NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1121-12T1

H.S.P.,

Petitioner-Appellant,

v.

J.K.,

Respondent-Respondent.

________________________________

Argued November 4, 2013 – Decided

Before Judges Ashrafi, St. John and Leone.

On appeal from the Superior Court of New 

Jersey, Chancery Division, Family Part, 

Passaic County, Docket No. FD-16-163-13.

Francis X. Geier argued the cause for 

appellant (Basaran Law Office, attorneys; 

Melinda M. Basaran, on the brief).

Respondent has not filed a brief.

 The opinion of the court was delivered by 

LEONE, J.S.C. (temporarily assigned).

Petitioner H.S.P. filed a complaint and a motion in the 

Chancery Division, Family Part, seeking custody of his 

seventeen-year-old nephew, M.S., and factual findings that would 

assist M.S. in obtaining Special Immigrant Juvenile ("SIJ") 

March 27, 2014

APPROVED FOR PUBLICATION

March 27, 2014

APPELLATE DIVISION
2 A-1121-12T1

status from the United States Citizenship and Immigration 

Services ("USCIS") of the Department of Homeland Security. A 

September 27, 2012 order of the Family Part awarded petitioner 

custody of M.S., but denied or did not make the factual findings 

requested. Petitioner appeals. We affirm in part and reverse 

and modify the court's order in part.

I.

The proceedings have been non-adversarial. The facts were 

presented by petitioner without participation by any opposing or 

neutral party. We recite the pertinent facts with an assumption 

of their accuracy.

Petitioner H.S.P. is a United States citizen and lives with 

his wife and children in Passaic County. He works as a taxi 

driver in New York City. M.S. is a citizen of India, born there

in December 1994 to J.K. (his mother) and B.S. (his father). In 

July 2011, at the age of sixteen, M.S. entered the United States 

without documentation, that is, illegally.

In India, M.S. was raised by his mother. He has no 

recollection of ever meeting his father. He lived in povertystricken, disease-ridden slums. His older brother and sister 

died of unknown causes when they were about seventeen years old. 

Medical care was not available in their community, and his 

mother could not afford to travel and to pay for medical 
3 A-1121-12T1

treatment for her children. His mother also suffered from ill 

health. They went to live with his maternal grandmother, who 

was also ill. M.S. left school and, at the age of fifteen,

worked long hours in construction jobs. He developed back pain 

and a skin condition. 

In an effort to save M.S. from unsanitary and potentially 

deadly living conditions, his mother and grandmother determined 

to send him to the United States to live with petitioner, who is 

the mother's brother. The mother arranged and paid for M.S. to 

be transported by ship to Turkey and then to Mexico. M.S. 

walked across the United States border in July 2011 without 

being admitted and without entry documentation. 

He has been living in New Jersey with petitioner's family, 

and now considers them to be his family. Although he dropped 

out of school in New Jersey because he was too far behind the 

other students, he has obtained a General Educational 

Development (GED) diploma and hopes to go to college. He 

maintains weekly telephone contact with his mother in India.

Petitioner's complaint, filed in the Family Part in May 

2012, stated that M.S. "is in need of an order granting custody 

of him to [petitioner] so that he may regularize his immigration 

status pursuant to" 8 U.S.C.A. § 1101(a)(27)(J) ("Subparagraph 

J") of the Immigration and Nationality Act (INA), 8 U.S.C.A. §§
4 A-1121-12T1

1101-1537. Subsequently, petitioner filed a sworn

acknowledgement of service from M.S.'s mother, in which she 

declined to answer the complaint and requested that default be 

entered against her. She said she did not oppose the petition, 

and she "abandoned" M.S. to petitioner.1

Petitioner asked the Family Part judge to make findings 

referenced in Subparagraph J of the federal statute and its

implementing regulation, 8 C.F.R. § 204.11(d) ("the 

Regulation"). Specifically, petitioner asked the court to find 

that M.S. was dependent on the New Jersey family court, that he 

had been abandoned or neglected by his father and mother, and 

that it was not in his best interest to return to India. At a

hearing on September 27, 2012, the judge heard testimony from 

petitioner and M.S., and reviewed the documentary evidence 

submitted by petitioner. Finding that the Family Part had 

jurisdiction to consider the petition because M.S. was a minor 

residing in New Jersey, the court awarded physical custody of 

M.S. to petitioner. However, the court found insufficient 

evidence that M.S. was neglected or abandoned by either of his 

parents, and therefore, a "best interest analysis is not 

required."

 

1 Although J.K. is named as a respondent in the caption of this 

case, she and petitioner have acted cooperatively in bringing 

the petition before the Family Part. 
5 A-1121-12T1

Petitioner appeals from the Family Part's order to the 

extent it denied or did not make the findings he sought. 

II.

