Learning from the Past: Why Termination of a Non-Citizen Parent's Rights Should Not Be Based on the Child's Best Interest

42 Pages Posted: 24 Apr 2013 Last revised: 26 Apr 2013

See all articles by Stacy Byrd

Stacy Byrd

University of Miami - School of Law

Date Written: January 23, 2013


In 2003, Felipe Montes illegally crossed the border from Mexico to the United States and traveled to Sparta, North Carolina to find work on Christmas tree farms. While living and working in Sparta, Felipe married a local woman named Marie and started a family. The Montes family was not perfect and had its fair share of financial troubles. They found themselves strapped for cash at times due to the combination of Felipe’s seasonal employment and injuries that kept him from working. Additionally, Marie had mental health problems and struggled with drug use. In fact, the Department of Social Services investigated Marie and Felipe multiple times due to allegations that the couple neglected their children. In each instance, however, the Department’s assessment did not reveal any evidence of neglect and the children remained in Felipe and Marie’s custody.

Felipe could not apply for a driver’s license because he was an undocumented immigrant and he accumulated a series of traffic violations. As a result of his convictions, in 2010, Felipe was deported to Mexico and forced to leave his two young children, Isaiah and Adrian, and his pregnant wife in Sparta. Marie struggled to support herself and her family after Felipe’s deportation. She was very ill and only able to support her family with her monthly disability payments. With Felipe gone, Marie was unable to physically and financially support her children, and within two months of the birth of their third child, Angel, welfare officials removed all three children from Marie’s care. The children were placed with foster families who hoped to adopt them, and the Department of Social Services moved to terminate Marie and Felipe’s parental rights. At the time Felipe was living in Tamaulipas, Mexico with his aunt and uncle. He asked the welfare officials to send his sons to live with him, but the agency refused and claimed that his home was insufficient for the young children.

Sadly, Felipe’s loss is not unique. A study by the Applied Research Center found that in late 2011 there were at least 5,100 children of deported or detained parents living in foster care in the United States. Another report showed that between July 1, 2010 and September 31, 2012, there were over 204,000 removals of parents of United States citizen children. Fortunately for Felipe, his story became national news. Over 21,000 people signed a petition supported by Presente.org, a national Latino advocacy organization, demanding Felipe’s children be reunited with him. The Mexican Consulate in North Carolina petitioned federal immigration authorities, and the Immigration and Customs Enforcement (ICE) granted Felipe permission to enter the United States for ninety days to allow him to participate in the court hearing where a judge would determine if his children could return to Mexico with him. In late November 2012, Judge Michael Duncan of North Carolina ordered that the three children be returned to Felipe for a two-month “trial placement.” If everything goes well for Felipe and his children during the trial period, the four of them will return, as a family, to Mexico.

All detained and deported parents of United States citizen children are not as fortunate as Felipe Montes. In fact, when the Mexican consulate petitioned for Felipe’s humanitarian parole that eventually allowed him to reenter the United States, the consulate was unable to cite another instance where someone who had been deported was allowed to reenter the country. This is one of many instances in which state child welfare agencies push to terminate the parental rights of detained, deported, or even merely deportable parents. Instead of proving that the parent is not fit to care for the child by at least clear and convincing evidence as current law requires, child welfare agencies argue that it is not in the child’s best interest to leave the United States with the parent. Even more shocking is the tendency of juvenile court judges to accept the argument and terminate the parent’s rights where the State did not meet its legal burden. While almost all of these terminations have been overturned on appeal, only a small percentage of cases involving undocumented immigrant parents are appealed as a result of the parent’s poverty and inability to speak English or Spanish.

In her recent article, Should I Stay or Should I Go: Why Immigration Reunification Decisions Should Be Based on the Best Interest of the Child, Professor Marcia Zug suggests that the courts should use a different standard in termination of parental right proceedings when the parent’s deportation is probable. She suggests that the fitness standard is appropriate when it is not likely that the parent will be deported, but the best interest of the child standard should be applied when it is probable that the parent will be deported. Professor Zug focuses on the meaning of citizenship and posits that even though there is an established presumption favoring parental rights, children’s rights should be superior to their parents’ rights in situations where the parent is not a United States citizen in order to protect the future of democracy. This Comment argues that the interests of the State and children’s rights must be considered in parental rights termination proceedings, but that the fitness standard appropriately accounts for all pertinent interests. Therefore, a best interest standard is not appropriate for any termination of parental rights proceeding and the fitness standard should be applied in these proceedings regardless of a parent’s alien or deportation status.

The first part of this Comment will discuss the various parties’ rights and interests in child welfare proceedings. These include the parent’s right to the care and custody of his or her children, the State’s interest in the safety and welfare of children and keeping its citizens connected to the United States, the child’s best interest, and the child’s interest in being raised by parents. The second part of the Comment will analyze the appropriate balance of the competing interests, exploring what the best interest of the child involves and where children’s rights are and should be considered and given weight. The third part explores two movements in United States history that demonstrate the consequences of the belief that children are better off with traditional American families. Finally, the fourth part considers possible remedies to the tension between conflicting aims of immigration law and child welfare law.

Keywords: Immigration, termination of parental rights, children, dependency, Indian child welfare act

Suggested Citation

Byrd, Stacy, Learning from the Past: Why Termination of a Non-Citizen Parent's Rights Should Not Be Based on the Child's Best Interest (January 23, 2013). University of Miami Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=2255653

Stacy Byrd (Contact Author)

University of Miami - School of Law ( email )

P.O. Box 248087
Coral Gables, FL 33146
United States

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