S.J.D.R. v. J.A.M.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

S.J.D.R. and R.L.H.,

Plaintiffs-Appellants,

v.

J.A.M,

Defendant-Respondent.

__________________________________

March 27, 2015

Submitted March 17, 2015 Decided

Before Judges Fasciale and Hoffman.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket Nos. FD-16-0643-14; FJ-16-1970-11; FJ-16-2019-11.

American Friends Service Committee, attorneys for appellants (Kimberly Krone, Youth Justice Attorney, of counsel; Randi Mandelbaum, on the brief).

Respondent has not filed a brief.

PER CURIAM

S.J.D.R. (the "mother") and R.L.H. (the "boyfriend") (collectively "plaintiffs") appeal from that part of a June 4, 2014 order declining to make all of the requisite findings under 8 U.S.C.A. 1101(a)(27)(J) ("paragraph J") of the Immigration and Nationality Act ("INA"), 8 U.S.C.A. 1101 to 1537, thereby depriving J.R.M., an undocumented immigrant, the opportunity to apply for Special Immigrant Juvenile ("SIJ") status. We reverse and remand.

The mother and J.A.M. (the "father") are the biological parents of J.R.M., born in Honduras in September 1995, and who entered the United States in 2000. The father lives in Honduras while the mother and J.R.M. live in New Jersey.1

In December 2010, a Family Part judge sentenced J.R.M. to probation for participating in setting off a school fire alarm. In October 2011, the court sentenced J.R.M. to detention and placed him in a juvenile training school for assaulting a classmate. J.R.M. was then released on parole, but due to his undocumented immigrant status, he was placed into the custody of the Office of Refugee Resettlement ("ORR") for possible deportation. The ORR eventually released J.R.M. to the mother.

Plaintiffs filed a petition for custody of J.R.M., and sought a paragraph J SIJ fact-finding hearing, to exempt J.R.M. from the risk of deportation.2 The judge held a hearing, issued a written opinion, and entered an order denying custody of J.R.M. to the boyfriend. In making his SIJ findings, the judge primarily relied on our decision in H.S.P. v. J.K., 435 N.J. Super. 147 (App. Div.), certif. granted, 218 N.J. 532 (2014).

On appeal, plaintiffs argue that our decision in H.S.P. is distinguishable and that the trial court misinterpreted paragraph J based on a plain reading of the statute and its legislative history.

I.

We accord substantial deference to the Family Part's fact finding due to its "special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998). Therefore, the trial court's findings "will only be disturbed if they are 'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence.'" Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Under the INA, an undocumented immigrant who obtains SIJ status is exempt from deportation and is instead deemed "to have been paroled into the United States" and whose status then becomes "that of an alien lawfully admitted for permanent residence." 8 U.S.C.A. 1255(a), (h)(1). An SIJ is

an immigrant who is present in the United States

(i) 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 1 or both of the immigrant's parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law;

(ii)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; and

(iii) in whose case the Secretary of Homeland Security consents to the grant of special immigrant juvenile status[.]

[8 U.S.C.A. 1101(a)(27)(J) (emphasis added).]

The undocumented immigrant must first obtain a juvenile court order with the requisite findings under paragraph J to petition the federal government for SIJ status. See 8 C.F.R. 204.11(b), (d)(2). Thus, paragraph J creates "a special circumstance where a state juvenile court is charged with addressing an issue relevant only to federal immigration law." H.S.P., supra, 435 N.J. Super. at 155 (citation and internal quotation marks omitted).

II.

Here, the judge made the following SIJ findings

[J.R.M.] is under twenty-one and unmarried.

. . . .

[D]espite grave reservations about the primary purpose of the application and why the removal procedure was not disclosed to the court before the supplemental brief, the court finds it has jurisdiction to hear the application because of [J.R.M.'s] juvenile parole term.

. . . .

[U]nder N.J.S.A. 9:6-1 the [father] has neglected [J.R.M.] as he has not provided food, clothing, or maintenance since [J.R.M.] arrived in the United States. . . .

. . . .

[T]he court finds that the mother has not abused or neglected [J.R.M.] and that there is no viable argument for reunification with the mother as she lives with [J.R.M.].

. . . .

The court does not reach the inquiry of whether it would be in [J.R.M's] best interest to return to Honduras.

Plaintiffs do not challenge the judge's factual findings but instead argue that the judge erred by concluding that paragraph J requires reunification with both the father and the mother to not be viable. The judge wrote

H.S.P. is emphatic that a finding that reunification with "one or more" parents is not viable means the court must find that it is insufficient for a finding that one parent is not viable. . . . Here, the mother has had physical custody of [J.R.M.] for over thirteen years. . . . It would be illogical for this court to hold that reunification is impossible or necessary when [J.R.M.] lives with the mother. [The ]mother has not suggested she abused, abandoned, or neglected [J.R.M.]. On the contrary, her actions are that of a parent who loves their child. . . . The case sub judice is a straightforward application of [H.S.P.] where reunification is possible with one of the parents.