SIJ status brings significant advantages for an 

undocumented juvenile. The INA contains special provisions for 

the issuance of immigrant visas to special immigrants, including 

juveniles. 8 U.S.C.A. §§ 1153(b)(4), 1204. SIJ status provides 

exemption from deportation on certain grounds, including for 

being "present in the United States" unlawfully. 8 U.S.C.A. §

1227(a)(1)(B), (c). A juvenile granted SIJ status is deemed "to 

have been paroled into the United States" for purposes of 

discretionary adjustment of his status "to that of an alien 

lawfully admitted for permanent residence." 8 U.S.C.A. §

1255(a), (h)(1). In determining the admissibility of such a 

juvenile as an immigrant, certain grounds of inadmissibility do 

not apply (including unlawful entry into the United States) and 

other grounds may be waived by the Attorney General. 8 U.S.C.A.

§ 1255(h)(2); see 8 U.S.C.A. § 1182.

In Subparagraph J, the INA defines the term "special 

immigrant" to include:

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 
6 A-1121-12T1

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; and

(iii) in whose case the Secretary of 

Homeland Security consents to the grant of 

special immigrant juvenile status[.]

[8 U.S.C.A. § 1101(a)(27)(J).]

The implementing Regulation requires a petition for SIJ 

status to have attached a juvenile court order with findings as 

set forth in the statute. 8 C.F.R. § 204.11(b), (d)(2).2 Thus, 

Subparagraph J creates "a special circumstance 'where a state 

juvenile court is charged with addressing an issue relevant only 

to federal immigration law.'" E.C.D. v. P.D.R.D., 114 So. 3d

 

2 The Regulation was adopted before Subparagraph J was amended in 

2008. The proposed regulations to reflect the 2008 amendment's 

criteria have not yet been adopted. See Special Immigrant 

Juvenile Petitions, 76 Fed. Reg. 54,978 (proposed Sept. 6, 

2011). We will ignore those portions of the Regulation based on 

the former criteria of Subparagraph J that were removed by the 

2008 amendment of the statute.
7 A-1121-12T1

33, 36 (Ala. Civ. App. 2012) (quoting In re J.J.X.C., 734 S.E.2d 

120, 124 (Ga. Ct. App. 2012)). 

III.

To fulfill his objectives in this case, petitioner first 

asked the Family Part to find that M.S. "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." 8 U.S.C.A. §

1101(a)(27)(J)(i).3 Although the court exercised jurisdiction 

over M.S. and placed him in the custody of petitioner, we are 

concerned at the invocation of the Family Part's jurisdiction to 

obtain custody with no apparent purpose other than to seek 

immigration benefits. 

The petition was not brought in an adversarial proceeding 

for custody, or initiated by any juvenile court or child welfare 

agency seeking to protect the health and well-being of M.S. 

Petitioner is M.S.'s uncle, and already had physical custody of 

him with the consent and approval of the boy's only available 

parent. M.S. was living in petitioner's home in the United 

 

3 "Juvenile court means a court located in the United States 

having jurisdiction under State law to make judicial 

determinations about the custody and care of juveniles." 8 

C.F.R. § 204.11(a).
8 A-1121-12T1

States, sent voluntarily to this country by his mother to be 

cared for by petitioner. No showing was made that a judicial 

declaration of custody was needed for any reason related to the 

custody statutes of this State. Most important, the only reason 

the Family Part's jurisdiction was invoked was petitioner's 

declaration that M.S. was "in need of . . . regularizing his 

immigration status." We question whether Congress intended 

Subparagraph J to apply to juveniles who are placed in the 

custody of an individual not because necessity was shown under 

State law, but because custody was requested for immigration 

purposes. Cf. In re C.G.H., 75 A.3d 166, 172-74 (D.C. 2013)

(finding the court had jurisdiction and was required to make SIJ 

findings when called upon to approve a child's adoption). 

In a case with facts similar to this matter, our Family 

Part expressed doubt that the court's jurisdiction was being 

invoked for proper purposes. D.C. v. A.B.C., 417 N.J. Super.

41, 47 (Ch. Div. 2010). A juvenile's step-mother sought to be 

appointed his guardian so the juvenile could establish the first 

prerequisite for SIJ status. Id. at 44. The plaintiff could 

offer no reason why she should have received guardianship or 

custody, because the juvenile was already living with his 

father. Id. at 47-48. The court ruled that "it is not 

necessary to appoint plaintiff as [the juvenile's] guardian as 
9 A-1121-12T1

the child is thriving in the custody of his father. There is no 

need for this court to exercise jurisdiction . . . ." Id. at 

51.

Petitioner did not cite any New Jersey statute in support 

of his request for custody. The trial court in D.C. cited as 

its jurisdictional authority N.J.S.A. 9:2-9, which allows a 

third party to bring an action regarding a child. Id. at 47.4 

"N.J.S.A. 9:2-10 then allows a court, in an action brought by a 

third party pursuant to N.J.S.A. 9:2-9, to award custody of the 

child to that third party." Watkins v. Nelson, 163 N.J. 235, 

 

4 That State statute is headed "Unfit parents and custodians, 

court action to grant relief," and it 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.

