SSRN-Separation, Deportation, Termination by Marcia Yablon-Zug
Abstract: Parents have a constitutional right to the care and control of their children but this right is coming into mounting conflict with concerns about the best interests of children and the fitness of their immigrant, particularly undocumented immigrant, parents. Increasingly, states are removing the children of undocumented immigrant parents and then terminating their parental rights. Such terminations represent a significant, but largely unnoticed, change in the law. There is no Supreme Court case or Congressional Act heralding this development. This is an unofficial change that comes directly from the child welfare agencies and family courts and their shifting conception of what justifies the termination of parental rights.
Under established case law, courts may not terminate the rights of fit parents. However, this formerly settled law is being replaced with a new set of rules. In the context of undocumented immigrant families, fitness is no longer an obstacle to the termination of parental rights. Increasingly, when courts and agencies believe that termination is in a child’s best interest, they will find that a parent’s undocumented status alone is sufficient to demonstrate unfitness. Then, having essentially eliminated the fitness requirement, courts and agencies are able to base termination of parental rights solely upon a best interest of the child analysis.
This article explores this increasing phenomenon and explains why it is occurring and why no one has noticed.