Y.G.P. VS. A.H.R. (FD-12-1542-16, MIDDLESEX COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-4357-15T1
Y.G.P.1
Plaintiff-Appellant,
v.
A.H.R.,
Defendant-Respondent.
________________________________
Submitted April 26, 2017 – Decided July 21, 2017
Before Judges Fuentes, Carroll and Farrington.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex
County, Docket No. FD-12-1542-16.
Cella & Associates, LLC, attorneys for
appellant (Robert K. Valane, on the brief).
Respondent has not filed a brief.
PER CURIAM
Plaintiff Y.G.P. is the biological mother of R.H.G., an
eleven-year-old girl who was born in Mexico. Defendant A.H.R. is
1
We use initials to protect the confidentiality of the parties.
See R. 1:38-3(d)(10).
the child's biological father. Plaintiff filed this action in the
Family Part to permit the court to make "the predicate findings
necessary for a non-citizen child to apply for 'special immigrant
juvenile' (SIJ) status under the Immigration Act of 1990, as
amended by the William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008 (TVPRA), Pub. L. No. 110–457, 122
Stat. 5044." H.S.P. v. J.K., 223 N.J. 196, 199–200 (2015). As
the Supreme Court explained in H.S.P., "SIJ status is a form of
immigration relief permitting alien children to obtain lawful
permanent residency and, eventually, citizenship." Id. at 200.
To achieve this end, the juvenile-applicant must complete a
two-step process:
[F]irst, the juvenile must apply to a state
court for a predicate order finding that he
or she meets the statutory requirements;
second, he or she must submit a petition to
United States Citizenship and Immigration
Services (USCIS) demonstrating his or her
statutory eligibility. 8 C.F.R. § 204.11details the findings that must be made by a
juvenile court before an alien's application
for SIJ status will be considered by USCIS[.]
[I]n addition to a series of factual
requirements, the juvenile must demonstrate
that reunification with "1 or both" of his or
her parents is not viable due to abuse,
neglect, or abandonment. The court is then
required to determine whether it is in the
juvenile's best interests to return to his or
her home country.
[Ibid.]
2 A-4357-15T1
The Supreme Court emphasized in H.S.P. that "[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." Ibid. In
performing this function, the Family Part must apply "its expertise
in family and child welfare matters to the issues raised in 8
C.F.R. § 204.11, 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.
Here, in addition to her sworn statements in the verified
complaint, plaintiff certified that R.H.G. was eleven years old
when she clandestinely entered the United States from Mexico in
January 2015. Thus, R.H.G. does not have an officially sanctioned
immigration status, and she is subject to deportation. R.H.G.
currently resides with plaintiff in Middlesex County, where she
attends a local public school. Plaintiff claims the child is
doing well socially and academically. R.H.G. wants to continue
her education and attend college in this country if legally
permissible.
In a certification submitted to the Family Part, plaintiff
averred she is
personally acquainted with the current
economic problems plaguing [R.H.G.'s]
biological father, and he has expressed his
inability and unwillingness to properly care
for her in Mexico.
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When [R.H.G.] resided in Mexico with her
father, she did not have adequate food,
clothing, shelter or medical care. Her father
simply could not afford to provide these
necessities for her. He was also extremely
abusive towards her. There is no question
this neglect and abuse would continue if she
were to return to Mexico to live with her
father.
By contrast, since R.H.G. began living with plaintiff, she has
received proper food, clothes, and shelter and has excelled
socially and academically. Plaintiff fears the progress R.H.G.
has made can be quickly undone if she returns to her father's
custody. Plaintiff petitioned the Family Part to award her custody
of her daughter and to find it is not in R.H.G.'s best interest
to return to Mexico. Plaintiff also urged the Family Part to find
that if the child is returned to her father's custody in Mexico,
it is highly probable she will be abused, neglected, and abandoned,
and will have "limited academic and professional possibilities."
