Stop hijacking children's rights!
....But it's for the children!!!
Between work and vacation, this column’s been absent a few weeks! And in the interim so much has happened in child welfare — especially yesterday’s Skrmetti decision from the Supreme Court and the rash of articles regarding “deportations” of US citizen children.
I’m going to use today’s column, and these two developments in particular, to lament the fact that many legal and policy advocates too often try to push their own adult agendas at the expense of children’s rights, needs, and best interests.
Example 1: Transgender Rights vs. Child Protection.
In United States v. Skrmetti, the Supreme Court yesterday upheld the authority of the State of Tennessee to prohibit physicians from using puberty blockers, hormones, and other medical interventions to “treat” gender dysphoria in children. Article after article has decried the decision in terms such as “a devastating loss for trans rights supporters.” The American Academy of Pediatrics blasted the decision. The Center for American Progress said the Court “ruled against bodily autonomy, putting politics over science.”
A more appropriate observation is the 6-3 Supreme Court holding empowers state legislatures to protect children from life-altering, permanent decisions they can’t possibly understand.
In arguing that prohibiting these medical treatments for children violated their rights to “equal protection of the laws” under the 14th Amendment, the ACLU was really focused on the rights of transgender adults and paid no mind to the special protections afforded children. As the New York Times Magazine reported this morning, the National ACLU Director considered the case “the logical next step in his organization’s much longer battle to defend personal freedom.” It entrusted pursuit of the case to Chase Strangio, an attorney who “fundamentally doesn’t believe in the Constitution.” The NYT piece shows that, in their zeal to establish the rights of adults to use their bodies as “gendered art” (and require others to pay for these gender-modifying cosmetic treatments), trans rights advocates ignored the significant differences between adults and children and disregarded respected research questioning the entire premise of pediatric gender medicine and its impact on vulnerable, confused children including those with autism and mental health issues.
Although Srkmetti resulted in a “win” for state child protection efforts, it is troubling that so many influential groups and media outlets supported this years-long legal battle, treating it as an issue of transgender rights and ignoring the significant child protection issues. The Court itself also missed an opportunity in its majority opinion to focus on the rights of children to be protected from gender-shifting, permanent medical procedures, especially in light of the growing body of evidence questioning their effectiveness and propriety. (Even Sotomayor, in dissent, acknowledged that states can regulate the use of powerful, body-altering cross-sex hormones “more stringently”). Justice Thomas, at least, acknowledges in concurrence the dangers of pediatric gender medicine, reminds his colleagues that States have the right to regulate medical ethics, and correctly questions whether a child can even provide informed consent to these medical procedures that cause lifelong infertility, require ongoing medical treatment, and permanently prevent orgasm.
Although Skrmetti affirms the right of state legislatures to protect children from these unproven medical interventions, a question remains that our society will have to sort out: how did the professional classes in the United States come so close to sacrificing the protection of vulnerable children just to advance the rights of a small but vocal group of adults?
Example 2: Immigration Advocates vs. the Rights of Parents and Children.
Now let’s discuss how children become fodder in the larger battle among adults over immigration policy. A quarter-century ago, the Elian Gonzalez case vividly demonstrated how a child can become a pawn in this political fight. The cause of the young Cuban refugee whose mother drowned trying to find freedom for him in America was fought among Cuban immigrants eager to give him a better life here and parental rights advocates who successfully challenged the right of outside interests to separate him from a fit father in Cuba.
Over the past two months, events show us that immigration advocates are again using children to support their cause, but in a way that I believe completely undermines respect for children’s rights, parental rights, and the proper use of child welfare law and immigration law. Here are two examples.
But They’re Deporting US Citizen Children!!
First up is the case of Jenny Lopez-Villela, a Honduran national, who was notified in late April that she would be deported along with her older, also undocumented, daughter. No one suggested those deportation orders were improper. At the time of her deportation, Ms. Lopez-Villela also had with her a younger daughter -- two-year-old “V.M.L,” a US citizen born in Louisiana. According to immigration authorities, the mother asked that the younger child remain with her. As a result, she and the two girls were sent to Honduras and are together there today.
The National Immigration Project of the National Lawyers’ Guild filed a habeas action claiming V.M.L. was wrongfully deported and seeking her return to the United States so she could be cared for by a “friend of the family.” That organization claims a mission “to ensure that those most impacted by the immigration and criminal systems are uplifted and supported.” Nothing in that mission statement suggests a focus on the rights and interests of the child whose future is the subject of their legal claim.
Although V.M.L’s father went to the immigration office with the mother when she was detained, upon learning she would be deported he refused to pick up his child. He, too, was undocumented and feared being sent back to Honduras with his family. Instead, he signed over custodial rights to a “friend of the family.” That explains why an unrelated “friend,” not the father, filed the federal action seeking to obtain custody of the citizen child.
