brother in 2001 and 2005,

respectively. Nor was petitioner fully aware of the

circumstances under which the older siblings died because he

lived in the United States and had no direct knowledge.

Petitioner testified generally that their deaths were due to the

mother's poverty and her inability to obtain medical care and

otherwise to provide for her children. In her acknowledgment of

service, the mother stated that her children's illnesses and

deaths were "caused by a lack of nutrition." Although proof of

neglect of one child is admissible to show neglect of another

child, N.J.S.A. 9:6-8.46(a)(1), the judge properly found no

15 A-1121-12T1
evidence that the mother willfully failed to provide food or

medical care to the siblings despite having the financial

ability.

With respect to the father, although the petitioner raised

abandonment and neglect, he principally contends that the father

abandoned M.S. before he was born.

In considering whether there had been "abandonment" of M.S.

by either his mother or his father, the judge properly utilized

the definition of that term in N.J.S.A. 9:6-1:

Abandonment of a child shall consist in any
of the following acts by anyone having the
custody or control of the child: (a)
willfully forsaking a child; (b) 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; (c) failing to care
for and keep the control and custody of a
child so that the child shall be liable to
be supported and maintained at the expense
of the public, or by child caring societies
or private persons not legally chargeable
with its or their care, custody and control.

Other statutes similarly protect "a child who has been willfully

abandoned by his parent." N.J.S.A. 9:6-8.9(e); N.J.S.A. 9:6-

8.21(c)(5). Under these statutes, abandonment requires "a

finding that 'a parent has willfully forsaken obligations,

although physically and financially able to discharge those

obligations.'" In re Adoption of a Child by D.M.H., 135 N.J.

473, 481 (1994) (quoting In re Adoption of Children by L.A.S.,

16 A-1121-12T1
134 N.J. 127, 134-35 (1993)), cert. denied, 513 U.S. 967, 115 S.

Ct. 433, 130 L. Ed. 2d 345 (1994).

The judge found that M.S. had not been abandoned by the

mother, who "is actively involved in the child's life," is in

"constant contact with" him, and participated in this litigation

by providing the acknowledgment. The judge noted that the mother

desired the award of custody to her brother in the United States

because it would be better for M.S. Further, the mother paid

for M.S. to be transported from India, through Turkey and

Mexico, to the United States. As the judge found, these facts

gave "clear indications of a mother who is unable to take care

of this child and who wants nothing but the best for this

child." Our Supreme Court has held that it is not willful

abandonment for a parent to voluntarily surrender a child to

foster care because it is in the child's best interest, or

because the parent is currently incapable of providing the

needed care, so long as the parent stays or tries to stay in

regular contact with the child. In re Guardianship of K.L.F.,

129 N.J. 32, 38-39 (1992); In re Guardianship of J.C., 129 N.J.

1, 6, 16-17 (1992).

In D.C., the court reached the same conclusion on similar

facts. An impoverished mother paid to smuggle her son from

Guatemala to the United States to live with his father, because

17 A-1121-12T1
she was not "physically and financially able" to care for him,

and she remained in contact with the juvenile after he arrived

here. D.C., supra, 417 N.J. Super. at 45, 48. The court aptly

found that "[n]o rational view of this evidence can support the

conclusion that defendant abandoned her son." Id. at 48. The

United States District Court has also declined to find parental

abandonment in factual circumstances similar to this case. The

federal court concluded that an African father who sent his son

to the United States and "wanted the best for his son and

remained in regular communication with him," was "a concerned

father" rather than "an abusive, neglectful father who abandons

his son." Yeboah v. U.S. Dep't of Justice, 223 F. Supp. 2d 650,

658 (E.D. Pa. 2002), aff’d, 345 F.3d 216 (3d Cir. 2003).

Here, the evidence supports the judge's finding that the

juvenile's mother did not abuse, neglect, or abandon him.

Therefore, under the terms of Subparagraph J, petitioner did not

show that reunification of M.S. with his mother was "not viable

due to abuse, neglect, or abandonment." 8 U.S.C.A. §

1101(a)(27)(J)(i).

We do not reach the same conclusion with respect to the

juvenile's father. The mother certified that the father was

addicted to alcohol and drugs and abandoned the family before

M.S. was born. M.S. testified that he never met his father. He

18 A-1121-12T1
was unaware that his father had ever sent any money for him or

his mother. Petitioner claimed that no one knew the father's

whereabouts or even his date of birth to assist in locating him.

The family court cited the allegation that the father's

abandonment was a result of alcoholism or drug addiction, and

concluded there was insufficient evidence that the father's

conduct was willful. Some cases have found that addicted

parents have not abandoned their child. In re Guardianship of

K.H.O., 308 N.J. Super. 432, 455 (App. Div. 1998), rev’d on

other grounds, 161 N.J. 337 (1999); In re Adoption of a Child by

J.R.D., 246 N.J. Super. 619, 629 (Ch. Div. 1990). In those

cases, however, the parent made efforts to maintain contact with

the child, and expressed a desire for reunification. K.H.O.,

supra, 308 N.J. Super. at 437 (noting the parent's many visits);

J.R.D., supra, 246 N.J. Super. at 623-25, 628-29 (noting the

parent's visits with his child, efforts to find her after the

child moved, intermittent payment of child support, and

opposition to the adoption petition). We are not aware of any

case that holds that a total disregard of parental duties,

although caused by alcohol or drug addiction, is insufficient to

constitute abandonment of a child.

As we have stated, abandonment must be willful. The

"parent 'must have engaged in a course of conduct that

19 A-1121-12T1
"evidences a settled purpose to forego all parental duties and

relinquish all parental claims to the child."'" D.M.H., supra,

135 N.J. at 481 (citations omitted). Here, the evidence was

that the father engaged in such a course of conduct and

abandoned his parental duties to his children. The father's

absence during the juvenile's entire life plainly demonstrates

his settled purpose to forego his parental duties and relinquish

parental claims to M.S. See N.J.S.A. 30:4C-15.1(b)(1)(a)-(b)

(permitting the termination of parental rights for abandonment

if the parent has had no contact with the child for six months

or more and the parent's whereabouts are unknown).

The family court also noted that petitioner and the

juvenile's mother had not tried to find the father for purposes

of adjudicating this petition. As noted above, it is unclear

what if any contact, notice, or service is required or permitted

in the context of an SIJ determination. In any event, as the

Family Part proceeded to grant custody and make findings without

such an effort, we do not regard this as a basis on which to

refuse to find abandonment.

We must hew to our standard of review, which requires

deference to a trial court's factual findings. N.J. Div. of

Youth & Family Servs. v. L.L., 201 N.J. 210, 226 (2010)

(citations omitted). We nevertheless conclude that the court

20 A-1121-12T1
erred in finding insufficient evidence that father had in fact

abandoned the juvenile. See N.J. Div. of Youth & Family Servs.

v. C.S., 367 N.J. Super. 76, 114-15 (App. Div. 2004).

Petitioner was thus entitled to a finding that M.S.'s

reunification with his father is not viable because of

abandonment. See 8 U.S.C.A. § 1101(a)(27)(J)(i).

V.

Petitioner also asked the Family Part to make an additional

finding that "it would not be in the [juvenile's] best interest

to be returned to the [juvenile's] or parent's previous country

of nationality or country of last habitual residence." 8

U.S.C.A. § 1101(a)(27)(J)(ii). Petitioner presented evidence of

the deplorable conditions in the slums of India, the greater

opportunities available in the United States for nutrition,

education, and medical care, and the love and support of M.S. by

petitioner and his family.

The judge declined to make a "best-interest" determination

because he found insufficient evidence that either parent had

abandoned or neglected the juvenile. Because we disagree with

the judge's finding regarding the father, we must address the

federal statute further and determine whether it applies to

circumstances where only one parent has abused, neglected, or

21 A-1121-12T1
abandoned the juvenile but the other parent has not, and

reunification with the other parent is viable.

Several commentators6 and several courts, In re Minor

Children of J.E., 432 N.J. Super. 361, 372 (Ch. Div. 2013); In

re Marisol N.H., 979 N.Y.S.2d 643, 647 (App. Div. 2014); In re

Marcelina M.-G. v. Israel S., 973 N.Y.S.2d 714, 721-23 (App.

Div. 2013); In re Mario S., 954 N.Y.S.2d 843, 851 (Fam. Ct.