[N.J.S.A. 9:2-9.]
10 A-1121-12T1

244 (2000). In a proceeding under N.J.S.A. 9:2-9 and 9:2-10, "a 

presumption of custody exists in favor of the parent," which a 

third party can overcome "by satisfying the standard required 

for termination of the rights of a non-consenting parent," 

including abandonment or neglect. Id. at 244-45. Here, the 

family court awarded custody of M.S. to petitioner even though 

it did not find that M.S.'s mother had abandoned or neglected 

him.

We are also concerned that petitioner asked the Family Part 

to find that M.S.'s father neglected and abandoned him, and to 

award custody of M.S. to petitioner, without naming the father 

in the complaint, or even attempting to serve him. A parent 

normally must be given the opportunity to oppose an accusation 

of abandonment and neglect, or an award of custody of a child to 

a third party, which in many respects resembles the termination 

of parental rights. Id. at 253-54. Service on the parent is 

generally required, R. 5:4-4(a); N.J.S.A. 2A:34-69, even if the 

parent is out of state, N.J.S.A. 2A:34-60, or out of the 

country, R. 4:4-4(b)(1)(B). "[W]here the adverse party cannot 

be located," our rules require diligent inquiry to locate a 

parent for service. R. 5:4-4(c).5

 

5 See also N.J.S.A. 9:6-8.38(c), -8.41(b) (requiring reasonable 

efforts to serve a parent accused of abuse or neglect); N.J.S.A.

(continued)
11 A-1121-12T1

We note, however, that the INA states that a juvenile "who 

has been battered, abused, neglected, or abandoned, shall not be 

compelled to contact the alleged abuser (or family member of the 

alleged abuser) at any stage of applying for special immigrant 

juvenile status." 8 U.S.C.A. § 1357(h); see 151 Cong. Rec. S 

13,749 (2005) (Sen. Biden) ("This section assures that 

immigration authorities are not required to contact abusive 

parents or family members," and "prevents abusive parents from 

keeping their children from accessing help and support in the 

United States"). Thus, there may be a conflict between this 

section and our State laws that require efforts to provide 

notice to an absent parent.

We do not attempt in this appeal to resolve that apparent

conflict. Despite our concerns, we will assume that the judge's 

custody determination is sufficient to satisfy the first 

precondition for SIJ status, and we will examine the judge's

other findings under Subparagraph J. 

IV.

The second finding petitioner sought was that M.S.'s 

"reunification with 1 or both of the immigrant's parents is not

 

(continued)

30:4C-15.1(b)(1)(b) (requiring "reasonable efforts to locate the 

parent" accused of abandonment); N.J.S.A. 30:4C-17(b) (requiring 

"adequate effort to serve notice on the parent" whose 

whereabouts are unknown). 
12 A-1121-12T1

viable due to abuse, neglect, abandonment, or a similar basis 

found under State law." 8 U.S.C.A. § 1101(a)(27)(J)(i)

(emphasis added). The Family Part found that neither the mother 

nor the father had abused, neglected, or abandoned the juvenile. 

We agree with the court's finding as to the mother, but disagree 

as to the father. 

There was no allegation that the juvenile had been 

intentionally abused by his parents. We will therefore focus on 

neglect and abandonment. 

Petitioner argued that the mother's neglect of M.S. was 

shown by his lack of medical care and schooling. The judge 

declined to find that the mother committed an act of neglect 

under N.J.S.A. 9:6-1, which includes: "(a) willfully failing to 

provide proper and sufficient food, clothing, maintenance, 

regular school education as required by law, medical attendance 

or surgical treatment, and a clean and proper home, or (b) 

failure to do or permit to be done any act necessary for the 

child's physical or moral well-being." 

Though "willfully" does not require an "evil intent or bad 

motive," it does require that the parent deny proper care 

"intentionally or purposely as distinguished from inadvertently 

or accidentally." State v. Burden, 126 N.J. Super. 424, 427

(App. Div.), certif. denied, 65 N.J. 282 (1974). Other New 
13 A-1121-12T1

Jersey statutes similarly define neglect to include a parent's

failure "to exercise a minimum degree of care . . . in supplying 

the child with adequate food, clothing, shelter, education, 

medical or surgical care though financially able to do so." 

N.J.S.A. 9:6-8.9(d); N.J.S.A. 9:6-8.21(c)(4). Failure to 

exercise a minimum degree of care "at least requires grossly 

negligent or reckless conduct." N.J. Div. of Youth & Family 

Servs. v. T.B., 207 N.J. 294, 306 (2011).

The evidence submitted by petitioner did not show that the 

mother had the financial means to provide better care to M.S. 

but refused to do so willfully, recklessly, or with gross 

negligence. Rather, petitioner's evidence showed that the

mother was financially unable to provide better care for M.S. 

See N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 

37-38 (2011) (finding failure to provide heat or medical 

checkups is not neglect where parents lack the financial means 

to do so). 

In D.C., supra, 417 N.J. Super. at 49, the petitioner 

similarly alleged that the juvenile's ill mother in Guatemala 

had abused and neglected him by failing to provide adequate 

food, clothing, and education. The D.C. court concluded that 

mother's inability to provide for the child "was not the result 

of intentional neglect but was caused by her inability to earn 
14 A-1121-12T1

enough money to adequately support the family." Ibid. 

