Who Should Parent This Guatemalan Child? UPDATED

Last month, we talked about the first study of illegal immigrant’s children in US foster care . There is a current case about parental rights in Colorado that is pitting foster parents against an illegal Guatemalan immigrant who herself aged out of foster care. Guatemalan child case now in judge’s hands [Alamosa News 12/2/11 by Ruth Heide]

“The future of a 4-year-old Guatemalan child now lies in the hands of District Judge Michael Gonzales, and regardless of his decision, it won’t be a happy ending for somebody.

At the conclusion of a three-day trial to the judge on Thursday, Gonzales said this was a serious decision and he needed to take some time to consider it. He set another court date for January 10, by which time he will have decided whether or not to terminate the child’s parental rights.

The judge could reunite the child with his mother, a 21-year-old Guatemalan immigrant, or terminate her rights, a course of action that would enable the current foster family to pursue adoption of the child.

“It’s a hard decision to make,” the judge said.

Both Jason Kelly, attorney for the Alamosa County Department of Human Services, and Anna Ulrich, Guardian Ad Litem for the child, asked Judge Gonzales to terminate the mother’s rights. The mother’s attorney Ray Miller asked that the judge reunite the boy with his mother, who now has another child, a daughter.

The daughter, who was born this spring, is not in the department’s custody.

The son was adjudicated dependent and neglected at the same time his mother was adjudicated when the two entered the system shortly after the mother entered the U.S. as a teenager. Testimony on Thursday reflected that the mother had been raped and impregnated by one of the people helping her cross the border.

When her son was born, the mother and son were placed together in foster care where they remained until the mother “aged out” at 21 and began living independently. She has obtained some education, both academically and in English as a Second Language, and is working at the mushroom farm.

Testimony on Thursday reflected that when the mother entered the educational system in the Valley, she essentially was at the level of a preschooler academically. Some witnesses testified that she had made progress academically and in other ways.

The mother is also undergoing mental health treatment on the recommendation and treatment plan requirement of the Department of Human Services. Her mental health counselor testified that she believed the mother had made significant progress. (Kelly pointed out that the mental health counselor’s latest report to the department of human services had listed the progress as moderate.)

The Guatemalan Mayan culture became a major issue in this case, with witnesses testifying to the importance of maintaining that culture for the mother and her child. They also talked about the differences between the U.S. and Guatemalan cultures.

One of the leaders in the local Guatemalan community testified through a Spanish interpreter that families are important in this community and children should not be taken away from their parents.

“It’s not what we do,” he said.

A Kanjobal interpreter served as translator for the mother throughout the proceedings. Witnesses testified that the mother had also learned Spanish and was still in the process of learning English.

Some members of the Sacred Heart Church congregation testified about how they were helping the mother and would continue to assist her with transportation and other needs. They also testified that in their observations of her with her children they found her to be a good mother.

Kelly said he was not sure anyone “won” in a parental rights termination hearing but the goal was to make a decision that would be best for the child. He added that terminating parental rights required criteria to be met, such as noncompliance with treatment plans, lack of progress on the part of the parent and evidence reflecting that the parent is unfit, all of which he said were substantiated in this case.

He added that an enormous amount of services had been provided by the department on the mother’s behalf.

“Every reasonable effort that could be made was made for this mother,” he said.

Ulrich added, “If there were ever a case when exhaustive efforts have been made, this might be it.”

She said she believed the standards for parental rights termination had been met in this case.

Miller disagreed. He said the mother had complied with the treatment plans, even though the plans kept changing, and had made a great deal of progress, especially considering her status upon arrival in this country.

He said there was no evidence the mother had been physically abusive to her son, and several witnesses had testified to her affection for the boy.

“This mother was observed providing a loving, caring nurturing behavior to this child,” Miller said. Witnesses testified about a bond between the mother and child, a bond that should not be severed, he added.

Miller commended the current foster family for their excellent care of the 4-year-old but said they are not Mayan and do not speak Kanjobal, and it is important for this child to identify with his culture.

“What this family needs is to be reunited,” he said.”

Update: The mother regained custody on March 2, 2012. The judge asked for a 90 day transition but the foster parents, who of course wanted to adopt the child, gave 2-week notice. The quick transition is not in the best interest of the child but the judge approved it as putting the child in another foster home would have been the worse alternative.

“The Department of Social Services (DSS) held an emergency hearing Tuesday morning in Alamosa District Court for the expedited transition of a juvenile from foster care to his mother’s house.

DSS had petitioned for Isabela Tomas’ parental rights to be terminated, and her son’s foster parents had hoped to adopt the young child.

However two weeks ago District Judge Michael Gonzales awarded custody of the child to his mother. A 90 day transition plan was drawn up to reduce the emotional upset of the child, who has been in at least three different foster homes in the year since he was taken from his mother.

DSS attorney Jason Kelly said the foster parents had given two weeks notice to have the child removed from their home after Gonzales’ decision. He said it was part of the contract foster parents have with DSS that a child can be removed as long as they give two weeks notice.
Kelly recommended the child be given to his mother at 9 a.m. Friday, since it made no sense to put him into another foster home because his mother had been awarded custody.

Kelly requested the case be kept open to make sure Tomas had access to their resources and the child could be placed in Head Start.

Attorney Ray Miller protested the continued involvement of Social Services.

“They want to provide my client (Tomas) with other services as needed,” Miller said. “My only thought is that the last two transition plans in regard to this case resulted in termination hearings. While my client is thankful for the assistance she has received from DSS, she believes enough is enough.”

Gonzales said he was upset with the disruption of the transition plan.

“I am sad and disappointed in the early release of the child from the foster home,” Gonzales said. “But I respect the foster parent’s rights in regard to their own home.”

He said while it was in the child’s best interest to be returned to his mother, a more gradual transition would have been better for the child.
[They couldn’t adopt him, so they didn’t care about his transition!]

“Everybody involved in this case had one goal: That of protecting this young child, both physically and emotionally,” Gonzales said.

Gonzales addressed Tomas through an interpreter.

“I am giving your son back to you effective Friday morning,” Gonzales said. “This has been a long and difficult time for everyone. I am asking that you work with the department (DSS) for the next two weeks and that you continue to work with them because this is what is best for your child. It will not be forever. Once we get him stabilized in your home and school you can get the department out of your life.”

A review in court will be held March 13 at 4 p.m.

“I expect to have a clear update from the department at that time,” Gonzales said. Then he added a last admonishment to Tomas:

“Don’t ever stop being the mother I know you can be, and everybody else knows you can be.”

DSS returning Guatemalan child to mother on Friday
[Valley Courier 2/29/12 by Julia Wilson]

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