The horrific news this morning is of young children being whisked around the country, dispersed from the holding pens at the border to Michigan, New York, and elsewhere.
While this is indeed horrific — echoes of slave ships — it also provides literally thousands of opportunities for resistance, in local communities. How? By just forcing the Federal government to obey the laws.
Opportunity #1: The airlines. (See this diary on the trauma for flight attendants.) Every airline has procedures and policies firmly in place regarding transportation of minors. They are designed to thwart trafficking (and also parental custody disputes). Remember the case a couple of weeks ago when a (white) mother got asked for the birth certificate for her (darker) infant? That’s the policy running amok, but it’s definitely the policy. If you fly with a child who isn’t your own, or even if you don’t have the same last name, you have to have proof that you either are the parent, or that you have the parent’s permission to take the child with you, or a court order giving you custody. I’ve known foster parents who found out they couldn’t take a foster child to, say, a wedding, or DisneyWorld, without a judge specifically authorizing it.
So the airlines just need to enforce that rule here. You want to bring a toddler on the plane? Let me see your papers. Let me see your court order. Just because you have a uniform on doesn’t mean you can do whatever you want to; if some random Joe or Jane showed up in fatigues, or a police uniform, we still couldn’t allow them to transport a child without documents.
The airlines should be pressured — social media, every way possible — to stop cooperating with this scheme, effective immediately. The pilot and flight attendant unions could help, immediately, by saying they expect their members to obey the rules for transporting minors traveling without a legal parent or guardian, and announcing that they will defend any of their members who are potentially disciplined for refusing to transport children without proper papers or legal authorization.
Opportunity #2: Reportedly, these children are then being funneled into state foster care systems and group homes all around the country. That’s an occasion and a local focus for public outrage — what is NY State thinking, collaborating with this? Under what authority are states signing onto this monstrous deal? This is a political opportunity for states to object, just as they have with sending National Guard to the border, and therefore for citizens to pressure.
Opportunity #3: State legal systems. This is also a huge opportunity to create a counter-narrative to the “we’re just following the law here” nonsense. The systems for foster care have 100 years worth of statutory framework (required by federal law), rules, procedures, and court practices governing them. No matter how a child comes into care — even if found wandering the streets, or left by the side of the road in a box — there are procedures. There are hearings, quickly — an emergency hearing if necessary.
For example, I got a call one morning (back when I was practicing law). A baby had been born the night before at the local hospital, to a mother who was in a psychiatric hospital (long term) and pretty obviously couldn’t care for it. The hospital had called the state DCYF, which was preparing to go into court that afternoon to get an immediate order so they could place the child in foster care instead of keeping her in the hospital. They wanted to know if I would act as guardian ad litem for the baby, a role I’d done many times before. (“Are you a mom?” the social worker asked me. “We think we need a mom here.” Yes, I was, although it was an improper question, and yes, I could.) Only with that court order would the baby be released from the hospital to the foster parents. Then there would be more thorough hearings, with the mother also represented by counsel, and review hearings that went on more than two years, until it was clear that the mother wasn’t getting functional enough to parent, even with multiple tweaks to her medication, and the child was eventually freed for adoption.
Every state has these procedures, although how seriously they’re taken, and how competent the participants, varies quite widely. There are requirements for finding and notifying parents. The child gets a guardian ad litem, and often an attorney as well. Their job is to make sure the child’s best interests are being protected. The parent gets an attorney, at state expense. The parent has a right to consult with counsel, and to participate in the hearing. If the parent is incarcerated (or in a psychiatric facility) but shows an interest in the child, the jail has to set up a link for the parent to participate remotely. (I won a case on appeal for a guy who was in prison out of state, and had a crappy telephone hook-up that didn’t really allow him to participate in the hearing terminating his parental rights.) It is not automatic — per longstanding case law — that any incarcerated parent has forfeited their rights, especially if it’s a pre-trial or short-term incarceration; you have to balance and prove harm to the child.
So there are both substantive rights, and huge procedural rights for both parent and child. It’s cumbersome and makes the state’s job more difficult — and that’s a good thing. It *should* be difficult for the government to disrupt parent-child bonds. It *should* be a last resort, only when absolutely necessary to protect the child’s safety. Thanks to generations of dedicated lawyers, there’s copious case law that family preservation has to weigh heavily, much more heavily than “but this way the child gets three square meals a day.”
If states force the Federal government to abide by the same rules that everyone else has to, it will slow this process down. It will prevent DHS from fast-tracking this and sneaking kids out without any public attention. It will force the local US Attorneys’ offices to go into Family Court or magistrates’ court — in courthouses they’ve never been in, before judges they’ve never had to deal with, dealing with statutes they’ve never read before — to justify the government’s actions. It will force lawyers and social workers to either comply with unreasonable demands, or stand up and say, “Sorry, we don’t do it that way here.” And it doesn’t require disobeying the law and the rules; it requires complying with them, and pointing out that it’s the Federal government that is running lawless and out of control.
In other words, if people refuse to get scared, and just do their jobs — treat these kids the way their existing rules require them to treat any other kids on their flights, or any other kids coming into their foster care system — it could be a huge step towards shutting this down. Let AG Jeff Sessions and those preaching about the alleged Biblical mandate to obey the laws argue why they shouldn’t have to do the same.