Multi-American ®

Several years ago in San Diego, I met a family of three children whose parents had been deported after losing their bid to become legal residents. The kids had, technically, been left in the care of a relative who lived nearby. In reality, they were pretty much on their own, with the eldest, a girl of 16, stepping in as surrogate parent to her siblings, 13 and 9.

This is not an uncommon scenario after the foreign-born parents of U.S. citizen children are deported. Sometimes the parents opt to take their kids with them. Others remain in the U.S. with relatives when other family members can be located, though as with the three kids in San Diego, this works out to varying degrees. But when relatives can’t be located or the parents are shuffled off quickly, sometimes into the labyrinthine detention system, there’s nowhere for the kids to go.

Two high-profile cases right now exemplify what can happen next, after the children of deportees land in foster care: In Missouri, an undocumented mother from Guatemala is fighting in court to regain custody of her five-year-old son, adopted by a couple after she was detained when he was seven months old, following a poultry plant raid. While she remained in federal custody, she wound up losing her parental rights and the legal adoption went through. In Arizona, the four children of a mother who was deported to Mexico await their fate in the foster system.

Last fall, the social justice magazine ColorLines reported that more than 5,000 children were languishing in foster care following the detention and/or deportation of their immigrant parents. It’s not a surprising number, given there’s potential for many more cases of children left behind: In 2009, the Pew Hispanic Center reported that an estimated 3.8 million undocumented immigrants were the parents of U.S. citizen children.

Why do some undocumented immigrant parents lose their parental rights after immigration authorities come knocking on their door, or that of their workplace? Language barriers, limited access to services and other issues play a part, but it’s far more complicated than that. The scenarios vary, but in a 2010 report, the child welfare non-profit First Focus explained what can easily happen when the immigration enforcement system and the family court system collide:

For instance, the Adoption and Safe Families Act (ASFA) is federal legislation that imposes a strict timetable for child welfare agencies to file termination of parental rights (TPR) petitions for children who have been in care for 15 of the previous 22 months.

…Immigrant parents who are detained for immigration purposes encounter additional challenges that threaten their ability to meet ASFA’s requirements. In some cases, child welfare staff is unable to locate a parent’s whereabouts, either because the information is not made readily available by the local ICE agency office, or because the parent has been transferred out of the state or deported.

If a parent is detained, it is virtually impossible for that parent to meet case plan requirements, such as participating in parenting classes or regular visits with their child. Detained parents are also unlikely to be able to participate meaningfully in child welfare agency case meetings or in state court proceedings related to a child’s care and custody. Deportation cases often can and do last longer than the ASFA 15 month timeline.

Furthermore, child welfare agency’s attempts to place children with family members may be complicated by the fact that undocumented adults are often considered ineligible to become foster parents by most child welfare agencies. All these obstacles increase the time in which separated children are involved in the child welfare system and create the risk for inappropriate termination of parental rights under ASFA’s strict timetable and requirements.

In some cases, as the report points out, a family court judge may even make a decision based on the parent’s immigration status versus his or her parenting capabilities.

How to get the two systems to work together in the best interest of the children? The First Focus report made several recommendations, including allowing immigration judges to weigh potential harm to a U.S. citizen child if his or her parents are deported; better information sharing between agencies, including a “designated liaison officer” at Homeland Security to deal with cases involving child welfare; non-custodial detention alternatives that allow parents to have contact with children, when possible, and allow them to take part in family court proceedings.

In the Missouri case involving Encarnación Bail Romero, whose son Carlos was renamed Jamison by his adoptive parents, the state Supreme Court called the decision terminating her parental rights “a travesty of justice” and has sent the case back for retrial, ABC News reported this week. If she regains custody the boy would most likely go with her to Guatemala, as she’s still set to be sent back there. The new trial is to start at the end of February.