Moreover, the mother had also paid to transport the juvenile to 

the United States to be reunited with his father. Id. at 45. 

The court concluded: "These are not the actions of an abusive or 

neglectful parent; instead, they describe a caring mother 

[living in poverty] who is trying to provide better living 

conditions for her son." Id. at 49. We agree, and find the 

same conclusions applicable to this case. 

Petitioner stresses that, because M.S. was the only person 

in the household who was physically able to work, he stopped 

going to school and, at the age of fifteen, worked long hours 

doing manual labor in construction. As a result, he developed 

back and skin problems, and became very thin, ill, and 

depressed. The judge found that M.S. had done harsh work for at 

least a year, causing back problems, but the judge did not find 

any protracted impairment to M.S. or any abuse or neglect by the 

mother.

New Jersey law considers it to be abuse for a parent to 

"permit[] a child to be employed in any vocation or employment 

injurious to its health or dangerous to its life or limb, or 

contrary to the laws of this State." N.J.S.A. 9:6-1. However, 

M.S. was employed in India, not New Jersey, and petitioner has 

not shown that M.S. was employed contrary to the laws of India. 
15 A-1121-12T1

Similarly, petitioner has not shown that M.S.'s employment 

exposed M.S. to danger to life or limb or injured his health in 

a serious or protracted way. See N.J.S.A. 9:6-8.9(b); N.J.S.A.

9:6-8.21(c)(2). We cannot conclude on this record that M.S.'s 

employment in India, which has not been shown to violate that 

country's child labor laws, shows that his mother has willfully

or grossly negligently abused or neglected him within the 

meaning of our State child welfare laws. See D.C., supra, 417 

N.J. Super. at 49-51. 

Finally, petitioner asserted that the mother's neglect of 

M.S. was corroborated by the fatal illnesses of his two older 

siblings. In his testimony, M.S. was vague about the causes of 

the deaths of his sister and brother in 2001 and 2005, 

respectively. Nor was petitioner fully aware of the 

circumstances under which the older siblings died because he 

lived in the United States and had no direct knowledge. 

Petitioner testified generally that their deaths were due to the 

mother's poverty and her inability to obtain medical care and 

otherwise to provide for her children. In her acknowledgment of 

service, the mother stated that her children's illnesses and 

deaths were "caused by a lack of nutrition." Although proof of 

neglect of one child is admissible to show neglect of another 

child, N.J.S.A. 9:6-8.46(a)(1), the judge properly found no 
16 A-1121-12T1

evidence that the mother willfully failed to provide food or 

medical care to the siblings despite having the financial 

ability.

With respect to the father, although the petitioner raised 

abandonment and neglect, he principally contends that the father 

abandoned M.S. before he was born. 

In considering whether there had been "abandonment" of M.S. 

by either his mother or his father, the judge properly utilized 

the definition of that term in N.J.S.A. 9:6-1:

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.

Other statutes similarly protect "a child who has been willfully 

abandoned by his parent." N.J.S.A. 9:6-8.9(e); N.J.S.A. 9:6-

8.21(c)(5). Under these statutes, abandonment requires "a 

finding that 'a parent has willfully forsaken obligations, 

although physically and financially able to discharge those 

obligations.'" In re Adoption of a Child by D.M.H., 135 N.J.

473, 481 (1994) (quoting In re Adoption of Children by L.A.S., 
17 A-1121-12T1

134 N.J. 127, 134-35 (1993)), cert. denied, 513 U.S. 967, 115 S. 

Ct. 433, 130 L. Ed. 2d 345 (1994).

The judge found that M.S. had not been abandoned by the 

mother, who "is actively involved in the child's life," is in 

"constant contact with" him, and participated in this litigation 

by providing the acknowledgment. The judge noted that the mother 

desired the award of custody to her brother in the United States 

because it would be better for M.S. Further, the mother paid 

for M.S. to be transported from India, through Turkey and 

Mexico, to the United States. As the judge found, these facts 

gave "clear indications of a mother who is unable to take care 

of this child and who wants nothing but the best for this 

child." Our Supreme Court has held that it is not willful 

abandonment for a parent to voluntarily surrender a child to 

foster care because it is in the child's best interest, or 

because the parent is currently incapable of providing the 

needed care, so long as the parent stays or tries to stay in 

regular contact with the child. In re Guardianship of K.L.F., 

129 N.J. 32, 38-39 (1992); In re Guardianship of J.C., 129 N.J.

1, 6, 16-17 (1992). 