2012),7 have interpreted Subparagraph J as requiring proof that

only one parent abused, neglected, or abandoned a juvenile, even

where the available custodial parent did not and reunification

with that parent is viable. On the other hand, the Supreme

Court of Nebraska fully analyzed the federal statute and held

that the requirements of Subparagraph J are not met where one

parent is available and did not abuse, neglect, or abandon the

6
See Jennifer Baum, Alison Kamhi, and C. Mario Russell, Most In
Need But Least Served: Legal And Practical Barriers To Special
Immigrant Juvenile Status For Federally Detained Minors, 50 Fam.
Ct. Rev. 621, 622 (2012); Laureen A. D'Ambra, The Vital Role of
the Rhode Island Family Court and its Unique Jurisdiction in
Immigration Cases Involving Abused and Neglected Children, 15
Roger Williams U. L. Rev. 24, 31 (2010); Angie Junck, Special
Immigrant Juvenile Status: Relief for Neglected, Abused, and
Abandoned Undocumented Children, 63 Juv. & Fam. Ct. 48, 56
(2012); see also 3 Charles Gordon et al., Immigration Law &
Procedure § 35.09 at 35-44 & n.79 (rev. ed. 2013)(quoting
cases).
7
In accordance with Rule 1:36-3, we do not cite unpublished
opinions, such as that of an intermediate appellate court in
Minnesota that reached the same conclusion as the cited cases.

22 A-1121-12T1
juvenile. State v. Erick M., 820 N.W.2d 639, 644-47 (Neb.

2012). The Nebraska court stated: "when ruling on a

petitioner's motion for an eligibility order under §

1101(a)(27)(J), a court should generally consider whether

reunification with either parent is feasible." Id. at 648. The

Nebraska court ruled that because "reunification with [the

juvenile's] mother was feasible, he was not eligible for SIJ

status," and he "was not seeking SIJ status to escape parental

abuse, neglect, or abandonment." Id. at 642, 648. We agree

with the holding of the Nebraska court, and overrule the

contrary holding of J.E., supra, 432 N.J. Super. at 372.

Subparagraph J requires a finding by the family court that

a juvenile's "reunification with 1 or both of the immigrant's

parents is not viable due to abuse, neglect, abandonment, or a

similar basis found under State law." 8 U.S.C.A. § 1101(a)(27)

(J)(i). We understand the "1 or both" phrase to require that

reunification with neither parent is viable because of abuse,

neglect, or abandonment of the juvenile. In other words, the

statute is not satisfied where reunification with one or both

parents is viable. We hold that it is insufficient that

reunification with one parent is not viable due to abuse,

neglect, or abandonment, if the juvenile has another "safe"

parent who has not abused, neglected or abandoned the juvenile.

23 A-1121-12T1
If that parent is deceased or unable to protect the child

against abuse or neglect by the unsafe parent, then

reunification with one or both of the juvenile's parents is not

viable due to abuse, neglect, or abandonment.

The legislative history of Subparagraph J supports our

understanding of the statute. "The SIJ provisions of the INA

were enacted in 1990 to protect abused, neglected, or abandoned

children who, with their families, illegally entered the United

States." Yeboah v. U.S. Dept. of Justice, 345 F.3d 216, 221 (3d

Cir. 2003). "Rather than being deported along with abusive or

neglectful parents, or deported to parents who had abandoned

them once in the United States, such children may seek special

status to remain in the United States." Ibid. As originally

enacted, however, the statute "was abused . . . by juveniles

entering the United States as visiting students" who used it to

improve their immigration status. Ibid.

In 1997 Congress amended Subparagraph J to require the

juvenile to have "been deemed eligible . . . for long-term

foster care due to abuse, neglect, or abandonment." Depts. of

Commerce, Justice, & State, the Judiciary, & Related Agencies

Appropriation Act, Pub. L. No. 105-119, § 113, 111 Stat. 2440,

2460 (1997). Congress also added that the Attorney General (now

the Secretary of Homeland Security) must expressly consent to

24 A-1121-12T1
the grant of SIJ status. Ibid. The conference report stated

that "[t]he language has been modified in order to limit the

beneficiaries of this provision to those juveniles for whom it

was created, namely abandoned, neglected, or abused children,"

and to ensure that the juvenile court determination was not

"sought primarily for the purpose of obtaining the status of an

alien lawfully admitted for permanent residence, rather than for

the purpose of obtaining relief from abuse or neglect." H.R.

Rep. No. 105-405, at 130 (1997). Congress thus sought to deter

juveniles and their parents from "attempting to manipulate the

system to obtain permanent residence" for juveniles in the

United States. Yeboah, supra, 345 F.3d at 224; see also M.B. v.

Quarantillo, 301 F.3d 109, 114 (3d Cir. 2002) ("The legislative

history confirms that the revision in the statute was intended

to curtail the granting of special immigrant juvenile status.").

In 2008, Congress amended the statute further by enacting

the William Wilberforce Trafficking Victims Protection

Reauthorization Act of 2008, Pub. L. No. 110-457, § 235(d)(1)-

(3), 122 Stat. 5044, 5079-80 (2008). Section 235 of the

Wilberforce Act made two pertinent changes to Subparagraph J.

