N.C.T. v. F.T.S.

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NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
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                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3822-16T3


N.C.T.,

        Plaintiff-Appellant,

v.

F.T.S.,

        Defendant-Respondent.

______________________________

              Submitted January 22, 2018 – Decided February 15, 2018

              Before Judges O'Connor and Vernoia.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Passaic
              County, Docket No. FD-16-0808-17.

              Labrada Dume & Associates, attorneys for
              appellant (Jessica M. Gonzalo, on the
              brief).

              Respondent has not filed a brief.

PER CURIAM

        Plaintiff, N.C.T., filed a verified complaint in the Family

Part     seeking    custody    of   his   brother,     Oliver,    presently        age

eighteen, as a predicate to obtaining Special Immigrant Juvenile
(SIJ) status for him, 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).1         A juvenile2 who obtains SIJ status

may seek lawful permanent residency, a step toward citizenship,

see H.S.P. v. J.K., 
223 N.J. 196, 200 (2015), and is protected

from deportation.     Id. at 209.

     Plaintiff appeals from the March 28, 2017 order denying him

custody of Oliver and other relief.        Following our review of the

record and applicable legal principles, we reverse and remand

for further proceedings.

                                      I

     Defendant F.T.S (mother) is Oliver's and plaintiff's

mother.    Although served with the complaint, she did not appear

at the hearing and has not responded to the complaint in any

fashion.   The salient evidence adduced during the hearing was as

follows.

     Plaintiff and Oliver live in New Jersey, and their parents

in Guatemala.    In 2006, plaintiff moved to New Jersey from


1
   We use pseudonyms and initials to protect the parties' and
their family members' privacy.
2
   Because the federal statute accords "special immigrant
juvenile" status to persons up to the age of twenty-one, we use
the term "juvenile" to refer to Oliver.
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Guatemala at age twenty.   Oliver has been living with plaintiff

since he crossed the border illegally in December 2015 at age

sixteen; at the time of the hearing, Oliver was seventeen years

of age.   Neither parent has contributed toward Oliver's support

since his arrival in the United States; Oliver depends upon

plaintiff exclusively for support.   Plaintiff acknowledged he

was in the United States illegally, but has applied for asylum.

      Both plaintiff and Oliver described Oliver's life growing

up in Guatemala.   Plaintiff's and Oliver's parents separated

when Oliver was a small child, and for long periods the family

did not know the father's whereabouts.   Because their mother's

diabetic condition precluded her from working, Oliver and his

six siblings3 had to work to support themselves and their mother.

      Oliver began to work at six years of age and, as a result,

attended school only sporadically.   Whenever he told his mother

he wanted to attend school or play rather than work, she

responded he would have to move out if he did not work.     She

also told him to leave the home whenever she became angry.

Since he arrived in the United States, Oliver has been pursuing

an education and, in fact, has already obtained a General

Equivalency Diploma.



3
    One sibling died approximately three years ago.
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    Oliver testified if he returned to Guatemala, he either

would have to live on the street or in his mother's home, where

he would be expected to work and relinquish his earnings to his

mother.   Although they have no obligation to contribute toward

his support, Oliver noted his relatives, most of whom are older

than he, either do not have room in their homes to accommodate

him or live on the street.   Therefore, he has no viable place to

live in Guatemala.

    The court determined the mother neither abused, neglected,

nor abandoned Oliver, rationalizing that requiring her children

to forego an education and work to support the family was

reasonable.   In addition, the court found it was not in Oliver's

best interests to be placed in the custody of a person who is an

undocumented immigrant because, if plaintiff were deported,

Oliver would be left alone in the United States.   Finally, the

court stated it was not "credible that . . . no other sibling

[in Guatemala] would step in and help out their brother," if

Oliver returned home.

                                II

    On appeal, plaintiff raises various contentions, one of

which is the trial court failed to properly apply the law of New

Jersey when it determined the mother had neither abused,

neglected, nor abandoned Oliver. We agree.
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    To obtain SIJ status, either the subject juvenile or an

adult acting on his behalf "must first petition for 'an order

from a state juvenile court [to] mak[e] findings that the

juvenile satisfies certain criteria.'"   H.S.P., 
223 N.J. at 210

(citation omitted).   Those criteria, enumerated in 8 C.F.R.

§ 204.11(c), 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
         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)).]

    After a State court has made and placed these five findings

into an order, the juvenile may submit a petition, attaching the
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State court's order, to the United States Citizenship and

Immigration Services (USCIS) for SIJ status.    The State court's

findings are necessary for the USCIS to determine if a juvenile

is entitled to such status.    H.S.P., 
223 N.J. at 200-01.    If the

USCIS approves the juvenile's petition, he is awarded SIJ

status.   Id. at 210 (citing Perez-Olano v. Gonzalez, 
248 F.R.D. 248, 254 (C.D. Cal. 2008)).

