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September 24th, 2012 by Robert Franklin, Esq.
It’s a case much like that of Jesus Ramirez and his daughter Maria that I wrote about here.  In this case, the names are different and so is the state, but otherwise it’s pretty much the same.  Once again a state – this time it’s Michigan – is trying to terminate a parent’s rights for the crime of being an illegal alien.  Read about it here (Ann Arbor.com, 9/21/12).

The parents and the child aren’t named, but the facts of the case are familiar.  Two Mexicans living in Michigan had a son who is now 12 years old.  Neither was in the country legally, so two years ago, when the father was reported to authorities for some form of child abuse, he was deported.  The mother stepped forward to claim the child and she was deported too.  The boy is an American citizen because he was born here, so, rather than send him to Mexico with his  parents Michigan officials put him in foster care.  His foster parents don’t intend to adopt him, so state authorities are casting about for someone who will.  Several adults in his extended family have volunteered to do the job, but have been rejected because of their immigration status.  Michigan officials now believe he may have an adult brother in California, but don’t know where he is, if he even exists.

In short, this boy has no one.  Oh, his mother and father (who are estranged), are struggling to retain their rights to him and various aunts and uncles say they’d be glad to take him in, but none of that is good enough for the State of Michigan that demands he remain living with strangers in foster care.

So there was a hearing in which the state asked a special master to clear the way to terminate the parent’s parental rights.  In what must count as world-record chutzpah, the state’s argument for terminating the mother’s rights was that she’s abandoned the child.  In other words, the state turned her over to immigration authorities who removed her from the country.  It’s illegal for her to re-enter the United States, so, according to the State of Michigan, she’s abandoned her son.  They’ve made it impossible for her to have contact with him so, as they see it, she should lose her rights to him.  Amazing.

Representatives of the Washtenaw Interfaith Coalition for Immigrant Rights immediately lamented the court referee’s decision to initiate termination proceedings.

Laura Sanders, one of the co-founders of WICIR, said if the court goes ahead with terminating the mother’s parental rights, that essentially leaves the boy without a family…

The mother now is fighting to have her son reunified with her in Mexico because she cannot legally re-enter the United States.

Sanders said the mother has sent cards and emails to her son and has stayed in touch with her lawyer and the Mexican consulate, so she doesn’t see how the mother has been neglectful.

“She still wants a reunification with her son,” Sanders said. “She has shown a consistent interest in reunification with her son.”

The state, having successfully deprived the boy of both of his parents, doesn’t seem to notice the havoc its decisions have wrought so far.

[Department of Human Services foster care specialist Wendy] Kent provided an update of her latest visit with the boy, who remains in therapy. She said he’s doing relatively well but still is showing behavioral problems, including stealing money from his aunt.

Meanwhile, the boy, who’s never lived anywhere but in the U.S., is understandably ambivalent about going to live in Mexico with his mother.  He’s said that he’d prefer to live with his aunt in Michigan, but again, the state won’t allow that.  So, despite the fact that Mom has a job in Mexico and a safe house in which the boy could live, the court referee has ruled that DHS can come up with a plan for termination of the mother’s rights to her son.  Just what that will consist of remains to be seen, but it seems certain to include foster care and eventual adoption, although who will want to adopt a 12 year old boy with behavioral problems is unknown.  Of course, if the boy is adopted out of foster care, the U.S. government will pay the State of Michigan a good sum of money.  That’s about $5,000 if the boy is not a special needs child; if he is, it’s about $12,000.

This case, like the Idaho case I reported on earlier, shows the conflict between child welfare and immigration law.  Clearly, parents who are in the U.S. illegally deserve to be deported.  And they shouldn’t be able to improve their immigration status just because they manage to have a child in this country.  So deportation of the boy’s two parents was justified.  On the other hand, pretending that that exercise of state power (legitimate though it was) in some way constituted abandonment of the child by his mother borders on the delusional.  The simple fact is that, despite his understandable ambivalence on the subject, the boy will be better off living with his mother in Mexico than he will be with foster parents who don’t want to adopt him and who, in any event, won’t have him past his 18th birthday.

There may be exceptions, but the rule should be that children born in this country to illegal immigrants, should remain with their parents, even if they’re deported.  Foster care is not better than parental care.  On average, it’s worse – far worse.  In fact, when considering whether to send a child back with his/her parents to whatever country they’ve been deported to, courts should decide the same way they would in the case of American citizens.  If the parents haven’t been proven to be unfit, they should retain custody.  Period.

And no parent should be called unfit just because, they were temporarily unable to care for a child during deportation proceedings.

There are those who will say that a parent in this country illegally has committed a crime and therefore is per se unfit.  There are two things wrong with that argument.  First, parents commit crimes every day.  They operate motor vehicles in excess of the posted speed limit, they possess amounts of marijuana under an ounce, they become publicly intoxicated, etc.  The vast majority of those crimes are not – and should not be – sufficient for the termination of their parental rights, and neither should being in this country illegally.

Second, Mexicans and Central Americans don’t come here for the climate; they don’t come here because they prefer our culture.  Indeed, U.S. culture is profoundly alien to them in many unpleasant ways.  No, they come here for the jobs.  They come here because they can’t support themselves and their families in the countries in which they were born.  So I argue that, far from being considered a detriment to parental fitness, living in this country illegally should be seen as a responsible parental act.  Face it, these people are trying to build better lives for themselves and their children, and they’re risking a lot to do it.

But the bottom line is that state child welfare authorities have seized on immigration law as a handy way of separating children from parents for the purpose of channeling them into foster care and then adoption.  The bottom line, then, is the bottom line – keeping those federal dollars flowing.  And if children and parents suffer because of it, hey, it’s just the cost of doing business.

That’s what the Idaho Supreme Court saw clearly in the Ramirez case.  Too bad the Michigan court didn’t.

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