Terminating the Parental Rights of Undocumented Immigrants

By: Shailee Diwanji

The recent media coverage of the illegal termination of undocumented immigrant Encarnacion Bail Romero's parental rights has, once again, brought the issue of the parental rights of undocumented immigrants to the forefront. While, under law, an individual's immigration status is unrelated to his or her parental rights, we are increasingly witnessing the tenuous connection that does, in fact, exist between the two.  Bail Romero's case exemplifies the numerous injustices and flagrant violations of due process that undocumented immigrant parents may be subjected to.

Bail Romero was picked up by INS in a 2007 raid at the factory at which she was working. She was imprisoned for using a stolen Social Security Number and deportation proceedings were initiated against her. Meanwhile, Ms. Romero’s then six-month-old son, Carlitos, was cared for first by Ms. Romero’s brother, then by her sister, and then by a clergy couple who offered to help. The clergy couple sought to adopt the boy, but when Ms. Romero refused and asked that her son be placed in foster care, the couple introduced the boy to the Mosers. Carlitos, now renamed Carlos, was placed under guardianship of the Mosers, who first petitioned for temporary custody, and a year later, filed for adoption. Since Ms. Romero, who was still in prison, had not sought to visit her son in over a year, a judge approved the adoption. Ms. Romero, who spoke no English, was left with no way to plead her side. Last month, the Missouri Supreme Court ruled that the State had terminated Ms. Romero's parental rights without a fair trial in violation of its own laws, which require a trial in such cases. The court, however, refused to return the child to Ms. Romero, and instead ordered a new trial.

Professor Marcia Zug at the University of South Carolina, School of Law, has researched several such cases and says that this chain of events is far more common than we may think. In fact, children are separated from their undocumented parents by state welfare agencies even before their parents' immigration status is called into question. The reason for such separation is usually "abuse and neglect." "Abuse and neglect," however, can range from violence to the inability to speak English or simply the undocumented status of the parent. The latter cases are usually dismissed on appeal; but in the case of an undocumented immigrant, the opportunity to appeal may only occur after he or she is deported and left without an opportunity to do so.

- Shailee Diwanji

   TMA Staff Writer