Separation, Deportation, Termination

Abstract: There is a growing practice of separating immigrant children from their deportable parents. Parental fitness is no longer the standard with regard to undocumented immigrant parents. Increasingly, fit undocumented parents must convince courts and welfare agencies that continuing or resuming parental custody is in their child's best interest. This requirement is unique to immigrant parents and can have a disastrous impact on their ability to retain custody of their children. Best interest decisions are highly subjective and courts and agencies increasingly base their custody determinations on subjective criteria such as negative perceptions regarding undocumented immigrants and their countries of origin, and on extremely positive beliefs regarding the benefits of an American upbringing. For undocumented parents facing deportation, this is a disastrous combination. Courts and agencies frequently conclude that allowing a child to leave with a deported parent, return to a foreign country, and forgo childhood in the United States is not in the child's best interest. Replacing the parental rights standard with a best interest of the child standard in the context of undocumented immigrant families is the latest example of the increasing power of the children's rights movement. This, however, is a drastic change and one that must receive considerable attention and consideration before it is permitted to continue.IntroductionOn a Tuesday afternoon in late September of 2009, Maria Gurrolla was caring for her newborn son.1 She had just returned home from running errands when a black police style sedan pulled up in front of her house. A blonde woman exited the car and knocked on Gurrolla's door. The woman falsely identified herself as an immigration official and then demanded Gurrolla's baby. When Gurrolla refused, the woman stabbed her eight times and abducted her child.2Gurrolla survived, and shortly after the abduction police located the woman and returned the baby.3 Just moments after being reunited with his mother, however, the state took the baby and his siblings into custody based on allegations that a family member had attempted to sell the child.4 The allegations were unfounded, and eventually, the family reunited.5Maria Gurrolla's son was taken twice, first by a kidnapper and then by the state.6 Perhaps more than anything else, it is the combination of these events that demonstrate the unique vulnerabilities of undocumented immigrant families like Gurrolla's. If the issue were sympathies, it would be hard to find a more sympathetic mother than Gurrolla; she nearly lost her life attempting to protect her son.7 Nevertheless, when the state received information regarding the potential, although unlikely and unsupported, threat of harm to Gurrolla's child, her sacrifices for her son were irrelevant and the harm that such removal could cause Gurrolla was immaterial.8 The state needed only a single accusation to question Gurrolla's parental fitness and order the removal of her children.9Gurrolla's case raises two serious concerns. The first is the state's decision to focus on what it perceived to be her children's best interests rather than Gurrolla's parental rights. The second is that Gurrolla's undocumented status appears to have increased the likelihood of having her parental fitness called into question. The Gurrolla case is troubling and, even if it were an isolated incident, the concerns it raises would still be worthy of discussion. The Gurrolla case, however, is not unique.10 More than two dozen similar incidents have occurred across the United States, revealing that certain modes of reasoning and argument can effectively facilitate the removal of children from their undocumented immigrant parents and justify the termination of parental rights.11Parents have a constitutional right to the care and control of their children and, under established case law, courts may not terminate the rights of fit parents. …