In D.C., the court reached the same conclusion on similar 

facts. An impoverished mother paid to smuggle her son from 

Guatemala to the United States to live with his father, because 
18 A-1121-12T1

she was not "physically and financially able" to care for him, 

and she remained in contact with the juvenile after he arrived 

here. D.C., supra, 417 N.J. Super. at 45, 48. The court aptly 

found that "[n]o rational view of this evidence can support the 

conclusion that defendant abandoned her son." Id. at 48. The 

United States District Court has also declined to find parental 

abandonment in factual circumstances similar to this case. The 

federal court concluded that an African father who sent his son 

to the United States and "wanted the best for his son and 

remained in regular communication with him," was "a concerned 

father" rather than "an abusive, neglectful father who abandons 

his son." Yeboah v. U.S. Dep't of Justice, 223 F. Supp. 2d 650, 

658 (E.D. Pa. 2002), aff’d, 345 F.3d 216 (3d Cir. 2003). 

Here, the evidence supports the judge's finding that the 

juvenile's mother did not abuse, neglect, or abandon him. 

Therefore, under the terms of Subparagraph J, petitioner did not 

show that reunification of M.S. with his mother was "not viable 

due to abuse, neglect, or abandonment." 8 U.S.C.A. § 

1101(a)(27)(J)(i).

We do not reach the same conclusion with respect to the 

juvenile's father. The mother certified that the father was 

addicted to alcohol and drugs and abandoned the family before 

M.S. was born. M.S. testified that he never met his father. He 
19 A-1121-12T1

was unaware that his father had ever sent any money for him or 

his mother. Petitioner claimed that no one knew the father's 

whereabouts or even his date of birth to assist in locating him. 

The family court cited the allegation that the father's

abandonment was a result of alcoholism or drug addiction, and

concluded there was insufficient evidence that the father's 

conduct was willful. Some cases have found that addicted 

parents have not abandoned their child. In re Guardianship of 

K.H.O., 308 N.J. Super. 432, 455 (App. Div. 1998), rev’d on 

other grounds, 161 N.J. 337 (1999); In re Adoption of a Child by 

J.R.D., 246 N.J. Super. 619, 629 (Ch. Div. 1990). In those 

cases, however, the parent made efforts to maintain contact with 

the child, and expressed a desire for reunification. K.H.O., 

supra, 308 N.J. Super. at 437 (noting the parent's many visits); 

J.R.D., supra, 246 N.J. Super. at 623-25, 628-29 (noting the 

parent's visits with his child, efforts to find her after the 

child moved, intermittent payment of child support, and 

opposition to the adoption petition). We are not aware of any 

case that holds that a total disregard of parental duties, 

although caused by alcohol or drug addiction, is insufficient to 

constitute abandonment of a child.

As we have stated, abandonment must be willful. The 

"parent 'must have engaged in a course of conduct that 
20 A-1121-12T1

"evidences a settled purpose to forego all parental duties and 

relinquish all parental claims to the child."'" D.M.H., supra, 

135 N.J. at 481 (citations omitted). Here, the evidence was 

that the father engaged in such a course of conduct and 

abandoned his parental duties to his children. The father's 

absence during the juvenile's entire life plainly demonstrates 

his settled purpose to forego his parental duties and relinquish 

parental claims to M.S. See N.J.S.A. 30:4C-15.1(b)(1)(a)-(b) 

(permitting the termination of parental rights for abandonment 

if the parent has had no contact with the child for six months 

or more and the parent's whereabouts are unknown).

The family court also noted that petitioner and the 

juvenile's mother had not tried to find the father for purposes 

of adjudicating this petition. As noted above, it is unclear 

what if any contact, notice, or service is required or permitted 

in the context of an SIJ determination. In any event, as the 

Family Part proceeded to grant custody and make findings without 

such an effort, we do not regard this as a basis on which to 

refuse to find abandonment. 

We must hew to our standard of review, which requires 

deference to a trial court's factual findings. N.J. Div. of 

Youth & Family Servs. v. L.L., 201 N.J. 210, 226 (2010) 

(citations omitted). We nevertheless conclude that the court
21 A-1121-12T1

erred in finding insufficient evidence that father had in fact 

abandoned the juvenile. See N.J. Div. of Youth & Family Servs.

v. C.S., 367 N.J. Super. 76, 114-15 (App. Div. 2004). 

Petitioner was thus entitled to a finding that M.S.'s 

reunification with his father is not viable because of 

abandonment. See 8 U.S.C.A. § 1101(a)(27)(J)(i).

V.

Petitioner also asked the Family Part to make an additional 

finding that "it would not be in the [juvenile's] best interest 

to be returned to the [juvenile's] or parent's previous country 

of nationality or country of last habitual residence." 8 

U.S.C.A. § 1101(a)(27)(J)(ii). Petitioner presented evidence of 

the deplorable conditions in the slums of India, the greater 

opportunities available in the United States for nutrition, 

education, and medical care, and the love and support of M.S. by

petitioner and his family. 

The judge declined to make a "best-interest" determination

because he found insufficient evidence that either parent had 

abandoned or neglected the juvenile. Because we disagree with 

the judge's finding regarding the father, we must address the

federal statute further and determine whether it applies to 

circumstances where only one parent has abused, neglected, or 
22 A-1121-12T1

abandoned the juvenile but the other parent has not, and 

reunification with the other parent is viable. 

