[T]hough we agree with the court of appeals that deportation, like incarceration, is a factor that may be considered (albeit an insufficient one in and of itself to establish endangerment), its relevance to endangerment depends on the circumstances. Under the court’s reasoning, the mere threat of deportation or incarceration resulting from an unlawful act, regardless of severity, would establish endangerment. We disagree with that analysis. Many offenses can lead to an immigrant’s deportation, including entering the country unlawfully. Under the court’s reasoning, virtually any offense that could lead to deportation—even a minor one committed long before the parent’s children were born—would create such an unstable and uncertain environment as to establish endangerment, subjecting countless immigrants to the potential loss of their children. The court’s broad reasoning necessarily applies to citizens as well. Any offense committed by a citizen that could lead to imprisonment or confinement would also apparently establish endangerment, simply because the parent’s ability to be present in his children’s lives would be uncertain. Our nation’s Constitution forbids such a far-reaching interpretation of our parental rights termination statutes. Here, though Francisco engaged in a criminal act and left Wisconsin without completing his probation before his children were born,there is no evidence that these actions created such uncertainty and instability for his children sufficient to establish endangerment. Nor is there evidence that Francisco abandoned his parental responsibilities once he was forced to leave the country. Instead, the undisputed evidence illustrates that Edna and Francisco lived together as a family unit without apparent incident until they separated, and Francisco and his family remained a regular presence and source of support in the children’s lives after he was deported.Oh, and how did Francisco end up between the cross-hairs of ICE so that he was deported? He went to apply for a green card!
* * *
Deportation flowing from an unknown offense occurring many years earlier cannot satisfy the State’s burden of proving by clear and convincing evidence that a parent engaged in an endangering course of conduct, nor can mere guesswork undergird such a finding.
Monday, October 15, 2012
Adopting Out the Children of Illegal Immigrants V
A more positive entry in the continuing series (see part I, part II, part III and part IV), from, of all courts, the Texas Supreme Court, who ruled that deportation alone is not sufficient for termination of parental rights: