>Where Are My Children ... and My Rights? Parental Rights Termination as a Consequence of Deportation

By Hall, C. Elizabeth | Duke Law Journal, March 2011 | Go to article overview

>Where Are My Children ... and My Rights? Parental Rights Termination as a Consequence of Deportation


Hall, C. Elizabeth, Duke Law Journal


ABSTRACT

The U.S. Supreme Court has set out a constitutional framework under which termination-of-parental-rights cases must be adjudicated in state courts. In all cases, this framework requires proof of parental unfitness by clear and convincing evidence before parental rights can be terminated, even when the parents in question are illegal immigrants. Despite this framework, in a rash of recently published cases, courts have terminated the parental rights of illegal immigrant parents without regard for these requirements. Those who work closely with immigrants fear that the published instances are merely the tip of the iceberg.

This Note aims to shed light on this problem by discussing instances of such termination and identifying reasons that may have led courts to terminate parental rights outside of the constitutional framework. After identifying two primary reasons--cultural bias against immigrants and prison conditions that render maintaining parent-child relationships difficult--this Note suggests possible legislative changes that may decrease the number of such terminations.

INTRODUCTION

On May 22, 2007, Encarnacion Bail Romero, an illegal immigrant, was taken into Immigration and Customs Enforcement (ICE) custody during a raid on a Carthage, Missouri poultry processing plant where she worked. (1) Her son, Carlos, was ultimately placed in the custody of an American couple who petitioned for the termination of Ms. Bail's parental rights so that they could adopt Carlos. (2) The petition was filed on October 5, 2007, less than five months after Ms. Bail was taken into custody; the petition was served on Ms. Bail on October 16, two days before the termination hearing. (3) Two DLA Piper attorneys took on Ms. Bail's case, (4) which subsequently attained a significantly heightened public profile. (5) Consequently, commentators and legal scholars began to take note of what some fear is a widespread problem in the United States--the termination of illegal immigrants' parental rights as a result of the initiation of deportation proceedings against them. (6)

For now, Ms. Bail's custody battle has a potentially encouraging outcome: on January 25, 2011, the Missouri Supreme Court reversed the appellate court's decision and remanded the case for a new trial on all claims. (7) Every supreme court judge agreed that the trial court had "plainly erred.'' (8) The supreme court split 4-3, however, on the appropriate remedy. The dissenters argued that, based on the admitted miscarriage of justice, Ms. Bail should be given custody of her son immediately. (9) The majority remanded for a new trial instead, (10) despite its agreement that the case was "a travesty in its egregious procedural errors, its long duration, and its impact on Mother, Adoptive Parents, and, most importantly, Child.'' (11) The remand means that, even with a favorable outcome at the trial level, much more time will pass before Ms. Bail and Carlos reunite. (12)

It is difficult to determine exactly how many illegal immigrant parents have found themselves in Ms. Bail's situation. And in many other cases, second chances at review--such as Ms. Bail will receive--are not forthcoming. As recently as 2009, the Virginia Court of Appeals affirmed the termination of an illegal immigrant father's parental rights, in part because his deportation prevented him from maintaining contact with his children. (13) Similarly, in 2005, the Tennessee Court of Appeals upheld the termination of the parental rights of a Nigerian illegal immigrant after she was taken into deportation proceedings. (14)

At least two other cases have dealt with termination of parental rights as a result of entering deportation proceedings, both with results favorable to the immigrant parents. (15) Despite the relatively small number of cases that have come before appellate courts and the relatively high percentage of those cases that have had parent-friendly outcomes, there is reason to suspect that parent-friendly outcomes are the exception, not the rule. …

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