RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0577-16T1

M.J.L.G., 

Plaintiff-Appellant,

v. 

G.R.,

Defendant-Respondent.

IN THE MATTER OF O.N.R.L.,

Minor.

Submitted November 8, 2017 – Decided 

Before Judges Carroll and Leone.

On appeal from Superior Court of New Jersey, 

Chancery Division, Family Part, Morris County, 

Docket No. FD-14-0554-16.

Rutgers Child Advocacy Clinic and Kids in Need 

of Defense, attorneys for appellant (Randi 

Mandelbaum and Gilda Holguin, on the brief).

Respondent has not filed a brief.

PER CURIAM 

 Plaintiff M.J.L.G. appeals a portion of the Family Part's 

July 28, 2016 order in this matter involving a minor from Honduras 

NOT FOR PUBLICATION WITHOUT THE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.

November 27, 2017
2 A-0577-16T1

who now resides with plaintiff in New Jersey, and a September 15, 

2016 order denying plaintiff's motion for reconsideration. In 

particular, plaintiff argues that the court erroneously failed to 

find that her son's reunification with his biological father was 

not viable due to abandonment and neglect, pursuant to the federal 

criteria for special immigrant juvenile (SIJ) status set forth in 

8 U.S.C.A. § 1101(a)(27)(J) and 8 C.F.R. § 204.11(c). The court 

ruled it could not make this finding because it lacked personal 

jurisdiction over the father. For the reasons that follow, we 

reverse the court's determination that it lacked jurisdiction to 

decide this discrete issue, and remand this matter to the trial 

court to make the required finding. 

 The legal context of this non-contested case is governed by 

the aforesaid federal provisions concerning SIJ status. Those 

provisions were recently explained in depth in H.S.P. v. J.K., 223 

N.J. 196, 208-11 (2015). As H.S.P. notes, Congress amended the 

Immigration Act of 1990 by adopting the Trafficking Victims 

Protection Reauthorization Act of 2008 (TVPRA), Pub. L. No. 110-

457, 122 Stat. 5044. The TVPRA allows an undocumented juvenile 

who is present in the United States to receive SIJ status if

(i) [he] has been declared dependent on a 

juvenile court located in the United States 

or . . . such a court has legally . . . placed 

[him] under the custody of, an agency or 

department of a State, or an individual or 
3 A-0577-16T1

entity appointed by a State or juvenile court 

located in the United States, and [his] 

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) [a juvenile court determined] 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) . . . the Secretary of Homeland Security 

consents to the grant of special immigrant 

juvenile status[.] 

[8 U.S.C.A. § 1101(a)(27)(J).] 

 The Immigration Act's implementing regulations further 

clarify an undocumented youth's eligibility for SIJ status. 8 

C.F.R. § 204.11(c). As interpreted by the Court in H.S.P., the 

five eligibility requirements1 under the Act and the regulations

are: 

(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 

 

1 Although the regulations had previously contained additional 

requirements, including that the juvenile "has been deemed 

eligible by the juvenile court for long-term foster care," 8 C.F.R.

§ 204.11(c)(4), the 2008 TVPRA amendments removed this 

requirement. H.S.P., supra, 223 N.J. at 209. 
4 A-0577-16T1

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); 8 C.F.R. § 

204.11(a), (d)(2)(iii)[.] 

[H.S.P., supra, 223 N.J. at 210 (quoting In 

re Dany G., 117 A.3d 650, 655 (Md. Ct. Spec. 

App. 2015)).] 

 Our Supreme Court delineated in H.S.P. the Family Part's 

limited role in this federal-state arrangement. Id. at 210-15. 

Significantly, state family courts do not "render[] an immigration 

determination." Id. at 210 (quoting In re Marcelina M.-G. v. 

Israel S., 973 N.Y.S. 2d 714, 721 (N.Y. App. Div. 2013)). Rather, 

a state court's order in an SIJ status case serves "merely [as] a 

prerequisite that must be fulfilled before a juvenile can submit 

his or her application for SIJ status to [United States Citizenship 

and Immigration Services ('USCIS')]." Ibid. It is only "[a]fter 

obtaining SIJ status [that] a child is permitted to apply for 

adjustment of status under 8 U.S.C.A. § 1255, in an effort to 

obtain legal permanent residency, and, eventually, U.S. 

citizenship." Id. at 210-11. 
5 A-0577-16T1

 The Court in H.S.P. emphasized that the Family Part's findings 

under this statutory and regulatory scheme must "only relate to 

matters of child welfare[.]" Id. at 212. Further, in making such 

predicate findings, the Family Part must apply the particular 

child welfare laws of New Jersey, "and not that of a foreign 

nation." Id. at 212-13. 

