RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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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-0577-16T1
M.J.L.G.,
Plaintiff-Appellant,
v.
G.R.,
Defendant-Respondent.
IN THE MATTER OF O.N.R.L.,
Minor.
Submitted November 8, 2017 – Decided November 27, 2017
Before Judges Carroll and Leone.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Morris County,
Docket No. FD-14-0554-16.
Rutgers Child Advocacy Clinic and Kids in Need
of Defense, attorneys for appellant (Randi
Mandelbaum and Gilda Holguin, on the brief).
Respondent has not filed a brief.
PER CURIAM
Plaintiff M.J.L.G. appeals a portion of the Family Part's
July 28, 2016 order in this matter involving a minor from Honduras
who now resides with plaintiff in New Jersey, and a September 15,
2016 order denying plaintiff's motion for reconsideration. In
particular, plaintiff argues that the court erroneously failed to
find that her son's reunification with his biological father was
not viable due to abandonment and neglect, pursuant to the federal
criteria for special immigrant juvenile (SIJ) status set forth in
8 U.S.C.A. § 1101(a)(27)(J) and 8 C.F.R. § 204.11(c). The court
ruled it could not make this finding because it lacked personal
jurisdiction over the father. For the reasons that follow, we
reverse the court's determination that it lacked jurisdiction to
decide this discrete issue, and remand this matter to the trial
court to make the required finding.
The legal context of this non-contested case is governed by
the aforesaid federal provisions concerning SIJ status. Those
provisions were recently explained in depth in H.S.P. v. J.K., 223
N.J. 196, 208-11 (2015). As H.S.P. notes, Congress amended the
Immigration Act of 1990 by adopting the Trafficking Victims
Protection Reauthorization Act of 2008 (TVPRA), Pub. L. No. 110-
457, 122 Stat. 5044. The TVPRA allows an undocumented juvenile
who is present in the United States to receive SIJ status if
(i) [he] has been declared dependent on a
juvenile court located in the United States
or . . . such a court has legally . . . placed
[him] under the custody of, an agency or
department of a State, or an individual or
2 A-0577-16T1
entity appointed by a State or juvenile court
located in the United States, and [his]
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) [a juvenile court determined] 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) . . . the Secretary of Homeland Security
consents to the grant of special immigrant
juvenile status[.]
[8 U.S.C.A. § 1101(a)(27)(J).]
The Immigration Act's implementing regulations further
clarify an undocumented youth's eligibility for SIJ status. 8
C.F.R. § 204.11(c). As interpreted by the Court in H.S.P., the
five eligibility requirements1 under the Act and the regulations
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
1
Although the regulations had previously contained additional
requirements, including that the juvenile "has been deemed
eligible by the juvenile court for long-term foster care," 8 C.F.R.
§ 204.11(c)(4), the 2008 TVPRA amendments removed this
requirement. H.S.P., supra, 223 N.J. at 209.
3 A-0577-16T1
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)[.]
[H.S.P., supra, 223 N.J. at 210 (quoting In
re Dany G., 117 A.3d 650, 655 (Md. Ct. Spec.
App. 2015)).]
Our Supreme Court delineated in H.S.P. the Family Part's
limited role in this federal-state arrangement. Id. at 210-15.
Significantly, state family courts do not "render[] an immigration
determination." Id. at 210 (quoting In re Marcelina M.-G. v.
Israel S., 973 N.Y.S. 2d 714, 721 (N.Y. App. Div. 2013)). Rather,
a state court's order in an SIJ status case serves "merely [as] a
prerequisite that must be fulfilled before a juvenile can submit
his or her application for SIJ status to [United States Citizenship
and Immigration Services ('USCIS')]." Ibid. It is only "[a]fter
obtaining SIJ status [that] a child is permitted to apply for
adjustment of status under 8 U.S.C.A. § 1255, in an effort to
obtain legal permanent residency, and, eventually, U.S.
citizenship." Id. at 210-11.
