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March 01, 2012

Removal of Child from Relatives Due to Immigration Status Overturned

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

The Washington Court of Appeals overturned an order removing a child from her grandparents’ home because of allegations that they were undocumented immigrants. Given the many years the grandparents had lived in the U.S., the trial court’s concerns about the possible instability of the placement were not strong enough to warrant the child’s removal given the strong bonds to her family.

In re M.R., 2012 WL 360593 (Wash. Ct. App.).

A four-year-old child came to the attention of the child welfare agency because her mother was homeless, using methamphetamines, and may have engaged in prostitution in front of the child. The child’s father was unavailable to parent because he had been deported due to criminal activity. After an investigation and background check, the child was placed with her paternal grandparents, where she lived for four-to-five months.

At the preliminary hearing, the agency recommended the child remain with the grandparents with a goal of return home and a dual goal of adoption.

The recommendation was based partly on the caseworker’s impression that there was a strong bond between the child and her grandparents. In addition, he described the many other relatives who often visited the home and were positive for the child.

The caseworker also described threats that the maternal relatives made regarding contacting immigration authorities if the child was placed with the paternal grandparents. The mother noted that, though she knew about the maternal relative’s desire for custody, she supported the child remaining with the father’s family.

At a review hearing several months later, the agency and mother continued to recommend placement with the paternal grandparents. At this stage, the guardian ad litem (GAL), joined the recommendation.

The agency noted that it did not determine immigration status, the investigations revealed the paternal grandparents had been in the U.S. for 18 years, owned their own home, and had owned their own business for three years. 

Despite the agreement of the parties, the court ordered the child be removed from the grandparents' home at the review hearing due to the questions about their immigration status. The mother appealed.

The Washington Court of Appeals reversed. Although courts should endeavor to keep children from unstable placements, undocumented status alone is not sufficient to justify when the child has a strong bond to a caregiver, a sibling in the area, and has adjusted to daycare.

In making a placement decision, a trial court should evaluate several factors, including the child’s attachment to siblings and caregivers and the potential harm to the child if the placement changes. While the risk of the placement changing is a factor that should be considered by the courts, immigration status is not a reliable indicator of whether a person will be deported. As the trial court itself observed, “frequently people are in the United States illegally for a very long time and never draw the attention of the authorities…”

Since the decision to remove the child from the paternal grandparents was based on an untenable ground, the order was reversed and the case remanded.