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I’m a Judge Who Decides if Children Should Be Separated from Abusive Parents. Here’s How Trump’s Immigration Policy Should Change

6 minute read
Byrne is Judge of the 126th Judicial District Court, Travis County, Texas.

In my 15 years as a judge in Texas, I have presided over many hundreds of child welfare cases. I have frequently had to decide whether to remove a child from their parent. Even when the parent has abused or neglected the child, these can still be extremely difficult decisions — with significant weight and manifold considerations that underlie them. This is why I am so appalled by the Trump Administration’s “zero-tolerance” immigration policy that resulted in the separation of thousands of children from their parents at the U.S. border — with no due process and no judicial oversight. Despite the President’s political damage-control via executive order and the Customs and Border Protection commissioner’s announcement that the policy has been suspended, many legal and practical obstacles remain for families at the border, especially for those already separated. While we address their urgent needs, we must also repair how this nation treats children.

Child welfare judges spend a great deal of time listening to the stories of the children in our cases. Some of the most valuable lessons I have learned as a judge have come directly from my experiences with these children. I share some of them here in hopes that our nation, policymakers and those on the ground working with these families can learn from them.

Separating children from their parents can be more traumatic than abuse or neglect. Of the thousands of abused and neglected children I have served over the years, it is the rare child who does not tell me they would prefer to go home and reunify with their parents. That longing is so strong in many children that during the separation period, I have seen them lose all hope, shut down emotionally, act out aggressively or sabotage their own safety by running away or cutting themselves. One foster youth on my docket managed to maintain high grades at school while living in a very chaotic and unhealthy home with parents who were suffering from mental illness and using drugs, but her academic performance rapidly deteriorated after she was removed from her parents to a foster placement that met all of her basic needs like shelter and food and clothing. Knowing removal from an abusive parent is so traumatic, I cannot fathom how much more traumatizing it must be when a child is removed from a parent who has sacrificed so much in search of a better life for their family. It is widely accepted by child welfare experts that removing children from their parents to an unfamiliar environment with strangers traumatizes them — it should be avoided except where necessary.

Kids will not just ‘grow out’ of childhood trauma. One of the questions on the ten-question Adverse Childhood Experience (ACE) survey, which measures traumatic experiences early in childhood and their long-term consequences, asks, “Before your 18th birthday, was a biological parent lost to you through divorce, abandonment or other reason?” Studies have identified a direct link between a person’s ACE score and adult chronic illnesses, as well as emotional and social issues such as depression, domestic violence and suicide. It is essential that our government provide the kids at our border appropriate social services and therapeutic interventions which may help mitigate the effects of traumatic experiences.

Place each child in the most family-like environment possible. When a child must be removed from their home, they should be placed with grandparents, aunts, uncles, godparents, or prior babysitters — someone the child already knows and feels safe with. When no such option is available, the child should at least be placed in a home environment with a licensed foster parent trained in childcare and trauma. Even then, judicial oversight continues to encourage and order frequent visits and contacts with all but the most unfit parents within a very short time after removal. Separated children should not be housed in cage-like holding cells or abandoned storefront buildings along with hundreds of other traumatized and removed children.

Do no harm. Some individuals, including the President of the United States, have stood back and coldly cast fault on the immigrant parents for unlawfully bringing their children across an international border. They say that these children and parents are not entitled to due process because they are invaders of our country. This argument is a distraction. Each month in my jurisdiction, the state files dozens of new civil legal petitions seeking to protect children and possibly remove them from abusive parents. As a judge, I cannot control what arrives on my desk for review. I simply have a duty to move forward by reviewing each of these cases swiftly and carefully with an eye for the best interest of the children involved. As the National Council of Juvenile and Family Court Judges, an organization for which I used to serve as President, declares in its “Enhanced Resource Guidelines”: “[J]udges serve as leaders in the court and child welfare systems and should embrace the precept ‘first, do no harm’.” It is not our job — nor should it be anyone’s — to stand back and use the court system to shame the parents and undercut their rights and those of their children.

Children have constitutional rights. As the U.S. Supreme Court said in 2000, “Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution and possess constitutional rights.” Those rights include due process. It’s quite simple.

Childhood will not wait. For an adult, a year or two may seem to pass by in the blink of an eye, but for a child it is an eternity. Childhood is fleeting. Children in foster care who visit with me in my chambers have described the agony of counting the days until they can just “go home” and “just be a regular kid.” It has been over 20 years since Congress passed the Adoption and Safe Families Act of 1997, which mandated deadlines that would keep kids from spending their childhood in temporary foster homes; every child at the U.S. border deserves this protection. These children should not and cannot wait for the contentious and laborious wholesale overhaul of our country’s immigration policy, which our Congress has been working on for years. By then, their childhood will be over and the lifetime damage will be done. If anyone deserves action and due process, it is the innocent children arriving at our borders today.

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