 H.S.P. also instructs that "Family Part courts faced with a 

request for a SIJ predicate order should make factual findings 

with regard to each of the requirements listed in 8 C.F.R. § 

204.11." Id. at 201 (emphasis added). Additionally, "[w]hen 

analyzing whether reunification with '1 or both' parents is not 

viable due to abuse, neglect, or abandonment, the Family Part 

shall make separate findings as to each parent[.]" Ibid. (emphasis 

added). Ultimately, the federal government, through USCIS, 

determines whether a youth qualifies for SIJ status or, eventually, 

citizenship. Accordingly, the state court's limited designated 

role is to "make factual findings based on state law about the 

[criteria of] abuse, neglect, or abandonment, family 

reunification, and best interests of the child." Id. at 214-15 

(quoting Immigration Relief for Abused Children, U.S. Citizenship 

& Immigration Servs., 2 (2014), https://www.uscis.gov/sites/

default/files/USCIS/Green%20Card/Green%20Card%20Through%20a%20Jo

b/Immigration_Relief_for_Abused_Children-FINAL.pdf). 
6 A-0577-16T1

 Here, plaintiff filed a verified complaint along with a motion 

seeking sole legal custody of her son, O.N.R.L. (Omar).2 Plaintiff 

also requested the court to make the findings necessary to allow 

Omar to apply for SIJ status. Defendant G.R. was served in 

Honduras with the complaint, motion and supporting papers, and 

signed an affidavit of service acknowledging receipt of those 

documents. Defendant did not answer or otherwise appear in the 

action. 

 The trial court conducted a hearing at which plaintiff and 

Omar testified. According to their testimony, Omar was born in 

February 2000, and was sixteen years old at the time of the 

hearing. Plaintiff and defendant were never married, but lived 

together in Honduras. After plaintiff became pregnant, defendant 

began drinking excessively, and physically and verbally abused 

plaintiff. Because defendant was heavily intoxicated, hospital 

staff did not allow him to visit Omar when he was born. Defendant 

did not contribute to plaintiff's medical expenses related to 

Omar's birth. 

 Defendant continued to drink excessively after Omar was born. 

Plaintiff testified defendant sexually assaulted her, resulting 

in the birth of a second child. Eventually, plaintiff separated 

 

2 For privacy reasons, we use a fictitious name for the minor child 

and initials for the parties involved in this case. 
7 A-0577-16T1

from defendant when Omar was two years old. Since then, defendant 

only had contact with Omar on a single occasion, and never 

contributed to the children's emotional or financial support. 

 Plaintiff left the children in the care of her mother in 

Honduras and came to the United States in 2009. She explained her 

reason was "[s]o I could help my children get ahead in life because 

I didn't like the money I was making in Honduras and my mother was 

sick." Omar arrived in New Jersey in August 2015, and has resided 

with plaintiff and her brother since that time. Plaintiff 

elaborated that Omar could no longer attend school in Honduras 

because it was not a "good environment" and "there were many 

children who were smoking drugs." 

 In his testimony, Omar indicated he could not recall what his 

father looked like, and that he only spoke with his father once 

on the phone. He stated it was plaintiff who provided him with 

necessities such as food, clothing, and emotional support. Omar 

confirmed "there was a lot of crime and gangs" where he lived in 

Honduras and he did not feel safe there. Consequently, he came 

to the United States to be reunited with his mother, and he 

presently attends high school here. 

 After considering this unopposed application, the trial court 

granted plaintiff sole legal and physical custody of Omar "so that 

she may continue to care [for] and protect [him]." The court 
8 A-0577-16T1

further provided that it "ha[d] exclusive, continuing jurisdiction 

over any custody determinations concerning [Omar]." 

