D.A.J. v. S.A.J. et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3154-06T13154-06T1

D.A.J.,

Plaintiff-Appellant,

v.

S.A.J. and P.C.T.,

Defendant-Respondent,

__________________________

IN THE MATTER OF F.C.A.,

a minor.

__________________________

 

Submitted November 26, 2007 - Decided

Before Judges Weissbard and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FD-02-176-07.

Rutgers Child Advocacy Center, attorney for appellant (Randi Mandelbaum, on the brief; Appearance by Alyssa Speglish, immigration attorney).

Respondent did not file a brief.

PER CURIAM

Plaintiff D.A.J. appeals from an order of the Family Part denying his complaint for custody of F.C.A., his seventeen year old nephew. We reverse and remand for a plenary hearing.

According to an affidavit submitted by F.C.A., he was born on June 13, 1989, in San Martin Jilotepeque, Guatemala. For approximately sixteen years, F.C.A. lived with his mother, S.A.J., and two siblings in Guatemala. F.C.A's father, P.C.T., left the family when F.C.A. was four years old and has failed to retain contact. His whereabouts remain unknown.

At age fourteen, F.C.A. was forced to drop out of school in order to support his family. F.C.A. found a job as an agricultural worker, working approximately twelve hours per day. During this time, F.C.A. claims that gang members began to pressure him into joining their gang, using threats of physical violence. Fearing for his life, F.C.A. fled to the United States at the age of sixteen. F.C.A. certifies that he "had no plan of what to do upon my arrival or with whom [he] would stay." F.C.A. certified that his "mother did not make plans for [his] care upon [his] arrival to the United States."

On March 28, 2006, F.C.A., who was by himself, crossed the Mexico-United States border and entered Texas. He was quickly captured by Customs and taken into custody. Apparently, he was detained by Customs for about a week and a half and then transferred to a shelter run by the Office of Refugee Resettlement (ORR).

On May 17, 2006, the ORR placed F.C.A. with D.A.J., F.C.A.'s maternal uncle who was living in Palisades Park, New Jersey. D.A.J. has been taking care of F.C.A. ever since. D.A.J. is employed and able to care for F.C.A.

On November 30, 2006, D.A.J. filed his complaint seeking custody of F.C.A., "pursuant to N.J.S.A. 9:2-9 and 10." In addition, D.A.J. asked the court to "make additional determinations, so that [F.C.A.] may apply for Special Immigrant Juvenile Status." On January 3, 2007, D.A.J.'s attorney mailed the complaint to S.A.J. and moved for waiver of service on P.C.T. S.A.J. never responded to the service. Simultaneous to the filing of his complaint, D.A.J. moved for custody.

On January 19, 2007, the motions were heard in Family Part. The judge focused on the issue of F.C.A.'s entry into the U.S, seeing it as relevant to the issue of abandonment. Indeed, that subject would ultimately dominate the entire proceeding:

THE COURT: He came alone. Well who sent him?

. . . .

THE COURT: Yeah, but somebody had to send him across the border.

. . . .

THE COURT: . . . The allegations as to how he came here, how the details as to how he came here were somewhat vague [in the certifications]. Now, I know the customary situation is that you pay somebody to get them across the border, 5,000, 7,000 whatever it is.

. . . .

THE COURT: I don't have any details as to how he came into this country. He doesn't reveal details.

PLAINTIFF'S COUNSEL: . . . He did not give us the exact details of how he got here, but he did get here.

. . . .

THE COURT: Chances are, somebody paid another person to get him across the Country -- across the border and into this country

. . . .

THE COURT: [I]f that's the case, how is he an abandoned child?

. . . .

THE COURT: Well, the point is that he came across the border illegally. Somebody transported him, arranged to get him across the border. He comes to live with his uncle here. His uncle is providing housing. He goes to school, and he's safe. He's not on the streets.

. . . .

THE COURT: There's no proof as to how he came to the Country, and who if anybody paid to get him into this country. Chances are, his family paid to transport him to this country, that's usually what happens. That's a pattern in these cases.

. . . .

PLAINTIFF'S COUNSEL: There's no evidence that his parents did pay, but the fact is -

THE COURT: But you haven't revealed it.

. . . .

THE COURT: You haven't revealed how he got to this Country.

. . . .

