Fredy claimed his parents were unfit to raise him. Violent, organized youth gangs were terrorizing the boy’s neighborhood, he said, and his parents “ignored his pleas for help and protection.”
Fredy sought shelter and security in a Miami courtroom, where he asked a judge to declare him a ward of the state.
His parents consented — from their home in a Honduran village.
A label mostly scorned and feared by mothers and fathers in the United States, the designation “offending parent,” is being embraced and sought by parents thousands of miles away.
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Fredy is among a rapidly growing number of children who entered the country without their parents — and without immigration documents — who have used a little-known provision of the state’s child welfare statute that allows them to file private petitions to be placed in state care. Once declared a “dependent” of the state, the children qualify to remain in the U.S. permanently.
Critics of the program, as well as a growing chorus of state judges, call it a “back door” to citizenship when the front door is bolted.
In an opinion Wednesday, a West Palm Beach appeals court said “judicial resources too often are being misused to obtain dependency orders for minors who are neither abused, neglected or abandoned, and who seek a dependency adjudication... not because they are endangered and need protection but because they want preferential immigration treatment.”
The opinion added: “While this court is sympathetic to the plight of alien minors seeking the opportunity of a better life in the United States, the role of the trial judge is not to set immigration policy or to decide whether, as a humanitarian gesture, any particular alien minor should be permitted to stay in the United States.”
In a strongly worded concurring opinion in a separate case last week, the Miami-based Third District Court of Appeal’s chief judge, Frank Shepherd, said bluntly: “These cases are immigration cases, pure and simple.” He added: “The authority to control immigration — to admit or exclude aliens — is vested in the federal government,” not the state.
Miami-Dade Circuit Judge Cindy Lederman rejected a dependency petition from a migrant child in February, saying the boy, F.J.G.M., had allegedly suffered abuse in the very distant past. Granting requests such as F.J.G.M.’s, the judge wrote, would be “far beyond any reasonable limit, and would endorse a rule permitting the adjudication of dependency for any child ever subjected to abuse, abandonment or neglect by a parent.”
Advocates for the migrant children counter that state child welfare law pivots on the protection of children, regardless of how they came to be in need. And for most of the displaced youths seeking permanent residency, becoming a dependent of the state is clearly what is best for them.
“The most basic concept in child welfare is the best interests of the child. These kids are fleeing horrific violence,” said Randolph McGrorty, an attorney with Catholic Legal Services in Miami who has represented migrant youths. “Their parents are making decisions about the safety of their children, knowing these kids are making a journey that is so horrific that they are risking their lives — but also knowing that staying may be more horrific.”
McGrorty added: “We are following the law, and not trying to do anything underhanded. We are not trying to win with a technicality. We are trying to make sure the law does what it is supposed to do, and that is to protect children.”
Under state law, the lion’s share of so-called dependency petitions — written requests for a judge to declare a parent, or parents, unfit, and to take children under the wing of the state — are filed by the Department of Children & Families. DCF investigates reports of child abuse and neglect, and can remove children from parents it deems dangerous.
Florida’s child welfare statute also allows private citizens, including family members, to file such petitions and be heard by a judge. As recently as a few years ago, such petitions were rare.
The dramatic rise in such petitions has been fueled largely by spiraling violence in Central America. The U.S. Administration for Children & Families reported 57,496 referrals for unaccompanied migrant children in budget year 2014, with the largest share, 34 percent, coming from Honduras. Guatemala and El Salvador followed closely behind. Only 6,000 such children made the journey three years earlier.
The Congressional Research Service reported 73 dependency petitions involving unaccompanied minors in budget year 2005 — a number that jumped to 3,432 in 2013. Lawyers and advocates say such requests have certainly risen sharply since then, though records are not available. In Miami-Dade County alone, DCF recorded 62 such private petitions over the past year, a spokeswoman said, adding the agency often is not notified when they are filed — meaning the real number almost certainly exceeds 62. Similar statistics statewide, or for previous years, were not available.
“These types of petitions have become increasingly common,” a three-judge panel of the Fourth District Court of Appeal wrote Wednesday, in a case involving a 17-year-old from Guatemala, O.I.C.L., who said his father had abandoned him, and whose mother forced him to drop out of school to work “in the fields” in the sixth grade. O.I.C.L. was not found to be dependent. The opinion added: “Courts are likely to continue encountering more of these cases in the future.”
