A.E.C, v. P.S.C.

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APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1290-16T4

A.E.C.,

Plaintiff-Appellant, APPROVED FOR PUBLICATION

January 17, 2018
v.
APPELLATE DIVISION
P.S.C.,

Defendant-Respondent.
______________________________

IN THE MATTER OF
J.S.E.
______________________________

Submitted November 28, 2017 – Decided January 17, 2018

Before Judges Reisner, Hoffman and Gilson.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Mercer
County, Docket No. FD-11-0394-17.

Natalia Teper, attorney for appellant.

Respondent has not filed a brief.

The opinion of the court was delivered by

REISNER, P.J.A.D.

In O.Y.C.P. v. J.C.P.,
442 N.J. Super. 635 (App. Div.

2015), we addressed the Family Part's jurisdiction over persons

between the ages of eighteen and twenty-one who apply to the

Family Part for predicate findings in special immigrant juvenile
(SIJ) cases. In this case, we consider the Family Part's

jurisdiction to grant an application for child custody, made in

connection with an SIJ-related application. In the factual

circumstances presented here, we hold that, pursuant to
N.J.S.A.

9:17B-3, the Family Part has jurisdiction to grant a parent

custody of an unemancipated child who is over eighteen, but

under twenty-one, and to issue a declaratory ruling that the

child is dependent on the parent and is not emancipated.

As context, we briefly review the pertinent immigration

legislation as it relates to this case. Plaintiff A.E.C. (Ana)1

filed a complaint in the Family Part as a predicate to obtaining

SIJ status for her son J.S.E., pursuant to 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 (2008). The SIJ application is a

two-step process, requiring participation by the state courts

and the United States Citizenship and Immigration Services

(USCIS). H.S.P. v. J.K.,
223 N.J. 196, 209-11 (2015).

First, the child, or an individual acting on the child's

behalf, must "petition for an order from a state juvenile court

1
We use pseudonyms and initials to protect the parties'
privacy.

2 A-1290-16T4
making findings that the juvenile satisfies certain criteria."

Id. at 210 (citation omitted). Pursuant to 8 U.S.C. §

1101(a)(27)(J) and 8 C.F.R. § 204.11(c), the Family Part must

make findings on the following factors:

(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. § 1101(a)(27)(J)(ii); 8
C.F.R. § 204.11(a), (d)(2)(iii) [amended by
TVPRA 2008].

[H.S.P.,
223 N.J. at 210 (quoting In re Dany
G.,
117 A.3d 650, 655-56 (Md. Ct. Spec. App.
2015)).]

Once the state family court makes the necessary preliminary

findings, the "juvenile can submit his or her application for

SIJ status to USCIS in the form of an I-360 petition. If USCIS

3 A-1290-16T4
approves the juvenile's I-360, he or she will be granted SIJ

status." Ibid.

In H.S.P., the Court made clear that the Family Part does

not decide the applicant's SIJ status. Id. at 211-12. Rather,

in handling SIJ-related applications, 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. "This approach will provide USCIS with sufficient

information to enable it to determine whether SIJ status should

be granted or denied . . . ." Id. at 201.

J.S.E. was born in March 1997 in Guatemala, where he

initially resided with his mother, Ana, and his father, Pascual.

However, Pascual was physically and emotionally abusive to Ana,

and when J.S.E. was still a baby, Pascual threw Ana and J.S.E

out of the house. J.S.E. did not see his father again until

years later, when they met once. At that point, the father was

mentally ill and confined to a room in his parents' house. The

father died in 2009.

After the father ejected them from their home, Ana and the

baby moved in with her Aunt Catarina. However, Ana struggled to

4 A-1290-16T4
make ends meet, and moved to the United States when J.S.E. was

about five years old. Ana left the child in the care of her

friend Anacleta. For years, she sent Anacleta money for the

child's support. However, when J.S.E. was nine years old, Ana

received an anonymous letter warning her that J.S.E. was walking

around alone, hungry, and in dirty clothes. Ana learned that

Anacleta was physically abusing the child, depriving him of

food, and spending the support money on herself.

Ana then arranged for J.S.E. to live with her aunt.

However, when J.S.E. was about seventeen years old, the aunt

made it clear that she could no longer care for him and believed

he should move to the United States to live with his mother.

Because there was no one to provide for J.S.E. in Guatemala, he

fled to the United States. At the time of the SIJ application,

J.S.E. was attending a special school and going to counseling

for his emotional trauma.

In September 2016, Ana filed a verified complaint in the

Family Part, under 8 U.S.C. § 1101(a)(27)(J) and 8 C.F.R. §

204.11(c), seeking the findings required for SIJ status. She

also specifically sought sole legal and physical custody of her

son, who was "a full time student still dependent on his mother

for his emotional, financial, educational, and safety needs."