The Family Part decided plaintiff's petition without
conducting an evidentiary hearing. Relying exclusively on the
facts described in plaintiff's verified complaint and supplemental
certification, the court entered an order "DEN[YING] WITHOUT
PREJUDICE" what it characterized as "plaintiff's motion for
[R.H.G.] . . . to be declared a dependent upon the Juvenile Court
of the State and eligible for long term foster care[.]" The court
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found R.H.G. was not "abandoned by her biological parents pursuant
to N.J.S.A. 9:6-1." In reaching this conclusion, the Family Part
cited this court's opinion in H.S.P. v. J.K., 435 N.J. Super. 147,
164–65 (App. Div. 2014), which focused on whether a juvenile was
eligible for SIJ status based on 8 U.S.C.A. § 1101(a)(27)(J). Our
opinion was reversed by the Supreme Court in H.S.P., supra, 223
N.J. at 201.
Plaintiff filed this appeal on June 13, 2016. As authorized
by Rule 2:5-1(b),2 the trial judge submitted a letter-opinion to
this court "to supplement the record regarding the issues now
being appealed." After briefly summarizing the allegations in
plaintiff's verified complaint, the judge stated: "Applying the
standard set forth in 8 U.S.C.A. § 1101(a)(27)(J) and its
implementing regulation[,] 8 C.F.R. § 204.11, this [c]ourt found
that the child did not meet the statutory requirements to be a
special immigrant juvenile." The judge acknowledged that our
Supreme Court held the Family Part does not have jurisdiction "to
grant or deny applications for immigration relief." See H.S.P.,
supra, 223 N.J. at 200. The judge nevertheless stated that based
2
Within fifteen days of the filing of an appeal, Rule 2:5-1(b)
permits a trial judge "to file and mail to the parties an
amplification of a prior statement, opinion or memorandum made
either in writing or orally and recorded pursuant to [Rule] 1:2-
2."
5 A-4357-15T1
on plaintiff's "submissions, it found that [R.H.G.] had not been
abandoned, abused or neglected by her mother, the plaintiff." In
the judge's view, the underlying premise of plaintiff's claim was
that "economic and academic opportunities are better here" than
in Mexico. The judge held this was not "a sufficient basis to
find the child dependent on this [c]ourt and eligible for long-
term foster care."
In this light, the judge found an evidentiary hearing was not
necessary to determine "whether it would be in the child's best
interest to return to her country of origin." According to the
judge, judicial economy favored deciding this case "based on the
evidence set forth in [p]laintiff's [c]ertification." Plaintiff
argues on appeal that the Family Part's final ruling, as reflected
in its April 29, 2016 order, was inconsistent with the Supreme
Court's holding in H.S.P., supra, 223 N.J. 196. Independent of
this error, plaintiff argues the court erred in making factual
findings without conducting an evidentiary hearing. We agree and
reverse.
We start our analysis by reaffirming a fundamental tenet of
appellate jurisprudence. "'[A]n appeal is taken from a trial
court's ruling rather than [its] reasons for the ruling.'" N.J.
Div. of Child Prot. & Permanency v. K.M., 444 N.J. Super. 325,
333–34 (App. Div.) (quoting State v. Adubato, 420 N.J. Super. 167,
6 A-4357-15T1
176 (App. Div. 2011), certif. denied, 209 N.J. 430 (2012)), certif.
denied, 227 N.J. 211 (2016). Thus, in this appeal, we review the
legal viability of the Family Part's ruling as reflected in its
April 29, 2016 order. The Family Part's letter-opinion submitted
pursuant to Rule 2:5-1(b) is viewed only as "an amplification" of
the court's reasoning in support of its prior order.
With these principles in mind, we return to the Supreme
Court's decision in H.S.P. for guidance. Writing for the Court
in H.S.P., our colleague Judge Cuff explained the Family Part is
tasked with making the following findings:
(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) [] [R]eunification 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].
