Whose best interest?

By Michelle Chen Apr 24, 2009

Weighing the future of a young mother and child in a Missouri court, Judge David C. Dally of Jasper County delivered this straightforward opinion:

“Her lifestyle, that of smuggling herself into the country illegally and committing crimes in this country, is not a lifestyle that can provide stability for a child… A child cannot be educated in this way, always in hiding or on the run.”

Nevermind that Encarnación Bail Romero had no more control over her “lifestyle” than Dally did: her path was greased by economic desperation in her home country Guatemala, a constant hunger for cheap labor up north, and political bravado in Washington. But from his bench, the judge saw a mother with an uncertain future, a toddler “abandoned” under the eyes of the law, and a well-off local family who had grown fond of the boy and wanted to claim him as their own. Bail, the New York Times reported this week, had been ensnared in the Bush administration’s crackdown on undocumented workers, when Carlos was 6 months old. Yet even before she was jailed, the family faced bleak hardships: she was poor, functionally illiterate, and living under constant threat of deportation. The fact that she was, above all, still Carlos’s mother, wasn’t much of a defense in family court. Due to a lack of system-wide data, it’s unclear how typical Bail’s case is among undocumented immigrants, but historically, family separation through the child welfare system has disproportionately impacted poor children and children of color, especially in the Black and American Indian communities. The common refrain of child welfare agencies is that removal is in the child’s best interest. To activists and progressive social workers, the perception that poor people of color are somehow unfit as parents reveals institutionalized intolerance for cultures outside the mainstream family ideal. Washington University legal scholar Annette Ruth Appell wrote in the Nevada Law Review:

"we have in this country a long and continuing history of constructing the ideal of ‘mother’ according to skin color, religion, culture, national origin, language, ethnicity, class, and marital status. Families headed by mothers who do not meet these norms are most vulnerable to coercive state intervention and regulation through the child welfare system…. White, and middle class are most successful in the child welfare system; those who diverge from these norms are most likely to lose their motherhood."

Given that historical precedent, it’s no surprise that an impoverished undocumented immigrant could be doubly punished by deportation and the loss of a child. And Carlos, now two years old, may be raised in a safe home, surrounded by the privileges of citizenship from which his birth mother was systematically excluded. A 2006 report by the Annie E. Casey Foundation found that immigrant families are extremely vulnerable in the intersection between child welfare and the ICE bureaucracy.

"There is a lack of training and technical assistance available to child welfare staff on immigrant issues… It is difficult to license relative caregivers since many relative caregivers have difficulties fulfilling foster care regulations, including minimum space per occupant requirements, fingerprint clearances without government-issued identification, and income qualifications. Given the shortage of licensed foster care homes, immigrant youth are rarely placed in linguistically and culturally matched foster homes."

Bail, at least, was allowed to avoid deportation as she worked through the family court process. An untold number of immigrant parents and children may never have a real opportunity to challenge a child welfare intervention or termination of parental rights. Human Rights Watch estimates that more than one million family members have been separated by deportation since 1997. As a perverse alternative, there have also been cases of children held along with their parents in isolated detention centers. The relationship between parent and child is sacrosanct in any culture. But the immigration system respects boundaries over bonds: again and again, our laws sunder the one human connection for which parents risked everything when they crossed over to the wrong side of the border. Image: Suzanne DeChillo / The New York Times