Georgia Immigrant Couple Fights to Regain Custody of Kids

Why? Because they are undocumented immigrants who speak Spanish, according to advocates.

By Seth Freed Wessler Nov 30, 2011

Ovidio and Domitina Mendez’s lost their five children to foster care when the Georgia Department of Family and Children Services arrived at their home claimed the kids were malnourished. The couple, who are both undocumented immigrants from Guatemala, says they did everything the child welfare agency asked them to do to get their kids back. But three years later, the children are still in foster care with strangers. Why? Because they are undocumented immigrants who speak Spanish, according to advocates.

In June, a juvenile court in Whitfield County, Georgia ruled to terminate the Mendez’s parental rights. The children have been placed with a foster family that now wants to adopt them, according to a report by the Times Free Press.

According to the family and to advocates in Georgia, the Mendez family are the victims of a biased child welfare system that denies undocumented and non-English speaking mothers and fathers their parental rights.

A hearing to have their case re-opened has been scheduled for Thursday.

The case illuminates a number of the findings of a report published earlier this month by the Applied Research Center and "Shattered Families," the first national investigation on the intersection of immigration enforcement and child welfare found that there are at least 5,100 children currently in foster whose parents have been detained or deported. These families often face insurmountable barriers to reunification.

The ARC investigation also found that undocumented parents face bias in the child welfare system, even when parents are not detained or deported. This is partially a result of cultural and language discrimination against immigrant parents. The Times Free Press reports:

Questions about English came quickly during the June termination-of-rights hearing, according to court documents. Then came questions about the parents’ immigration status.

"Describe for the court why even three years after [the children went into the state’s custody] you cannot speak English without an interpreter," Bruce Kling, special assistant attorney general for Whitfield County Department of Family and Children’s Services, said to Domitina Mendez.

"I cannot speak English, but I did — because I did not grow up speaking English," she replied in Spanish through an interpreter.

Several of the children in the family are disabled and suffer from medical problems, and the child welfare department argued that the parents were not equipped to care for them. The county’s attorney argued, "We basically have two individuals with first- to second-grade educations and although they have the capacity to love and care for their children, they do not have the capacity to understand their immense medical needs to properly address them."

But the facts of the case and the remainder of the court deliberations suggest that the court’s decision to terminate parental rights had more to do with the parents’ immigration status and language abilities than the children’s disabilities.

ARC’s research found that across the country, county child welfare department are failing to reunify families when parents are undocumented. Much like in the Georgia case, children are removed from their parents because of allegations of maltreatment, often related to poverty, but then remain in foster care because of barriers that undocumented mothers and fathers face in trying to regain custody.

A child welfare caseworker in Orlando, Florida, interviewed by ARC recalled the case of a mother of two U.S. citizens who could not regain custody because federal laws block undocumented immigrants from accessing many services.

"We removed the kids because of a dirty house issue, poverty basically…This has nothing to do with this woman maliciously abusing or neglecting her children but it was a situation where we did not feel safe reunifying with her because she does not have the means to get the services or help she needed. We ended up having to remove them from her."

Similarly, ARC found that many county child welfare departments reason that because undocumented immigrants cannot attain driver’s licenses, they can not be trusted as caregivers for children.

In the Whitfield County case, the child welfare department raised this argument in their petition to terminate parental rights, saying that the parents would not be able to transport their children.

Though the couple completed the child welfare department’s reunification case plan tasks and even the children’s attorney believed that the family should have been reunified, the judge who presided over the case ruled to terminated their parental rights.

"It is the sad truth that neither of these parents will ever be able to meet the extreme special needs of these five children on a day-to-day basis," the judge told the Times Free Press.

"They certainly love their children, but the children have not resided with them for three years…The children are in need of, and deserving of, a permanent home."

On Thursday, Ovidio and Domitina Mendez go to court to argue that theirs should be this home. A petition has been created in support of their case.