Opinion
DOCKET NO. A-3112-14T2
05-02-2016
D.G., Plaintiff-Appellant, v. R.S.G. and L.L., Defendant-Respondents.
Sodette K-M Plunkett, P.C., attorneys for appellant (Renee LaRosee, on the brief). Respondents have not filed a brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Accurso. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FD-20-0995-15. Sodette K-M Plunkett, P.C., attorneys for appellant (Renee LaRosee, on the brief). Respondents have not filed a brief. PER CURIAM
Plaintiff D.G. appeals a portion of the Family Part's January 29, 2015 order in this matter involving a minor from Honduras who is now living with plaintiff in New Jersey. In particular, plaintiff argues that the court erroneously rejected her contention that the minor was neglected and abandoned by her biological mother under 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). For the reasons that follow, we reverse the court's finding on this discrete issue, and remand this matter for further proceedings, including a determination of whether it is in the minor's best interests to return to her native country.
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), an opinion the Supreme Court issued after the Family Part's decision in this case.
As H.S.P. notes, in 2008 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 when
(i) [she] has been declared dependent on a juvenile court located in the United States . . . and whose reunification with [one] 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[.]The TVPRA'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 requirements under the Act and the regulation are:
[8 U.S.C.A. § 1101(a)(27)(J).]
(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)[.]
[H.S.P., supra, 223 N.J. at 210 (quoting In re Dany G., 117 A.3d 650, 655 (Md. Ct. Spec. App. 2015)).]
Although the regulations had previously contained an additional requirement, i.e. 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.
Our Supreme Court delineated in H.S.P. the Family Part's limited role in this federal-state arrangement. H.S.P., supra, 223 N.J. 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.
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. further instructs that state courts cannot refuse to make SIJ status findings based on a belief that a petitioner is seeking custody over the undocumented youth as a pretext for carving a pathway for the youth to citizenship. Id. at 214. 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%20Job/Immigration_Relief_for_Abused_Children-FINAL.pdf).
Plaintiff, D.G., filed a complaint in this case seeking SIJ status for her niece S.M.L.G. ("Sandy"). Plaintiff resides in Hillside with her significant other, C.M., along with Sandy, their own two children, and another minor S.O.N.M., who is a family friend from Guatemala. According to plaintiff's verified complaint, as amplified by Sandy's testimony at the January 29, 2015 hearing in the trial court, Sandy was born in Honduras in February 1997. She initially lived with her biological mother, R.G., and her biological father, L.L. When Sandy was eight months old, her father left the household and has been absent from her life ever since.
For privacy reasons, we use a fictitious name for the minor S.M.L.G. and initials for other persons involved in this case.
In a related unpublished opinion, we recently vacated and remanded a decision involving a petition by C.M. seeking to obtain SIJ status for S.M. See C.M. v. M.N.M., No. A-4209-14 (App. Div. Feb. 24, 2016).
Sandy resided with her mother until she reached the age of seven. At that point, the mother moved to the United States and left Sandy and Sandy's sister at their maternal grandparents' home in Honduras. The mother reportedly now lives in Guatemala with another man, whom she met while in the United States.
The sister is not part of this case.
According to plaintiff's verified complaint and Sandy's unrebutted testimony, Sandy has received no emotional or financial support from her mother since the mother's departure when Sandy was seven. Sandy relied instead upon the care of her maternal grandparents in Honduras. The grandfather owned a clothing store and used his income to send Sandy to a private school in that country. In addition, plaintiff, who is the sister of Sandy's biological mother, sent extra funds to Honduras to help support Sandy. Plaintiff contended that she would often speak with Sandy on the telephone to provide her with emotional support. Also, plaintiff's significant other, C.M., would often visit Sandy and her grandparents when he travelled to Honduras.
In October 2012, Sandy's maternal grandfather was shot and killed, apparently for refusing to pay gang members protection money. After his death, Sandy and her grandmother relied entirely on financial support sent from plaintiff and C.M. According to Sandy, she was pressured by gang members in Honduras who attempted to recruit her. In addition, her grandmother was aging and in poor health.
As a result of these difficult circumstances, Sandy decided at the age of seventeen to leave Honduras and attempt to settle in the United States with plaintiff, her aunt, in New Jersey. According to Sandy's testimony at the hearing, she traveled with several other young people out of Honduras and entered the United States on June 26, 2014. Because she had no documentation to authorize her migration to this country, Sandy was briefly taken into custody by the United States Office of Refugee Reinstatement ("ORR") in Fort Sill, Oklahoma. Following an investigation, the ORR released Sandy several days later to the care of her aunt in Hillside, New Jersey.
As of the time of the Family Part's January 2015 hearing, Sandy continued to live with plaintiff, C.M., their two children, and S.O.N.M., the family friend from Guatemala. She was enrolled at a public high school in nearby Elizabeth, where she takes bilingual classes. Plaintiff represented in her complaint that she wishes and expects to continue to care for Sandy — assuming she is not deported — for several years, as the teenager continues to adjust to life in the United States. Plaintiff and C.M. continue to provide Sandy with financial support. Sandy testified that she has not spoken to her mother since coming to the United States, that she had only very limited contact with her mother while living in Honduras, and does not receive any financial or emotional support from her.