In H.S.P., the petitioner sought custody of and SIJ findings for his then seventeen-year-old nephew, M.S., whose parents both resided in India. H.S.P., supra, 435 N.J. Super. at 151-54. We found that M.S.'s father had abandoned him but reunification with M.S.'s mother was viable. Id. at 162-64. We then construed paragraph J "to require that reunification with neither parent [be] viable" holding that "it is insufficient that reunification with one parent is not viable due to abuse, neglect, or abandonment, if the juvenile has another 'safe' parent who has not abused, neglected or abandoned the juvenile." Id. at 166. Thus, because M.S. still had one "safe" parent in India, he was not entitled to this finding under paragraph J. Id. at 171.

Plaintiffs correctly argue that the facts in H.S.P. are distinguishable because here the mother resides with J.R.M. in New Jersey while the father lives in Honduras. Sending M.S. back to India would reunite him with his "safe" parent, albeit possibly with his unfit parent as well. Sending J.R.M. back to Honduras would remove him from his "safe" parent in New Jersey and reunite him with the unfit parent, or worse, with no one at all. Therefore, a straightforward application of H.S.P. is inappropriate.

III.

Our paramount goal in interpreting paragraph J is to ascertain the Legislature's intent, and "generally[] the best indicator of that intent is the statutory language." DiProspero v. Penn, 183 N.J. 477, 492 (2005). When interpreting a statute, we give words "'their ordinary meaning and significance.'" Tumpson v. Farina, 218 N.J. 450, 467 (2014) (quoting DiProspero, supra, 183 N.J. at 492). "[I]f there is ambiguity in the statutory language that leads to more than one plausible interpretation, we may turn to extrinsic evidence, including legislative history, committee reports, and contemporaneous construction." DiProspero, supra, 183 N.J. at 492-93 (citation and internal quotation marks omitted).

The plain reading of "1 or both" would suggest that it means one or both parents. However, courts in other jurisdictions have found this phrase to be ambiguous. See, e.g., In re Israel O., 233 Cal. App. 4th 279, 288 (2015) (finding that paragraph J "is susceptible to more than one reasonable interpretation"); State v. Erick M., 820 N.W.2d 639, 644 (Neb. 2012) (finding that the phrase "1 or both" can be read as both requiring "only that reunification with one parent is not feasible" and "depending on the circumstances, [to mean] either reunification with one parent is not feasible or reunification with both parents is not feasible").

We read "1 or both" to mean that depending on the facts presented, a juvenile may satisfy paragraph J by showing that reunification with one parent is not viable, whereas a juvenile with different circumstances may be required to show that reunification with both parents is not viable. That is to say, our holding in H.S.P. should still apply in cases where both parents reside in the juvenile's home country

We understand the "1 or both" phrase to require that reunification with neither parent is viable because of abuse, neglect, or abandonment of the juvenile. In other words, the statute is not satisfied where reunification with one or both parents is viable. We hold that it is insufficient that reunification with one parent is not viable due to abuse, neglect, or abandonment, if the juvenile has another "safe" parent who has not abused, neglected or abandoned the juvenile. If that parent is deceased or unable to protect the child against abuse or neglect by the unsafe parent, then reunification with one or both of the juvenile's parents is not viable due to abuse, neglect, or abandonment.

 
[H.S.P., supra, 435 N.J. Super. at 166.]

In other words, cases like H.S.P. trigger the "or both" portion of the phrase while cases like here, where the "safe" parent resides in the United States, trigger the requirement to simply show that reunification with the parent abroad is not viable.

The legislative history of paragraph J and the INA, which we examined in H.S.P., supports this approach. Id. at 169 (finding that "Congress wanted to permit use of the SIJ procedure when necessary to prevent the return of juveniles to unsafe parents" but also "to prevent misuse of the SIJ statute for immigration advantage"). Our approach here will not enable "misuse of the statute" for "immigration advantages," which was a concern in H.S.P. Id. at 169-70.

As a practical matter, it is the Secretary of Homeland Security that makes the final determination of SIJ status. See 8 U.S.C.A. 1101(a)(27)(J)(iii). Broadly requiring a finding that reunification with both parents not be feasible, as the judge did here, "completely forecloses the ability of [the federal government] to make that determination." Eddie E. v. Superior Ct., 234 Cal. App. 4th 319, 332 (2015).

Therefore, we do not disturb the judge's factual findings, but disagree with the judge's conclusion that J.R.M. was not entitled to the finding that reunification with one or both parents is not viable because under these facts, J.R.M. need only show that reunification with the father is not feasible.

Reversed and remanded for further proceedings consistent with this opinion. We direct the judge on remand to address the requisite finding of whether it is in J.R.M.'s best interest to return to Honduras. We do not retain jurisdiction.

1 The record does not indicate the mother's immigration status.

2 The father has not participated at any stage of the proceedings.