How the ‘Best Interest’ Bias of Family Court Threatens Immigrant Parents

As recent news shows, determining what's in a kid's best interest is far from an objective standard. It's easily swayed by biases about poor people, about undocumented people, about people of color.

By Seth Freed Wessler Aug 08, 2012

Felipe Bautista Montes sat in the lobby in the Alleghany County social services office at nine in the morning last Friday and waited for his kids. A door opened and a man stuck his head into the waiting room. "I’m late, sorry. You’ll have a full hour, Felipe." Carrying a couple of toy trucks he’d bought the day before at the dollar store and a pile of children’s books, Felipe Bautista Montes followed the foster care caseworker down the hall, the sounds of children playing echoing back to where I sat.

When Montes walked into the room where the older two of his three children sat, he says his 4-year-old son, the oldest of his three, asked, "You’re my daddy, right? You come from Mexico right?"

"Yeah, I came from Mexico," Montes said. "I talk to you every Monday, every week on the phone." The boy started to smile.

"It’s the first time I’ve seen my boys," Montes said to me as we walked out of the office and back toward his wife’s apartment. "I got so excited you can’t explain. It’s a little strange because I have not seen them growing up for almost two years. I showed them pictures of them on my phone from when they are little tiny babies and he say ‘who is that?’ and I say ‘that is you.’"

Montes has missed 21 months of his children’s lives since being deported for a series of traffic violations. I reported last week that federal immigration authorities granted him a rare permission to return to the country so that he can attend a court hearing scheduled for this Friday. A judge is expected to decide if he’ll be allowed to reunify with his three young U.S.-citizen kids. They were removed from the custody of his wife, Marie Montes, a few weeks after he was deported in late 2010; she struggled with mental health and substance abuse issues and the child welfare department determined she could not care for the kids alone.

After broke Montes’s story in February, over 21,000 people signed a petition demanding the children be reunified with their father. Soon, the Mexican Consulate in North Carolina began to petition federal immigration authorities for his return and late last month, the Immigration and Customs Enforcement granted Montes a 90-day "humanitarian parole". He flew into the Charlotte, N.C., airport one week ago. Montes has a fight before him.

An investigation by last fall found that he is among thousands of deported parents with children in foster care. And an unknown number of these mothers and fathers in recent years have lost parental rights because courts have ruled it’s not in the best interest of their children to be placed with undocumented or deported parents. The children are instead moved into adoption with U.S.-citizen families. These court decisions rattle established legal precedent but have nonetheless gained traction.

Though Montes is back for three months, there’s no way to know what the county judge on Friday will decide should happen to his family.

A Biased Best Interest

On July 18, a county judge in Missouri issued an order stripping a Guatemalan immigrant mother named Encarnación Bail Romero of her parental rights and authorizing the adoption of her son Carlos, whom she has not seen for four years. The case gained national attention because she was first separated from her baby when she was detained in an immigration raid. Strangers adopted her child and she’s been fighting in courts to get them back. Legal advocates and scholars have watched the case closely, and for many, the July court decision was a setback for families separated by deportation.

Marcia Zug, a law professor at the University of South Carolina who’s written on changing treatments of immigrants in family courts, says in cases like Bail Romero’s, the courts are neglecting basic legal principals that hold that a parent’s rights may not be terminated unless abused, neglected or willfully abandoned their kids. Zug explains that undocumented and deported parents are increasingly treated differently, losing their children not because they’ve harmed the kids, but because they are immigrants.

The court’s question, says Zug, too often becomes, "is it in the best interest of the child to return to the parent’s country of origin rather than, ‘is the parent a fit and willing parent’." In these cases, courts are simply finding that children will be better off adopted than back with their undocumented, often poor or deported parents. But determining what’s in a kid’s best interest is far from an objective standard. It’s easily swayed by a whole set of biases: about poor people, about undocumented people, about people of color and about what life must be like in other countries.

"There is a long history of prejudice towards immigrant and minority families and the belief in the inferiority of their care giving," Zug writes in a recent law review article. "This history has demonstrated that a best interest standard is easily susceptible to cultural and racial conceptions of what is in a child’s best interest. The separation of immigrant families may simply be the most recent iteration of this phenomenon." As one child welfare attorney told me, "You can always find a richer, more stable family" for a kid. "But that’s not the law."

Encarnación Bail Romero originally lost her baby and her parental rights when she was detained in an immigration raid at a Missouri poultry plant. Bail Romero gave her son Carlos, who was then just 6-months-old, to her sister who quickly found it too difficult to care for the infant. She put the baby into the hands of a local couple who volunteered to watch Carlos, but soon the boy was shuttled to the custody of another couple who instantly said they wanted to adopt him. A judge at the time agreed to the adoption, castigating Romero for "smuggling herself into the country illegally," which he wrote is "not a lifestyle that can provide stability for a child." In contrast, the prospective adoptive couple "had rearranged their lives and work schedules to provide Carlos a stable home."

