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M.P.C. and D.C v. A.B.C

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 12, 2012

M.P.C. AND D.C., PLAINTIFFS-APPELLANTS,
v.
A.B.C., DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FD-13-20-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 29, 2012 -

Before Judges Graves and Koblitz.

Plaintiffs M.P.C. (Morris*fn1 ) and his wife D.C. (Diane) appeal the April 7, 2011 order of the court denying their application to (1) declare Morris's son, P.C. (Paul), born September 1993, dependant on the court; (2) order that he remain under the jurisdiction of the court until he reaches the age of twenty- one; find that his mother A.B.C. (Allison) is unfit and that it is not in his best interest to be returned to Guatemala; and (4) award legal and physical custody to Morris and Diane. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Diane filed a prior complaint on October 22, 2009, seeking custody of Paul pursuant to N.J.S.A. 9:2-9, alleging the neglect and abandonment of Paul by his mother, who resides in Guatemala. Diane also requested that the trial court make the requisite findings to support Paul's petition for Special Immigrant Juvenile Status (SIJS). 8 U.S.C.A. 1101(a)(27)(J). After a hearing at which Diane and Paul testified, the trial judge denied this application and declined to exercise jurisdiction in a published opinion. D.C. v A.B.C. in the matter of P.C., a minor, 417 N.J. Super. 41 (Ch. Div. 2010). Diane did not appeal this decision.

Instead, she filed a new complaint on September 27, 2010, this time in conjunction with Morris, seeking similar relief. Plaintiffs sought custody pursuant to N.J.S.A. 9:2-3, which applies to parents living separately, rather than alleging neglect and abandonment under N.J.S.A. 9:2-9. Once again, Diane asked the court to make the requisite findings to support Paul's petition for SIJS. 8 U.S.C.A. 1101(a)(27)(J). This complaint included "new evidence regarding the treatment of Paul in Guatemala and his mother's neglect and abandonment[.]" The court treated this new complaint as a motion for reconsideration of its prior refusal to make the requested findings. It then denied all relief in a written opinion, pointing out that the second complaint was filed beyond the permissible timeframe to file a motion for reconsideration. See R. 4:49-2. The court also addressed the merits of the new complaint, indicating that it simply reargues Diane's claim that Paul was abused by his mother. The court indicated that the motion "consist[ed] of little more than a list of general objections and disagreements with this court's conclusions." The court cited to Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div. 2008), for the proposition that "[r]econsideration cannot be used to expand the record and reargue a motion."

On appeal, plaintiffs make the following arguments,

POINT I

THE TRIAL JUDGE'S DECISION TO FOREGO A HEARING WITH RESPECT TO THE APPELLANT'S SECOND FILING AND REFUSAL TO TAKE TESTIMONY FROM APPELLANTS WAS IMPROPER.

POINT II

THE TRIAL COURT'S DECISION IS MANIFESTLY UNJUST, DEMONSTRATED AN ADVERSE DISPOSITION TOWARDS THE APPELLANT, AND SHOULD BE REVERSED.

A. SUBSTANIAL EVIDENCE EXISTS IN THE RECORD TO GRANT THE APPELLANT'S APPLICATION FOR CUSTODY OF THE MINOR PURSUANT TO N.J.S.A. § 9:2-3

B. ERROR RESULTED FROM THE TRIAL COURT'S REFUSAL TO EXERCISE JURISDICTION PURSUANT TO 8 U.S.C. § 1101(A)(27)(J) AND 8 C.F.R. § 204.11

a. Substantial evidence exists to support a finding that the [P.C.] is dependent on the family court.

b. Substantial evidence exists to support a finding that it is not in the best interests of [P.C.] to return to Guatemala.

POINT III

THE COURT SHOULD VACATE THE DECISION OF THE TRIAL COURT AND REMAND THE MATTER TO A DIFFERENT TRIAL COURT JUDGE BECAUSE JUDGE GUADAGNO FAILED TO RECUSE HIMSELF ON ACCOUNT OF BIAS AND DENIED THE APPELLANT A FAIR AND UNBIASED HEARING.

A. JUDGE GUADAGNO WAS OBLIGATED TO RECUSE HIMSELF BECAUSE HE WAS BIASED AND PREJUDICED TOWARDS THE APPELLANT.

B. THE APPEARANCE OF IMPROPRIETY AND THE DEMONSTRATION OF PREDISPOSITION WARRANT A REMAND TO A DIFFERENT TRIAL JUDGE.

We agree with the trial court that, in the peculiar factual context of this matter, the second complaint functioned as a motion for reconsideration of the first complaint. The prime purpose of both complaints was to afford Paul SIJS so that he would be eligible to obtain lawful permanent residence in the United States. In the second complaint, plaintiffs sought to produce more evidence to convince the court that, contrary to its prior finding, Paul was neglected and abandoned by his mother in Guatemala. Even if that is the situation, however, SIJS is not available to a child living in this country with a non-neglectful parent. D.C. v A.B.C. in the matter of P.C., a minor, supra, 417 N.J. Super. at 51. We do not interpret the court's denial of the second complaint to constitute a denial of a custody order should Morris and Diane need such an order in the future.

Affirmed.


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