Expressing a “strong suspicion that the Government just deported a U.S. citizen with no meaningful process,” a federal judge scheduled a hearing on the matter. But the federal court’s description of V.M.L. as having been “deported” had no basis in reality, and none of the issues in this case could be legitimately addressed by a federal habeas action. Maybe that’s why the advocates dropped the case prior to the scheduled hearing.
Over 18 million children in this country live with at least one immigrant parent. Citizen children of foreign nationals regularly travel across borders to live with a foreign national parent or to visit with family. The cases involving citizen children of deported parents are custody matters, not immigration cases. In each of the cases, the mothers were asked whether they preferred to take their children with them with them or leave them or leave them with a caregiver. Any dispute over whether these mothers should have been given that option was not for immigration authorities to decide. Where V.M.L and other children of deported parents should live are matters for a custody court to determine or may be decided via an international custody rights action under the Hague Convention.
And as a matter of child custody law, neither do any of these cases raise novel issues. Immigration advocates and unrelated “friends of the family” have no say in child custody, a decision that should be made between the child’s parents. Absent a showing of parental unfitness, parents have a fundamental right to the care, control, and custody of their children. In its Troxel v. Granville decision in 2000, the Supreme Court made clear that even well-meaning outsiders such as grandparents may not interfere with the rights of fit parents to care for and raise their own children.
Nor do deported parents lose their rights to custody of their children. During the 25 years I have worked in child welfare as a judge, attorney and agency official, I have helped return a number of US citizen children to their previously deported parents in Guatemala, Mexico, and Honduras. Your immigration status does not determine your parental fitness, and a US citizen child’s rights are not violated by a parent’s decision to live outside the United States.
Over those years, I have often seen advocates insist that a US citizen child of a deported but “fit” parent remain here, no matter how destructive that decision may be to the child’s bonds with his or her family. Living in those countries is dangerous, I’ve heard them say. These children’s “best interests,” they argue, would be served by a better life in the U.S. living with relatives, guardians, or with an adoptive family.
Deported parents have the right to take their US citizen children with them, and these young citizens retain their citizenship. We do need to make sure they are able to make a smooth transition and have the documents necessary to return to the US when they wish. But why should we be letting immigration attorneys interfere in parental custody decisions, especially when these advocates’ interests are not aligned with the parents or the children?
Hijacking Humanitarian Visas Meant for Foster Children?
The second recent case, from Kentucky, demonstrates how immigration advocates are misusing special humanitarian protections for undocumented children in foster care who cannot and should not be returned to their country of origin due to serious parental abuse.
Some background. In certain cases, a child who is undocumented but who is “dependent” on the court or in foster care due to having suffered significant abuse, neglect, or abandonment can obtain a juvenile court order that may lead to a Special Immigrant Juvenile Status (SIJS) visa and, eventually, a green card and citizenship. Congress created this humanitarian visa in 1990 with good intentions, and I’ve seen it used wisely in situations where undocumented parents severely abused or abandoned their undocumented child and were themselves deported. The juvenile court’s order provides no immigration status but allows the child to apply to USCIS for the SIJS visa. Unfortunately, the number of these visas available annually is pretty limited.
The ongoing Kentucky case of 18-year old Guatemalan Ernesto Manuel Andres shows how this humanitarian visa process can be abused. Manuel Andres, then around 15, entered the US illegally in December 2022 as an unaccompanied minor and was released to his (undocumented) father, with whom he was living when detained on June 4 by immigration authorities. After he was placed with his father, an immigration attorney hired by an immigrant rights organization went to the local juvenile court and obtained an SIJS order finding that Ernesto was abandoned, abused, or neglected by a parent or parents and therefore should not be returned to Guatemala. There is no indication in the media reports that Ernesto was ever removed from either parent for abuse or neglect, nor is there indication he was ever in foster care. Rather, he appears to be a young man who, like many others, illegally crossed the border to join his father in Kentucky.
Although advocates are holding rallies and Go Fund Me drives for Ernesto, his case actually undermines protection for the thousands of undocumented children in foster care as well as former foster youth who truly have no home to which they can return. As of 2023, there were over 120,000 SIJS visa applications backlogged due to limits on the number of available visas. Every case like that of Ernesto Manuel Andres delays stability for children who are actual victims of serious physical and sexual abuse at the hands of their parents.
The old joke that everything politicians do is “for the children,” even though we know it’s often for themselves. Whatever your views on immigration policy, transgender rights, and next year’s hot issue, please be cautious not to allow adult desires and goals to actually harm the rights and needs of the children who deserve our protection.