analysis: Undocumented immigrants losing fight to keep children who are U.S. citizens
Chris Asadian | AnnArbor.com
Eleven-year-old Marcos will have been in foster care for two years in June, while his mother remains in a federal detainment facility in Texas for being in the country illegally.
Already previously deported once, Gloria, an undocumented immigrant from Mexico, was charged with felony re-entry when she came forward seeking custody of her son.
Marcos had been placed in foster care after being abused by his father here in Washtenaw County. When Gloria found out, she set out to reunite with her son.
But it's been an impossible battle with her immigration status working against her, and there's little she can do now from the detainment facility she's in as she awaits deportation.
Other undocumented relatives living in the Ann Arbor area have come forward seeking custody of Marcos, who is a dual citizen of the United States and Mexico, on Gloria's behalf.
They, too, have had no luck.
Marcos has aunts and uncles who say they love him and desperately want to bring him into their homes, but they're finding out their immigration status is a deal breaker.
Angela J. Cesere | AnnArbor.com
Judge Donald Shelton, who oversees these kinds of cases, said the intersection of federal immigration enforcement and the child welfare system is where some of the ugliest battles take place.
"These situations are awful legal and human conundrums," said Shelton, chief judge of the Washtenaw County Circuit Court.
Shelton has been on the bench when tough decisions had to be made about children who are U.S. citizens and whose undocumented parents were detained or deported by U.S. Immigration and Customs Enforcement for being in the country illegally.
The first time an undocumented immigrant is caught in the U.S., it's a misdemeanor civil offense. Being caught a second time is a felony.
In Michigan, when parents are detained because of their immigration status, they can be petitioned by the state for abandoning their children.
"From an abandonment point of view, it's a practical issue," Shelton said. "Abandon doesn't mean you voluntarily don't care for them. It means that you can't or won't. They're not present to take care of the children, and so someone has to take care of the children."
And often that ends up being a foster family.
But can the children be placed in the care of undocumented relatives living in the U.S. who risk stepping forward and want custody?
Shelton said there is no clear guidance in the way of federal or state policy, but he doesn't see how it's possible if the relatives are undocumented.
"You start with the premise that the children are U.S. citizens," he said. "The children, either because the United States is their place of birth or because one of the parents is a U.S. citizen, are born with U.S. citizenship, so they are U.S. citizens with all of the rights attached."
And so, Shelton said, it's hard to consider placing a child in the care of someone who could be deported any day.
"To make the analogy, we wouldn't allow a person who had an outstanding (criminal) warrant to be a guardian," he said. "The reason is that we're placing that child with someone who may be gone the next day. So that's right, if they're undocumented, then they're not going to be allowed to be guardians because it's not in the best interest of the children."
The Washtenaw Interfaith Coalition for Immigrant Rights sees the issue differently and argues family reunification — even when the relatives are undocumented — can be in the best interest of the children and shouldn't be overlooked because of immigration status.
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"We wholeheartedly disagree that's common sense," said Sanders, who has a master's degree in social work from the University of Michigan and is an adjunct instructor at U-M. "We think common sense is very subjective and that the state needs to be making decisions based on each individual case and what makes sense for that individual case."
DHS officials declined to comment for this story but confirmed there's no official policy that says a child can't be placed with an undocumented relative, but it's highly unlikely to happen.
WICIR is actively speaking out about two local cases it has been tracking where undocumented parents were detained for being in the country illegally. In both cases, the parents fought unsuccessfully for custody of their children who were shuffled into foster care.
"Even though these parents have rights to their children, these children end up getting lost in the system," Sanders said. "This one man just fought like hell and lost his kids."
A new report authored by Seth Freed Wessler, an investigative reporter and researcher at Colorlines.com and the Applied Research Center, points out in the first six months of 2011 the federal government deported more than 46,000 parents of children who are U.S. citizens.
The report, called "Shattered Families," estimates as many as 5,100 children are now living in foster care in the U.S. as a result of parents being detained or deported.
A mom and her son
Since WICIR's inception in March 2008, it reports having received nearly 350 calls, 80 percent of which involve immigrants who have been detained.
"And when we look at the family structures of those cases, we know that well over one-third include the separation of children from at least one parent," Sanders said. "So we know that well over 100 cases have included separating a child from their parent."
One of those cases is the story of Gloria and her son. Both the mother and multiple relatives have fought unsuccessfully over the last two years for custody of Marcos.
According to WICIR and family members, the boy was abused by his father and was hospitalized. That's when he came to the attention of Child Protective Services, a division of the Michigan Department of Human Services, and was placed in temporary foster care.
Gloria, who was previously deported and living in either Mexico or Texas at the time, stepped forward to take custody of Marcos.
"She had been previously deported, so she was not supposed to come back into the country," Sanders said. "At one point, she was back in the country and even in Michigan, but she was having a hard time getting custody of her son back from the father."
Sanders and family members said Gloria, risking arrest, went to DHS twice prior to the abuse situation escalating, stating her concerns about how her son was being treated. But according to family members, DHS decided Marcos was better off with his father.