First, by permitting SIJ applications from juveniles who were

placed under the custody of "an individual or entity appointed

by a State or juvenile court," ibid., the amendment "broadened

25 A-1121-12T1
the category of those to whom a child's custody could be legally

committed." C.G.H., supra, 75 A.3d at 168 n.2.

Second, the 2008 amendment removed the phrase "eligible for

long-term foster care," and substituted "reunification with 1 or

both of the immigrant's parents is not viable." This

represented less of a change than it appeared, as the Regulation

already provided that "[e]ligible for long-term foster care

means that a determination has been made by the juvenile court

that family reunification is no longer a viable option." 8

C.F.R. § 204.11(a).8 The 2008 amendment retained the 1997

requirement that reunification not be viable because of "abuse,

neglect, [or] abandonment," adding "or a similar basis found

under State law." Ibid.

There is no specific legislative history on the "1 or both"

language. 3 Charles Gordon et al., Immigration Law & Procedure

§ 35.09 at 35-44 (rev. ed. 2013) ("The shift in language . . .

was accomplished without a trace of legislative history.").9

8
See Randi Mandelbaum and Elissa Steglich, Disparate Outcomes:
The Quest for Uniform Treatment of Immigrant Children, 50 Fam.
Ct. Rev. 606, 608 (2012).
9
The proposed regulations similarly are "silent on the issue of
the one-parent versus two-parent question." Id. at 35-44 n.80;
see Erick M., supra, 820 N.W.2d at 644.

26 A-1121-12T1
However, some guidance can be gained from the legislative

history of the 2008 legislation as a whole.

The 2008 Wilberforce Act was intended to continue the fight

against human trafficking. H.R. Rep. No. 110-430, pt. 1 at 3.10

The legislation was named to recognize "the immense

contributions of British Parliamentarian William Wilberforce to

the abolition of the global slave trade in the 19th Century."

Id. at 34. One of its key initiatives was "[p]reventing the

trafficking of unaccompanied alien children found in the United

States by ensuring that they are not repatriated into the hands

of traffickers or abusive families." Id. at 33; see 153 Cong.

Rec. H. 14,098, 14,121 (Rep. Sanchez); 154 Cong. Rec. S. 4,795,

4,800 (2008) (Sen. Biden); 154 Cong. Rec. H. 10,888, 10,903

(2008) (Rep. Berman). The legislation's section that amended

Subparagraph J was entitled "Enhancing Efforts to Combat the

Trafficking of Children." § 235, 122 Stat. at 5074-80.

At the same time, Congress did not forget the concerns it

had expressed in 1997. At the introduction of the bill,

Representative Lamar Smith stated that the bill would add

"reasonable protections for unaccompanied alien minors," and

thanked the sponsors for addressing his concerns by modifying

10
This House Report accompanied the bill that first introduced
the "1 or both" language.

27 A-1121-12T1
provisions to discourage "illegal immigration and immigration

fraud." 153 Cong. Rec. H. 14,098, 14,121 (2007). When the bill

was ultimately passed, Senator Dianne Feinstein stated: "This

legislation does not expand the current immigration rights of

any child. Instead, it presumes that children will be placed in

removal proceedings — unless they qualify for immigration benefits

under current law." 154 Cong. Rec. S. 10,886, 10,887 (2008).

Congress's continued concern with misuse of the law was

reflected in the Executive Branch's implementation of

Subparagraph J. Guidance memoranda to federal immigration

directors, issued both before and after the 2008 amendment,

instruct that the Secretary of Homeland Security "will not

consent to a petition for SIJ status if it was sought primarily

for the purpose of obtaining the status of an alien lawfully

admitted for permanent residence, rather than for the purpose of

obtaining relief from abuse or neglect or abandonment." See

Erick M., supra, 820 N.W.2d at 646 & n.25 (citations and

quotation marks omitted). The proposed regulations would

explicitly incorporate this language into 8 C.F.R. § 201.11.

Special Immigrant Juvenile Status, 76 Fed. Reg. 54,978, 54,981-

82, 54,985 (proposed Sept. 6, 2008).

Thus, the legislative and administrative history of

Subparagraph J shows two competing goals. Congress wanted to

28 A-1121-12T1
permit use of the SIJ procedure when necessary to prevent the

return of juveniles to unsafe parents. Where such protection is

unnecessary, however, Congress wanted to prevent misuse of the

SIJ statute for immigration advantage.

