                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-0334-14T1

O.Y.P.C.,

     Petitioner-Appellant,             APPROVED FOR PUBLICATION

                                           November 2, 2015
v.
                                          APPELLATE DIVISION
J.C.P.,

     Respondent-Respondent.



            Submitted October 14, 2015 – Decided November 2, 2015

            Before Judges Reisner, Hoffman and Leone.

            On appeal from the Superior Court of New
            Jersey, Chancery Division, Family Part,
            Bergen County, FD-02-504-14.

            Cesar Martin Estela, attorney for appellant.

            Respondent J.C.P. has not filed a brief.1

     The opinion of the court was delivered by

REISNER, P.J.A.D.

     Petitioner O.Y.P.C. appeals from a July 30, 2014 order of

the Family Part denying reconsideration of a December 20, 2013

order denying her immigration-related petition for custody of




1
  In the trial court, petitioner filed proof of service on J.C.P.
However, J.C.P. did not appear in the action.
her brother, E.A.C.P., who had just turned eighteen.2             Filing

such an application is a necessary first step in the process of

seeking special immigrant juvenile (SIJ) status from the federal

government, under the auspices of the Immigration Act of 1990,

as    amended   by   the   William   Wilberforce   Trafficking   Victims

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

457, 122 Stat. 5044 (2008).3

       In pertinent part, the statute provides that SIJ status can

be granted to an alien present in the United States

            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[.]

            [8 U.S.C.A. § 1101(a)(27)(J)(i).]




2
  Although the notice of appeal only listed the July 2014 order,
petitioner's brief addressed the merits of the December 2013
order as well.    In the interests of justice we will consider
both orders. It is clear that both orders must be reversed to
comply with recent Supreme Court precedent.
3
    For clarity we refer to these applications as SIJ petitions.



                                     2                           A-0334-14T1
Federal       implementing    regulations       provide      that   an     alien   is

eligible for SIJ classification if the alien is "under twenty-

one years of age."         8 C.F.R. § 204.11(c)(1).4

       According to petitioner's Family Part filing, the brother

was born in Guatemala.              His father's name is not on his birth

certificate and the father has had no involvement in his life.

The    boy's    biological    mother,      J.C.P.,    concealed     his    parentage

from    the    child,   and    at    his    birth    she   handed    him    over   to

petitioner, his then seventeen-year-old sister.                     Petitioner, at

seventeen, was expected to raise the child as her own, as well

as support both the child and the mother.                  The mother pretended

to be the boy's grandmother and provided him with no support.

       According to petitioner's filing, she eventually moved to

the    United    States,     entering      without   legal    documentation,       in

order to support her brother and her mother financially.                           She

left the brother with the "grandmother."                   While in Guatemala,

the boy was menaced by local gang members but the grandmother

did nothing to protect him, telling him that was just how life

4
  The regulations also require that the juvenile "has been deemed
eligible by the juvenile court for long-term foster care."      8
C.F.R. § 204.11(c)(4).      However, "the TVPRA liberalized the
requirements for SIJ status by eliminating the requirement that
the child be eligible for long-term foster care."         H.S.P.,
supra, slip op. at 16. Thus, we view the regulations in light of
the TVPRA's amendment of the statute. H.S.P. v. J.K., 435 N.J.
Super. 147, 154-55 n.2 (App. Div. 2014), rev'd on other grounds,
__ N.J. __ (2015).



                                           3                                A-0334-14T1
was in Guatemala.           Fearing for her brother's safety and well-

being, petitioner revealed to him that she was his sister, and

arranged for him to travel to the United States, where he lived

with her and enrolled in the local high school.                               The boy, who

speaks    limited     English,       was     still       in    high     school      when    the

petition     was     filed,     and     he       was      completely          dependent       on

petitioner, financially and otherwise.

       The TVPRA, as interpreted by the federal agency responsible

for its implementation, applies to "juveniles" under age twenty-

one.     See 8 U.S.C.A. § 1101(a)(27)(J); 8 C.F.R. 204.11(c)(1).

However, the trial court declined to entertain the SIJ petition

because the brother had just turned age eighteen.                                Relying on

the    definition     of    "juvenile"       found        in    the    Code    of   Juvenile

Justice, N.J.S.A. 2A:4A-22(a), the court reasoned that under New

Jersey law the brother was no longer subject to the jurisdiction

of the Family Part.