Chris Asadian | AnnArbor.com
But when state DHS workers found out Gloria was going to be fighting for custody, they decided to petition her for abandoning her child, Sanders said.
"We felt there was no reason to petition her," Sanders said. "She had been deported. It didn't mean she doesn't love her child. She didn't abandoned her child."
But she was petitioned for abandonment anyway, and that meant she had charges against her, and she had to follow a DHS service plan if she wanted any chance at getting her son back.
DHS service plans lay out steps a parent must take such as going to parenting classes, demonstrating there's a stable home environment and sometimes requiring drug testing.
But while Gloria was going through that process, she was arrested in Texas for illegally reentering the United States.
"So she was charged with a felony and was arrested and now has been trying to do this from the place of detainment," Sanders said. "Of course, you can imagine how much that interferes with being able to move through a service plan like taking parenting classes."
Eventually Gloria's sisters in Washtenaw County, Rosa and Maria, came forward to take in Marcos. According to them, they were denied because of their undocumented status.
And so Marcos continues living in foster care with a family that has made clear it does not want to permanently adopt him, Sanders said.
"It is heartbreaking," she said. "He has no permanent place. He's confused."
Sanders pointed out Marcos has dual citizenship, which means he could theoretically go back to Mexico with his mother. Sanders believes Gloria never should have been petitioned.
DHS workers and others who worked on the case declined to comment for this story, citing confidentiality rules.
Family members said Marcos, who turns 12 soon, has had behavioral problems and has acted out at school, which they believe is a response to being separated from his family.
Sanders said it's especially sad that Rosa and her husband, who are aunt and uncle to Marcos, weren't allowed to take him. She said they're "very stable folks," have a "really beautiful family," have young children of their own, and have been in the country for many years so it's possible there would be prosecutorial discretion if they were ever arrested.
Rosa said a case worker came to check out her home and determined it was a safe and stable environment for Marcos. She said the only problem was her immigration status.
"I tried to do everything perfect and they put my nephew with foster care and I don't understand why," Rosa said, adding the foster mother now calls her for help.
With no luck placing Marcos with either of his two aunts in Michigan, WICIR has been trying to help facilitate the young boy's placement with an aunt and uncle in Texas.
"These brave relatives also came forth and they agreed to be licensed by the state of Texas and this licensing process has been going on for over a year," Sanders said.
"I mean, it's just a tedious, extended and, in this case, unnecessary process, because he's got these lovely relatives right here in Michigan."
The man from Guatemala
Another case WICIR is tracking involves a father from Guatemala who fought unsuccessfully for custody of his three children who are U.S. citizens.
The father, whom WICIR is calling "Mr. B," remains in a federal detainment facility in Michigan and is awaiting deportation, leaving behind a 4-year-old daughter and two boys, ages 6 and 8, who live and go to school in Washtenaw County.
Sanders said Mr. B had been deported and was in Guatemala when his children were removed by the state and placed in foster care because their birth mother, who was a U.S. citizen, was involved in drugs — both as an addict as well as a seller.
When Mr. B, who was divorced from the mother, found out his children were in foster care, he came back into the county in hopes that he might gain custody, Sanders said.
"He very bravely brought himself to the attention of foster care, and these are hard things for undocumented people to do because they know they're going to be in front of courts and at any point they could be turned in to immigration," she said.
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"So court was coming," Sanders said. "We had a meeting, which was kind of unusual, but we brought all the players together."
Sanders recalled she and Margaret Harner, another co-founder of WICIR, sat around a table with Mr. B's case worker, DHS representatives and an attorney to talk about the case.
"Everybody cared," Sanders said.
She said it was agreed there wouldn't be a petition against Mr. B, and the plan was to reunite him with his children.
But two days later, when they got to court, they discovered DHS had filed a petition, the first sentence of which reported he was residing in the country illegally.
"His immigration status has come up as the first violation against his children," Sanders said. "We felt completely hoodwinked and so did Mr. B."
Sanders said Mr. B agreed to go along with the service plan laid out by DHS anyway, and he spent months following every step.
"He had to get an apartment that was three bedrooms. He had to do drug testing even though he never had a drug problem," Sanders said. "He didn't have a car at the time, so he was zipping around on bike. He had to go visit his kids. He went to all the visits."
But then someone tipped off ICE and federal agents came to the restaurant where Mr. B was working and took him away. Having already been deported once, he was charged with felony re-entry and placed in federal detention.
Sanders said it was difficult to see Mr. B shackled and in handcuffs in court as he continued to fight for custody. She described him as a small-statured man who spoke humbly.
"They wouldn't even unshackle him in order for him to sign papers," she said. "He worked months and months. He would keep coming to court hearings to try to get his kids back."
Sanders said there were talks of seeking dual citizenship for Mr. B's children so they could follow him back to Guatemala.
Realizing it probably wasn't going to work, Mr. B relinquished his parental rights last month. He's now scheduled for deportation without his children.
