Wednesday, November 10, 2010

Adopting Out the Children of Illegal Immigrants

Remember the mother in Mississippi who lost custody of her child for a year after hospital workers discovered she was an illegal immigrant? Have you read about this new case? An undocumented immigrant from Guatemala had her parental rights terminated and her child adopted by another family when she was swept up in an immigration raid and jailed. The Missouri Court of Appeals reversed the trial court's termination and order of adoption, and the Missouri Supreme Court heard oral arguments in the case yesterday.

Here are the facts from the Court of Appeals opinion:
The only evidence concerning the care of Child was the testimony of a parent educator with Parents as Teachers for Carthage R-9 Schools, Laura Davenport ("Ms.Davenport"), and what Respondents heard about Child from others. No evidence was obtained from Mother or any of her family members at the transfer of custody hearing or at the adoption hearing. We recount the following facts as they were presented to the trial court:

At the time Mother was arrested, Child was staying with Mother's brother ("Brother"). A few days after Mother's arrest, Brother gave Child to Mother's sister ("Sister") and brother-in-law. Unable to care for Child full-time, Sister sought babysitting services through Ms. Davenport, who referred Sister to Jennifer and Oswaldo Velazco ("the Velazco family"), local clergy of a Hispanic church in Carthage, Missouri.

It was at this point that Sister relied on the Velazco family to help provide childcare for Child. At first, the Velazco family would pick Child up in the morning and Sister would bring Child back home in the evening. This arrangement lasted for a few weeks, when it was decided that instead of shuffling Child back and forth, Child would stay with the Velazco family during the week and Sister would pick him up on Fridays for the weekend. As of September of 2007, Child was still living with Sister on the weekends.

In September of 2007, Ms. Davenport visited Mother at the St. Clair County Jail to see if Mother was willing to let Child be adopted. Mother responded that she did not want Child to be adopted. Yet, on September 24, 2007, the Velazco family contacted Respondents about adopting Child and started granting them visitations with Child. The Velazco family knew Respondents' brother and sister-in-law and they sought out Respondents as a potential adopting family. After ten days of visitation and one overnight visit, Child came to live with Respondents full-time on October 5, 2007.

On October 5, 2007, before the Velazco family informed Sister that Child would not be returned to her, Respondents filed their Petition to adopt Child and terminate Mother's parental rights ancillary to the adoption. The Summons and Petition for transfer of custody, termination of parental rights, and adoption was served on Mother on October 15, 2007, a mere three days before the transfer of custody hearing.

Respondents argue that because Mother was served and did not appear at the transfer of custody hearing, she waived her right to argue improper service. However, a closer review of the record demonstrates that the transfer of custody hearing was not scheduled until October 17, 2007 – two days after Mother was served with the Summons and Petition. Additionally, the caption on the Notice of Hearing indicates that only Joseph Hensley, Respondents’ attorney, and Jamey Garrity, the guardian ad litem ("GAL"), received notice of the transfer of custody hearing. Mother was not indicated in the caption and no attorney was noticed on her behalf. The body of the notice of hearing document tells the noticed parties to inform their clients. Thus, it is clear that Mother received no notice of the transfer of custody hearing.

Mother was not present or represented by counsel at the transfer of custody hearing on October 18, 2007; counsel was not appointed for her until December 3, 2007, almost two months after the custody of Child had been transferred to Respondents. Child was never in the jurisdiction of the Juvenile Division of the Circuit Court. The court heard evidence from Respondents about their circumstances and how Child came to be a part of their lives.

During the hearing, Respondents presented a home study that had been completed to assess their fitness to serve as foster parents. The home study addressed Respondents' strengths and weaknesses, along with their backgrounds, which included concerns about S.M.'s criminal history and the involvement of M.M.'s brother, who M.M. claimed had sexually abused her as a child. The assessment made two recommendations before Respondents could be licensed foster parents: (1) create a safer home environment for children because Respondents lived in a basement apartment; and (2) further assessment from the Children's Division representatives regarding the presence of M.M.'s brother in her life. There is no evidence of compliance with either of these requirements in the record, other than M.M.'s verbal confirmation that "everything" was approved.

The GAL recommended transfer of custody, stating that "there was an emergency situation in that nobody had the ability to care for [Child] . . . so maybe with this transfer of custody [Respondents will] be able to take [Child] to the doctor or get him his needed shots or checkups." The court granted Respondents care and custody of Child pending further proceedings.