       After the trial court rendered its decision, our Supreme

Court    decided     H.S.P.     v.    J.K.,       ___      N.J.       ___   (2015),      which

clarified     the     Family     Part's          obligations           in     deciding      SIJ

petitions.       H.S.P. explained the unusual and important role that

these    state     court    petitions      play      in       the   federal     immigration

scheme.      The    Court     also    made       clear    that      Family     Part    judges

hearing these cases have no obligation to apply or interpret




                                             4                                        A-0334-14T1
federal immigration law, but they are obligated to make the

factual findings set forth in the federal SIJ regulations.

    The opinion summarizes those concepts as follows:

         The Family Part plays a critical role in a
         minor immigrant's attempt to obtain SIJ
         status    but    that     role     is    closely
         circumscribed.   The Family Part's sole task
         is to apply New Jersey law in order to make
         the child welfare findings required by 8
         C.F.R. § 204.11.    The Family Part does not
         have   jurisdiction    to     grant   or    deny
         applications for immigration relief. That
         responsibility remains squarely in the hands
         of the federal government. Nor does it have
         the   jurisdiction    to    interpret    federal
         immigration statutes.       The Family Part's
         role in the SIJ process is solely to apply
         its expertise in family and child welfare
         matters to the issues raised in 8 C.F.R. §
         204.11, regardless of its view as to the
         position likely to be taken by the federal
         agency or whether the minor has met the
         requirements for SIJ status. To that end,
         Family Part courts faced with a request for
         an SIJ predicate order should make factual
         findings   with   regard    to   each   of   the
         requirements listed in 8 C.F.R. § 204.11.
         When 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, and that determination shall be made
         by applying the law of this state. This
         approach will provide USCIS with sufficient
         information   to   enable    it   to  determine
         whether SIJ status should be granted or
         denied, in accordance with the statutory
         interpretation of the SIJ provision applied
         by that agency.

         [H.S.P., supra, ___ N.J. at ___ (slip op. at
         3-4).]




                                5                           A-0334-14T1
    The Court recognized that "[t]he process for obtaining SIJ

status   is   'a        unique    hybrid       procedure   that     directs       the

collaboration      of     state    and     federal    systems.'"     Id.    at     17

(citations omitted).         Later in the opinion, the Court referred

to "the role Congress envisioned for the juvenile courts of the

fifty states."     Id. at 24.       Informed by the Court's guidance, we

conclude that it would defeat the purpose of the hybrid federal-

state scheme Congress created if state family courts decline to

hear these cases solely because a juvenile is over the age of

eighteen, so long as the juvenile is still under the age of

twenty-one.

    Significantly,         the    Court    provided    that   the   Family       Part

"must make the following findings," based on the federal statute

and the regulations as modified by the TVPRA, namely whether:

          (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
          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




                                           6                               A-0334-14T1
             (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[.]

             [H.S.P., supra, __ N.J. at __ (slip op. at
             18) (quoting In re Dany G., __ A.3d __, __
             (Md. Ct. Spec. App. 2015)).]

       Thus, we understand H.S.P. as requiring Family Part judges

hearing   these   cases    to    make    all    of    the   federally-required

findings, regardless of whether they believe that the juvenile

should be declared dependent on the court or placed under the

custody of an entity or individual.5                 Because the brother was

under the age of twenty-one, the trial court should have made

the    federally-required       SIJ     findings.         Accordingly,    H.S.P.

requires that we remand the case so that the trial court can

hear   the   applicant's    evidence         concerning     the   pertinent    SIJ

issues, and make the required SIJ findings.

       In deciding the petition, the trial court should address

any state-law based relief petitioner seeks.                  When making that

5
  For example, if the trial judge believes that, under New Jersey
law, the court cannot declare the juvenile "dependent on the
court" or place the juvenile "under the custody of an entity or
individual" solely because the juvenile is over the age of
eighteen, the court should state that conclusion. However, the
court must still proceed to make all the other SIJ-required
findings, using the same standards the court would use if the
child were under eighteen. It will be up to the federal
authorities hearing the juvenile's federal SIJ application to
determine the significance of the state court's state-law legal
conclusions and factual findings.     See H.S.P., supra, __ N.J.
at __ (slip op. at 21).



                                         7                               A-0334-14T1
determination, the court should apply New Jersey law as it would

in any other case of that type.                         For example, if on remand

petitioner pursues custody of her younger brother, the trial

court should apply New Jersey law to that application, as though

it were an ordinary custody case.

       We make the following observations for the trial court's

guidance.       As the Court held in H.S.P., the SIJ evidence must be

viewed through the lens of New Jersey law, not the law of the

juvenile's       country    of     origin.        For     example,       in     H.S.P.,      the

petition    included       evidence      that,      while       living     in    India,      the

juvenile went to work at age fifteen in a construction job that

was dangerous to his health.                  The Court held it was error to

view   those     facts     in    light   of       Indian    child     labor       laws,      but

rather,    the    trial     court      should      have    applied        New    Jersey      law

concerning child abuse and neglect.                     H.S.P., supra, ___ N.J. at

___ (slip op. at 26-27).

       The trial court should not concern itself with whether the

applicant       filed      the     petition        primarily        to        obtain      legal

immigration      status     for    the   juvenile,         or    whether        the    federal

immigration authorities should or should not grant SIJ status.

