M.J.L.G. v. G.R.

RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0577-16T1

M.J.L.G.,

        Plaintiff-Appellant,
v.

G.R.,

        Defendant-Respondent.


IN THE MATTER OF O.N.R.L.,

        Minor.


              Submitted November 8, 2017 – Decided November 27, 2017

              Before Judges Carroll and Leone.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Morris County,
              Docket No. FD-14-0554-16.

              Rutgers Child Advocacy Clinic and Kids in Need
              of Defense, attorneys for appellant (Randi
              Mandelbaum and Gilda Holguin, on the brief).

              Respondent has not filed a brief.

PER CURIAM

        Plaintiff M.J.L.G. appeals a portion of the Family Part's

July 28, 2016 order in this matter involving a minor from Honduras
who now resides with plaintiff in New Jersey, and a September 15,

2016 order denying plaintiff's motion for reconsideration.                 In

particular, plaintiff argues that the court erroneously failed to

find that her son's reunification with his biological father was

not viable due to abandonment and neglect, pursuant to the federal

criteria for special immigrant juvenile (SIJ) status set forth in

8 U.S.C.A. § 1101(a)(27)(J) and 8 C.F.R. § 204.11(c).           The court

ruled it could not make this finding because it lacked personal

jurisdiction over the father.         For the reasons that follow, we

reverse the court's determination that it lacked jurisdiction to

decide this discrete issue, and remand this matter to the trial

court to make the required finding.

     The legal context of this non-contested case is governed by

the aforesaid federal provisions concerning SIJ status.                Those

provisions were recently explained in depth in H.S.P. v. J.K., 
223 N.J. 196, 208-11 (2015).        As H.S.P. notes, Congress amended the

Immigration   Act   of   1990   by   adopting   the   Trafficking   Victims

Protection Reauthorization Act of 2008 (TVPRA), Pub. L. No. 110-

457, 
122 Stat. 5044.      The TVPRA allows an undocumented juvenile

who is present in the United States to receive SIJ status if

          (i) [he] has been declared dependent on a
          juvenile court located in the United States
          or . . . such a court has legally . . . placed
          [him] under the custody of, an agency or
          department of a State, or an individual or

                                      2                             A-0577-16T1
             entity appointed by a State or juvenile court
             located in the United States, and [his]
             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) [a juvenile court      determined] 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) . . . the Secretary of Homeland Security
             consents to the grant of special immigrant
             juvenile status[.]

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

       The   Immigration    Act's   implementing   regulations   further

clarify an undocumented youth's eligibility for SIJ status.               8

C.F.R. § 204.11(c).        As interpreted by the Court in H.S.P., the

five eligibility requirements1 under the Act and the regulations

are:

             (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

1
  Although the regulations had previously contained additional
requirements, including that the juvenile "has been deemed
eligible by the juvenile court for long-term foster care," 8 C.F.R.
§   204.11(c)(4),   the   2008  TVPRA   amendments   removed   this
requirement. H.S.P., supra, 
223 N.J. at 209.


                                     3                           A-0577-16T1
          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.A. § 1101(a)(27)(J)(ii); 8 C.F.R. §
          204.11(a), (d)(2)(iii)[.]

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

     Our Supreme Court delineated in H.S.P. the Family Part's

limited role in this federal-state arrangement.        Id. at 210-15.

Significantly, state family courts do not "render[] an immigration

determination."    Id. at 210 (quoting In re Marcelina M.-G. v.

Israel S., 
973 N.Y.S.2d 714, 721 (N.Y. App. Div. 2013)).     Rather,

a state court's order in an SIJ status case serves "merely [as] a

prerequisite that must be fulfilled before a juvenile can submit

his or her application for SIJ status to [United States Citizenship

and Immigration Services ('USCIS')]."      Ibid.   It is only "[a]fter

obtaining SIJ status [that] a child is permitted to apply for

adjustment of status under 8 U.S.C.A. § 1255, in an effort to

obtain   legal    permanent   residency,    and,    eventually,   U.S.

citizenship."    Id. at 210-11.