The adoption hearing was held on October 7, 2008. At that hearing, Respondents' counsel offered and the court admitted a letter he sent to Mother that was returned refused and M.M. testified that Respondents' attorney sent letters to Mother in jail. Additionally, a letter from the court advising Mother about her first appointment of counsel was also returned refused. The court later withdrew that appointment, and it was at this point that Respondents hired Aldo Dominguez ("Mr. Dominguez") to represent Mother in the termination of parental rights and adoption proceedings. Other than the two letters sent by Respondents, no effort was made to locate Mother or to ensure she had knowledge of the termination and adoption proceeding. Furthermore, there is no evidence that the GAL attempted to find Mother or her family.

The termination and adoption hearing lasted for a total of 106 minutes. A substantial portion of the hearing was devoted to Respondents' purported fitness as parents for Child and no evidence was presented on behalf of Mother other than a letter indicating:

"I have suffered too much by knowing nothing about my little one, asking God to take care of him for me and let me be reunited with him soon. Please, Mr. Dominguez, look for the means to send my son [Child] with my family in Guatemala. This is the telephone number of my sister in Guatemala, I spoke to her and she will welcome him in my country."

Mother was represented by counsel, who was paid for by Respondents, and she was not present. Additionally, there was no report or investigation into Mother's background to show why she was unfit to be a parent or why termination of parental rights was in Child's best interests. In fact, the court admits that "[n]ot much is known about [Mother] except what could be discovered through her plea agreement and the testimony of [Ms.]Davenport[.]"

The court found that Mother "abandoned" Child, as used in sections 453.040(7) and 211.447.2(2)(b), RSMo Cum. Supp. 2007, when she went to prison without making provisions for care of Child.[ fn. 10. It is undisputed that Mother left Child in the custody of her family. There is no evidence that she was given an opportunity to make further arrangements if her family was not able to care for Child.]

In addition, the court stated that Mother had no contact with Child nor attempted to communicate with him from the time she was arrested. The court had two letters from Mother in its file. One was a letter dated October 28, 2007, indicating that Mother did not want Child adopted. The other one was a letter sent to Respondents' attorney, according to the testimony of S.M., on September 16, 2008, indicating that Mother did not want Child adopted. No evidence was presented at trial to show whether Mother had contacted her family about Child or whether she was capable of providing support for Child while she was imprisoned. Additionally, nothing in the record indicates that Mother knew how to contact Child or where to find him once he was placed with Respondents – last she heard, Child was still being cared for by Sister.
Respondents asserted that their contact information was on the pleadings so Mother could find them; however, it was clear from the testimony at trial that Mother did not speak English. There was no clear evidence whether Mother had a translator available to interpret the documents for her or to help her understand the gravity of the situation.
When considering Mother's present circumstances, the court noted that Mother was unable to offer proof that she would be employable in Guatemala, had a home there, or had any way to care for Child, "leaving the court to believe that [Mother] would be unable to provide adequate food, clothing, or shelter to [Child] in her physical custody in the future." Moreover, the court stated that "[Mother's] lifestyle, that of smuggling herself into a country illegally and committing crimes in this country is not a lifestyle that can provide any stability for a child. A child cannot be educated in this way, always in hiding or on the run." There was no investigative report about Mother's ability to parent, and there was no evidence to indicate that Mother was an unfit parent. The only evidence presented on behalf of Mother was a letter from her, indicating that she had someone on stand-by ready and willing to take responsibility for Child until Mother was released from prison and deported to Guatemala. The court indicated, "[t]he only certainties in [Mother's] future is that she will remain incarcerated until next year, and that she will be deported thereafter." The court stated that "[Mother] appeared to put forth no effort to locate [Child] and, in fact, should have known where [Child] was."
The court granted Respondents' petition to adopt Child and terminated Mother's parental rights.
So what do you think?  Are you troubled by the termination of parental rights on these facts?  BTW, the required constitutional standard for termination of parental rights is "clear and convincing evidence."  Do you think we have that here?  Are you troubled by the fact that the mother is represented by counsel paid for by the adoptive parents?  Could there be a conflict of interest in that?  The mother ignored letters sent to her, didn't she?  Does that prove abandonment?  But where's the proof she got the letters?  What about the judge's "lifestyle" argument?  Do you think the adoptive parents are fit, based on the record presented?  That the biological mother is unfit, based on the record presented?  Do you think the fact that the mother is talking about taking an American citizen child to that backwater, Guatemala, is influencing the trial judge?  How much of this case is about race, class, nationalism and the illegal immigration debate in America?


DannieA said...

Boo...I have no words.

Anonymous said...

Predatory action by respondents, the attorneys, the courts, and the social care systems responsible in this case. It's no different really then the slave practices of the past where the human being forfeited all rights. It's just that the approach has become more refined over time.

What attorney in their right mind would represent the mother while being paid by the respondents on the other side of the claim?? How is that not grounds for disbarment??