"New Jersey state courts are not charged with undertaking a

determination of whether an immigrant's purpose in applying for

SIJ    status    matches        with   Congress's         intent     in       creating     that




                                              8                                        A-0334-14T1
avenue of relief.             That determination is properly left to the

federal government."             H.S.P., supra, ___ N.J. at ___ (slip op.

at 25).     The state court's role in the SIJ process "is to make

factual findings based on state law about the abuse, neglect, or

abandonment,    family         reunification,          and   best    interests     of    the

child."      H.S.P.,      supra,       ___   N.J.      at    ___    (slip    op.   at    25)

(quoting USCIS, Immigration Relief for Abused Children (2014),

available      at        http://www.uscis.gov/sites/default/files/USCIS/

Green%20Card/Green%20Card%20Through%20a%20Job/Immigration_Relief

_for_Abused_Children-FINAL.pdf).

    Finally,        in        determining        any    request      for     custody      or

dependency    petitioner         may    make,     the    court      must    determine     if

there is a basis for custody or dependency under New Jersey law.

Generally,    New    Jersey          statutes     provide     for    the    granting      of

custody for juveniles under eighteen years old.                            See N.J. Div.

of Youth and Family Servs. v. W.F., 434 N.J. Super. 288, 295-96

(App. Div.), certif. denied, 218 N.J. 275 (2014).                            However, we

note that the Family Part does have some sources of jurisdiction

over persons between the ages of eighteen and twenty-one.

    For     example,          "the   Resource      Family     Parent       Licensing     Act

authorizes    DYFS       to    place    an   individual       between       eighteen     and

twenty-one years of age in a resource family home, a group home,

or another institution, when that individual is 'enrolled in a




                                             9                                     A-0334-14T1
school or training program below college level.'"                            State ex rel.

J.S., 202 N.J. 465, 479 (2010) (citing N.J.S.A. 30:4C-26(a));

see N.J.S.A. 30:4C-27.5.                    The Age of Majority Act contains an

exception for "persons between 18 and 21 years of age who seek

to avail themselves of such services and who are enrolled in a

school      or    training       program      below       college   level."       N.J.S.A.

9:17B-3.          See     also       N.J.S.A.   9:17B-2(f)         (declaring    that    the

Legislature did not intend to "[a]lter the provision of services

pursuant         to    the     laws    relating       to    dependent    and     neglected

children [under N.J.S.A. 30:4C-1 to -44] to persons between 18

and    21   years        of    age    who    seek    to    avail    themselves    of    such

services and who are enrolled in a school . . . below college

level").

       The same statute excepts from its definition of adulthood-

at-age-eighteen "the right of a court to take any action it

deems appropriate and in the interest of a person under 21 years

of    age."           N.J.S.A.   9:17B-3.       Additionally,        under    Title     9,   a

"placement        may     be   made     or   continued       [emphasis   added]"       under

N.J.S.A. 9:6-8.54 "beyond the child's eighteenth birthday" with

the child's consent.                 N.J.S.A. 9:6-8.54(c).            See also N.J.S.A.

30:4C-11 (detailing the procedures for an application for care

and custody); N.J.S.A. 3B:12A-4(a)(6) (addressing kinship legal




                                                10                                A-0334-14T1
guardianship of a juvenile over eighteen who is enrolled in high

school).6

     However, we need not address the issue further in this

opinion. As previously noted, if petitioner seeks custody of her

brother pursuant to state law, the court shall apply New Jersey

law in adjudicating that application. Due to the passage of time

since the petition was filed, petitioner should be permitted to

promptly update her application on remand should she choose to

do so.

     We reverse the orders dated December 20, 2013 and July 30,

2014, and we remand the case to the Family Part for further

proceedings      consistent   with   this    opinion.    Because   the   SIJ

portion     of   the   petition      is    time   sensitive,   petitioner's

application must be heard and the requisite findings must be

issued within ninety days of the date of this opinion.               We do

not retain jurisdiction.

     Reversed and remanded.




6
  The trial court's reliance on the definition of "juvenile" in
the Code of Juvenile Justice, N.J.S.A. 2A:4A-22(a), was
inapposite, because juvenile delinquency is not at issue here.



                                      11                           A-0334-14T1