Our understanding of Subparagraph J — that it requires a

finding that reunification with neither parent is viable because

of abuse, neglect, or abandonment — achieves both of Congress's

goals. It effectuates Congress's protective goal by making a

juvenile eligible for SIJ status if the juvenile cannot be

reunited with a parent without being put in danger by an unsafe

parent. It also serves Congress's goal of preventing misuse of

the statute by not granting immigration advantages when the

juvenile has a safe parent with whom he can be reunited.

The contrary interpretation does not achieve both of

Congress's goals. It would mean that a juvenile could apply for

SIJ status, with its immigration advantages, even if that

juvenile could be viably reunified with one parent who never

abused, neglected, or abandoned the juvenile. Indeed, it would

permit SIJ status even if that safe parent had raised the

juvenile from birth, in love, comfort, and security, and even if

reunification with the safe parent would not result in any

further contact with the unsafe parent. Nothing in the

legislative history of Subparagraph J supports such a broad

29 A-1121-12T1
interpretation. Finally, that broad interpretation would render

Subparagraph J's words "or both" superfluous, because it would

always be sufficient that "reunification with 1 . . . of the

immigrant's parents is not viable."

Petitioner and M.S. presented a sympathetic case to the

family court. However, courts misuse their power and authority

if they misinterpret and misapply a statute contrary to its

legislative intent. If Congress wished to create a "'gateway'" 11

for all abused or impoverished foreign juveniles to enter the

United States and benefit from the better conditions provided in

this country, it could have done so. It did not do so by

enacting the 2008 amendments to Subparagraph J. See Garcia v.

Holder, 659 F.3d 1261, 1271 (9th Cir. 2011) (Subparagraph J

shows "a congressional intent to assist a limited group of

abused children to remain safely in the country"). The purpose

of Subparagraph J remains the protection of those abused,

neglected, or abandoned juveniles whose compelled repatriation

would place them in danger from a parent who abused, neglected,

or abandoned them.

In Yeboah, the United States Court of Appeals for the Third

Circuit stated:

11
See Mario S., supra, 954 N.Y.S.2d at 848 (citations omitted).

30 A-1121-12T1
 SIJ status is supported if "neither the
dependency order nor the administrative or
judicial determination of the alien's best
interest was sought primarily for the
purpose of obtaining the status of an alien
lawfully admitted for permanent residence,
rather than for the purpose of obtaining
relief from abuse or neglect."

[Yeboah, supra, 345 F.3d at 222 (quoting
H.R. Rep. No. 105-405, at 130 (1997)).]

The 2008 amendments did not alter that intent of the

federal law. Erick M., supra, 820 N.W.2d. at 645 & n.23. Here,

the express objective of the petition was for M.S. to obtain

relief for purposes of his immigration status, rather than for

the purpose of obtaining relief from abuse, neglect, or

abandonment, as his mother had not abused, neglected, or

abandoned him.

We therefore hold that the Family Part was not required to

make a "best interest" finding under 8 U.S.C.A. §

1101(a)(27)(J)(ii) because petitioner failed to satisfy 8

U.S.C.A. § 1101(a)(27)(J)(i). As set forth above, there was

sufficient credible evidence supporting the court's finding that

the mother had not abused, neglected, or abandoned M.S., and

petitioner failed to show reunification with the mother was not

viable for those reasons.

Finally, we note that when M.S. was before the trial court,

he was seventeen years old, and that he is now nineteen. The

31 A-1121-12T1
Family Part in this State would typically not decide the issue

of a juvenile's custodial status and best interests if he has

reached the age of majority, generally eighteen years old. See

N.J. Div. of Youth & Family Servs. v. W.F., ___ N.J. Super. ___

(App. Div. Jan. 28, 2014) (slip op. at 9-13). However, under

federal law, an alien remains eligible for SIJ status if he

"[i]s under twenty-one years of age," "[i]s unmarried," and

"[h]as been" found to meet the criteria of Subparagraph J. 8

C.F.R. § 204.11(c); see also 8 U.S.C.A. § 1232(d)(6)

("Notwithstanding any other provision of law, an alien described

in [Subparagraph J] may not be denied special immigrant status

under such section after the date of the enactment of this Act

based on age if the alien was a child on the date on which the

alien applied for such status."). Because the application was

filed and heard before M.S. reached the age of majority, his

current age does not moot the appeal.

Affirmed in part, reversed in part, and remanded for

modification of the Family Part's order to include a finding for

purposes of Subparagraph J that M.S. was abandoned by his

father.

32 A-1121-12T1