It has been almost a year since President Donald Trump signed the executive order purporting to end his policy of separating parents and children at the U.S.-Mexico border. However, his administration’s broader zero-tolerance policy continues today—and because of it, a particularly heinous form of family separation is playing out in Texas.
As Rewire.News reported in part one of this series, migrants prosecuted under the “zero-tolerance” policy are remanded to U.S. Marshals Service (USMS) custody, and this is when lapses in medical care happen. Advocates told Rewire.News pregnant migrants detained in USMS custody are not receiving adequate services, and they are shackled when accessing prenatal and postpartum care. Some women are even shackled during birth, as Rewire.News reported in part two of this series.
Advocates also report that some asylum seekers in the Western District of Texas who have given birth in USMS custody were forced to hand over their newborns to the Texas Department of Family and Protective Services (DFPS). Reuniting with their newborn hinges on their release from federal custody, and whether they can access legal help to navigate the child welfare system. We learned that women who find their way to advocacy organizations appear to be reuniting with their newborns, but Rewire.News was unable to verify what happens to the children of women who do not have access to legal help.
According to USMS, the onus for child care placement is on the detained parent, though it appears as if asylum seekers who give birth in USMS custody don’t have many choices at all.
“Child placement and care is the responsibility of the prisoner. Under no circumstances may the newborn child be returned to the detention facility with the prisoner, except in accordance with the detention facility’s visiting policy, if any,” according to a statement from a USMS spokesperson to Rewire.News. “The [USMS] may assist the prisoner, as appropriate, in contacting the prisoner’s family or community social service agency to assist the prisoner in determining the placement of the child. It is the responsibility of the prisoner to notify the court, the [USMS], the hospital, and the attending physician, in writing, of her placement decision as well as the financial responsibility arrangements she has made for her child’s care.”
Paul Zimmerman, a spokesperson for the Texas DFPS, told Rewire.News the agency does not have data “to indicate the frequency of this scenario.” Approximately 21,554 immigrants are in USMS custody, but it is unknown how many have given birth in custody. Rewire.News has filed a Freedom of Information Act (FOIA) request with USMS to obtain this information.
The spokesperson did clarify that if no caretaker is available for the U.S. citizen newborn of a detained woman, the newborn would “come into state conservatorship.” The spokesperson said in an email: “We would look to establish a visitation plan as we would with any case, and continue working to reunify parent-child if possible or find appropriate relative placement. As with any case, termination of parental rights is a last resort and recommended to the court only if established to be in a child’s best interest.”
Patrick Crimmins, Texas DFPS’ media relations manager, denied his agency is facilitating these separations. Writing in response to a Rewire.News records request regarding the separation of migrant mothers in USMS custody from their U.S. citizen newborns, Crimmins said Texas DFPS didn’t have “any records” responsive to the request.
“The process or scenario you describe does not exist; migrants do not place newborns with DFPS. Children are only removed into the conservatorship of the State of Texas following an investigation into abuse or neglect, and a confirmed finding of abuse or neglect. Any removal also has to be approved by a judge.”
The experiences of advocates who spoke to Rewire.News conflict with Crimmins’ statement.
Taylor Levy is the legal coordinator of Annunciation House, an El Paso nonprofit that provides shelter and other services to newly arrived immigrants. She said she has personally seen “multiple cases” of asylum seekers giving birth in custody only to have their babies placed into the care of DFPS. She has also personally helped asylum seekers regain custody of their newborns from Texas DFPS.
“Migrants in criminal custody who have babies who are U.S. citizens are placed with DFPS if the mother is taken back to criminal custody, and the mother has no one with lawful status to agree to take in the baby,” Levy said.
Zimmerman clarified that if a baby is born to a woman in local, state, or federal custody, the hospital may make a report to child protection authorities. If a parent or relative is not available to care for the child whose mother is in custody, a child protection agency may request temporary custody of the child.
“Determining whether there is a parent or relative available to care for the child is based on safety and overall ability to care for the child,” Zimmerman wrote in an email. “All removals of a child require a court order. If urgent circumstances make an ex parte order necessary, a noticed hearing must be held in order to continue any temporary order for custody.”
Zimmerman added that efforts made to reunite a parent and child “are tailored to a parent’s circumstances to the extent possible,” and that “the impact of a parent’s incarceration on reunification efforts may depend on the length of a prison sentence, the reason for incarceration, the availability of services in the specific facility and many other facets of a child protection case.”
The spokesperson also referred Rewire.News to U.S. Citizenship and Immigration Services (USCIS) because, according to Zimmerman, the agency “has policy regarding parents in custody that might be relevant.” However, USCIS said to Rewire.News that the agency “adjudicates affirmative asylum cases,” and that it has “no involvement in detention.”
There is a precedent for the court system using migration, immigration status, and detainment to strip migrants of their parental rights. An example of this is a 2007 case in which a judge terminated an undocumented mother’s parental rights, saying that “illegally smuggling herself into the country is not a lifestyle that can provide any stability for the child.” A second judge upheld the ruling, saying that the undocumented mother “abandoned” her U.S. citizen son when she was detained in federal immigration custody.