Wednesday, September 4, 2019
Cross-posted from CLEA's series on Social Justice in Legal Clinics.
By Shanta Trivedi, Clinical Teaching Fellow, Bronfein Family Law Clinic
In May 2019, University of Baltimore Bronfein Family Law Clinic (“UB FLC”) and the ACLU of Arizona jointly filed an amicus brief in the Arizona Supreme Court in support of Juan P., a Mexican father fighting to get his son out of foster care in the United States and back to his family in Mexico where he belongs.
The UB FLC represents indigent clients in custody, visitation, divorce, and other family law proceedings and engages in litigation regarding important family law issues. It also partners with community organizations to tackle larger systemic issues through advocacy, education, and legislative work. The fundamental, constitutionally protected liberty interest in the care, custody, and control of one’s children is a core principle of the UB FLC’s work and the community it serves. Juan P’s case was particularly compelling because it presented significant and timely issues of child custody and child welfare law that have broad implications for many children and parents, particularly during the ongoing family separation crisis at the Southern border.
Juan P’s son, S.P., was born in the United States. When S.P. was only a year old, Juan P. was deported and S.P. returned to Mexico with his father to live with his father and siblings. The following year, S.P. came to the United States to visit his mother in California. Juan P. had daily contact with S.P. for several weeks until S.P.’s mother abruptly ceased contact. Despite repeated attempts to contact the mother and find out his son’s whereabouts, Juan P. was unable to locate them. Unbeknownst to Juan P., S.P.’s mother had moved to Arizona and had been embroiled in child welfare proceedings where she had been found an unfit parent. S.P. was placed in the custody of the Arizona Department of Child Safety (“DCS”) and ultimately with a foster family.
Juan P. only learned that his son was in foster care the next year and immediately contacted DCS to seek his son’s return to Mexico. Shockingly, instead of returning the child as required by law, DCS filed a motion to terminate Juan P’s parental rights. That motion was ultimately dismissed without a hearing, but the Arizona Court of Appeals twice denied reunification based on concerns that S.P. had bonded with his foster family and reunification with his biological family might cause him harm.
Juan P. through his attorneys at the Maricopa County Office of the Public Advocate (“OPA”) filed a petition for review in the Arizona Supreme Court. UB FLC students Nathan Adams, Nell Fultz & Henry Lloyd, under the supervision of Clinical Teaching Fellow, Shanta Trivedi and Clinic Writing Instructor and Assistant Professor, Cheri Levin, researched and drafted a supporting amicus brief in conjunction with the ACLU of Arizona.
The brief argued that, under the 14th Amendment’s Due Process Clause, Juan P. had a fundamental liberty interest in the care, custody, and control of his son. The brief asserted that the state had no compelling interest in interfering with the parent-child relationship unless the parent was deemed unfit. In this case, the lower court had explicitly found Juan P. to be fit on more than one occasion. Thus, the state was unconstitutionally infringing on Juan P.’s fundamental right to parent his son.
The brief also argued that, overall, the child welfare system disproportionately affects children of color and that this case was just one example of a larger systemic problem. Prejudice against minorities pervades the child welfare system, impacting which children are removed and which families are reunified. While this bias is often implicit, in this case it was overt and unapologetic. DCS had placed S.P. with a foster family who did not speak Spanish and repeatedly violated court orders requiring the child to receive Spanish lessons so that he could better communicate with his father and siblings in Mexico. Worse, DCS had made disparaging remarks about Mexico on the record in arguing why S.P. should remain with his foster family. The brief asked the court not to sanction such open and hostile discrimination.
While the petition was ultimately denied, the students gained legal research and drafting experience and had a wonderful experience collaborating with a community partner. Most importantly, they learned a larger lesson: family separation isn’t just happening at the border. Legal systems within this country separate families every day. And Juan P., like the thousands of other parents separated from their children is continuing his fight.