M.V. v. H.Z.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

M.V.,

Plaintiff-Appellant,

v.

H.Z.,

Defendant-Respondent.

_________________________________

July 31, 2015

Submitted April 15, 2015 Decided

Before Judges Ashrafi and Kennedy.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FD-20-1315-13.

American Friends Service Committee, attorneys for appellant (Kimberly Krone, on the brief).

Respondent has not filed a brief.

PER CURIAM

This is plaintiff's unopposed appeal from an order of the Family Part denying her application for custody of her seventeen-year-old son, who was already in her custody, and also for findings pertinent to his immigration status. Typical for such cases, the matter has never had a true defendant. In fact, no person or entity that is not allied with plaintiff has any involvement in the case. For the reasons that follow, we affirm dismissal of the complaint.

The case was filed by M.V. in Union County on September 24, 2013, as a complaint for custody of her son, E.Z.V., who was then three months short of the legal age of majority. See N.J.S.A. 9:17B-3 (persons eighteen or older in New Jersey are ordinarily considered adults). The son had recently arrived from Guatemala by way of Mexico. There was no custody issue involved. At the time the complaint was filed, the boy was living with plaintiff and his siblings in New Jersey and attending a public high school. No one was contesting that arrangement.

The boy's father, who is alleged to be defendant H.Z., is a citizen and resident of Guatemala, was never married to plaintiff, is not alleged ever to have had legal or physical custody of the boy, and is not even alleged to have resided with plaintiff and the boy while they lived in Guatemala. There is no indication anywhere in the record that the boy's father sought to gain custody or to exercise any other legally-recognized parental rights over the boy. Nor did the complaint indicate that plaintiff was in need of a custody order for any other reason besides for immigration purposes. The only true objective of the complaint was to take advantage of a provision in a federal statute, 8 U.S.C.A. 1101(a)(27)(J), that plaintiff believes permits her son to obtain special juvenile immigrant status and thus to remain in the United States without other legal documentation.

The complaint and the supporting certifications do not say so, but it appears that plaintiff and the boy are both in this country without proper documentation, that is, illegally under federal immigration laws. Plaintiff states she lived in Guatemala and had three children with defendant. She came to the United States in 2005. Her son arrived in July 2013. He stayed for a few weeks at a facility in Arizona and then was transported to New Jersey to be reunited with his mother and other family members.

The complaint and supporting certifications allege that defendant H.Z. is a physically and sexually abusive man who inflicted horrific acts of violence and threats of violence against plaintiff and his own children. The certifications state that defendant is a drunkard, who was previously employed as a police officer and more recently as a security guard, and who came to the family home in Guatemala from time to time and beat and threatened plaintiff and the children. The certifications describe specific acts of violence over the entirety of the son's life. They also allege that defendant sexually abused the boy's older sister from the time that she was eight years old. The older sister now lives with plaintiff in New Jersey. She, too, provided a certification in support of plaintiff's complaint for custody. Apparently, there is also a younger sister that was still living in Guatemala at the time plaintiff filed her complaint.

Plaintiff acknowledged the obvious purpose of filing the complaint to obtain findings from the Family Part in an ex parte proceeding that would aid her son in his application to immigration authorities for legal status in the United States. The application would come under a statute that provides refuge to foreign juveniles who come to the United States without documentation and are in danger of harm from abusive parents if they were to be deported. We described the operative provisions of 8 U.S.C.A. 1101(a)(27)(J) in H.S.P. v. J.K., 435 N.J. Super. 147, 154-55, 158, 166-71 (App. Div.), certif. granted, 218 N.J. 532 (2014), a decision of this court that has been argued on further appeal and is now pending the decision of the Supreme Court of New Jersey. In H.S.P., we reviewed in detail the language and legislative history of the federal statute and held it does not provide for special juvenile immigrant status to a minor who has a non-abusive parent available to care for him. Id. at 171.

As we stated in H.S.P., we question whether the Family Part should exercise its jurisdiction and render a decision that has no purpose but to fulfill the requirements of a federal statute, in particular where the proceeding is ex parte and there is no other need for the Family Part's involvement and decision. Id. at 156 (citing D.C. v. A.B.C., 417 N.J. Super. 41, 47, 51 (Ch. Div. 2010)). We question whether Congress could appropriately compel the exercise of jurisdiction by a state court to conduct what appears to be the ministerial function of documenting by means of an ex parte proceeding and a resulting order the sworn claims of an immigrant for use by federal immigration authorities. Since the court has no investigative resources to utilize in the process and there is no adverse party to challenge the veracity of the sworn claims, it seems the necessary task can be adequately performed by a notary public.