The complaint asserted that there was no one else "willing and

5 A-1290-16T4
able" to care for him. Ana further sought a ruling that the

Family Part had jurisdiction over J.S.E. and that he was "not

emancipated."

After hearing testimony from J.S.E. and his mother, the

Family Part judge found that, due to "the abuse he suffered at a

young age, [J.S.E.] did not acquire the skills necessary to

provide for himself. [Ana] is the only suitable caregiver who

can help him transition to adulthood. . . . It is clearly in the

best interest of [J.S.E.] to remain in the custody of his

mother." However, the judge declined to grant custody,

reasoning that the Family Part did not have jurisdiction to

enter an order placing J.S.E. in his mother's custody, because

he was over the age of eighteen. The judge also did not

specifically issue a declaration that J.S.E. was not

emancipated, although the judge's factual findings made clear

that was the case. Based on his view that the court lacked

jurisdiction due to J.S.E.'s age, he determined that J.S.E. was

neither dependent on the court nor under the custody of an

agency or individual appointed by the court. See 8 U.S.C. §

1101(a)(27)(J).

III

On this appeal, we review the trial court's legal

conclusions de novo. H.S.P.,
223 N.J. at 215. As previously

6 A-1290-16T4
discussed, in H.S.P, the Supreme Court explained that the Family

Part's role in an SIJ application is not to adjudicate a

juvenile2 applicant's immigration status, but to make the

predicate findings needed so that the federal government can

adjudicate the juvenile's SIJ application. Id. at 200-01. In

O.Y.C.P, we held that the Family Part is obligated to make SIJ

findings in cases where a child is between the ages of eighteen

and twenty-one. O.Y.C.P.,
442 N.J. Super. at 641. We reasoned,

in part, that "it would defeat the purpose of the hybrid

federal-state scheme Congress created if state family courts

decline to hear these cases solely because a juvenile is over

the age of eighteen, so long as the juvenile is still under the

age of twenty-one." Id. at 640.

In O.Y.C.P., we held it was error for the Family Part to

reject O.Y.C.P.'s application on the grounds that the Family

Part's jurisdiction ends when a child turns eighteen. See id.

at 641. We also observed that this State's statutory scheme

gives the Family Part jurisdiction over children older than

eighteen in certain circumstances. Id. at 642. In particular,

we noted language in the age of majority statute, N.J.S.A.

2
Because the federal statute accords "special immigrant
juvenile" status to persons up to the age of twenty-one, we use
the terms "juvenile" or "child" to refer to these applicants,
including J.S.E.

7 A-1290-16T4
9:17B-3, which preserves "the right of a court to take any

action it deems appropriate and in the interest of a person

under 21 years of age." Id. at 643.

This language was part of the Age of Majority Act (Act)

when it was first adopted. See L. 1972, c. 81. The Act,

changing the age of majority from twenty-one to eighteen, was

enacted in 1972. See L. 1972, c. 81. The Act has been amended

several times since its adoption, but the language authorizing

the court to "take any action it deems appropriate and in the

interest of a person under 21 years of age" has remained

unchanged. See L. 1972, c. 206; L. 1987, c. 18; L. 2013, c.

103.3

Several months after its adoption, the Act was amended to

permit the provision of "services pursuant to the laws relating

to dependent and neglected children [under Title 30] to persons

between 18 and 21 years of age who seek to avail themselves of

such services and who are enrolled in a school or training

program below college level or who require a course of treatment

for emotionally, cognitively or physically disabled persons."

L. 1972, c. 206. As previously noted, this amendment did not

3 The 1987 amendment concerned the Uniform Gifts to Minors Act.
The 2013 amendment was part of an omnibus act to remove from
State statutes pejorative terms pertaining to persons with
disabilities and made other changes not relevant to this appeal.

8 A-1290-16T4
eliminate or modify the existing language giving the court

general power to take appropriate action in the interest of a

person under twenty-one. See L. 1972, c. 206. Instead, the

legislative history explained that the amendment was intended to

expand the power of the state agency then charged with child

welfare.

The Sponsor's Statement to the bill explained its

humanitarian and fiscal purposes:

This bill will permit the Department of
Institutions and Agencies to continue
supervision and maintenance of persons
between 18 and 21 who are enrolled in a
school or training program below college
level or who require treatment for
emotionally, cognitively or physically
disabled persons.

These young adults are in foster care
placement or institutions as the result of
neglect, abuse or family deterioration.
Because of these misfortunes, they are
generally at least 1 year behind the general
population in scholastic achievement.

Completion of their high school
education and vocational and job training is
necessary to enable them to become self-
sufficient.

[Sponsor's Statement to Assembly Bill No.
1545, at 2 (Nov. 20, 1972) (L. 1972, c.
206).]