    Significantly, when addressing the five factors, the law of

the State is to be applied.    H.S.P., 
223 N.J. at 215.   "[T]he

SIJ evidence must be viewed through the lens of New Jersey law,

not the law of the juvenile's country of origin."    O.Y.P.C. v.

J.C.P., 
442 N.J. Super. 635, 641 (App. Div. 2015).   Further, a

State court must "make all of the federally-required findings,

regardless of whether they believe that the juvenile should be

declared dependent on the court or placed under the custody of

an entity or individual."     Ibid.

    In our review of a non-jury trial, we defer to a trial

court's fact findings if "supported by adequate, substantial,

credible evidence."    Cesare v. Cesare, 
154 N.J. 394, 411-12

(1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 
65 N.J. 474, 484 (1974)).    However, "legal conclusions, and the

application of those conclusions to the facts, are subject to

our plenary review."   Reese v. Weis, 
430 N.J. Super. 552, 568
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(App. Div. 2013) (citing Manalapan Realty, L.P. v. Twp. Comm. of

Manalapan, 
140 N.J. 366, 378 (1995)).

    Here, the court found the mother had not abused, neglected,

or abandoned Oliver.   However, in making this finding, it is

apparent the court did not consider whether the mother's conduct

violated New Jersey law.   We note that starting at age six, the

mother regularly withheld Oliver from school, so he could work

and contribute toward her and the family's support.

    Under New Jersey law, neglect of a child includes willfully

failing to provide a child with a regular school education, as

required by law.   
N.J.S.A. 9:6-1.    The law in this State is that

every parent (or guardian) who has custody and control of a

child between the ages of six and sixteen must ensure such child

regularly attends public school or receives an equivalent

education.   
N.J.S.A. 18A:38-25.   Thus, under New Jersey law, a

parent may not impede a child from attending school, and that

includes withholding a child from school so he may work to

support his family.

    In addition, the court found it was not in Oliver's best

interest to be placed in plaintiff's custody because, as an

illegal alien, plaintiff may be deported.    However, first, there

is no evidence deportation was imminent or that any deportation

proceeding even had been commenced.    Second, plaintiff has
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initiated an action to become a lawfully-present alien,

specifically, an alien granted asylum.   Third, even if plaintiff

were deported at some point in the future, Oliver may by then be

emancipated.   Thus, the trial court's concern plaintiff is not

eligible to take custody of Oliver because presently plaintiff

is an undocumented immigrant is unfounded.

    Further, the court's conclusion Oliver has the option of

living with relatives in Guatemala is not supported by the

evidence.   There is no indication Oliver's relatives, some of

whom do not even have homes, are willing to contribute toward

Oliver's support in any manner.   More important, there is no law

in our State that would compel Oliver's relatives -- other than

his parents or a guardian who is a relative-- to contribute

toward Oliver's support.

    We are aware Oliver has turned eighteen years of age since

the hearing.   However, an alien juvenile is eligible for SIJ

classification as long as he is under twenty-one years of age.

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

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

and twenty-one.   A.E.C. v. P.S.C., _____ N.J. Super. _____ (App.

Div. 2018) (slip op. at 2).

     Further, "[p]ursuant to 
N.J.S.A. 9:17B-3, the Family Part

has jurisdiction to grant a [guardian] custody of an
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unemancipated child who is over eighteen, but under twenty-one,

and to issue a declaratory ruling that the child is dependent on

[such guardian] and is not emancipated[,]" ibid., and the court

may place the custody of a juvenile in another as part of an

SIJ-related application, ibid.   As we stated in A.E.C.:

         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. . . . .

         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))[.] . . .

         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)
                               9
                                                           A-3822-16T3
         (noting that the SIJ statute "does not limit
         the dependency requirement to a custody
         determination.").

         [Id. at 13-15 (footnote omitted).]

    In light of the deficiencies in the trial court's ruling,

we reverse the March 28, 2017 order and remand this matter to

the trial court to:    (1) determine whether the mother abused,

neglected, or abandoned Oliver under New Jersey law; (2) decide

plaintiff's application for custody of Oliver; and (3) make

findings as to all of the factors in 8 C.F.R. § 204.11(c).    The

trial court shall make its findings based upon the evidence

adduced at the March 28, 2017 hearing, and shall set forth its

findings in a written decision within forty-five days.

Plaintiff shall have fifteen days from the day he receives the

court's written decision to file a supplemental brief with this

court, which shall not exceed ten pages.

    Because of our disposition, we need not reach plaintiff's

remaining arguments.

    Reversed and remanded for further proceedings consistent

with this opinion.    We retain jurisdiction.




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