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[H.S.P., supra, 223 N.J. at 210 (citation
omitted).]
Here, factors (1), (2), and (3) are undisputed. R.H.G. is
under the age of twenty-one; she is not dependent on the court and
has not been placed under the custody of an agency or an individual
appointed by the court; and the Family Part has jurisdiction under
Title 9 and Title 30 to make determinations about her custody and
care. See N.E. v. State Dep't of Children & Families, 449 N.J.
Super. 379, 398–401 (App. Div. 2017). Thus, the Family Part was
required to make specific findings only as to factors (4) (whether
R.H.G.'s reunification with one or both of her parents is not
viable due to abuse, neglect, abandonment, or a similar basis) and
(5) (whether it is in R.H.G.'s "best interest" to be returned to
her parents' previous country of nationality). See H.S.P., supra,
223 N.J. at 210 (citation omitted).
In determining whether the trial court performed this task,
we acknowledge the Family Part's "special jurisdiction and
expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 413
(1998). We are bound to accept the Family Part's factual findings
on appeal, provided they are supported by adequate, substantial,
credible evidence in the record. Thieme v. Aucoin-Thieme, 227
N.J. 269, 282–83 (2016) (quoting Cesare, supra, 154 N.J. at 411–
12).
8 A-4357-15T1
Here, the Family Part judge found R.H.G. "had not been
abandoned by her biological parents pursuant to N.J.S.A. 9:6-1."
The unchallenged evidence plaintiff presented to the court does
not support the judge's finding. In her certification, plaintiff
affirmed under penalty of perjury that R.H.G.'s father had
abandoned and abused her. If the judge had reservations about
plaintiff's credibility, she should have conducted an evidentiary
hearing to question plaintiff directly and seek further evidence
of abandonment or abuse. Under these circumstances, a facial
rejection of plaintiff's certification is unacceptable.
In the April 29, 2016 order, the judge also cited a section
of this court's opinion in H.S.P., supra, 435 N.J. Super. at 164–
65, in which we adopted the Nebraska Supreme Court's reasoning to
hold that a juvenile is not eligible for SIJ status if
reunification with either parent is feasible. We conclude that
in reversing our opinion in H.S.P., our Supreme Court unequivocally
rejected the analytical approach reflected in the Family Part's
April 29, 2016 order. Writing for the Court, Judge Cuff made
clear that as a matter of law, the Family Part is not competent
to decide whether a juvenile is eligible for SIJ status:
We take this opportunity to comment on and
clarify the limited role played by New Jersey
State courts in the SIJ application process.
Our review of the legislative scheme relating
to SIJ status demonstrates that the
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determination of whether a child should be
classified as a special immigrant juvenile
rests squarely with the federal government.
"Congress chose to rely on state courts to
make [initial factual findings] because of
their special expertise in making
determinations as to abuse and neglect issues,
evaluating the best interest factors, and
ensuring safe and appropriate custodial
arrangements."
[H.S.P., supra, 223 N.J. at 211 (citation
omitted).]
Furthermore, the trial judge noted that R.H.G. "is already
thriving in the custody of her mother and there is no reason for
the [c]ourt to exercise jurisdiction other than for immigration
benefits." This statement has no relationship to any of the five
factors the Family Part is required to consider and constitutes a
misstatement of the relevant law. Under factor (4), the court
must determine whether reunification with one or both of the
juvenile's parents is not viable due to abuse, neglect,
abandonment, or a similar basis under state law. The fact that
R.H.G. may be doing well in plaintiff's custody does not address
whether she would also fare well under her father's custody.
Based on this record, we reverse the Family Part's order and
remand for a de novo review of plaintiff's application before a
different judge to be selected by the Presiding Judge of the Family
Part. We take this measure in the interest of justice and the
preservation of impartiality.
10 A-4357-15T1
Reversed and remanded. We do not retain jurisdiction.
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