Sadly, with the growing hate based negative sentiment in this country (a country of immigrants by the way) toward those that are not legally residing in the country, this will become more and more common place in this country.

It makes me want to puke. It also makes me want to immigrate to a different country because this one frankly has no respect for the rights of others.

Claudia said...

I have got no words for this. Just no words.

Anonymous said...

What does it matter to you? Really? Why do you care so much about wronged families? Does it make you feel better about adopting, being an "adoptee advocate"?
What do your children think about all the negativity surrounding adoption that you dig up? Can't that be scary or downright psychologically harmful to them?

DannieA said...

Wow Anonymous....that comment was uncalled for.

I'm sure the author of this blog (Malinda) can respond for herself but I for one am happy to read about the "not so rosey" picture of adoption because it keeps us mindful of ethics and I believe it keeps us open to making sure we look for honesty and nothing else when it comes to adoption issues.

Margie said...

Thanks for posting about this, Malinda.

Anon 2, everyone should care about justice. If adoption is a part of your life, you should carer about justice in adoption laws and practices.

Emilie said...

You should care about this because you're a human being. And because, if you're not fully Native American, it wasn't so long ago that your family was in same position as today's immigrants.

And yeah, I think this is totally about race and class and immigration. And as for the "lifestyle argument", I don't think one post is enough to cover everything that I think is wrong with it. This whole story just makes me sad and angry at the same time.

LisaLew said...

What has always bothered me about our judicial system is what you see here: those with the money are able to represent themselves with better attorneys and win.
Very sad.

Katie said...

I think one of the biggest problems in this case is that illegal aliens don't have constitutional rights. Well, they do, but being arrested for being here illegally puts the mother into a whole different court process. It's a giant can of worms. It's still wrong what happened. But it was easy to tell that from the beginning with the baby being shuffled around that things were going to get all messed up legally and logically.

Anonymous said...

Another work of ART [Adoption's Real Triad]. This would be the colluding of an adoption agency, an adoption attorney and overseen by the "see no evil, hear no evil, speak no evil Department of Human Dis-services!

Unknown Father

Kim said...

Wrong, wrong, wrong! Those here "without papers" as they call it are in an extremely vulnerable position. Yes, they chose to come, but chose to do so because of circumstances we can hardly imagine here back in their own countries.

Makes me so angry. And protective of my friends who could find themselves in these circumstances.

Anonymous said...

It's both simple and complex at the same time.

Reena said...

I think this case is entirely about race, class, nationalism and the illegal immigration debate in America!

I see it now-- the punishment for illegal aliens, if we find you, we'll take your kids before deporting you.

It is sick! And really, how do the AP think thier child(ren) will feel about them and their adoption as they grow up?

Anon2-- are you serious? As an amom I think it is necessary and responsible that we acknowledge, highlight, discuss and act against unethical adoption practices-- and that we do it in a way that our children can see and be a part of if they so wish.

I think burying your head in the sand about how adoption can be unethical can be even more psychologically harmful to a child than having open communication.

Anonymous said...

I feel for the adoptive parents because they are most likely going to lose their son in this case.

But I feel more strongly for the bio mother because she was stripped of her rights and her parenthood, simply because she was in jail and was completely vulnerable in a system that is hostile to her (as an illegal, non-English-speaking alien).

The court noted so many errors that occurred, there is no way to ignore them. Who are these "ministers" and how did they take it upon themselves to offer up this child for adoption? Who said they could do that?? The "parent educator" Laura Davenport had some audacity to travel all the way to the jail to ask the mother if they could put her child up for adoption with no authority for her to do that. When the mother explicitly said (and wrote a letter) saying "no", these people went ahead and did what they wanted anyway. The adopting parents had to know there was trouble ahead when they personally moved to strip the mother of her parental rights, in the face of her letter saying she didn't want her child adopted, and that she wanted visitation with him while she was in jail. No matter - the richer Americans did what they wanted to do, believing they were "taking care of an underprivileged child's best interests."

They embarrass me for their arrogance and how they use the system of adoption for their own personal interests. It makes all adopting families defensive and under scrutiny for going through a system that can so blatantly disregard the rights of biological parents. Who cares whether she is poor, single, has no job, whether the child had scabies, etc... If that were reason enough to take a child from his parents and adopt him out to someone richer, we all better watch out because so many of our children could be judged "not cared for adequately enough" in someone else's eyes.

I feel for the Mosers because they are probably going to lose the child they raised for 5 years, and not a day will go by for the rest of their lives when they don't grieve his loss. The child is going to suffer so profoundly to lose his parents, his home, his country, his school, his friends, his language, his extended family.... Did no one think of that before they moved to serve their own prejudices and interests?