L.A.P.H. VS. M.A.R., IN THE MATTER L.V.E.P. (FD-07-2382-17, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2020 )

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NOT FOR PUBLICATION WITHOUT THE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-3938-18T2
L.A.P.H.
Plaintiff-Appellant,
v.
M.A.R., (Deceased),
Defendant-Respondent.
___________________________________
IN THE MATTER OF L.V.E.P. 1, a Minor.
___________________________________
Submitted November 14, 2019 – Decided August 12, 2020
Before Judges Alvarez and Nugent.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County,
Docket No. FD-07-2382-17.
1
Initials are used in this appeal of an order denying a motion to amend a
predicate order required to petition the United States Citizenship and
Immigration Services to protect the privacy and safety of the appellant and
minor child. Protection of the appellant and minor child is a compelling
interest that outweighs the Judiciary's commitment to transparency.
Grigaite & Abdelsayed LLC, attorneys for appellant
(Shokry G. Abdelsayed, on the brief).
PER CURIAM
Qualifying for "special immigrant juvenile" (SIJ) status under the
Immigration Act of 1990, as amended by the William Wilberforce Trafficking
Victims Protection Reauthorization Act of 2008, Pub. L. No.110-457, 122 Stat.
5044 (Trafficking Protection Act), provides "a form of immigration relief
permitting alien children to obtain lawful permanent residency and, eventually,
citizenship." H.S.P. v. J.K., 223 N.J. 196, 200 (2015). A child residing in
New Jersey who seeks SIJ status must apply to a Superior Court judge for a
predicate order finding the child meets the statutory requirements. Ibid. The
child must then petition the United States Citizenship and Immigration
Services (Immigration Services) and demonstrate statutory eligibility.
In this case, plaintiff L.A.P.H., on behalf of her child, applied for and
received from a Family Part judge a predicate order the child met the statutory
criteria for SIJ status. Immigration Services deemed the Family Part judge's
findings inadequate. The child filed a motion for an amendment to the first
order, and a different Family Part judge denied the motion and entered the
order from which this appeal is taken. We reverse and remand for further
proceedings.
A-3938-18T2
2
In 2017, plaintiff commenced this action in the Family Part seeking
custody of her child and a predicate order under the Trafficking Protection Act
and its implementing regulation, 8 C.F.R. § 204.11(c), that would enable her
child, a non-citizen, to apply for SIJ status. A court deciding such applications
must make the following findings:
(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.A. §1101(a)(27)(J)(ii). . . .
[H.S.P., 223 N.J. at 219 (citing In re Dany G., 223
Md. App. 707 (Md. Ct. Spec. App. 2015)).]
When making these findings, the court is to apply New Jersey law. Id. at 212.
The Family Part judge who heard plaintiff's initial application found the
child, a citizen and national of Guatemala, was an unmarried, unemancipated
A-3938-18T2
3
minor under the age of twenty-one. The judge noted New Jersey law
authorized the court to make judicial determinations about custody and care of
juveniles. The judge declared the child dependent on the Superior Court of
New Jersey. Based on the evidence before him, the judge determined that it
was not in the best interest of the child to be returned to the country of origin
and of last habitual residence, Guatemala, because there was no one in
Guatemala to support and care for the child, the child's father and numerous
family and friends having been killed as the result of pervasive gang violence. 2
Significant to this appeal, the court made "no findings as to abuse and
neglect [because] reunification is otherwise impossible because the minor's
father is deceased." The court granted sole physical and residential custody of
2
The longstanding violence in Guatemala during the period that included the
time of the father's death is well known. "Following the official end of
Guatemala's 36-year-long armed conflict in 1996," widespread social and
economic violence by youth gangs and other groups had become the norm.
Alisa Winton, Youth, gangs and violence: Analysing the Social and spatial
mobility of young people in Guatemala City, CHILDREN'S GEOGRAPHIES
3:2 167, 170 (2005),
https://www.tandfonline.com/doi/full/10.1080/14733280500161537
"Incredibly, the death rate in Guatemala is now higher than it was for much of
the civil war. . . . Between 2000 and 2009, the number of killings rose steadily,
ultimately reaching sixty-four hundred. . . . In 2009, fewer civilians were
reported killed in the war zone of Iraq than were shot, stabbed, or beaten to
death in Guatemala." David Gran, A Murder Foretold: Unravelling the
ultimate political conspiracy, The New Yorker, (March 28, 2011)
https://www.newyorker.com/magazine/2011/04/04/a-murder-foretold.
A-3938-18T2
4
the child to plaintiff after determining it was in the child's best interest to
remain outside Guatemala in the care and custody of plaintiff, the child's
mother.
In September 2017, after the Family Part judge entered his order,
plaintiff submitted a Form I-360 application to Immigration Services for SIJ
status for her child. Immigration Services found the Family Part order
inadequate. Specifically, Immigration Services deemed the Family Part Order
insufficient because "it does not show that reunification with one or both of
your parents is not viable due to abuse, neglect, abandonment, or a similar
basis under state law." Citing the Family Part's order expressly declining to
make such findings, Immigration Services advised plaintiff and her child:
Please provide a copy of a juvenile court order
declaring that: 1) you are dependent on the court or
under custody of an agency or department of the state,
or an individual entity appointed by the court; 2)
reunification with one or both of your parents is not
viable due to abuse, neglect, abandonment, or a
similar basis under state law; and 3) it would not be in
your best interest to be returned to your or your
parent's country of nationality or last habitual
residence.