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The Court in H.S.P. emphasized that the Family Part's findings
under this statutory and regulatory scheme must "only relate to
matters of child welfare[.]" Id. at 212. Further, in making such
predicate findings, the Family Part must apply the particular
child welfare laws of New Jersey, "and not that of a foreign
nation." Id. at 212-13.
H.S.P. also instructs that "Family Part courts faced with a
request for a SIJ predicate order should make factual findings
with regard to each of the requirements listed in 8 C.F.R. §
204.11." Id. at 201 (emphasis added). Additionally, "[w]hen
analyzing whether reunification with '1 or both' parents is not
viable due to abuse, neglect, or abandonment, the Family Part
shall make separate findings as to each parent[.]" Ibid. (emphasis
added). Ultimately, the federal government, through USCIS,
determines whether a youth qualifies for SIJ status or, eventually,
citizenship. Accordingly, the state court's limited designated
role is to "make factual findings based on state law about the
[criteria of] abuse, neglect, or abandonment, family
reunification, and best interests of the child." Id. at 214-15
(quoting Immigration Relief for Abused Children, U.S. Citizenship
& Immigration Servs., 2 (2014), https://www.uscis.gov/sites/
default/files/USCIS/Green%20Card/Green%20Card%20Through%20a%20Jo
b/Immigration_Relief_for_Abused_Children-FINAL.pdf).
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Here, plaintiff filed a verified complaint along with a motion
seeking sole legal custody of her son, O.N.R.L. (Omar).2 Plaintiff
also requested the court to make the findings necessary to allow
Omar to apply for SIJ status. Defendant G.R. was served in
Honduras with the complaint, motion and supporting papers, and
signed an affidavit of service acknowledging receipt of those
documents. Defendant did not answer or otherwise appear in the
action.
The trial court conducted a hearing at which plaintiff and
Omar testified. According to their testimony, Omar was born in
February 2000, and was sixteen years old at the time of the
hearing. Plaintiff and defendant were never married, but lived
together in Honduras. After plaintiff became pregnant, defendant
began drinking excessively, and physically and verbally abused
plaintiff. Because defendant was heavily intoxicated, hospital
staff did not allow him to visit Omar when he was born. Defendant
did not contribute to plaintiff's medical expenses related to
Omar's birth.
Defendant continued to drink excessively after Omar was born.
Plaintiff testified defendant sexually assaulted her, resulting
in the birth of a second child. Eventually, plaintiff separated
2
For privacy reasons, we use a fictitious name for the minor child
and initials for the parties involved in this case.
6 A-0577-16T1
from defendant when Omar was two years old. Since then, defendant
only had contact with Omar on a single occasion, and never
contributed to the children's emotional or financial support.
Plaintiff left the children in the care of her mother in
Honduras and came to the United States in 2009. She explained her
reason was "[s]o I could help my children get ahead in life because
I didn't like the money I was making in Honduras and my mother was
sick." Omar arrived in New Jersey in August 2015, and has resided
with plaintiff and her brother since that time. Plaintiff
elaborated that Omar could no longer attend school in Honduras
because it was not a "good environment" and "there were many
children who were smoking drugs."
In his testimony, Omar indicated he could not recall what his
father looked like, and that he only spoke with his father once
on the phone. He stated it was plaintiff who provided him with
necessities such as food, clothing, and emotional support. Omar
confirmed "there was a lot of crime and gangs" where he lived in
Honduras and he did not feel safe there. Consequently, he came
to the United States to be reunited with his mother, and he
presently attends high school here.
After considering this unopposed application, the trial court
granted plaintiff sole legal and physical custody of Omar "so that
she may continue to care [for] and protect [him]." The court
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further provided that it "ha[d] exclusive, continuing jurisdiction
over any custody determinations concerning [Omar]."