                                  4                           A-0577-16T1
      The Court in H.S.P. emphasized that the Family Part's findings

under this statutory and regulatory scheme must "only relate to

matters of child welfare[.]"           Id. at 212.    Further, in making such

predicate findings, the Family Part must apply the particular

child welfare laws of New Jersey, "and not that of a foreign

nation."    Id. at 212-13.

      H.S.P. also instructs that "Family Part courts faced with a

request for a SIJ predicate order should make factual findings

with regard to each of the requirements listed in 8 C.F.R. §

204.11."    Id. at 201 (emphasis added).               Additionally, "[w]hen

analyzing whether reunification with '1 or both' parents is not

viable due to abuse, neglect, or abandonment, the Family Part

shall make separate findings as to each parent[.]" Ibid. (emphasis

added).     Ultimately,        the   federal    government,   through     USCIS,

determines whether a youth qualifies for SIJ status or, eventually,

citizenship.      Accordingly, the state court's limited designated

role is to "make factual findings based on state law about the

[criteria      of]     abuse,        neglect,    or    abandonment,      family

reunification, and best interests of the child."               Id. at 214-15

(quoting Immigration Relief for Abused Children, U.S. Citizenship

&   Immigration      Servs.,    2    (2014),    https://www.uscis.gov/sites/

default/files/USCIS/Green%20Card/Green%20Card%20Through%20a%20Jo

b/Immigration_Relief_for_Abused_Children-FINAL.pdf).

                                         5                              A-0577-16T1
     Here, plaintiff filed a verified complaint along with a motion

seeking sole legal custody of her son, O.N.R.L. (Omar).2 Plaintiff

also requested the court to make the findings necessary to allow

Omar to apply for SIJ status.          Defendant G.R. was served in

Honduras with the complaint, motion and supporting papers, and

signed an affidavit of service acknowledging receipt of those

documents.    Defendant did not answer or otherwise appear in the

action.

     The trial court conducted a hearing at which plaintiff and

Omar testified.    According to their testimony, Omar was born in

February 2000, and was sixteen years old at the time of the

hearing.     Plaintiff and defendant were never married, but lived

together in Honduras.    After plaintiff became pregnant, defendant

began drinking excessively, and physically and verbally abused

plaintiff.     Because defendant was heavily intoxicated, hospital

staff did not allow him to visit Omar when he was born.     Defendant

did not contribute to plaintiff's medical expenses related to

Omar's birth.

     Defendant continued to drink excessively after Omar was born.

Plaintiff testified defendant sexually assaulted her, resulting

in the birth of a second child.       Eventually, plaintiff separated


2
 For privacy reasons, we use a fictitious name for the minor child
and initials for the parties involved in this case.

                                  6                          A-0577-16T1
from defendant when Omar was two years old.             Since then, defendant

only   had   contact   with    Omar   on   a   single   occasion,   and   never

contributed to the children's emotional or financial support.

       Plaintiff left the children in the care of her mother in

Honduras and came to the United States in 2009.             She explained her

reason was "[s]o I could help my children get ahead in life because

I didn't like the money I was making in Honduras and my mother was

sick."   Omar arrived in New Jersey in August 2015, and has resided

with   plaintiff   and   her    brother    since   that    time.    Plaintiff

elaborated that Omar could no longer attend school in Honduras

because it was not a "good environment" and "there were many

children who were smoking drugs."

       In his testimony, Omar indicated he could not recall what his

father looked like, and that he only spoke with his father once

on the phone.      He stated it was plaintiff who provided him with

necessities such as food, clothing, and emotional support.                 Omar

confirmed "there was a lot of crime and gangs" where he lived in

Honduras and he did not feel safe there.                Consequently, he came

to the United States to be reunited with his mother, and he

presently attends high school here.

       After considering this unopposed application, the trial court

granted plaintiff sole legal and physical custody of Omar "so that

she may continue to care [for] and protect [him]."                  The court

                                       7                              A-0577-16T1
further provided that it "ha[d] exclusive, continuing jurisdiction

over any custody determinations concerning [Omar]."

      The court also found that plaintiff established eligibility

requirements one, . . . as set forth in H.S.P., supra, 
223 N.J.

at 210.    Specifically, the court found Omar was under the age of

21   and   unmarried;   dependent   on    the   court   because    it    had    to

determine an appropriate custodian for Omar; the court had subject

matter jurisdiction to make a judicial determination about his

care and custody; and that it was not in Omar's best interest to

be returned to Honduras since he "ha[d] no responsible adult there

who can care for him and keep him safe."

