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?