NOT FOR PUBLICATION WITHOUT THE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
DOCKET NO. A-3822-16T3
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
Respondent has not filed a brief.
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-
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.
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
Plaintiff and Oliver live in New Jersey, and their parents
in Guatemala. In 2006, plaintiff moved to New Jersey from
We use pseudonyms and initials to protect the parties' and
their family members' privacy.
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.
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
One sibling died approximately three years ago.
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.
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.
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
(2) The juvenile is dependent on the court
or has been placed under the custody of an
agency or an individual appointed by the
(3) The "juvenile court" has jurisdiction
under state law to make judicial
determinations about the custody and care of
(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
223 N.J. at 210 (quoting In re Dany
117 A.3d 650, 655-56 (Md. Ct. Spec. App.
After a State court has made and placed these five findings
into an order, the juvenile may submit a petition, attaching the
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.
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
(App. Div. 2013) (citing Manalapan Realty, L.P. v. Twp. Comm. of
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
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
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
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
which recognizes that in appropriate
situations, young adults still depend on the
protection of the Family Part. See Recinos
46 N.E.3d 60, 67-68 (Mass. 2016)
(noting that the SIJ statute "does not limit
the dependency requirement to a custody
[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
Reversed and remanded for further proceedings consistent
with this opinion. We retain jurisdiction.