The Statement also explained that the amendment would

permit children who are "seriously disabled" to participate in

federally funded programs, instead of relying on "other State

9 A-1290-16T4
programs which are entirely State financed." Sponsor's

Statement to Assembly Bill No. 1545, at 2-3 (Nov. 20, 1972) (L.

1972, c. 206). Nothing in the language or purpose of this

amendment suggests a legislative intent to narrow the power of

the Family Part "to take any action it deems appropriate and in

the interest of a person under 21 years of age . . . ."

N.J.S.A. 9:17B-3.

That provision of
N.J.S.A. 9:17B-3, preserving the court's

authority to act in the interest of persons under age twenty-

one, has generally been viewed as an expression of the

Legislature's intent to protect young adults, and has been

invoked to provide benefits to older juveniles where the literal

terms of other statutes might not protect them. In State in

Interest of G.T.,
143 N.J. Super. 73 (App. Div. 1976), aff'd

o.b.,
75 N.J. 378 (1978), we found that this provision

"demonstrates the intention to continue a court's discretion in

protecting the interests of persons under 21." Id. at 79.

Relying in part on this section of the Act, we construed the

term "age of majority" in the juvenile waiver statute as twenty-

one4 rather than eighteen. Id. at 76-79. We declined to rely on

4
The pertinent provision required the court to determine
whether there were "no reasonable prospects for rehabilitation
of the juvenile prior to his attaining the age of majority
. . . ." Id. at 75 (quoting
N.J.S.A. 2A:4-48).

10 A-1290-16T4
the literal terms of the juvenile justice code, which defined

"adult" as a person over the age of eighteen. Id. at 76.

Similarly, in Matter of K.F.,
313 N.J. Super. 319 (App.

Div. 1998), we relied in part on the statutory language in

holding that the Family Part had discretion to place an

adjudicated juvenile, who had violated the terms of his

probation, in the custody of the Division of Youth and Family

Services (DYFS),5 even if the juvenile was then over eighteen.

Id. at 321, 324. DYFS argued that its mandate was "to serve

children" and Title 30 defined "child" as a "person under the

age of 18 years." Id. at 323. However, we reasoned that the

pertinent provision of N.J.S.A. 9:17B-3 "demonstrates the

Legislature's intention to continue the Family Part's

jurisdiction in protecting the interests of persons under

twenty-one." Id. at 324. Considering that "the Legislature

[did] not amend[] the Code [of Juvenile Justice] to provide that

DYFS placement . . . [was] limited to persons under eighteen,"

we "[did] not find any support for DYFS's position that the

Family Part cannot impose the authorized disposition of DYFS

placement upon an individual who is between the ages of eighteen

and twenty-one." Id. at 324.

5
DYFS is now known as the Division of Child Protection and
Permanency.

11 A-1290-16T4
We acknowledge that, more recently, the Supreme Court

distinguished K.F., but we do not regard that decision as

requiring a different result here. In State ex rel. J.S.,
202 N.J. 465 (2010), the Court held that the juvenile court could

not order the Department of Children and Families (DCF) and its

subsidiary division, DYFS, to pay for sex offender treatment for

a sex offender who had never before received services from DYFS

and was over the age of twenty-one when he was first adjudicated

delinquent.
6 Id. at 468, 481. The Court held that doing so was

contrary to the agency's enabling statute and would divert its

scarce financial resources in a manner contrary to the

Legislature's intent. Id. at 483-84. The Court distinguished

K.F., because J.S. was over the age of twenty-one, and because

recent legislation had limited the jurisdiction of DCF to focus

"exclusively on children." Id. at 483. Neither party

apparently relied on
N.J.S.A. 9:17B-3, and the Court did not

refer to that statute. But we infer from the decision that

N.J.S.A. 9:17B-3 cannot be construed as overriding specific

contrary provisions of another statute, and particularly

6
The sexual offenses occurred when J.S. was in his early to
mid-teens, but they apparently were not reported until years
later. J.S.,
202 N.J. at 468. Hence, he was prosecuted as a
juvenile.

12 A-1290-16T4
provisions indicating the Legislature's intent to limit an

agency's services to only persons under eighteen.

In this case, there are no State fiscal considerations

similar to those in J.S., and there is no statute that

specifically prohibits the Family Part from granting a parent

custody of a dependent child over the age of eighteen. Indeed,

the idea that child custody necessarily ends, or is barred, when

a child turns eighteen, is belied by the case law concerning

emancipation. These related concepts were addressed in the

seminal case of Newburgh v. Arrigo,
88 N.J. 529 (1982), which

held that in appropriate circumstances, parents must contribute

to the college expenses of a child over age eighteen. Id. at

543.

