D.C. v. A.B.C.

• Decision Date: 30 June 2010
• Citation: 417 N.J.Super. 41,8 A.3d 260
• Parties: D.C., Plaintiff, v. A.B.C., Defendant. In the Matter of P.C., a minor.
• Court: New Jersey Superior Court

8 A.3d 260

417 N.J.Super. 41

D.C., Plaintiff,

v.A.B.C., Defendant.

In the Matter of P.C., a minor.

Superior Court of New Jersey,

Chancery Division,

Monmouth County, Family Part,

Decided June 30, 2010.

Barbara Camacho for plaintiff and minor child (American Friends Service Committee).

GUADAGNO, P.J.F.P.

Plaintiff D.C. ("Dianne") ¹ commenced this action for custody of the minor child, P.C., ("Paul"), pursuant to N.J.S.A. 9:6-1 andN.J.S.A. 9:6-8.9(d), alleging that Paul was abused, neglected, and abandoned by his mother, defendant, A.B.C. ("Allison"). Paul is a Guatemalan national who entered the United States illegally in December 2008 when he was fourteen years old. Paul now resides with plaintiff and her husband, M.P.C. ("Mark"), who is Paul's biological father. Dianne also seeks to have this court make findings that:

1. Reunification of Paul with his mother is not viable due to neglect and abandonment; and

2. It is not in Paul's best interest to be returned to Guatemala, the country of his birth.

During argument on her motion, plaintiff's counsel explained that these findings are necessary for Paul to qualify for special immigrant juvenile status pursuant to8 U.S.C.A. § 1101(a)(27)(J) and 8 C.F.R. § 204.11.

I.

In attachments to her motion, Dianne provides Paul's birth certificate, which indicates that he was born in 1993, in Guatemala. In a certification submitted in support of plaintiff's motion, Paul alleges that his father "left me and my mother when I was a newborn." Paul stopped going to school in the fourth grade in order to do construction work because his mother could not provide him with "clothes or lunch money for school."

Without providing any detail as to how he entered the United States, Paul's certification states only that in December 2008, "I was detained by U.S. Immigration and I was held in a youth shelter in Arizona." He then states that, "A worker at the detention center called [Dianne] and she provided the necessary documents so I could be released."

II.

On May 10, 2010, this court conducted a hearing on plaintiff's application. Plaintiff's counsel called Paul as a witness. He testified that he currently lives in Freehold with his father andplaintiff, who he referred to as his step-mother. He stated that his mother mistreated him in Guatemala by not providing him with an education or enough food to eat. He began working a construction job at age twelve from eight a.m. to five p.m., six days a week.

He explained that he entered the United States by crossing the border in a car and then "walked in the desert for two days." During this time period he relied on others in his group for food and water.

Since arriving in this country he has enrolled in high school where he plays soccer. He is treated well by his father and step-mother and wants to remain with them in this country.

Upon questioning by the court, Paul stated that his mother made the arrangements for him to come to this country, and it was her intention to reunite him with his father. When he was detained in Arizona, plaintiff, who he had never met before, came to Arizona to pick him up.

The court, sua sponte, then called Dianne as a witness. She testified that she married Mark in March 2009, after knowing him for about a year. At the time of their marriage, she was eight months pregnant with Mark's child. She had heard about Paul but claimed that she did not know he was coming to the United States. She testified that defendant agreed to pay $3000 to have Paul smuggled into this country but speculated that she might not have had to pay, as Paul was caught shortly after entering.

She did not know the source of the money that was paid to the smugglers, whom she referred to as "coyotes," but believes it came from defendant's brother, who resides in the United States.

III.

The Immigration and Nationality Act, 8 U.S.C.A. § 1101(a)(27)(J) (2006); 8 C.F.R. § 204.11 (2008), gives undocumented children, under the jurisdiction of a juvenile court, the ability to petition for special immigrant juvenile status in order toobtain lawful permanent residence in the United States. Paul is seeking to be classified as a special immigrant juvenile, which would enable him to remain in the United States.

The relevant portion of 8 U.S.C.A. § 1101(a)(27)(J) defines "special immigrant" as an "immigrant who is present in the United States":

i. Who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States, and whose 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. For whom it has been determined in administrative or judicial proceedings that 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 ...

In order to be eligible for special immigrant status, the requirements of 8 C.F.R. § 204.11(c) must be met. That section provides that an alien is eligible for classification as a special immigrant under section 101(a)(27)(J) of the Act if the alien:

(1) Is under twenty-one years of age;

(2) Is unmarried;

(3) Has been declared dependent upon a juvenile court located in the United States in accordance with state law governing such declarations of dependency, while the alien was in the United States and under the jurisdiction of the court;

(4) Has been deemed eligible by the juvenile court for long-term foster care;

(5) Continues to be dependent upon the juvenile court and eligible for long-term foster care, such declaration, dependency or eligibility not having been vacated, terminated, or otherwise ended; and

(6) Has been the subject of judicial proceedings or administrative proceedings authorized or recognized by the juvenile court in which it has been determined that it would not be in the alien's best interest to be returned to the country of nationality or last habitual residence of the beneficiary or his or her parent or parents; or

(7) On November 29, 1990, met all the eligibility requirements for special immigrant juvenile status in paragraphs (c)(1) through (c)(6) of this section, and for whom a petition for classification as a special immigrant juvenile is filed on Form I-360 before June 1, 1994.

[8 C.F.R. 204.11(c).]

Paul is now sixteen years old and unmarried. Whether he is dependent upon a juvenile court depends upon whether it is necessary for this court to intercede because his parents are unfit, have neglected him, or endangered his welfare. See N.J.S.A. 9:2-9. That section 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.

Under this section, any person interested in the welfare of a child may institute an action in the Superior Court, Chancery Division, Family Part, in the county where the minor child resides for the purpose of securing custody where the known parents are unable to care for the child. While it can be argued that Paul's mother is currently unable to care for him, as she is still in Guatemala, Paul has been reunited with his father and is thriving under his care. Plaintiff testified that Mark is working two jobs to help support the family. They live in Freehold and Paul attends Colts Neck High School where he is doing well. There is no evidence that Mark is not providing his son with "proper protection, maintenance and education," nor is there any likelihood that Paul is "likely to become a public charge."

Mark is not a party to this litigation for an obvious reason. Any action under N.J.S.A. 9:2-9 must be maintained by a third party and requires a showing that the parent having custody of the child is "grossly immoral or unfit." Watkins v. Nelson, 163 N.J. 235, 244, 748 A.2d 558 (2000); See e.g., S.M. v. A.W., 281 N.J.Super. 63, 69, 656 A.2d 841 (App.Div.1995)(one parent was dead and the other could not be located). Mark, who enjoys de facto custody ofPaul, can not make such a showing. Also, plaintiff's application focuses solely on her claim that Paul's mother neglected and abandoned him. In taking this position, plaintiff ignores the fact that the child is thriving under his father's care. When the court questioned plaintiff as to why the court should award custody to her when the child's father, is providing for all of Paul's needs, she was nonplussed.

Nor has there been sufficient proof to show that Paul was abused or neglected while in his mother's custody or that her actions of arranging and financing his illegal entry into the United States constituted abandonment.

Abandonment requires a finding that a parent has willfully forsaken obligations, although physically and financially able to discharge those obligations. N.J.S.A. 30:4C-15(d); In re Guardianship of J.C., 129 N.J. 1, 17, 608 A.2d 1312 (1992); In re Guardianship of K.L.F., 129 N.J. 32, 39, 608 A.2d 1327 (1992...