 The court also found that plaintiff established eligibility 

requirements one, . . . as set forth in H.S.P., supra, 223 N.J.

at 210. Specifically, the court found Omar was under the age of 

21 and unmarried; dependent on the court because it had to 

determine an appropriate custodian for Omar; the court had subject 

matter jurisdiction to make a judicial determination about his 

care and custody; and that it was not in Omar's best interest to 

be returned to Honduras since he "ha[d] no responsible adult there 

who can care for him and keep him safe." 

 However, with respect to the fourth factor, the court declined 

"to make a finding that [Omar's] father has abandoned him because 

I don't have personal jurisdiction over [] defendant." The judge 

elaborated: "[D]efendant, while he was served, is not an American 

citizen. He's never set foot in the United States. He has no [] 

contact with the United States, and I would have no jurisdiction 

over him, particularly with respect to severing his custody." In 

denying plaintiff's motion for reconsideration, the court 

reiterated that it lacked personal jurisdiction over defendant 

because he had never been in the United States and he lacked the 

requisite minimum contacts with New Jersey. 
9 A-0577-16T1

 We conclude the trial court incorrectly ruled it could not 

make a finding whether reunification with defendant was viable due 

to abandonment or neglect because it lacked personal jurisdiction 

over defendant. The court failed to consider the applicability 

of the Uniform Child Custody Jurisdiction and Enforcement Act 

(UCCJEA), N.J.S.A. 2A:34-53 to -95, which is the exclusive 

jurisdictional basis for child custody determinations and 

establishes procedures for determining which court is the 

appropriate forum when a child has ties to both New Jersey and 

another state or country. Importantly, the UCCJEA specifically 

provides that the "[p]hysical presence of, or personal 

jurisdiction over, a party or child is neither necessary nor 

sufficient to make a child custody determination." N.J.S.A. 2A:34-

65(c). 

 This jurisdictional principle is well settled. Even prior 

to the enactment of the UCCJEA, we held that "in personam

jurisdiction is not required to entertain an application to modify 

an order for custody or visitation under the UCCJA [Uniform Child 

Custody Jurisdiction Act] provided that notice and opportunity to 

be heard are given as required by N.J.S.A. 2A:34-32 and -33." 

Genoe v. Genoe, 205 N.J. Super. 6, 15 (App. Div. 1985). The 

rationale is that "'[t]he custody status of a child or children 

may be decided quasi in rem.'" Id. at 14 (quoting In re Marriage 
10 A-0577-16T1

of Schuham, 76 Ill. App. 3d 339, 346 (1983)). We have "cited 

Shaffer v. Heitner, 433 U.S. 186, 208, n. 30, 97 S. Ct. 2569, 

2582, n. 30, 53 L. Ed. 2d 683, 700, n. 30 (1977), as recognizing 

adjudications of status, such as matters pertaining to the custody 

of children residing here, as an exception to the 'minimum 

contacts' requirement." Div. of Youth & Family Servs. v. M.Y.J.P., 

360 N.J. Super. 426, 457 (App. Div.), certif. denied, 177 N.J. 575 

(2003). Because plaintiff served defendant, the court had the 

authority to make the SIJ findings regarding defendant and to 

award sole custody of the parents' child to plaintiff.

 The court was also mistaken in its belief that granting 

plaintiff custody of Omar obviated the need to make the SIJ 

findings or was akin to terminating defendant's parental rights 

to Omar. Consequently, the trial court failed to make any findings 

about whether defendant abandoned or neglected Omar, and whether 

Omar's reunification with his father was viable as a result of 

such abandonment or neglect. Regardless of the court's 

determination as to custody, it is settled that a court must make 

findings on each SIJ factor. O.Y.P.C. v. J.C.P., 442 N.J. Super.

635, 642 (App. Div. 2015). 

 We therefore remand this matter for the expeditious 

completion of the fact-finding required under the governing law. 

On remand, the trial court must now determine, under factor four, 
11 A-0577-16T1

if Omar's reunification with his father is not viable due to 

defendant's neglect or abandonment of Omar. The unchallenged 

portions of the court's July 28, 2016 order granting plaintiff 

legal and physical custody of Omar and making findings regarding 

the remaining elements of the SIJ statute and regulations remain 

in place. 

 Reversed in part and remanded for further proceedings in 

conformity with this opinion. We do not retain jurisdiction.