Restoring Abused Children to Protective Families Regardless of Immigration Status

            Imagine an adorable, twelve-month old little girl, barely a toddler, with delicate arms, legs, and innocent eyes.  Now picture that same little girl in a hospital with "three bone fractures and substantial bruising" as well as signs that "she had recently been suffocated."[3]  Should this little girl's immigration status determine if she deserves protection?  Or should the state intervene to protect this little girl from further abuse by her parents regardless of her ethnicity or her immigration status? Keila E. Molina,[2] Regent Law Juris Doctor Candidate 2012, has researched this dilemma.  Her article is entitled, "El Sueño de los Niños[1]: Safeguarding the Best Interests of Abused Mexican Children Regardless of Their Immigration Status," and reveals that state courts across the United States have responded affirmatively by protecting the best interests of children in desparate need of protection, intervening as "parens patriae"[4] regardless of their ethnicity or their immigration status.
            The importance of state intervention as a safeguard for abused children is unsurpassable, and is a matter of life and death for these children.[5]  Molina's focus is first and foremost placed on the importance of state intervention to protect children from abuse, [6] examining how state courts have responded to challenges concerning their jurisdiction or their right to intervene in order to protect and determine the best interests of abused Mexican children who are undocumented immigrants.[7]    Since her article concerns the protection of abused Mexican children who are not United States citizens and who lack a legal immigration status to reside in the United States, it is necessary to address how the pointed controversy regarding illegal immigration presents a challenge in promoting and assuring the protection of these children. In fact, some in the United States would argue that because these abused Mexican children are illegally residing in the United States along with their parents, the entire family should be immediately deported in situations of abuse and neglect.[8]  Indeed, some would probably even argue that the United States' courts should not be intervening at all to protect these Mexican children because they are a burden on tax payer resources.[9]  In response to these and other arguments, determining whether a child deserves protection from abuse must be based on the child's best interests, rather than on the child's immigration status.  Children need to be protected simply because they are children. 
Unquestionably, children who are abused or neglected feel the exact same pain both physically and emotionally regardless of the color of their immigration status. Molina writes, "When children are abused by their own mother, father, or any other person, those children need to be protected and provided safety for their future wellbeing.[10]  Children dream, and ought to be reassured, that they are loved and will always be protected, hopefully by those who love them.[11]  All children, regardless of their ethnicity, skin color, or immigration status, not only dream of love and safety, but for their actual survival need to be protected from abuse.[12]"
Addressing the reality and little-known adversity that occurs in state courts throughout the United States involving abused children, who regardless of their country of origin and their immigration status are in need of (and deserve) protection,[13] section I discusses the political and social context for this article as evidenced by the illegal immigration controversy, shedding light on how this context can impinge on the intervention (and protection) of undocumented children.  This section also addresses how the illegal immigration controversy can magnify the struggles of abused Mexican children who are undocumented immigrants and end up in the system.[14]  Section II examines and analyzes the approach taken by courts in California and Texas, as two leading states along the Mexican border, which have steadfastly provided continued protection for Mexican national children despite encountering jurisdictional challenges.  This section discusses how these courts have established custody of Mexican national children by asserting jurisdiction based on both United States and international law.  Section III then explains how courts in both California and Texas have made custody decisions for Mexican children who are undocumented immigrants by persistently looking to the best interest of the child standard when parental rights are terminated and when determining the best placement for these children.  Section IV subsequently presents a recommendation to continue protecting abused Mexican children regardless of their immigration status and to promote awareness of the Special Juvenile Immigrant Status in courts nationwide, proposing an evaluation of the totality of the circumstances to determine the child's best interests regarding placement options once parental rights are terminated.
Emphasizing that state courts in the United States are appropriately intervening as parens patriae to protect abused Mexican children regardless of their immigration status, Molina's article draws attention to the absolute fundamental need for consistent application of the best interests of the child standard in protecting abused children - regardless of immigration status.  This article takes on the immigration dilemma in the context of helpless children caught in the familial and political cross-hairs of trauma and uncertainty. 