Several commentators6 and several courts, In re Minor 

Children of J.E., 432 N.J. Super. 361, 372 (Ch. Div. 2013); In 

re Marisol N.H., 979 N.Y.S.2d 643, 647 (App. Div. 2014); In re

Marcelina M.-G. v. Israel S., 973 N.Y.S.2d 714, 721-23 (App. 

Div. 2013); In re Mario S., 954 N.Y.S.2d 843, 851 (Fam. Ct. 

2012),7 have interpreted Subparagraph J as requiring proof that 

only one parent abused, neglected, or abandoned a juvenile, even 

where the available custodial parent did not and reunification 

with that parent is viable. On the other hand, the Supreme 

Court of Nebraska fully analyzed the federal statute and held 

that the requirements of Subparagraph J are not met where one

parent is available and did not abuse, neglect, or abandon the 

 

6 See Jennifer Baum, Alison Kamhi, and C. Mario Russell, Most In 

Need But Least Served: Legal And Practical Barriers To Special 

Immigrant Juvenile Status For Federally Detained Minors, 50 Fam. 

Ct. Rev. 621, 622 (2012); Laureen A. D'Ambra, The Vital Role of 

the Rhode Island Family Court and its Unique Jurisdiction in 

Immigration Cases Involving Abused and Neglected Children, 15 

Roger Williams U. L. Rev. 24, 31 (2010); Angie Junck, Special 

Immigrant Juvenile Status: Relief for Neglected, Abused, and 

Abandoned Undocumented Children, 63 Juv. & Fam. Ct. 48, 56 

(2012); see also 3 Charles Gordon et al., Immigration Law & 

Procedure § 35.09 at 35-44 & n.79 (rev. ed. 2013)(quoting 

cases).

7 In accordance with Rule 1:36-3, we do not cite unpublished 

opinions, such as that of an intermediate appellate court in 

Minnesota that reached the same conclusion as the cited cases.
23 A-1121-12T1

juvenile. State v. Erick M., 820 N.W.2d 639, 644-47 (Neb. 

2012). The Nebraska court stated: "when ruling on a 

petitioner's motion for an eligibility order under § 

1101(a)(27)(J), a court should generally consider whether 

reunification with either parent is feasible." Id. at 648. The 

Nebraska court ruled that because "reunification with [the 

juvenile's] mother was feasible, he was not eligible for SIJ 

status," and he "was not seeking SIJ status to escape parental 

abuse, neglect, or abandonment." Id. at 642, 648. We agree

with the holding of the Nebraska court, and overrule the 

contrary holding of J.E., supra, 432 N.J. Super. at 372. 

Subparagraph J requires a finding by the family court that 

a juvenile's "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." 8 U.S.C.A. § 1101(a)(27)

(J)(i). We understand the "1 or both" phrase to require that 

reunification with neither parent is viable because of abuse, 

neglect, or abandonment of the juvenile. In other words, the 

statute is not satisfied where reunification with one or both 

parents is viable. We hold that it is insufficient that 

reunification with one parent is not viable due to abuse, 

neglect, or abandonment, if the juvenile has another "safe"

parent who has not abused, neglected or abandoned the juvenile. 
24 A-1121-12T1

If that parent is deceased or unable to protect the child 

against abuse or neglect by the unsafe parent, then

reunification with one or both of the juvenile's parents is not 

viable due to abuse, neglect, or abandonment. 

The legislative history of Subparagraph J supports our 

understanding of the statute. "The SIJ provisions of the INA 

were enacted in 1990 to protect abused, neglected, or abandoned 

children who, with their families, illegally entered the United 

States." Yeboah v. U.S. Dept. of Justice, 345 F.3d 216, 221 (3d 

Cir. 2003). "Rather than being deported along with abusive or

neglectful parents, or deported to parents who had abandoned 

them once in the United States, such children may seek special 

status to remain in the United States." Ibid. As originally 

enacted, however, the statute "was abused . . . by juveniles 

entering the United States as visiting students" who used it to 

improve their immigration status. Ibid. 

In 1997 Congress amended Subparagraph J to require the 

juvenile to have "been deemed eligible . . . for long-term 

foster care due to abuse, neglect, or abandonment." Depts. of 

Commerce, Justice, & State, the Judiciary, & Related Agencies 

Appropriation Act, Pub. L. No. 105-119, § 113, 111 Stat. 2440, 

2460 (1997). Congress also added that the Attorney General (now

the Secretary of Homeland Security) must expressly consent to 
25 A-1121-12T1

the grant of SIJ status. Ibid. The conference report stated 

that "[t]he language has been modified in order to limit the 

beneficiaries of this provision to those juveniles for whom it 

was created, namely abandoned, neglected, or abused children," 

and to ensure that the juvenile court determination was not 

"sought primarily for the purpose of obtaining the status of an 

alien lawfully admitted for permanent residence, rather than for 

the purpose of obtaining relief from abuse or neglect." H.R. 

