Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

May A New Jersey Family Court Protect An Abused Child Who Just Arrived From Another Country?

New Jersey child custody lawyers and family courts face issues of child abuse every day. As an attorney, I am incredibly proud of the work my East Brunswick, New Jersey law firm has done to protect children and help them find loving homes by utilizing the New Jersey court system. Child abuse cases are complicated from the onset, but become exponentially more complicated when immigration issues are involved. As my law firm has experienced attorneys, we know how to fight for and protect children in this state who do not have the privilege of citizenship. In, R.H.-E. v. E.P.-V, R.H.-E appealed from an August 28, 2014 Family Part order denying his motion to reconsider an April 29, 2014 order, requesting a finding to show M.P., his nephew, was abused by his parents, E.P.-V and A.A.P-M, the defendants in this matter, to apply for “special immigrant juvenile” status

M.P. was born in Guatemala on August 29, 1997. He lived in Guatemala with his parents, grandparents, and six siblings. M.P. testified that at the age of twelve, he left school and started doing agricultural work. He contended that he sustained injuries due to this agricultural work. He further alleged that his father beat him, and his mother would watch and do nothing to stop the abuse.  M.P. left Guatemala to escape his turbulent home life and sought refuge in the United States. In 2012, M.P. entered the United States illegally, and has lived with his uncle, R.H.-E, ever since. 

In March 2014, R.H.-E filed a complaint against M.P.’s parents, seeking an order granting him custody of M.P. He also requested an order stating the predicate findings that M.P.’s parent’s neglected and abandoned him to secure special immigrant juvenile status for M.P. Special immigrant juvenile status is an immigration classification available to certain undocumented immigrants under the age of twenty-one who have been abused, neglected, or abandoned by one or both parents. Special immigrant juvenile status is a way for immigrants under twenty-one to apply for and obtain legal permanent residence in the United States.  There are many benefits to obtaining special immigrant juvenile status. Special immigrant juvenile status waives several types of inadmissibility that would otherwise prevent an immigrant from becoming a lawful permanent resident or getting a green card. For example, special immigrant juvenile status waives unlawful entry, working without authorization, status as a public charge, and certain immigration violations. Once a minor receives special immigrant juvenile status, he or she will be able to adjust his or her status to that of a lawful permanent resident, obtain work authorization, and eventually apply for U.S. citizenship. 

There are two main stages in obtaining Special Immigrant Juvenile Status. First, the minor must engage in a proceeding in the Family or Surrogate’s Court in the county where he or she resides, such as an application for custody, adoption, or guardianship. As part of this proceeding, the minor must obtain a “special findings order” that declares the minor’s eligibility for special immigrant juvenile status. Although guardianship is the most common way for the Family Court to obtain jurisdiction over a minor, it is also possible to bring a motion requesting the order though a custody, neglect, adoption, permanency hearing for children in foster care, or PINS (Person in Need of Supervision) proceeding. In whatever manner it is done, receipt of this order is a pre-requisite to applying for special immigrant juvenile status.

The second stage, after receiving this order from the Family or Surrogate’s Court, the minor may then apply to the United States Citizenship and Immigration Service or USCIS for special immigrant juvenile status. Special immigrant juvenile would bestow upon the child lawful permanent residence and work authorization.

On April 29, 2014, the Family Part judge held a hearing. M.P.’s parents were not present. Without the benefit of testimony, the Family Part judge denied the application. The judge stated that facts of the case were very similar to the 2014 case of H.S.P. v. J.K. The facts cited in the certifications did not suggest that the parent – or either of the parents, chose not to provide for their child, or, willfully, recklessly, or with gross negligence refused to do so. The judge stated that he was sympathetic to the described picture of poverty, but still agreed with the Appellate Division who decided the H.S.P case, that there is concern as to whether that was the intention of federal law, to allow children to seek refuge in the United States because their parents are very poor, thus making the children very poor, and unable to obtain an education. 

R.H.-E filed a motion for reconsideration on both claims, and for the first time, submitted evidence that M.P. suffered abuse from his parents. The Family Part judge, on reconsideration, issued an order on August 28, 2014, where she granted custody of M.P. to R.H.-E, yet still found that there was no evidence of abuse. The Family Part judge explained her decision in an August 28, 2014 written opinion. 

The Family Part judge made factual findings in the opinion, and determined that the agricultural work M.P. took part in was not dangerous, and his father and mother did not abuse him. She did analyze if M.P. was abused under New Jersey state’s child welfare laws, something she did not do in her original April 29, 2014 decision. Still, in making her findings, the Family Part judge noted “this court is bound by the principles of H.S.P.”

In the uncontested appeal R.H.-E argued that the Family Part judge was incorrect in finding that M.P. did not suffer abuse and failed to make specific findings to justify her decision. R.H.-E. also claimed that the Family Part judge was biased against M.P., because he was a Central American child. He did not appeal the custody grant. The New Jersey Appellate Division started its opinion by stating that the Supreme Court of New Jersey recently reviewed the court’s opinion in H.S.P, and reversed, which clarified the procedure to be followed when considering an application for predicate special immigrant juvenile findings. The Court held the Family Part must make the following findings: (1) the child is unmarried and under the age of twenty-one; (2) the child 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 the state law to make judicial determinations about the custody and care of juveniles; (4) that reuniting the child with one or both of the child’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 residence. 

The H.S.P Court clearly held that the Family Part must use New Jersey law in making its child welfare findings. Furthermore, when determining whether reuniting the child with one or both of his or her parents is not viable under factor four, the Family Part must make separate findings as to each parent. In R.H.-E v. E.P.-V, the Family Part judge did not have the benefit of the Supreme Court’s guidance and was bound at the time by the courts opinion. Because of the Supreme Court of New Jersey’s recently issued holding, the New Jersey Appellate Division reversed the order and remanded the issue for the judge to consider R.H.-E’s application in light of the new standards. 

My law firm is always prepared to protect children.