H.S.P. v. J.K.
435 N.J. Super. 147
| N.J. Super. Ct. App. Div. | 2014Background
- Petitioner H.S.P., a U.S. citizen, seeks custody of his seventeen-year-old nephew M.S. to assist him in obtaining Special Immigrant Juvenile (SIJ) status.
- M.S., born in India in 1994, entered the U.S. illegally in 2011 and has lived in petitioner’s New Jersey home since the mid-2010s.
- Family Part granted custody to petitioner on Sept. 27, 2012 but did not make or find the Subparagraph J findings requested for SIJ eligibility.
- Petitioner argued the court should declare M.S. dependent or committed to petitioner, and that reunification with one or both parents is not viable due to abuse/neglect/abandonment.
- The court found custody proper but declined to make SIJ findings; this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Interpretation of Subparagraph J (I): viability required for reunification | J.i requires reunification not viable with at least one parent due to abuse/neglect/abandonment. | Reunification with one viable parent may suffice; protections should not mandate two failed options. | Court adopts '1 or both' means both must be not viable; reunification with a viable parent precludes SIJ eligibility. |
| Abandonment finding as to the father (II): whether father's abandonment supports J | Father abandoned and is unavailable; abandonment supports not-viable reunification. | Court should not find abandonment without adequate service or clear evidence of willful neglect. | Court erred in not finding father abandonment; M.S.'s reunification with father not viable due to abandonment. |
| Best-interest finding under J(ii) (III) | If J(i) is satisfied, the court must also consider whether it would be in M.S.'s best interest not to return to India. | Best-interest analysis unnecessary when J(i) not satisfied. | No separate best-interest finding required because J(i) was not satisfied; however, with father abandonment, J(ii) considerations are addressed on remand. |
| Procedural considerations for SIJ petition (IV) | NJ procedures and service should not bar SIJ relief if the purpose is immigration status. | Due-process concerns arise when third-party custody is used primarily for immigration benefits. | Court did not rely on improper service to deny SIJ findings; jurisdictional concerns acknowledged but resolved on merits. |
Key Cases Cited
- In re Guardianship of K.L.F., 129 N.J. 32 (1992) (abandonment and guardianship context; supports when a parent surrenders care but remains in contact)
- D.C. v. A.B.C., 417 N.J. Super. 41 (Ch. Div. 2010) (poverty and lack of resources do not prove willful neglect)
- Yeboah v. U.S. Dept. of Justice, 345 F.3d 216 (3d Cir. 2003) (SIJ eligibility requires not seeking status primarily to obtain permanent residence)
- In re Minor Children of J.E., 432 N.J. Super. 361 (Ch.Div. 2013) (interpretation of Subparagraph J and viability of reunification across two parents)
- State v. Erick M., 820 N.W.2d 639 (Neb. 2012) (two-parent viability interpretation influencing SIJ eligibility)