Copyright © 2016 Albuquerque Journal
A Mexican father living in his homeland has won back the chance to raise his young son after the New Mexico Court of Appeals ruled that child welfare workers wrongly rushed to terminate the father’s rights using faulty justification.
The ruling slightly changes the way the state’s Children Youth and Families Department handles cases with a child of a foreign national.
It also tells a story of a man fighting to be allowed to be a father to his son – even though the two are still living in separate countries.
Father and son
The boy, who is now nearly 4, was born in New Mexico to an American mother and his Mexican father, Alfonso, in 2012, which by law makes the boy a United States citizen and Mexican national.
He was 5 months old when he and his 8-year-old half bother were taken by CYFD from their drug-addicted mother, who was homeless and had active arrest warrants.
Alfonso at the time was in jail on a DWI charge and slated for immediate deportation. From jail and using an interpreter, Alfonso “expressed a strong desire to maintain his bond” with the boy, appeals judges wrote in their December 2015 opinion.
So CYFD created a plan for him, and he complied, taking classes, counseling and drug tests while incarcerated.
CYFD said he had done “as much as possible” while incarcerated and the plan requirements would have to continue after he was released in order for CYFD to deem him a suitable placement for the child.
He was deported in September 2013 and called his CYFD social worker when he arrived back in Mexico so the two could set up his required appointments.
But just weeks later – before Alfonso’s first scheduled appointment for counseling and drug testing – the CYFD caseworker petitioned a judge to terminate his parental rights.
At this point, the boy was about 14 months old and had been in foster care in the United States for nine months.
Justification for termination
CYFD argued before Children’s Court Judge William E. Parnall in Bernalillo County that Alfonso – who had been out of American custody and at home for about three weeks – hadn’t done enough to comply with his plan, so they couldn’t be sure he was a safe placement and his rights should be terminated.
It isn’t clear if Alfonso has an extensive criminal history in the U.S. or Mexico, but the opinion mentions that he has addictive tendencies and domestic violence issues.
Henry Varela, spokesman for CYFD, said he couldn’t comment on any previous history with the father but said there is always more to a case than what is included in court filings.
Alfonso’s attorney said her client was doing everything CYFD asked.
“I’ve never had a client who worked so hard at his end. He was doing his part best he could,” said his attorney Nancy Simmons. “He did everything that was asked of him.”
As the case continued, Alfonso traveled to a nearby town to take a urinalysis test and attend counseling.
But CYFD said the test didn’t check for alcohol and the report from the Mexican counselor was too short to be trustworthy.
Alfonso provided information to his caseworker to qualify his mother and sister in Mexico as kin caretakers. Relatives in New Mexico were illegal immigrants and thus unable to be made legal caretakers.
But the caseworker didn’t follow through because, she said, her caseload was too heavy, according to the opinion.
The father asked for a picture of his son; the caseworker didn’t send one.
He needed a home study, but she didn’t provide details on how to get one done.
Documents he sent to her went unread because they were in Spanish.
The caseworker argued that it would be “harmful” to return the boy to Alfonso because they hadn’t had direct communication.
Finally, CYFD argued, the boy doesn’t speak Spanish.
Parnall agreed to terminate Alfonso’s parental rights.
Appeals Court judges said in their opinion that the language barrier was “highly persuasive” in Parnall’s decision.
At this point, the child was about 18 months old.
But it shouldn’t have been a consideration of termination, Appeals judges said.
“We are unconvinced that, as a general rule, native language disparities between a natural parent and his or her infant child are insurmountable obstacles to reunification,” Judge James J. Wechsler wrote in the opinion.
Plus, they said, the child at that time was still young enough to overcome any such language barrier.
The Mexican Consulate, which helps facilitate communication in cases involving CYFD and Mexican children or parents, agreed.
“The consulate finds that although the language is important to create (affectional) bonds with the father in Mexico, (it) is not a reasonable justification to stop the family’s reunification,” consulate officials wrote in a statement to the Journal . “… it’s also important to observe the correct development of the children in Mexico. The consulate respects the best interest of the children and the right to have access to their other culture.”
The case is one of the first times the issue of a language barrier has been raised as an element of custody, so it is now included in training literature for lawyers, social workers and others who work with children in state custody.
The literature includes a summary of the Court of Appeals opinion and mentions the court has “serious reservations” that a language barrier was used in considering a case without additional evidence.
The Court of Appeals said “substantial evidence of a clear and convincing nature did not exist” to support the decision to terminate Alfonso’s rights.
The Appeals judges said the burden is on CYFD to prove that a parent is unfit, but instead CYFD relied on a “lack of evidence,” including the short counselor report and the limited urinalysis, as proof Alfonso was unfit. CYFD, appeals judges said, “had not met its burden of proof.”
And CYFD didn’t meet its legal requirement to fully help Alfonso reunify with the boy, the judges said, citing numerous failures of the social worker.
“We are troubled that CYFD requested the Consulate’s assistance in offering treatment plan services to Father following his deportation, then approximately one month later sought to terminate Father’s rights on grounds that he failed to comply with the plan,” the judges wrote.
“Considering the totality of the circumstances, we do not agree with CYFD that these efforts met the minimum statutory requirements,” they wrote, expressing concern that Parnall had not raised the same issues when CYFD presented its case to him.
While the appeals judges criticized CYFD and Parnall, they stopped short of saying the child’s best interest is to return to Mexico to live with Alfonso.
They simply reinstated Alfonso’s rights as the boy’s father.
What’s happening now
The Court of Appeals sent the case back to CYFD and the Children’s Court in Bernalillo County so the father could work toward getting his son back.
CYFD spokesman Varela said his department is not appealing the case and is working with the father on a reunification plan.
“We’re not appealing the fact that the court said to further work with this father for possible reunification, but I don’t think it was conceding that it was a safe placement,” Varela said.
Because such cases are confidential, he did not provide the father’s name or other details.
He did say that the caseworker no longer works with CYFD and that at the time of court proceedings, she, like numerous other case workers at the agency, had a heavy caseload.
The former CYFD caseworker declined to comment for this story.
At the time of the CYFD action, in late 2013 and into 2014, several high-profile child abuse murders and a slow economy had triggered a sharp increase in child abuse reports and children taken into custody.
Varela said since then, the agency has received additional money to hire social workers, which has brought their caseloads down. “It did create an influx of reports on top of kids coming into custody,” he said. “These are not being said as excuses, it’s just setting the table for what is going on.”
Alfonso’s attorney, Simmons, said caseloads were high but this case was treated differently because the father lived in Mexico. “It shouldn’t be a huge distinction between dealing with a family placement in Indiana or a dad that moved to Indiana and dealing with Mexico. It’s right next door and it’s not Mars,” she said. “If he’d been released and gone back home to live with his mom on Charleston Street (in Albuquerque), he would have had his child back.”
Meanwhile, the Journal has learned that Alfonso is considering an “open” adoption that allows the boy to remain with the only family he has ever known and whose language he speaks while also allowing for a relationship with the father who hasn’t stopped fighting for him.