THE COURT: She probably sent him here. She made arrangements to get him into this Country and have him go live with his uncle, that's probably what happened here.

. . . .

THE COURT: This is a pattern of one of a number of cases throughout New Jersey. Almost every county has these cases. Every one is the same. The child is sent across the border by his parents. They place him with a relative in New Jersey. This is not an abandoned child.

Notably, no testimony was taken. Relying heavily on his determination that F.C.A. was not abandoned, the trial judge found that the application was "grossly deficient" and denied it. The court went on to find that it did not have jurisdiction to make the findings pertaining to Special Immigrant Juvenile Status because F.C.N. was not a neglected or abandoned child.

On appeal, D.A.J. presents the following issues:

POINT I: THE TRIAL COURT'S DECISION IS MANIFESTLY UNJUST AND SHOULD BE REVERSED BECAUSE THE TRIAL JUDGE REFUSED TO TAKE TESTIMONY FROM EITHER THE APPELLANT OR F.C.A., MADE FACTUAL AND LEGAL CONCLUSIONS UNSUPPORTED BY THE RECORD, APPLIED THE INCORRECT LEGAL STANDARD, AND DEMONSTRATED AN ADVERSE DISPOSITION TOWARDS THE APPELLANT.

POINT II: SUBSTANTIAL EVIDENCE EXISTS IN THE RECORD TO GRANT THE APPELLANT'S APPLICATION FOR CUSTODY ON BEHALF OF HIS NEPHEW PURSUANT TO N.J.S.A. 9:2-9 AND 9:6-1.

POINT III: THE TRIAL COURT JUDGE ERRED BY FAILING TO EXERCISE JURISDICTION PURSUANT TO 8 U.S.C. 1 101 AND 8 C.F.R. 204.11.

POINT IV: THE COURT SHOULD VACATE THE DECISION OF THE TRIAL COURT AND REMAND THE MATTER TO A DIFFERENT TRIAL COURT JUDGE BECAUSE [THE JUDGE] FAILED TO RECUSE HIMSELF ON ACCOUNT OF BIAS AND DENIED THE APPELLANT A FAIR AND UNBIASED HEARING.

POINT V: SERVICE ON F.C.A.'S MOTHER WAS PROPER AND THE TRIAL COURT FAILED TO RULE ON APPELLANT'S MOTION TO WAIVE SERVICE ON F.C.A.'S FATHER WHOSE WHEREABOUTS HAVE BEEN UNKNOWN FOR THE PAST THIRTEEN YEARS.

We find merit in Point I requiring reversal and remand for further proceedings.

At the outset of the January 19 hearing, counsel informed the judge that F.C.A. was outside the courtroom and available for testimony if the judge deemed it necessary. The judge determined that F.C.A. should remain "outside in the meantime." Ultimately, the judge denied the application for custody without hearing from F.C.A. In support of his oral ruling, the judge filed a six-page written opinion.

We agree with D.A.J. that given the tenor of the judge's concerns as to how F.C.A. came into the country, and the judge's suppositions in that regard, quoted above, F.C.A. should have been summoned to testify. His testimony would have served to confirm or refute the judge's personal and wholly inappropriate observations concerning how F.C.A. came to enter the United States. We recognize that D.A.J. never made a specific request for F.C.A. to testify. Nevertheless, the need for the testimony should have been obvious to the judge, sua sponte.

Accordingly, we reverse and remand for a full plenary hearing. We express no views on the merits of D.A.J.'s complaint. Regrettably, because the judge expressed his personal opinions concerning the merits, and concerning matters outside the record, we direct that the matter be heard by a different judge on remand. See P.T. v. M.S., 325 N.J. Super. 193, 220-21 (App. Div. 1999).

 
Reversed and remanded.

This is not directly supported in the record; it only appears in D.A.J.'s appellate brief.

N.J.S.A. 9:2-9 reads in pertinent part:

When the parents of any minor child or the parent or other person having the actual care and custody of any minor child are grossly immoral or unfit to be intrusted with the care . . . of such child, . . . it shall be lawful for any person interested in the welfare of such child to institute an action in the Superior court, Chancery Division, Family Part, in the country where such minor child is residing, for the purpose of having the child brought before the court, and for the further relief provided by this chapter.

(continued)

(continued)

8

A-3154-06T1

RECORD IMPOUNDED

December 31, 2007