Plaintiff argues H.S.P. was wrongly decided, but we agree with the analysis and holding of that case, namely, that the Family Part need not conduct a "best interests" analysis and make a finding in that regard in a case where the minor has a non-abusive parent available to care for him and the court's intervention is not otherwise necessary. It is antithetical to the language and purpose of the federal statute to use it as plaintiff does here that is, for a parent to leave her child in another country for several years, enter the United States illegally, and then send for the child and claim special status for him under the statute.

The trial court also concluded that it lacked jurisdiction over defendant's person to enter the requested custody order containing findings that defendant had abused the boy. We agree with the court's jurisdictional ruling on two grounds.

First, plaintiff's complaint demonstrates nothing that would give the courts of New Jersey personal jurisdiction over defendant. While the Family Part has jurisdiction to address matters involving the safety, health, and welfare of the minor child because he lives in this State, the court's exercise of jurisdiction must be limited to ensuring that the minor is not at risk of harm. Otherwise, the court can exercise jurisdiction over the out-of-state parent only if the parent has had "minimum contacts" with this State. In Division of Youth & Family Services v. L.C., 346 N.J. Super. 435, 440 (App. Div. 2002), we concluded that the Family Part had personal jurisdiction over the defendant to terminate his parental rights but, in doing so, we relied on the fact that the defendant and the children had lived in New Jersey for two years and that the defendant had committed acts of abuse in New Jersey as well as outside New Jersey. Here, defendant had no such contacts with this State.

In an analogous situation addressing jurisdictional issues under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, our State Supreme Court held that the Family Part has limited jurisdiction to entertain a domestic violence complaint of a victim who is present in this State and to enter a temporary restraining order with prohibitory provisions against the out-of-state defendant. Shah v. Shah, 184 N.J. 125, 128-29 (2005). However, the Court acknowledged that the defendant accused of committing domestic violence in another state had no contacts with New Jersey, and therefore, "no New Jersey court can exercise personal jurisdiction over defendant in a manner consonant with due process." Id. at 139.

In Shah, the lack of personal jurisdiction precluded the entry of a final restraining order against the defendant because such an order would necessarily include affirmative acts required of him and also because of its "severe collateral consequences." Id. at 140. Cf. State v. Reyes, 172 N.J. 154, 156-57 (2002) (New Jersey court had both subject matter and personal jurisdiction over a defendant who committed domestic violence in another state and then pursued the victim to New Jersey); A.R. v. M.R., 351 N.J. Super. 512, 514-15 (App. Div. 2002) (New Jersey court had jurisdiction to enter final restraining order against a defendant who committed domestic violence in another state because the parties had lived in New Jersey and because the defendant made threatening telephone calls to the plaintiff in New Jersey, where she had fled).

Similarly, consistent with due process, it would appear that defendant in this case cannot be found to have abused the child in proceedings conducted by a court without personal jurisdiction over him. The acts of abuse did not occur in New Jersey, and defendant has no minimum contacts with this State such that our courts can make a finding of abuse, neglect, or abandonment by him to comply with the requirements of 8 U.S.C.A. 1101(a)(27)(J).

Finally, there is no indication in this record that defendant has been adequately served with process for the court to invoke personal jurisdiction over him. Counsel for plaintiff mailed the complaint to an address in Guatemala that counsel believed to be defendant's address, but, plaintiff's own certification stated she did not know where defendant lived. There was no acknowledgment of service by defendant and no compliance by plaintiff with the requirements of Rule 4:4-4(b) and 5:4-4(b) for effective service of process.1 The court did not have jurisdiction over defendant for the purpose of entering the order plaintiff requested against him.

Affirmed.

1 As we stated in H.S.P., supra, 435 N.J. Super. at 158, a provision of the Immigration and Nationality Act, 8 U.S.C.A. 1357(h), states that a juvenile "who has been battered, abused, neglected, or abandoned, shall not be compelled to contact the alleged abuser (or family member of the alleged abuser) at any stage of applying for special immigrant juvenile status." In this case, however, plaintiff did not invoke that provision. Moreover, we question whether due process requirements would allow a state family court's jurisdiction to be invoked contrary to the defendant's constitutional rights and whether the federal government has the power to compel a state court to exercise jurisdiction.