In general, emancipation is the act by which
a parent relinquishes the right to custody
and is relieved of the duty to support a
child. Emancipation can occur upon the
child's marriage, induction into military
service, by court order based on the child's
best interests, or by attainment of an
appropriate age. Although emancipation need
not occur at any particular age, a
rebuttable presumption against emancipation
exists prior to attaining the age of
majority, now 18. See
N.J.S.A. 9:17B-3.
Attainment of age 18 establishes prima
facie, but not conclusive, proof of
emancipation. Whether a child is emancipated
at age 18, with the correlative termination
of the right to parental support, depends
upon the facts of each case.

[Id. at 543-44 (citations omitted).]

13 A-1290-16T4
There is ample precedent for declaring children over the

age of eighteen to be unemancipated when they are still

completing their education, are economically dependent on their

parents, and remain within the parental "sphere of influence and

responsibility." Filippone v. Lee,
304 N.J. Super. 301, 308

(App. Div. 1997) (quoting Bishop v. Bishop,
287 N.J. Super. 593,

598 (Ch. Div. 1995)); see also N.J.S.A. 2A:34-23(a)

(incorporating several of the Newburgh factors in the child

support statute); Kiken v. Kiken,
149 N.J. 441, 449-50 (1997).

In the circumstances of this case, J.S.E., who has not even

completed high school and is financially dependent on his

mother, fits the definition of an unemancipated child.

Declaring J.S.E. unemancipated, to protect his continued right

to support, and granting Ana custody of him would further the

benevolent purpose of
N.J.S.A. 9:17B-3 to protect young adults.

We therefore hold that
N.J.S.A. 9:17B-3 confers

jurisdiction on the Family Part, in an appropriate case, to

place a non-emancipated child between the ages of eighteen and

twenty-one in a parent's custody, and to declare the child

unemancipated, where that disposition is in the child's best

interest and both the child and the parent consent. We also

hold that it was error for the Family Part to deny that relief

here, where J.S.E. is clearly not emancipated, still attends a

14 A-1290-16T4
special "last-chance" high school, cannot provide for himself

economically, has no one else on whom he can depend for

financial support, and would face dire circumstances if he were

separated from his mother or if she did not financially support

him.

Lastly, to address the related SIJ issue, we conclude that

either a declaration of unemancipation or a custody order would

justify the court in noting, for purposes of an SIJ finding,

that the child is "dependent" on the court. See 8 C.F.R. §

204.11(c). A finding of dependency dovetails with the

underlying purpose of the pertinent language in
N.J.S.A. 9:17B-

3, which recognizes that in appropriate situations, young adults

still depend on the protection of the Family Part. See Recinos

v. Escobar,
46 N.E.3d 60, 67-68 (Mass. 2016) (noting that the

SIJ statute "does not limit the dependency requirement to a
7
custody determination.").

Having determined that the Family Part erred, we next

consider the appropriate remedy. After hearing Ana's and

J.S.E.'s credible testimony, the Family Part judge made specific

factual findings concerning J.S.E.'s best interests, and the

7
In light of our decision, we need not address plaintiff's
additional appellate issues.

15 A-1290-16T4
evidentiary record strongly supports his findings. See Cesare

v. Cesare,
154 N.J. 394, 412-13 (1998). Based on those findings,

which include the judge's conclusion that "[i]t is clearly in

the best interest of [J.S.E.] to remain in the custody of his

mother," the correct outcome is not in doubt. In view of the

time sensitive nature of this case, we exercise our original

jurisdiction to determine that J.S.E. shall be declared

unemancipated and shall be placed in his mother's custody

pursuant to
N.J.S.A. 9:17B-3.8 We remand this case to the Family

Part, for the limited purpose of issuing an amended order so

providing, and finding that J.S.E. is dependent on the court for

SIJ purposes.

We also note the need for an additional correction to the

order, perhaps caused by an inadvertent error. Paragraph three

of the Family Part's order marked as "denied" a proposed finding

that "[t]he 'juvenile court' has jurisdiction under state law to

make judicial determinations about the custody and care of

juveniles." That question addresses the Family Part's general

jurisdiction, not its specific jurisdiction to grant relief in

this case. See H.S.P.,
223 N.J. at 210; 8 C.F.R. § 204.11(a)

("Juvenile court means a court located in the United States

8
In future cases, where the juvenile may turn twenty-one while
the appeal is pending, counsel should file a motion to
accelerate the appeal.

16 A-1290-16T4
having jurisdiction under State law to make judicial

determinations about the custody and care of juveniles."). For

purposes of an SIJ application filed in the Family Part, the

answer to that general question should always be "yes" or

"granted," depending on how the order is structured. On remand,

that error must also be corrected in the amended order.

The Family Part shall issue an amended order within ten

days of the date of this opinion.

Reversed and remanded. We do not retain jurisdiction.

17 A-1290-16T4

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