Bail Romero appealed and the Missouri Supreme Court remanded the termination to the lower courts, calling the earlier decision a "travesty." A baby could not be removed from its mother simply because she was detained. But Judge David Jones, who heard the case after it was remanded, agreed with the original decision, again terminating Bail Romero’s rights as a parent. To justify his order, Judge Jones again rested heavily on Bail Romero immigration status. He peppered the 62-page order to terminate her parental rights with references to her decision to migrate and her relationships with other undocumented people. She "returned illegally to the United States while pregnant," Jones writes. And she paid rent to "illegal alien" relatives, which "could be construed as an act of harboring [undocumented immigrants]."

"[E]ven with a newborn son, she elected to remain at risk [of deportation] in the United States instead of returning to Guatemala," he wrote, adding that she "has not made a concentrated effort to learn English." The July decision in the Bail Romero case does not set new legal precedent.

Attorneys involved in the case who asked not to be identified said that the earlier state Supreme Court decision, which found the termination of her parental rights was illegitimate, still holds. But they say the lower court judge’s order is a sign that courts feel increasingly emboldened to ignore precedent. In the Felipe Bautista Montes case, no court decision has been reached. But the child welfare department has in more subtle ways argued that the children will simply be better off adopted by American foster families (the youngest of the three boys has been placed with a separate home from the older two) than with their father in Mexico.

Conjuring Neglect

In November, the court decided that Marie Montes, Felipe’s wife, would not be allowed to reunify with her kids; she struggled with debilitating mental illness and drug abuse issues.

When reunification efforts with her were stopped, she was clear, "If they can’t be with me, I want them to be with [Felipe]. Nobody is a better father than he is."

Felipe Bautista Montes’s court appointed attorney began to advocate for the children to be placed in Mexico. But the child welfare department was quick to argue against such an outcome. "[The county] did not approve the father’s home for placement because water is hauled in, there is a concrete roof and cement floor," reads a court document provided to by Montes’s lawyer Donna Shumate.

"It’s not really subtle at all," Shumate told me in February. "They’ve pretty much said that they won’t place American kids there. He is a good father and the fact that he may be living in different standards now because he’s in Mexico should not prevent children from reunifying with their father."

The case follows a recognizable pattern in which parents lose their children because they are detained and deported but then become the targets of deeper slander by child welfare departments and family courts.

Legal experts and’s own investigation shows the trend goes something like this: poor immigrant parents are picked up by federal immigration authorities and their children placed in foster care, or in the homes of adults who wish to adopt them. Then, hoping to get the kids adopted, lawyers start constructing cases against the parents, using the actualities of poverty, undocumented immigration status, deportation and language barriers to argue that the parents were always neglectful. Last time Montes had a court hearing the child welfare department began to try exactly this.

Following a positive review of Montes’s home in Mexico conducted by Mexican government authorities, the Alleghany County child welfare department largely dropped the arguments about housing conditions and running water in Mexico and has started to question Montes’s basic capacity to parent. According to Shumate, the Alleghany County Department of Social Services argued in court that Montes was not a good father when he lived in the United States because the county had provided the family with financial support before Montes’s deportation.

"They said this indicated he was not able to care for his children," Shumate said in April. "They’re back-tracking to call him unfit." Encarnación Bail Romero’s attorneys have vowed another appeal.

"We do intend to appeal the decision," Omar Riojas, one of her attorneys, told me last month. "We believe that the trial court relied on factors that were a result of language barriers, status as an undocumented immigrant and her lack of knowledge of American legal system."

But nearing the end of the court order, Judge Jones wrote, "Ms. Romero is, for all intents and purposes a stranger to the minor child, just as he is a stranger to her."

As Felipe left the visitation room where he saw his two children, his four-year-old asked his father, "Will you take us with you, daddy, will you adopt us?"

"No," he replied, holding back tears, "I don’t have to adopt you, you’re my babies, you’ll go with me as soon as I fix everything." Felipe Bautista Montes’s now has a chance to regain custody of his kids, whom he’s maintained regular contact with by phone. There’s no knowing how the child welfare department in Alleghany County will treat his temporary return and it’s conceivable that the department could change course entirely, dropping its arguments against reunification now that the children’s father is sitting beside them.

More significantly, the judge in the case has yet to issue any decision or indication of how he will rule. He could well ignore the county’s challenges to Montes’s parental rights and demand the three children be reunified with their father. And there’s a chance that the court could follow the lead of the Missouri judge. Felipe Bautista Montes will appear in court on Friday, hoping.