In response, plaintiff and her child filed a motion in the Family Part
seeking an amendment to the previous order. After determining he was
authorized to hear the motion by Rule 4:50, which sets forth circumstances
A-3938-18T2
5
under which a court may relieve a party from a final judgment or order, the
second Family Part judge denied the motion "because death alone does not
equate to abandonment under New Jersey law." The judge found that the
father's murder was not a willful forsaking of the child, a requisite for
abandonment under New Jersey law. Plaintiff filed this appeal.
On appeal, plaintiff raises a single point:
THE CHILD IN THIS CASE QUALIFIES FOR
RELIEF ON THE GROUNDS OF ABANDONMENT
OR OTHER SIMILAR BASIS UNDER NEW
JERSEY LAW.
Our review of "[f]inal determinations made by the trial court sitting in a
non-jury case [is] limited and well-established[.]" Seidman v. Clifton Sav.
Bank, 205 N.J. 150, 169 (2011). The court's findings of fact are "binding on
appeal when supported by adequate, substantial, credible evidence." Cesare v.
Cesare, 154 N.J. 394, 411-12 (1998). If a trial court's findings are not
supported by adequate, substantial, credible evidence, and resolution of a
critical issue requires a more complete record, a remand for the development
of the record is appropriate. See In re Decision on CAA 47-2007, 209 N.J.
335, 337 (2009) (citing State v. Moore, 180 N.J. 459, 460 (2004)). A trial
judge's "interpretation of the law and the legal consequences that flow from
A-3938-18T2
6
established facts are not entitled to any special deference." Manalapan Realty
v. Twp. Comm., 140 N.J. 366, 378 (1995).
Here, the trial court's determination that death alone does not equate to
abandonment under New Jersey does not settle the question of whether
reunification with the father is not possible due to abuse, neglect,
abandonment, or a similar basis. That question cannot be adequately answered
based on the inadequate record before us. The record is devoid of any
evidence surrounding the father's death, aside from the brief mention it was
due to "pervasive gang violence." We do not know from the record before us,
for example, whether the father was an active participant in a gang, engaged in
illegal activity, and was perhaps killed during gang warfare, or whether he was
an innocent victim. The details are important to the ultimate determination.
The term "abandonment" is statutorily defined:
Abandonment of a child shall consist in any of the
following acts by anyone having the custody or
control of the child: (a) willfully forsaking a child; (b)
failing to care for and keep the control and custody of
a child so that the child shall be exposed to physical or
moral risk without proper and sufficient protection; (c)
failing to care for and keep the control and custody of
a child so that the child shall be liable to be supported
and maintained at the expense of the public, or by
child caring societies or private persons not legally
chargeable with its or their care, custody and control.
A-3938-18T2
7
[N.J.S.A. 9:6-1.]
Evident from the statutory language is that the term abandonment is
broader than willfully forsaking the child. Moreover, the findings a Family
Court must make when considering an SIJ-related matter include whether
reunification with the father is not possible due to abuse, neglect,
abandonment, or a similar basis.
The phrase "or a similar basis" adds breadth to the inquiry. In that
regard, N.J.S.A. 9:2-9, entitled "Parents or custodian of child unfit; action in
Superior Court, Chancery Division, Family Part," provides:
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 and education of such child, or
shall neglect to provide the child with proper
protection, maintenance and education, or are of such
vicious, careless or dissolute habits as to endanger the
welfare of the child or make the child a public charge,
or likely to become a public charge; or when the
parents of any minor child are dead or cannot be
found, and there is no other person, legal guardian or
agency exercising custody over 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 county 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. The court may
proceed in the action in a summary manner or
otherwise.
A-3938-18T2
8
That the declaration, "death alone does not equate to abandonment," is
too narrow a focus is illustrated by the hypothetical death of a father who
commits suicide. Has he neglected or abandoned his children, willfully
forsaken them, failed to care for and keep control and custody of them so that
they shall be liable to be supported and maintained at the expense of the
public, or by child caring societies or private persons not legally chargeable
with their care, custody and control?
Obviously, the case before us does not involve suicide. Yet, if plaintiff's
child's father knowingly and actively participated in gang activity marked by
pervasive violence, particularly violent activity that exposed him to a high risk
of serious injury or death, he may well have failed to care for and keep control
and custody of the child so that the child shall be liable to be supported and
maintained at the expense of the public; or perhaps failed to care for and keep
the control and custody of the child so that the child shall be exposed to
physical or moral risk without proper and sufficient protection; or, perhaps
more significant, prevented reunification due to conduct having a similar
basis.
These inquiries cannot be answered based on the record before us. That
is not the fault of the Family Part judge, considering the record before him.
A-3938-18T2
9
The record before us is scant, as we presume it was in the Family Part.
Perhaps there is something in the trial record, not included in the appellate
record, that demonstrates the father's homicide was nothing more than the
profoundly tragic murder of an innocent man. However, given the conceivably
unimaginable consequences that may flow from the Family Part fact-finding,
we deem it appropriate to remand this matter so that the child has the
opportunity to develop an appropriate record on which to make the case for SIJ
status. Cf. In re Decision on CAA 47-2007, 209 N.J. at 337.
Reversed and remanded for further proceedings consistent with this
opinion. We do not retain jurisdiction.
A-3938-18T2
10