The Idaho Supreme Court issued a forceful decision late last month, ordering that a father who lost his child to adoption after he was deported to Mexico should regain custody of his daughter. The ruling overturned the decisions of two lower courts to terminate his parental rights. As countless other courts around the country consider similar cases of families shattered by deportation and the child welfare system, the Idaho decision could serve as a model in a relatively uncharted legal field.

In the court’s decision, Justice Daniel Eismann, who authored the unanimous decision, wrote that a lower court’s finding that the father had willfully abandoned his daughter and failed to maintain contact with his child is “clearly erroneous. In fact, it is absurd.”

The court ordered that the daughter, who is now 3-years-old and who has never met her dad, be reunified with her father in Mexico. The girl’s mother gave birth to her in the United States after her father’s deportation and the child welfare department later removed the daughter from her mother’s custody after an allegation of neglect.

The case mirrors countless others that have emerged around the country following the deportation of tens of thousands of parents of United States citizen children last year. An investigation by Colorlines.com found that there are currently at least 5,100 children in foster care whose parents have been detained or deported.

The Idaho child welfare department asked the lower court to terminate the father’s parental rights, arguing that it was in the best interest of the girl to remain in the United States, even if in the custody of strangers. In court, a child welfare department employee stated: “I think it’s in the best interest of [Daughter] obviously to remain in the United States because there’s no comparison between being in Mexico and being in the United States, being a United States citizen. She has all the luxuries or all the things we can offer.”

In the ruling, Justice Eismann wrote that such an argument can not be used to justify the termination of a father’s rights. The lower court, Eismann wrote, “failed to recognize the significance of a parent’s rights regarding his or her child.”

The Idaho Supreme Court also questioned the child welfare department’s motives in terminating the father’s rights, noting that the girl was currently in the custody of a department employee who wished to adopt her.

“It makes one wonder whether the real reason for seeking termination of (the) father’s parental rights is the fact that a department employee wanted to adopt (the) daughter.”

The Idaho case bears similarities to an ongoing North Carolina case that Colorlines.com first reported on earlier this year. In that case, a father named Felipe Montes was deported to Mexico for driving without a license, leaving his wife and three young children behind. His wife, Marie Montes, who struggles with substance abuse and disability issues, fell on hard times and the child welfare department determined that she was not fit to care for the kids. But rather than placing the children with their father, the child welfare department argued that they should be adopted by foster families in North Carolina. The next hearing in that case is scheduled for late May.

In the Idaho case, the father’s rights were already terminated and the child put up for adoption after a lower court ruled that the mother was unfit to care for the girl. The Idaho Supreme Court has now ordered the child welfare department to quickly reunify the girl with her father.

Read this online at http://colorlines.com/archives/2012/05/the_idaho_supreme_court_last.html


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