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Hewedak: Clashes between immigration law and family law

March 8, 2017
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By Reham Hewedak

In light of the recent executive order outlining a travel ban for nationals of certain countries and public support for massive deportations for other out-of-status residents from the United States, families and children stand to be torn apart in enforcing the travel bans and deportations. As a Marion County public defender, I have come across cases involving foreign nationals who were deported and therefore unable to be available to care for their U.S.-born children in children in need of services and termination of parental rights cases. It is certainly difficult, but yet possible, to prevail on those cases with the assistance of the consulates in providing services to assist in the reunification of the children with their parents abroad.

The Department of Child Services is reluctant to provide accommodations to parents who have been deported. On one hand, the family laws are clear to require the state’s social services agencies to make “reasonable efforts” to provide services needed to preserve and reunify families. On the other hand, the immigration laws and, more recently, the changing political landscape would require the deportation of many parents of U.S-born children who were previously either not a priority for deportations by U.S. Immigration and Customs Enforcement or may no longer be granted relief under the immigration code.

A home study conducted by the Mexican consulate for one of my clients who was deported proved to be very helpful in providing evidence to the court of my client’s fitness and ability to provide for his children. In addition, I have clients appear by phone and testify to services obtained with the assistance of social agencies in their home country such as therapy or parenting classes. In one trial court case in which I prevailed, the court found that the state did not prove by clear and convincing evidence that termination of my client’s parental rights was in his children’s best interests. Nothing in the record established that my client was an unfit parent. My client clearly participated in voluntary services in Mexico and any deficiencies in following the case plan, which was not provided to him, were inadequate to prove unfitness.

While there is a dearth of jurisprudence in Indiana on how a parent’s deportation affects a finding of termination of parental rights, other states have faced this issue. In deciding State v. Maria L. (In re Angelica L.) 767 N.W.2d 74, 94 (Neb., 2009), the Supreme Court of Nebraska found that mere deportation of a parent, Maria, was not sufficient for the state to terminate her parental rights. The children were placed in temporary emergency custody with the Nebraska Department of Health and Human Services and were not allowed to reunite with their mother when she was eventually arrested and deported to Guatemala Id. at 80. Despite Maria’s attempts to satisfy a DHHS case plan to regain custody, her parental rights were eventually terminated. Id.

In that case, the clinical psychologist did not testify as to his opinion whether Maria could meet the children’s needs. Id. at 85. Nor did he indicate that he had any concerns that Maria would physically harm the children. Id. at 87. Home studies were entered into the record regarding the mother’s ability to care for her children in Guatemala. Id. at 86. Evidence also indicated that there were services available in Guatemala designed to monitor and protect the well-being of the children and that transportation was available for the children to return to Guatemala to live with mother. Id. at 87.

Because of the state’s involvement with the family, mother’s parental rights under Nebraska’s juvenile law collided with the sanction imposed on her by immigration law. Id. at 80. The Supreme Court of Nebraska addressed the needs of the children who were caught in the clash of laws, culture and parental rights that occur when their parents cross international boundaries. Id. The Supreme Court of Nebraska stated:

“First and foremost, a child’s best interests are presumed to lie in the care and custody of a fit parent. The State failed to sustain its burden to prove by clear and convincing evidence that Maria is unfit. This evidentiary failure is related to the State’s initial failure to make greater efforts to involve the Guatemalan consulate and keep the family unified. Because the State did not make this effort, it had scant evidence to support its claims that Maria was unable to care for her children.” Id. at 96.

In another case decided by the Supreme Court of Idaho, the court found that the trial court decision terminating the parental rights of a Mexican citizen to his daughter born in the United States on the ground of abandonment under Idaho Code Ann. § 16-2005(1)(a) was not supported by substantial evidence. In re Doe, 281 P.3d 95, 102 (Idaho 2012). There was no evidence presented that the father had the ability to establish any relationship with his daughter as he was legally barred from entering the United States. Id. Absent evidence that father was unfit to have custody of his daughter, the court found that it was in the child’s best interests to be placed with him. Id. Although the Department of Child Services in Idaho had custody of the daughter for slightly over two years by the trial date, that was not through any fault of father. Id. He could not lawfully enter the United States and repeatedly expressed the desire to be with his daughter, and he did all that the department told him to do in an attempt to obtain custody. Id.

I am personally disheartened to hear about cases involving families who cannot be reunited even outside the United States. Where the immigration and family laws clash, children stand to lose their parents. Cases involving international families need the special attention and protections by our state courts to ensure the reunification of families whether be it here or abroad. Special thanks to our Division Chief Jan Berg, and Chief Public Defender Robert Hill for providing the support and encouragement for attorneys like me to be able to, as one great mentor once told me, “fight the good fight.”•

__________

Reham Hewedak works full time for the Marion County Public Defender Agency and is a graduate of Indiana University Robert H. McKinney School of Law. Hewedak previously worked as a solo practitioner representing clients in family law and family-based immigration cases. The opinions expressed are those of the author.

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