After considering this unopposed application, the trial judge agreed that legal and physical custody over Sandy should be granted to plaintiff as her maternal aunt, there being no other viable relative of the minor living in the United States. However, the court was unpersuaded that plaintiff had sufficiently established that the mother had "abandoned" Sandy within the meaning of the applicable law.
Plaintiff's counsel represented that she was unable to confirm that her mailed service on Sandy's mother, D.G., or Sandy's father, R.S.G., to their last known addresses was successful. --------
In concluding that Sandy was not abandoned, the judge expressed skepticism about the manner in which she had travelled to the United States. The judge also expressed skepticism about whether, in fact, the biological mother no longer maintained a relationship with Sandy. The judge additionally found significant that Sandy's grandmother, with whom she had resided for over a decade in Honduras, had not abandoned her. Given these observations, the judge found no need to address under the statute and regulations whether it was in the minor's best interest to return to Honduras.
Plaintiff mainly argues on appeal that the trial court's decision misapplied concepts of "abandonment," as they are defined under New Jersey law. We review this legal assessment de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); see also H.S.P., supra, 223 N.J. at 215.
N.J.S.A. 9:6-1 provides several examples of what constitutes the "abandonment of a child:"
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.Abandonment does not mean "that the parent has deserted the child, or even ceased to feel any concern for its interests." Lavigne v. Family & Children's Soc'y, 11 N.J. 473, 480 (1953) (quoting Winans v. Luppie, 47 N.J. Eq. 302, 304 (E. & A. 1890)); see also In re Estate of Fisher, 443 N.J. Super. 180, 197 (App. Div. 2015). Rather, abandonment means "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." Lavigne, supra, 11 N.J. at 480.
[N.J.S.A. 9:6-1 (emphasis added).]
We have defined the term "forsaking" in the child abandonment context "as a permanent giving up or relinquishment of the child." State v. N.I., 349 N.J. Super. 299, 312 (App. Div. 2002). We have also defined the terms "willfully" in this context as "intentionally or purposefully as distinguished from inadvertently or accidentally." Id. at 312-13. We emphasized in N.I. that the term "willfully" does not require a showing of "evil intent or bad motive" in matters of child welfare. Ibid.
In light of these guiding principles, we conclude that the trial judge incorrectly found as a matter of law that Sandy had not been abandoned. The judge stated there was no abandonment because Sandy's mother had "moved from Honduras to the United States and left the child with the grandparents, not that she abandoned the child and the child had nowhere to go." The judge unduly focused on how Sandy's grandparents had been able to care for her since she was seven years old and send her to private school. The judge stressed there was no abandonment because there needs "to be a willful act."
The willful act of abandonment here was Sandy's mother leaving Sandy with Sandy's grandparents and moving to the United States. See N.I., supra, 349 N.J. Super. at 312. This intentional act is sufficient to constitute "willful" conduct because Sandy's mother did not unintentionally leave Sandy with her grandparents. Further proof of the intentional and conclusive nature of Sandy's mother's conduct is that she has since left the United States and moved without Sandy to Guatemala with a man she met here. Notably, Sandy's mother chose not to return to Honduras, where Sandy was then still living with her grandparents.
Even though Sandy has spoken to her mother a few times since she left her while Sandy was still in Honduras, the undisputed record indicates that Sandy's mother, as plaintiff certified in the verified complaint, "has never [] provided any emotional or financial support for [Sandy]." Furthermore, even assuming those past sporadic phone calls suggest that Sandy's mother has some interest in Sandy's well-being, a parent completely "ceas[ing] to feel any concern for [the child's] interests" is not required under the abandonment statute or case law. Lavigne, supra, 11 N.J. at 480. The record manifestly shows that Sandy's mother has "willfully forsaken" her because the mother left Sandy at the age of seven with her grandparents, a clearly deliberate act which substantiates her intent to forego her parental responsibilities and give up any claim over Sandy. Accordingly, the court's finding that Sandy was not abandoned is reversed.
In light of our conclusion that Sandy has been abandoned by her mother, it is now necessary for the trial court to reach the other elements of the SIJ statute and regulations. In particular, the trial court must now consider whether it is in Sandy's "best interest" to return to Honduras. See 8 U.S.C.A. § 1101(a)(27)(J)(ii); 8 C.F.R. § 204.11(c)(6).
We therefore remand this matter for the expeditious completion of the fact-finding required under the governing law. In advance of that hearing, plaintiff shall make renewed attempts to effect service on Sandy's mother and provide her an opportunity to participate in this case. The unchallenged portion of the court's January 29, 2015 order granting plaintiff legal and physical custody of Sandy — which was clearly warranted under the circumstances until Sandy's legal status is adjudicated — remains in place.
Reversed in part and remanded for further proceedings in conformity with this opinion. 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