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Guatemalan mom says Neb. court wrongly took kids

Tuesday, April 28, 2009

OMAHA, Neb. - An advocacy group and the Guatemalan government have joined a Nebraska case they say illustrates a growing nationwide problem faced by many immigrant women forced to fight for custody of their children.

Legal Momentum, a Washington, D.C.-based nonprofit group, and the Guatemalan consulate general have filed friend-of-the-court briefs in the case, which will be heard Tuesday by the Nebraska Supreme Court.

It involves Maria Luis, an unmarried, Guatemalan mother who came to Grand Island in 2004 with her two children. She was deported a year later after allegedly lying to officials looking into the welfare of her children.
Luis' lawyers say her case is illustrative of what is increasingly happening when state courts take action in child welfare cases that clash with federal immigration law.

They argue, among other things, that Nebraska authorities violated the 1963 Vienna Convention on Consular Relations, which provides that people arrested abroad should have access to their home country's consular officials.

Luis "did not need to endure the nightmare of this perfect storm, because proper consulate notification would have steered her away," said the Guatemalan consulate in court briefs. "Unfortunately, a systematic gap between federal immigration law and the state law on domestic relations has broken Maria's family."

Attorneys for the state, however, say there is overwhelming evidence that Luis is an unfit parent. For one, they said, she has ignored her daughter's health problems on multiple occasions.

The girl was born prematurely on Luis' way from Guatemala to Nebraska. Luis did not seek medical care for her until three weeks later, at the urging of a nurse, the state's attorneys say.

The baby was later diagnosed with several problems, including malnutrition, a urinary tract infection and a heart defect. At that time a report was made to child protective services.

In 2005, law enforcement responded after receiving a report that Luis was not taking the baby for follow-up care after she was diagnosed with a respiratory virus. When police came to her home, Luis allegedly lied about her identity.

She later was arrested on suspicion of child neglect and obstruction of a government operation.

The state took custody of the two children and Luis was later deported.

Leslye Orloff, director of Legal Momentum's Immigrant Women Program, and Jeff Kirkpatrick of Lincoln, one of Luis' lawyers, say Nebraska officials also shirked their responsibility to communicate effectively with Luis through an interpreter.

Luis' native language is Quiche, a dialect spoken by many of the Mayan Indians of Guatemala. She has limited skills in English and Spanish.

When the court laid out what was expected of Luis to regain custody of her kids, the plans were written in English and later explained to her in Spanish, according to court briefs.

It's a national problem, one that threatens rights to due process, Kirkpatrick said.

"I think you've got a group of people here that are in danger of being denied their rights because they don't have the resources, because of the language barrier," he said. "And so a lot of times they don't get their day in court, effectively speaking."

Orloff also said Hall County Judge Philip Martin Jr. was wrong to assume that Luis' children would be better off in foster care instead of living with their mother in Guatemala.

"It's destroying the life of this mother and these children under the guise of theoretically offering the children the better life in America," she said. "And that's wrong."

Attorneys for the state argue Luis' children are thriving in foster care and shouldn't return to their mother in Guatemala.

A psychologist testified that if they were moved, they could face culture shock and a range of emotions. Uprooting them also could hurt their abilities to develop close and trusting relationships with others, he said.

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