[1] Translation from Spanish: "The Dream of the Children."
[2] J.D. Candidate 2012, Regent University School of Law; Biola University, B.A. 2005.  This article is dedicated with all my love to the countless children who have survived abuse, are surviving abuse, and for those who did not survive the abuse they encountered during their short lives.  May we, as adults, strive to always advocate for, protect, and respect the precious, yet vulnerable lives of niños (children) everywhere in our world who so desperately long for someone to show them that they are important and highly valued.     
[3] In re Stephanie M., 867 P.2d 706, 709 (Cal. 1994) (child was abused by her Mexican national parents and after reunification services failed due to the parent's consistent denial of any abuse, parental rights were terminated as discussed infra Section II), cert. denied sub nom. Mendez v. San Diego County, 513 U.S. 937 (1994) and cert. denied sub nom. Jose M. v. San Diego Cty. Soc. Serv. 513 U.S. 908 (1994).
[4] This legal term's literal meaning in Latin is "parent of his or her country" and it is defined as "the state in its capacity as provider of protection to those unable to care for themselves," thus as used here, it describes the duty the state has to protect children who are vulnerable to abuse by adults around them.  Black's Law Dictionary 1221 (9th ed. 2009).  See, e.g., Child Welfare Information Gateway, U.S. Dept. of Health & Human Servs., Child Abuse and Neglect Fatalities: Statistics and Interventions (April 2010), http://www.childwelfare.gov/pubs/factsheets/fatality.pdf [hereinafter Fatalities: Statistics and Interventions] ("Research indicates that very young children (ages 4 and younger) are the most frequent victims of child fatalities. . . .These children are the most vulnerable for many reasons, including their dependency, small size, and inability to defend themselves.").
[5]See e.g., People v. Salinas, 131 Cal. App. 3d 925 (Cal. Ct. App. 1982) (mother convicted for murder and inflicting cruel and corporal punishment with a belt which led to the death of her three year old daughter); Slater v. State, 880 So. 2d 802 (Fla. Dist. Ct. App.  2004) (father convicted for aggravated manslaughter and child abuse of one of his twin sons); In re G.W.S. 553 N.E.2d 85 (Ill. App. Ct. 1990) (mother convicted for manslaughter for killing her own daughter by violently shaking her); State v. Lacy, 983 S.W.2d 686 (Tenn. Crim. App. 1997) (live-in-boyfriend convicted of first degree murder by aggravated child abuse of the girlfriend's five year old son).
[6] Detailed statistics and information on state intervention to protect children from child abuse can be further explored at: Admin. for Children & Families, U.S. Dept. of Health & Human Servs., Statistics & Research: Child Maltreatment 2008,  http://www.acf.hhs.gov/programs/cb/pubs/cm08/cm08.pdf
Each State bases its own definitions of child abuse and neglect on the standards set by Federal and State laws. The child protective services (CPS) units within each State respond to the safety needs of children who are alleged to have been maltreated based on those State definitions. The Child Abuse Prevention and Treatment Act (CAPTA), (42 U.S.C.A. §5106g), as amended by the Keeping Children and Families Safe Act of 2003, defines child abuse and neglect as: [a]ny recent act or failure to act on the part of a parent or caretaker which results in death, serious physical or emotional harm, sexual abuse or exploitation; or [a]n act or failure to act, which presents an imminent risk of serious harm.   Id.
[7] Throughout this article, the word "illegal" will not be used to describe any human being.  The conduct, behavior, or actions of a human being can be "illegal" since these may be in violation of many areas of the law.  Similarly, the term "illegal immigration" is acceptable based on the fact that it describes the action or concept of immigrating.  However, using labels such as "illegal immigrant" or "illegal alien" can be derogatory and imply that those classified under these labels are a sub-category of human beings, even suggesting a categorically imposed inferiority in their humanity.  Thus, while acknowledging that for diverse reasons many individuals reside in the United States without legal immigration status and have breached immigration law, their actions are illegal, but not their humanity as immigrants.  This article will utilize the term "undocumented immigrant" for the simple reason that it is a more accurate and respectful manner to indicate that the immigrant lacks documentation to establish the requisite legal immigration status.  As such, the author of this article hopes that the reader is receptive regarding this distinction in properly referring to this group of immigrants, understanding the reason for its importance.  However, some do disagree (see Federation for American Immigration Reform, Immigration Issues: Illegal Alien or "Undocumented Immigrant?"  http://www.fairus.org/site/News2?page=NewsArticle&id=20887&security=1601&news_iv_ctrl=1007 (last visited Nov. 29, 2010)) with the author's approach, and deem it to be "politically correctness" instead of respect toward immigrants.  For the sake of not fostering any discord, again, the author purposely chooses to steer clear of using any disrespectful terminology towards any human being.     
[8] See generally, Federation for American Immigration Reform, Immigration Issues: How to Stop Illegal Immigration, http://www.fairus.org/site/News2?page=NewsArticle&id=16669&security=1601&news_iv_ctrl=1007 (last visited Nov. 29, 2010) (indicating among other restrictions that a solution to illegal immigration is to "deport immigrants who become public charges").
[9] See e.g., Steve King, U.S. Congressman for Iowa's 5th Congressional District, Immigration Issue Statement, http://steveking.house.gov/index.cfm?FuseAction=IssueStatements.View&Issue_id=63ed9657-7e9c-9af9-78b4-b101aff780a9 (last visited Nov. 29, 2010) ("[O]ur nation must eliminate needless incentives that encourage illegal immigration and cost taxpayers millions of dollars each year.").  This Congressman is also a staunch supporter of repealing birth-right citizenship for all babies of undocumented immigrants.  Id. 
[10] See National Council of Juvenile and Family Court Judges, Resource Guidelines – Improving Court Practice in Child Abuse and Neglect Cases 10 (1995) [hereinafter Resource Guidelines] ("Victims of child abuse and neglect come before juvenile and family court judges for protection from further harm and for timely decision-making for their future.").
[11] See, id. at 12-13. The best situation in a child abuse or neglect case allows the opportunity for families to work towards reunification for the child's wellbeing.  "[C]hildren need the security of having parents committed to their care.  The lack of parents who provide unconditional love and care can profoundly insult a child's self image."  Id. 
[12] See Fatalities: Statistics and Interventions, supra note 4, at 2.
The National Child Abuse and Neglect Data System (NCANDS) reported an estimated 1,740 child fatalities in 2008.  This translates to a rate of 2.33 children per 100,000 children in the general population.  NCANDS defines "child fatality" as the death of a child caused by an injury resulting from abuse or neglect, or where abuse or neglect was a contributing factor.  Id. 
[13] Although the focus of this article is on abused undocumented children from Mexico, the cases and proposals presented can be applied to abused undocumented children from any country who reside in the United States. 

[14] The "system" refers to the court dependency system involving children who require the protection of the court.

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