Amongst the constitutional guarantees afforded undocumented immigrants, the right of a parent to the care, custody and management of her children is considered to be a fundamental interest protected by the Fourteenth Amendment that is “far more precious than any property right.”4 While states do have the obligation to protect minor children from neglect or abuse, there is a strong public policy in favor of protecting the family unit.5 So long as a parent is providing for children “adequately” and “the minimum requirements of child care are met,” the parent’s rights cannot be infringed.6
While the laws on child custody vary by state, the Supreme Court has determined that procedures used by the state to terminate parental rights must meet the requirements of due process.7 To terminate a detained immigrant’s parental rights, a court must first determine (a) whether the parent is unfit under state law and (b) whether such termination will be in the child’s best interest.8 The court must have clear and convincing evidence that the parent is unfit, such as evidence of chronic abuse, abandonment or failure to maintain contact with the child.9
Often, before a state can formally terminate the parental rights of a detained parent, it must establish a case plan that gives the parents an opportunity to rehabilitate.10 Even in the case of detention, the state must make reasonable efforts to enable the parent to comply.11 The state must also maintain contact with the parent and provide the plan in the parent’s native language.12 To avoid having parental rights terminated, a detained parent must participate in case planning, remain involved in his or her children’s lives and demonstrate his or her commitment to reform. If the parent is then found to be fit, she or he is entitled to maintain custody of the child and to designate a caretaker for the child during detention.13
If the state proceeds to a hearing with the intention of terminating a detained parent’s rights, the hearing must be fair and include an opportunity to present objections, confront witnesses and defend against the charges raised. While the exact procedures of a hearing will vary by state, the interests of the parent strongly favor allowing for any necessary safeguards so that the parent’s rights are not unfairly terminated.14 Detained parents are entitled to notice of an action against them, written in their native language,15 but the parents often have the burden of informing the courts of their whereabouts, unless the state can reasonably determine their location.16 Many states also require that detained parents receive a court-appointed lawyer for custody hearings, even though they are not normally entitled to one in immigration court.17 However, detained parents are not always entitled to be physically present at the hearing and may instead have to participate telephonically.18
Parental detention or deportation does not by itself justify terminating parental rights.19 However, courts have considered whether the separation resulting from such circumstances may lead to abandonment or failure to maintain contact with a child, two widely recognized justifications for severing the parent-child relationship. In certain circumstances, the deportation or detention of a parent, combined with other extenuating factors, has been sufficient to terminate a detained immigrant’s custody of his or her child.20 For example, in 2004, an undocumented mother of a young child was deported and her parental rights terminated because, in addition to being deported, she refused to see her child before being removed and had maintained infrequent contact with the child since her deportation.21 However, other courts have held that when a state takes action to knowingly deport parents who have children in the United States, with the “purpose of virtually assuring the creation of a ground for termination of parental rights,” and then proceeds to seek termination, the state violates the due process rights of the parent.22 Because the grounds for termination of parental rights vary so greatly, detained parents may be forced to navigate a confusing and difficult process where their rights are not always clear.
1 U.S. Const. amend. XIV, § 1.
2 Plyler v. Doe, 457 U.S. 202 .1982.
3 Daniels v. Williams, 474 U.S. 327, 331. 1986.
4 Santosky v. Kramer, 455 U.S. 745, 753. 1982.
5 Moore v. East Cleveland, 431 U.S. 494, 503. 1977.
6 Reno v. Flores, 507 U.S. 292, 303-04. 1993.
7 Lassiter v. Department of Social Services, 452 U.S. 18. 1981.
8 Child Welfare Information Gateway, Grounds for Involuntary Termination of Parental Rights (2007). http://www.childwelfare.gov/systemwide/laws_policies/statutes/groundtermin.cfm.
9 Santosky, 455 U.S. at 747-48.
10 See e.g., In re Maria S., 98 Cal. Rptr. 2d 655, 659 (Cal. App. 2000).
11 Id. at 660.
12 Interest of Angelica L. & Daniel L., 767 N.W.2d 74. 2009.
13 In the Matter of Huff, 969 A.2d 428, 432 (N.H. 2009).
14 Lassiter, 452 U.S. at 27.
15 In re Interest of Mainor, T. and and Estela, T., 674 N.W.2d 442, 462-63 (Neb. 2004).
16 In re A.R., 673 S.E. 2d 586-87 (Ga. App. 2009).
17 S. Adam Gerguson, Note, Not Without My Daughter: Deportation and the Termination of Parental Rights, 22 GEO. IMMIGR. L.J. 85 (2007).
18 Mainor T., 674 N.W.2d at 460.
19 See In re A.E., 208 P.3d 1323 (Wyo. 2009) (noting that states have generally shied away from finding per se unfitness based on broad categories).
20 See In re Christian M-R, 2008 Conn. Super. LEXIS 1783 (Conn Super. Ct. July 8, 2008) (terminating parental rights of an undocumented father on the basis of failure to maintain an ongoing relationship with the child); Cf. In the Interest of M.M, 587 S.E.2d 825 (Ga. App. 2003) (finding that since an illegal father had cooperated with the court, was trying to obtain residency, and consistently visited his child, termination of his parental rights on grounds that he might someday be deported could not be sustained).
21 See In re L.A.R., 695 N.W.2d 42 (Iowa Ct. App. 2004).
22 See In re Shane P., 58 Conn. App. 234, 753 A.2d 409, 2000. See also Mainor, T. and Estela, T. 674 N.W.2d at 462-63 (mother’s deportation did not equate to abandonment).