H.L. v. M.M.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

H.L.,1

Plaintiff-Appellant,

v.

M.M.,

Defendant-Respondent,

and

D.M.,

Defendant.

January 16, 2014

 

Submitted November 13, 2013 Decided

 

Before Judges Reisner and Alvarez.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FD-11-0548-12.

 

Rosa H. Soy, attorney for appellant.

 

Respondent has not filed a brief.

 

PER CURIAM

Plaintiff H.L. appeals from the Family Part determination of January 24, 2012, denying him custody of F.D.M., a child. For the reasons that follow, we reverse and remand.

F.D.M., who was born December 4, 1994, entered the country illegally. He was released into plaintiff's care from the detention center where he was being held by the Office of Refugee Resettlement authorities in July 2010. At the hearing, F.D.M. explained that he and his uncle walked across the border from their native Honduras, but that his uncle was turned back by the immigration authorities. Plaintiff is the pastor of a small church. F.D.M.'s mother, defendant M.M., is a member. Upon being notified of F.D.M.'s arrival at the detention center, M.M. contacted plaintiff to ask if he would retrieve her son and take him into his home, as she could not.

M.M. had arrived in the United States approximately ten years earlier, also crossing the border illegally. Her ten-year-old daughter lives with her, but M.M. is unable to support two children on her $300 per week earnings, and, as a result, has made no effort whatsoever to provide a home for F.D.M. She does not contribute to F.D.M.'s support. She did not pay for his uncle to bring him to this country.

F.D.M.'s father, defendant D.M., has not been served as his current address is unknown. He arrived illegally in this country with F.D.M. shortly after M.M. came here. D.M. returned to Honduras with F.D.M. in 2008, however, after which the child lost contact with his mother. His parents separated because his father became physically abusive towards M.M. Shortly after their return to Honduras, D.M. disappeared, leaving F.D.M. to live alone in a shack. F.D.M. testified that while living in these circumstances, he became extremely ill and nearly died. He was helped by an aunt who, upon learning that he had been abandoned, attempted to obtain medical care for him despite her own limited means. F.D.M. has had no contact with his father since D.M. left the home they shared in Honduras, nor does he know his whereabouts. He also stated that he has nowhere to go if returned to Honduras, as his aunt has children of her own and scant financial resources.

F.D.M. explained that although he knows where his mother lives, he has not visited with her, much less lived with her, since his return to this country. He sees her only when he attends church. F.D.M. is in the tenth grade at a local high school, is doing well in school, does not work, and is entirely supported by plaintiff. He lives in plaintiff's home along with plaintiff's co-pastor and the co-pastor's family.

Clearly, the findings of the Family Part are entitled to particular deference in view of its "special expertise in the field of domestic relations." Cesare v. Cesare, 154 N.J. 394, 412 (1998). Those findings are rejected, however, if not founded on adequate, competent evidence in the record. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 111 (2008). This court is not bound by "[a] trial court's interpretation of the law and the legal consequences that flow from established facts." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 336, 378 (1995).

The trial judge principally relied upon D.C. v. A.B.C., 417 N.J. Super. 41, 48 (Ch. Div. 2010), in deciding this matter. In that case, the petitioner was the child's step-mother. The child's mother had paid $3000 to have the child smuggled out of Guatemala to join his father and step-mother in the United States. In Guatemala, the child lived in dire poverty. He stopped attending school and obtained employment in construction.

In D.C., the court did not find the father had abandoned the child because he lived in the father's home and he was fully supported by him. The court also found the child's mother did not abandon him, as although impoverished, she had sacrificed to raise a substantial amount of money to send her child to the United States.

In this case, the court concluded that M.M. had not abandoned her child, and that therefore H.L. was making a sham application for custody, because F.D.M. and his mother lived approximately half-a-mile away from each other, she was present in court, and she and her son saw each other weekly in church on Sundays. Because the judge opined that no abandonment had taken place, he also concluded the petition for custody was a sham, filed solely to establish eligibility for F.D.M. to obtain legal immigrant status pursuant to 8 U.S.C. 1101(a)(27)(J)(i),(ii).

An eligible immigrant is one:

who 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 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; [and] 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.

 

[8 U.S.C. 1101(a)(27)(J)(i),(ii).]

 

The term "child" is defined as "unmarried person under twenty-one years of age." 8 U.S.C. 1101(b)(1). If the court had adjudicated F.D.M. dependent, and awarded custody to H.L., F.D.M. would then be eligible under the statute. We do not agree that this record supports the judge's factual findings and his legal conclusions.

It is unrefuted that the whereabouts of F.D.M.'s natural father in Honduras are unknown. It is equally undisputed that he abandoned his son, who shortly thereafter became critically ill, and who, but for the intervention of a relative, would have died. Furthermore, F.D.M.'s entry to this country was not at the father or mother's behest. He was brought here by an uncle, who himself was attempting to enter the country, but who was turned back at the border.

Since F.D.M. left the detention center, he has never been in his mother's custody. M.M. is barely able to support herself and her younger child and has made no effort to take her son into her home. Absent from the record is any reference to any contribution she has made to his support. In fact, although M.M. asked her pastor to care for F.D.M., since his arrival, she has had no interaction with him other than at church.

It is plaintiff who has opened his home to F.D.M. since his return to this country. It is plaintiff who is his sole source of financial and emotional support. In this case, where the unrefuted proofs are that the biological father's whereabouts are unknown as he abandoned his son and disappeared, and the biological mother has not taken the child into her home since his arrival in this country, we find the record established abandonment by both parents.

The judge did not characterize the testimony he heard as incredible, or the witnesses as unbelievable. Rather, he reached the conclusion that the application was essentially a ruse based on his suspicion that "[F.D.M.] was seeking dependency for no other reason than to change his immigration status." But the facts are dissimilar to those found in D.C. and therefore lead to a different conclusion.

First and foremost, the only interested adult who has cared for F.D.M. for years is plaintiff. In D.C., the minor lived with his father and step-mother, and had been sent to the United States for that reason. The mother in this case did not pay for her child to be brought here; in fact, when that happened, all she did was call her pastor for help. Hence we disagree that the trial judge's factual findings were reached on adequate, competent evidence, or that they warranted his legal conclusion. Custody should be awarded to plaintiff. We remand the matter for the entry of an order to that effect.

Reversed and remanded for the entry of an order within ten days of this decision.

1 We are using initials to protect the privacy of the child.