Many of the requests are approved, leaving the children with a direct path to residency, and citizenship.
In 2013, two sisters — identified as M.A.S.-Q. and Y.E.S.-Q. — asked to be declared dependent after fleeing to the United States from Central America. In a petition, the girls claimed they had been both physically abused and abandoned by their birth father in El Salvador, and later by a stepfather in Guatemala. One of the sisters alleged she also had been raped by her uncle, and both sisters said her parents had allowed them to go hungry.
The girls’ mother, identified as P.O.Q., “immediately consented” to the dependency petition, saying the designation “is in the best interests of my children.”
A lengthy opinion in the case, written in 2014 by Miami-Dade Circuit Judge Michael Hanzman, acknowledged that much of the abuse the two girls suffered had occurred, though far in the past. But, the judge added: “The severity and consistency of this abuse, abandonment and neglect demonstrates that these children remain at risk if returned to their country of origin, an almost certain outcome absent the entry of [a dependency] order.” The sisters were allowed to remain here.
A great number of the petitions, however, have been rejected, often because judges remained unconvinced the youths were in real danger, or because the abuse they alleged failed to meet the statutory requirements for protection from the state.
Fredy, whose full name is not being used to protect his privacy, told the judge in his case, Hanzman, that his neighborhood in Honduras was in the grip of the Mara-18 gang, also known as the 18th-Street Gang, which, he said, was “known to kill people for no reason.”
Fredy, court documents say, “was forced to witness people being killed in the streets of his neighborhood, and his older brother was shot in the leg by gang members in order to steal his bicycle.” His mom and dad “ignored his pleas for help and protection,” the teen said.
“Fredy had no choice but to leave his home country,” the teen’s petition said.
In the short term, at least, fleeing Honduras was no salvation.
Fredy, records say, hopped a train called “The Beast,” that traversed Central America. He remained on the train for several days, witnessing “kidnappings, robberies, and fights amongst gang members who would force people to pay quotas in order to stay alive,” records said. “Fredy sustained permanent psychological damage caused when he witnessed dead bodies thrown off the train, and a woman being raped.”
“Needless to say,” Hanzman wrote,” the child undertook a treacherous and horrific journey in order to cross the border into the United States.”
He just wasn’t a child abuse victim, the judge added.
Fredy’s lawyers had argued that under the state’s dependency law, Fredy’s parents could be declared unfit because they had failed to protect him from the dangers of his gang-ridden neighbprhood. But, the judge wrote, state law does not, and cannot, require parents to protect their children from harms that are largely beyond their control. Asking the family to, say, move to a safer neighborhood is asking too much.
“In an idyllic world, all children would live in peace and tranquility regardless of where they and their family reside,” Hanzman wrote in an order earlier this month. “But we unfortunately do not live in an idyllic world where all children are sheltered from criminal activity, violence and other perils.”
An attorney for the teen, Carlos E. Verdecia, said he understood the reluctance of child welfare judges to open “a Pandora’s box” by lifting “the floodgates” to Central American children fleeing violence. Honduras alone has one of the highest homicide rates — by some estimates, the highest — in the world, and accepting every youth being conscripted into youth gangs could burden any state’s social service net.
But, Verdecia added, “it is the reality that these children are at risk every day that they’re out there. That’s just the reality.”
Prevailing in such cases may have become more difficult. Last week, the state appeals court based in Miami handed down two separate opinions denying state protection to two children who fled Central America without adult supervision, B.Y.G. M., a 17-year-old from El Salvador, and K.B.L.V., also 17, from Honduras. In both cases, a three-judge panel said the youths were not in need of protection from the state. Rather, they were seeking protection against unwelcome deportation.
B.Y.G.M., like Fredy, fled “threats and harassment” from violent youth gangs in her native El Salvador, records say. But when she arrived in the United States, she was reunited with her mother, who had been living here since the girl was 3.
“There is no evidence that B.Y.G.M. is at substantial risk of imminent abuse, abandonment or neglect,” a three-judge panel wrote in last Wednesday’s opinion. “She is secure and safe in the custody of her mother, who provides supervision and care.”
And this Wednesday, the appeals court in West Palm Beach delivered bad news to O.I.C.L., in an opinion that one judge said was “ rooted in a perceived frustration” that the state’s burdened court system was being “misused.”