      However, with respect to the fourth factor, the court declined

"to make a finding that [Omar's] father has abandoned him because

I don't have personal jurisdiction over [] defendant."              The judge

elaborated: "[D]efendant, while he was served, is not an American

citizen.    He's never set foot in the United States.             He has no []

contact with the United States, and I would have no jurisdiction

over him, particularly with respect to severing his custody."                   In

denying    plaintiff's    motion    for    reconsideration,        the     court

reiterated that it lacked personal jurisdiction over defendant

because he had never been in the United States and he lacked the

requisite minimum contacts with New Jersey.



                                     8                                  A-0577-16T1
      We conclude the trial court incorrectly ruled it could not

make a finding whether reunification with defendant was viable due

to abandonment or neglect because it lacked personal jurisdiction

over defendant.        The court failed to consider the applicability

of the Uniform Child Custody Jurisdiction and Enforcement Act

(UCCJEA),    
N.J.S.A.     2A:34-53    to     -95,   which    is    the     exclusive

jurisdictional     basis     for     child    custody       determinations        and

establishes    procedures      for    determining       which      court    is    the

appropriate forum when a child has ties to both New Jersey and

another state or country.          Importantly, the UCCJEA specifically

provides    that   the       "[p]hysical      presence       of,    or     personal

jurisdiction over, a party or child is neither necessary nor

sufficient to make a child custody determination." 
N.J.S.A. 2A:34-

65(c).

      This jurisdictional principle is well settled.                     Even prior

to   the   enactment    of   the   UCCJEA,     we   held    that    "in     personam

jurisdiction is not required to entertain an application to modify

an order for custody or visitation under the UCCJA [Uniform Child

Custody Jurisdiction Act] provided that notice and opportunity to

be heard are given as required by 
N.J.S.A. 2A:34-32 and -33."

Genoe v. Genoe, 
205 N.J. Super. 6, 15 (App. Div. 1985).                           The

rationale is that "'[t]he custody status of a child or children

may be decided quasi in rem.'"         Id. at 14 (quoting In re Marriage

                                        9                                   A-0577-16T1
of Schuham, 
76 Ill. App. 3d 339, 346 (1983)).                  We have "cited

Shaffer v. Heitner, 
433 U.S. 186, 208, n. 30, 
97 S. Ct. 2569,

2582, n. 30, 
53 L. Ed. 2d 683, 700, n. 30 (1977), as recognizing

adjudications of status, such as matters pertaining to the custody

of   children   residing     here,    as    an    exception   to    the   'minimum

contacts' requirement." Div. of Youth & Family Servs. v. M.Y.J.P.,


360 N.J. Super. 426, 457 (App. Div.), certif. denied, 
177 N.J. 575

(2003).     Because plaintiff served defendant, the court had the

authority to make the SIJ findings regarding defendant and to

award sole custody of the parents' child to plaintiff.

       The court was also mistaken in its belief that granting

plaintiff custody of Omar obviated the need to make the SIJ

findings or was akin to terminating defendant's parental rights

to Omar. Consequently, the trial court failed to make any findings

about whether defendant abandoned or neglected Omar, and whether

Omar's reunification with his father was viable as a result of

such    abandonment     or   neglect.            Regardless   of    the    court's

determination as to custody, it is settled that a court must make

findings on each SIJ factor.          O.Y.P.C. v. J.C.P., 
442 N.J. Super.
 635, 642 (App. Div. 2015).

       We   therefore    remand      this    matter     for   the    expeditious

completion of the fact-finding required under the governing law.

On remand, the trial court must now determine, under factor four,

                                       10                                 A-0577-16T1
if Omar's reunification with his father is not viable due to

defendant's neglect or abandonment of Omar.      The unchallenged

portions of the court's July 28, 2016 order granting plaintiff

legal and physical custody of Omar and making findings regarding

the remaining elements of the SIJ statute and regulations remain

in place.

    Reversed in part and remanded for further proceedings in

conformity with this opinion.   We do not retain jurisdiction.




                                11                        A-0577-16T1