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Vienna consular convention.


Maria L. is an undocumented immigrant from Guatemala. She has two (presumably American-born) children, Angelica (2004) and Daniel (1998.) She had left her two older sons with relatives in Guatemala. Angelica required medical attention for the first time in February 2004 when she was one month old. She weighed only 3 pounds 9 ounces and suffered from dehydration, malnutrition and a urinary tract infection. In early April 2005, Maria took Angelica again to the medical center, this time for fever and breathing problems.

Maria, however, failed to bring Angelica back for a scheduled follow-up appointment. A social worker and a police officer went to Maria's home and found Angelica in distress. The officer arrested Maria, and had Angelica and Daniel placed in protective custody with the Nebraska Department of Health and Human Services (DHHS).

A few weeks later, the federal government ordered Maria deported back to Guatemala. She then asked two Missionaries, William Vasey and Pastor Tomas DeJesus for help. Meanwhile, Nebraska approved a DHHS case plan; it required Maria to maintain a job, to take parenting classes, and to undergo a psychological evaluation.

Maria, however, allegedly failed to comply with the plan. In September 2006, DHHS moved in juvenile court to terminate Maria's parental rights. One of the witnesses was Reverend Vasey, who testified that, in Guatemala, Maria had a residence, a job, and was a good provider for her two older sons. A DHHS representative testified that she had notified Guatemalan Consulates in the U.S., as well as the U.S. Embassy in Guatemala about this case.

The juvenile court rejected Maria's argument that it lacked jurisdiction due to Nebraska's violations of the Vienna Convention on Consular Relations, Article 37 (in force for U.S. Dec. 24, 1969 [ 21 U.S. T. 77, 102; T. I. A. S. 6820; 596 U. N. T. S. 261] [the Convention] to which both the U.S. and Guatemala are parties.

The pertinent language of Article 37 reads in part: "If the relevant information is available to the competent authorities of the receiving state, such authorities shall have the duty: ...(b) To inform the competent consular post without delay of any case where the appointment of a guardian or trustee appears to be in the interests of a minor or other person lacking full capacity who is a national of the sending State."

The court ordered the termination of Maria's parental rights as in the children's' best interests. It found (1) that Maria had failed to provide basic medical care, and (2) that Maria's fear of deportation was no excuse. Maria appealed. The Supreme Court of Nebraska reverses, ruling that there was not enough evidence to justify terminating Maria's parental rights. The Court also points out that, as the Convention provides, the State should have involved the appropriate Guatemalan Consulate early on in the proceedings.

On the jurisdiction issue, Maria makes two claims. First, she argues that once the Immigration Service had deported her, the juvenile court lost any jurisdiction it might otherwise have had to determine her children's custody. Secondly, she maintains that DHHS erred in neglecting to comply with the Convention because it did not timely communicate with a Guatemalan Consulate.

"Our court has never addressed whether State courts have jurisdiction over child custody disputes when a parent involuntarily faces deportation. However, case law from other jurisdictions indicates that issues concerning child custody fall within the province of state jurisdiction--not federal immigration jurisdiction---even when a parent faces involuntary deportation.... The whole subject of domestic relations, and particularly child custody problems, is generally considered a state law matter outside of federal jurisdiction...."

"We cannot conclude, simply because a party to this case faces deportation, that federal immigration laws preempt this State's authority to decide matters involving child custody. We have stated that the jurisdiction of the State in juvenile adjudication cases arises out of the power every sovereignty possesses as parens patriae to every child within its borders to determine the status and custody that will best meet the child's needs and wants.... As such, the juvenile court properly exercised jurisdiction over Angelica and Daniel."

"[...] Whether compliance with the Convention is a jurisdictional prerequisite to parental termination actions involving foreign nationals is an issue of first impression for this court. Other jurisdictions have considered the same issue and have concluded that compliance with the Convention is not a jurisdictional prerequisite."

"Other jurisdictions have concluded that state courts do not lose jurisdiction for failing to notify the foreign consulate as required by the Convention unless the complainant shows that he or she was prejudiced by such failure to notify.... Moreover, where there is actual notice, jurisdictions decline to invalidate child custody proceedings based on violations of the Convention...."

"In the present case, the record presents conflicting testimony regarding whether and when the Guatemalan consulate was notified about Maria's case. [Lisa Hannah, a DHHS employee] testified that she [had] sent notification to the Guatemalan consulate of Colorado, but letters from the Guatemalan consulate claim that no such notice was ever received."

"Based on Hannah's testimony that telephone calls were made and faxes were sent to the Guatemalan consulate and the fact that counsel was later appointed to represent the Guatemalan consulate, the juvenile court concluded that the State had complied with the Convention. The juvenile court specifically noted that, regardless of whether compliance with the Convention was required, Hannah had made efforts to notify the Guatemalan consulate and did so in compliance with the Convention."

"An appellate court does not reweigh the evidence or resolve conflicts in the evidence.... We consider that the juvenile court observed the witnesses and believed one version of the facts over the other. And assuming--without deciding--that compliance with the Convention is a jurisdictional prerequisite, we cannot say ... that the juvenile court's finding that the State complied with the Convention was erroneous. Thus, the juvenile court properly exercised jurisdiction." [Slip op. 1001-04]

"But as to the sufficiency of the evidence to terminate [Maria's] parental rights, the Court acknowledges that Maria's illegal immigration status may have affected [Maria's] decision [whether or not it was safe] to seek medical treatment for her children. [T]he State [also] introduced testimonial evidence attempting to show that it would be in the children's best interests to remain with their foster parents, because living in Guatemala would put them at a disadvantage compared to living in the U.S.."

"What we are dealing with here is a culture clash. Whether living in Guatemala or the U.S. is more comfortable for the children, however, is not determinative of the children's best interests.... [T] he 'best interests' of the child standard does not require simply that a determination be made that one environment or set of circumstances is superior to another...." [...]

"The juvenile court expressed concern regarding the children's extended placement outside of the home and for their need to stay in foster placement, 'the only circumstances that they have ever known.' While we share the same concern regarding the children's extended foster placement, we must protect Maria's commanding constitutional interest. Maria did not forfeit her parental rights [merely] because she was deported. We note that this circumstance would not exist had the State allowed Maria to take the children with her to Guatemala."

"It is especially clear that--as soon as Maria was released from custody and awaiting deportation--Daniel could have been safely returned to her. At oral arguments, when the State was asked why Daniel was placed in custody, the State's only response was that it had received unsubstantiated reports of abuse. And as for Angelica, the record reveals that, while Maria was being detained by U.S. Immigration and Customs Enforcement, Angelica received the medical care she needed and had recovered before Maria was deported."

"The government of Guatemala has the resources to monitor the children's well being and Angelica's rehabilitation, and, thus, the State has failed to prove that reunification while Maria continued with her case plan in Guatemala would endanger the children....But so long as the parent is capable of providing for the children's needs, what country the children will live in is not a controlling factor in determining [parental] reunification." [Slip op. 1009-10]

CITATION: In re Interest of Angelica L., 277 Neb. 984, 767 N.W.2d 74 (2009).
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Publication:International Law Update
Geographic Code:1USA
Date:May 1, 2009
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