Rep. No. 105-405, at 130 (1997). Congress thus sought to deter 

juveniles and their parents from "attempting to manipulate the 

system to obtain permanent residence" for juveniles in the 

United States. Yeboah, supra, 345 F.3d at 224; see also M.B. v. 

Quarantillo, 301 F.3d 109, 114 (3d Cir. 2002) ("The legislative 

history confirms that the revision in the statute was intended 

to curtail the granting of special immigrant juvenile status."). 

In 2008, Congress amended the statute further by enacting

the William Wilberforce Trafficking Victims Protection 

Reauthorization Act of 2008, Pub. L. No. 110-457, § 235(d)(1)-

(3), 122 Stat. 5044, 5079-80 (2008). Section 235 of the 

Wilberforce Act made two pertinent changes to Subparagraph J. 

First, by permitting SIJ applications from juveniles who were 

placed under the custody of "an individual or entity appointed 

by a State or juvenile court," ibid., the amendment "broadened 
26 A-1121-12T1

the category of those to whom a child's custody could be legally 

committed." C.G.H., supra, 75 A.3d at 168 n.2. 

Second, the 2008 amendment removed the phrase "eligible for 

long-term foster care," and substituted "reunification with 1 or 

both of the immigrant's parents is not viable." This 

represented less of a change than it appeared, as the Regulation 

already provided that "[e]ligible for long-term foster care 

means that a determination has been made by the juvenile court 

that family reunification is no longer a viable option." 8 

C.F.R. § 204.11(a).

8 The 2008 amendment retained the 1997

requirement that reunification not be viable because of "abuse, 

neglect, [or] abandonment," adding "or a similar basis found 

under State law." Ibid. 

There is no specific legislative history on the "1 or both" 

language. 3 Charles Gordon et al., Immigration Law & Procedure

§ 35.09 at 35-44 (rev. ed. 2013) ("The shift in language . . . 

was accomplished without a trace of legislative history.").9 

 

8 See Randi Mandelbaum and Elissa Steglich, Disparate Outcomes: 

The Quest for Uniform Treatment of Immigrant Children, 50 Fam. 

Ct. Rev. 606, 608 (2012). 

9 The proposed regulations similarly are "silent on the issue of 

the one-parent versus two-parent question." Id. at 35-44 n.80; 

see Erick M., supra, 820 N.W.2d at 644.
27 A-1121-12T1

However, some guidance can be gained from the legislative 

history of the 2008 legislation as a whole.

The 2008 Wilberforce Act was intended to continue the fight 

against human trafficking. H.R. Rep. No. 110-430, pt. 1 at 3.

10 

The legislation was named to recognize "the immense 

contributions of British Parliamentarian William Wilberforce to 

the abolition of the global slave trade in the 19th Century." 

Id. at 34. One of its key initiatives was "[p]reventing the 

trafficking of unaccompanied alien children found in the United 

States by ensuring that they are not repatriated into the hands 

of traffickers or abusive families." Id. at 33; see 153 Cong. 

Rec. H. 14,098, 14,121 (Rep. Sanchez); 154 Cong. Rec. S. 4,795, 

4,800 (2008) (Sen. Biden); 154 Cong. Rec. H. 10,888, 10,903 

(2008) (Rep. Berman). The legislation's section that amended

Subparagraph J was entitled "Enhancing Efforts to Combat the 

Trafficking of Children." § 235, 122 Stat. at 5074-80. 

At the same time, Congress did not forget the concerns it 

had expressed in 1997. At the introduction of the bill,

Representative Lamar Smith stated that the bill would add 

"reasonable protections for unaccompanied alien minors," and 

thanked the sponsors for addressing his concerns by modifying 

 

10 This House Report accompanied the bill that first introduced 

the "1 or both" language.
28 A-1121-12T1

provisions to discourage "illegal immigration and immigration 

fraud." 153 Cong. Rec. H. 14,098, 14,121 (2007). When the bill 

was ultimately passed, Senator Dianne Feinstein stated: "This 

legislation does not expand the current immigration rights of 

any child. Instead, it presumes that children will be placed in 

removal proceedings — unless they qualify for immigration benefits 

under current law." 154 Cong. Rec. S. 10,886, 10,887 (2008). 

Congress's continued concern with misuse of the law was 

reflected in the Executive Branch's implementation of 

Subparagraph J. Guidance memoranda to federal immigration 

directors, issued both before and after the 2008 amendment, 

instruct that the Secretary of Homeland Security "will not 

consent to a petition for SIJ status if it was sought primarily 

for the purpose of obtaining the status of an alien lawfully 

admitted for permanent residence, rather than for the purpose of 

obtaining relief from abuse or neglect or abandonment." See

Erick M., supra, 820 N.W.2d at 646 & n.25 (citations and 

quotation marks omitted). The proposed regulations would 

explicitly incorporate this language into 8 C.F.R. § 201.11. 

Special Immigrant Juvenile Status, 76 Fed. Reg. 54,978, 54,981-

82, 54,985 (proposed Sept. 6, 2008). 