"They basically wore him down," Sanders said. "In the last court hearing ... he relinquished his parental rights. And he stood before the referee and cried. I talked to a couple of the attorneys and they said everyone in the courtroom was crying."
Mr. B at one point made a plan for a close friend to adopt his two boys, but that didn't work out. It now appears likely they'll be placed with relatives of the deceased mother.
Meanwhile, his daughter is in a foster home with a family that is interested in adopting her, according to people familiar with the case.
Dolores, the friend who at one point offered to take custody of the two boys, described Mr. B as a good father. She recalled good memories of cookouts they had together.
"What upsets me the most is he was trying so hard to get his kids. I mean, he was working so hard," she said. "He was going through everything they told him to go through and he was working like three jobs trying to get the apartment furnished for his children."
Sanders called it an injustice.
"They had not even petitioned him until he came forth to get his children, and that's when they decided to petition him," she said. "We feel that there should have never been a petition against him in the first place and that he was discriminated against by the system."
Searching for answers
Shelton said the fact that there's no state policy on the matter, and lack of clear direction from the federal government, makes these types of cases difficult for judges.
He believes the answer is immigration reform.
"It's really a decision that needs to be made on a national level in terms of our immigration policy," he said. "To the extent that we have the federal government making a decision that ignores the status of the children and the state governments being responsible to care for the children but having no control over what happens to the parents, it's an awful situation."
But Sanders said a number of states already place children with undocumented caregivers, so she doesn't see why immigration status is such an impediment in Michigan.
Chris Asadian | AnnArbor.com
Sanders pointed to an Illinois state policy that outlines a process for placing children with undocumented caregivers and also helps arrange for emergency care plans for children in the event that their caregiver is detained due to immigration status. The policy even includes an attachment with a list of resources for immigrants in Illinois.
"Illinois has a beautiful policy," Sanders said.
Shelton said he's never seen such a policy.
"I don't know about those, but I would say that it's directly contrary to permanency," he said of placing a child with an undocumented caregiver who could be deported. "That's the reason why most courts will not do it, because it's just the opposite of permanency."
David Thronson, a professor of law at Michigan State University, said immigration matters tend to complicate already difficult decisions that face family courts, but there isn't anything stopping a judge from placing a child with an undocumented caregiver.
The fact that someone is involved in U.S. immigration proceedings should say nothing about their parental rights, Thronson added. But, he said, how that plays out is inconsistent from state to state and different judges make different decisions.
"A lot of assumptions get built in and often it's seen as 'here's someone who's undocumented, they can't possibly be a good caregiver,' but the facts tend to belie that," he said.
Sanders called it a failure of the system that immigration status trumps parental rights. She believes Mr. B and Gloria should have been reunited with their children from the start, even if that meant they might take the children back to another country.
Shelton said it could be considered forcible deportation if the court granted custody of children who are U.S. citizens to parents who are in the country illegally.
"I don't think any court has the ability to forcibly deport a U.S. citizen," he said. "I mean, you can't deport the children and have them go back with the parent who's being deported."
Dennis Moore, director of the Willow Run Tea Party Caucus, said it's a tough issue and he can't fault the families for fighting for the children.
"If it was me, I would do anything and everything," Moore said.
But he still thinks officials are right not to place U.S. citizen children with immigrants who are in the country illegally.
"I hate our government policy that puts families in a situation like that," he said. "It's our government's fault for bad policy and these kids are paying the price for bad policy."
Harner argued Michigan does have relevant policies about placement of children who've been abused, neglected or abandoned, even if they don't mention immigration status.
"It's very clear that we do have policy that family always trumps other placements," she said. "Case workers have to first research possible family members immediately before they place a child with someone who is not a family member."
While Shelton doesn't believe placing a child with an undocumented relative meets the definition of permanency, Harner argues it's a lot more stable than foster care.
"Any kid in foster care knows it's not a permanent family and that they could wake up any day and be moved," she said.
Harner, program director at the Student Advocacy Center in Ypsilanti, said there's no question the long-term ability of a child to graduate and go on to lead a successful life is negatively impacted by being taken from his or her family and placed in foster care.
According to the Shattered Families report, foster youth are more likely than other children to become homeless, abuse drugs, be arrested, drop out of school and be abused.
"Children are not supposed to remain in foster care for more than a year without investigating why," Harner said. "Permanency always trumps everything else and family reunification is your first choice of permanency, followed by adoption. And so immigration shouldn't have any effect on the permanency plan for a child, nor should it have any impact on reunification."
Sanders cited a statistic that 1 out of 10 children in the U.S. lives in a mixed-status home, meaning at least one parent is undocumented.
"That's a lot," she said. "That's 10 percent of our children in the United States. And we don't go in and take children out of their homes because the parents are undocumented."
Shelton said it's not so black and white.
"The concern of most people on this issue is that we would really like to find a way to keep the children with their parents in a stable environment," he said. "We're never going to be able to do that unless the federal government takes a very different approach to the whole question of undocumented aliens and how they relate to their children who are U.S. citizens."