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.
In re Y.M., 144 Cal.Rptr.3d 54 (Ct. App.).
State, federal, and international law conferred concurrent jurisdiction over youth who was trafficked by her father. Thus, juvenile court erred in terminating dependency case on rationale that either the federal statute or the Guatemalan law excluded state jurisdiction.
A youth was taken from Guatemala by her uncle without her mother's permission to the U.S. when she was 14. In the U.S. in her father's care, she was injured in a fight between her father and another family member and state child welfare authorities investigated the family. At that time, her stepmother reported sexual abuse by the father. The state child welfare agency took custody of the youth and the father was arrested and deported to Mexico. Later, DNA tests revealed that father had raped his daughter and further charges were filed.
Because the state believed the youth was a victim of sex trafficking and entitled to services under federal trafficking acts, she was placed into a federal program for unaccompanied alien children.
There was some delay in locating the child's mother because the father gave the agency a false Mexican birth certificate. When the mother was reached she asked for her daughter’s return to her so she could help care for the younger children and clean the house. When the agency asked about school placement, the mother responded that she was better suited for babysitting and housekeeping. Given this and the fact that the mother had not reported the child missing, the Guatemalan authorities investigated whether she played a rolein her daughter's trafficking.
The youth indicated in the dependency proceeding that she did not want to be returned to either parent. She claimed her mother left her with her grandmother as a child where she was physically abused. Her social worker was also concerned that her mother would not protect her from future abduction.
The youth had applied for Special Immigrant Juvenile Status which would allow her to remain in the U.S. but required specified findings by the juvenile court. She also attempted to complete a T-visa application, but was having difficulty due to her special needs. Immigration authorities set a deportation hearing.
The juvenile court considered these positions and found that the youth was in a special federal program designed to provide her services as a trafficking victim and repatriate her to her home country. It also held that the Guatemalan Inter-Institutional Protocol for the Repatriation of Victims of Human Trafficking was an international treaty that applied to the case. Therefore, the juvenile court terminated dependency jurisdiction.
The youth appealed to the California Court of Appeals.
The California Court of Appeals noted that the U.S. was a party to a United Nations (UN) Protocol to protect victims of human trafficking. Among other things, this protocol encourages member nations to adopt laws that protect victims and let them remain in their territory to protect their safety. Guatemala is also a signatory.
The Guatemalan protocol, the court held, is an internal policy for agencies in Guatemala and not an international treaty. Contrary to the juvenile court's findings, the Guatemalan protocol does not mandate repatriation, but is consistent with the UN Protocol that encourages returning a victim to their home country but does not require it when it would not be in their best interests. In this case, the Guatemalan Consulate consented to the youth remaining in the U.S. given its concerns about her mother and her special needs, which it reported might be better addressed in the U.S.
The juvenile court was also not deprived of jurisdiction because there was federal jurisdiction over the youth under trafficking statutes. Though the trafficking statutes require the juvenile court to receive consent from the federal authorities before modifying her placement or custody, it does not deprive the state of dependency jurisdiction. The federal and state statutes have different focuses and different mechanisms to protect a child but do not conflict. Rather, they confer concurrent jurisdiction.
The California Court of Appeals therefore found the juvenile court erred in terminating jurisdiction and remanded the case.