Thus, the legislative and administrative history of 

Subparagraph J shows two competing goals. Congress wanted to 
29 A-1121-12T1

permit use of the SIJ procedure when necessary to prevent the 

return of juveniles to unsafe parents. Where such protection is 

unnecessary, however, Congress wanted to prevent misuse of the 

SIJ statute for immigration advantage. 

Our understanding of Subparagraph J — that it requires a 

finding that reunification with neither parent is viable because 

of abuse, neglect, or abandonment — achieves both of Congress's

goals. It effectuates Congress's protective goal by making a 

juvenile eligible for SIJ status if the juvenile cannot be 

reunited with a parent without being put in danger by an unsafe 

parent. It also serves Congress's goal of preventing misuse of 

the statute by not granting immigration advantages when the 

juvenile has a safe parent with whom he can be reunited. 

The contrary interpretation does not achieve both of 

Congress's goals. It would mean that a juvenile could apply for 

SIJ status, with its immigration advantages, even if that 

juvenile could be viably reunified with one parent who never 

abused, neglected, or abandoned the juvenile. Indeed, it would 

permit SIJ status even if that safe parent had raised the 

juvenile from birth, in love, comfort, and security, and even if 

reunification with the safe parent would not result in any 

further contact with the unsafe parent. Nothing in the 

legislative history of Subparagraph J supports such a broad 
30 A-1121-12T1

interpretation. Finally, that broad interpretation would render 

Subparagraph J's words "or both" superfluous, because it would 

always be sufficient that "reunification with 1 . . . of the 

immigrant's parents is not viable." 

Petitioner and M.S. presented a sympathetic case to the 

family court. However, courts misuse their power and authority 

if they misinterpret and misapply a statute contrary to its 

legislative intent. If Congress wished to create a "'gateway'"11

for all abused or impoverished foreign juveniles to enter the 

United States and benefit from the better conditions provided in 

this country, it could have done so. It did not do so by 

enacting the 2008 amendments to Subparagraph J. See Garcia v. 

Holder, 659 F.3d 1261, 1271 (9th Cir. 2011) (Subparagraph J 

shows "a congressional intent to assist a limited group of 

abused children to remain safely in the country"). The purpose 

of Subparagraph J remains the protection of those abused, 

neglected, or abandoned juveniles whose compelled repatriation 

would place them in danger from a parent who abused, neglected, 

or abandoned them. 

In Yeboah, the United States Court of Appeals for the Third 

Circuit stated: 

 

11 See Mario S., supra, 954 N.Y.S.2d at 848 (citations omitted).
31 A-1121-12T1

SIJ status is supported if "neither the 

dependency order nor the administrative or 

judicial determination of the alien's best 

interest was sought primarily for the 

purpose of obtaining the status of an alien 

lawfully admitted for permanent residence, 

rather than for the purpose of obtaining 

relief from abuse or neglect."

[Yeboah, supra, 345 F.3d at 222 (quoting 

H.R. Rep. No. 105-405, at 130 (1997)).]

The 2008 amendments did not alter that intent of the 

federal law. Erick M., supra, 820 N.W.2d. at 645 & n.23. Here, 

the express objective of the petition was for M.S. to obtain 

relief for purposes of his immigration status, rather than for 

the purpose of obtaining relief from abuse, neglect, or 

abandonment, as his mother had not abused, neglected, or 

abandoned him. 

We therefore hold that the Family Part was not required to 

make a "best interest" finding under 8 U.S.C.A. § 

1101(a)(27)(J)(ii) because petitioner failed to satisfy 8 

U.S.C.A. § 1101(a)(27)(J)(i). As set forth above, there was

sufficient credible evidence supporting the court's finding that 

the mother had not abused, neglected, or abandoned M.S., and 

petitioner failed to show reunification with the mother was not 

viable for those reasons. 

Finally, we note that when M.S. was before the trial court, 

he was seventeen years old, and that he is now nineteen. The 
32 A-1121-12T1

Family Part in this State would typically not decide the issue 

of a juvenile's custodial status and best interests if he has 

reached the age of majority, generally eighteen years old. See

N.J. Div. of Youth & Family Servs. v. W.F., ___ N.J. Super. ___ 

(App. Div. Jan. 28, 2014) (slip op. at 9-13). However, under

federal law, an alien remains eligible for SIJ status if he 

"[i]s under twenty-one years of age," "[i]s unmarried," and 

"[h]as been" found to meet the criteria of Subparagraph J. 8 

C.F.R. § 204.11(c); see also 8 U.S.C.A. § 1232(d)(6) 

("Notwithstanding any other provision of law, an alien described 

in [Subparagraph J] may not be denied special immigrant status 

under such section after the date of the enactment of this Act 

based on age if the alien was a child on the date on which the 

alien applied for such status."). Because the application was 

filed and heard before M.S. reached the age of majority, his 

current age does not moot the appeal. 

Affirmed in part, reversed in part, and remanded for 

modification of the Family Part's order to include a finding for 

purposes of Subparagraph J that M.S. was abandoned by his 

father.