The court also found that plaintiff established eligibility
requirements one, . . . as set forth in H.S.P., supra, 223 N.J.
at 210. Specifically, the court found Omar was under the age of
21 and unmarried; dependent on the court because it had to
determine an appropriate custodian for Omar; the court had subject
matter jurisdiction to make a judicial determination about his
care and custody; and that it was not in Omar's best interest to
be returned to Honduras since he "ha[d] no responsible adult there
who can care for him and keep him safe."
However, with respect to the fourth factor, the court declined
"to make a finding that [Omar's] father has abandoned him because
I don't have personal jurisdiction over [] defendant." The judge
elaborated: "[D]efendant, while he was served, is not an American
citizen. He's never set foot in the United States. He has no []
contact with the United States, and I would have no jurisdiction
over him, particularly with respect to severing his custody." In
denying plaintiff's motion for reconsideration, the court
reiterated that it lacked personal jurisdiction over defendant
because he had never been in the United States and he lacked the
requisite minimum contacts with New Jersey.
8 A-0577-16T1
We conclude the trial court incorrectly ruled it could not
make a finding whether reunification with defendant was viable due
to abandonment or neglect because it lacked personal jurisdiction
over defendant. The court failed to consider the applicability
of the Uniform Child Custody Jurisdiction and Enforcement Act
(UCCJEA), N.J.S.A. 2A:34-53 to -95, which is the exclusive
jurisdictional basis for child custody determinations and
establishes procedures for determining which court is the
appropriate forum when a child has ties to both New Jersey and
another state or country. Importantly, the UCCJEA specifically
provides that the "[p]hysical presence of, or personal
jurisdiction over, a party or child is neither necessary nor
sufficient to make a child custody determination." N.J.S.A. 2A:34-
65(c).
This jurisdictional principle is well settled. Even prior
to the enactment of the UCCJEA, we held that "in personam
jurisdiction is not required to entertain an application to modify
an order for custody or visitation under the UCCJA [Uniform Child
Custody Jurisdiction Act] provided that notice and opportunity to
be heard are given as required by N.J.S.A. 2A:34-32 and -33."
Genoe v. Genoe, 205 N.J. Super. 6, 15 (App. Div. 1985). The
rationale is that "'[t]he custody status of a child or children
may be decided quasi in rem.'" Id. at 14 (quoting In re Marriage
9 A-0577-16T1
of Schuham, 76 Ill. App. 3d 339, 346 (1983)). We have "cited
Shaffer v. Heitner, 433 U.S. 186, 208, n. 30, 97 S. Ct. 2569,
2582, n. 30, 53 L. Ed. 2d 683, 700, n. 30 (1977), as recognizing
adjudications of status, such as matters pertaining to the custody
of children residing here, as an exception to the 'minimum
contacts' requirement." Div. of Youth & Family Servs. v. M.Y.J.P.,
360 N.J. Super. 426, 457 (App. Div.), certif. denied, 177 N.J. 575
(2003). Because plaintiff served defendant, the court had the
authority to make the SIJ findings regarding defendant and to
award sole custody of the parents' child to plaintiff.
The court was also mistaken in its belief that granting
plaintiff custody of Omar obviated the need to make the SIJ
findings or was akin to terminating defendant's parental rights
to Omar. Consequently, the trial court failed to make any findings
about whether defendant abandoned or neglected Omar, and whether
Omar's reunification with his father was viable as a result of
such abandonment or neglect. Regardless of the court's
determination as to custody, it is settled that a court must make
findings on each SIJ factor. O.Y.P.C. v. J.C.P., 442 N.J. Super.
635, 642 (App. Div. 2015).
We therefore remand this matter for the expeditious
completion of the fact-finding required under the governing law.
On remand, the trial court must now determine, under factor four,
10 A-0577-16T1
if Omar's reunification with his father is not viable due to
defendant's neglect or abandonment of Omar. The unchallenged
portions of the court's July 28, 2016 order granting plaintiff
legal and physical custody of Omar and making findings regarding
the remaining elements of the SIJ statute and regulations remain
in place.
Reversed in part and remanded for further proceedings in
conformity with this opinion. We do not retain jurisdiction.
11 A-0577-16T1