W.R.A.H. VS. D.M.A.H. (FD-11-0866-16, MERCER COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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
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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)).
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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
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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).
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[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.
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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
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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:
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[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
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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.
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