Deported woman keeps custody

LINCOLN — A Guatemalan woman should not lose custody of her children because she was deported from the United States, the Nebraska Supreme Court ruled Friday.

In a decision that could offer hope to other immigrant parents, the court said Maria Luis should have the right to raise her children in her own culture and with their two older brothers.

The high court reversed a decision by Hall County Judge Philip M. Martin Jr. that terminated Luis’ rights to her children, Angelica, now 5, and Daniel, now 11.

The decision was one of two child welfare cases decided Friday. In the second case, the court ruled that the Ponca Tribe of Nebraska may intervene in child welfare cases even if the tribe was not represented by an attorney.

In Luis’ case, the Supreme Court said it was not enough for the state to argue that the children would have fewer opportunities in Guatemala. The state also had to prove that Luis was an unfit parent — a burden the court said the state had not met.

The record showed that the state made no efforts to reunify Maria and the children, largely because the State Department of Health and Human Services “thought the children would be better off staying in the United States,’’ the court said.

“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 reunification.”

According to the ruling, the children were removed in April 2005 after a child protection worker alleged that Luis was not providing proper medical care to Angelica, who had been born prematurely. The family lived in Grand Island at the time.

Luis, who was in the country illegally, was arrested and deported in May 2005. She was not allowed to take her children.

The allegations involved Luis’ failure to take Angelica for a follow-up doctor visit, although the girl had a respiratory virus and was not improving. Luis also failed to seek medical care for the girl for a month following her premature birth.

But testimony at trial showed that Luis voluntarily sought help from a “Healthy Starts” program for parents of newborns and that she had taken the children for medical care on several other occasions while living in Nebraska.

Two home studies done in Guatemala concluded that she provided good care for her two older sons, had a job, an appropriate residence, family support and community respect.

Sheri Wortman, one of the attorneys representing Luis, said she hopes the decision helps other parents.

“We hope that it’s a message to the system that they need to pay attention to parents’ rights, regardless of language barriers or cultural differences,” she said.

Christopher Huck, a Seattle attorney who also helped represent Luis, said the mother “is in tears, she’s so excited” by the court’s decision. He said the attorneys will work with Nebraska officials to reunite the family and ease the children’s transition.

The Attorney General’s ffice referred calls to Health and Human Services, which did not respond to a request for comment.

In the other child welfare case, the Supreme Court reversed lower court rulings in two cases, which were consolidated on appeal. Dakota County Judge Kurt Rager had barred the Ponca tribe from involvement in both cases because its motions to intervene were not filed by attorneys.

But the high court said requiring legal counsel would frustrate the goals of the Indian Child Welfare Act because the tribe cannot afford to hire attorneys.

The act was passed in response to the number of Indian children being removed from their families and placed in non-Indian adoptive or foster homes.

“This decision promotes the rights of tribes to protect their families and children within the state’s judicial system,” said Marilyn Jones Wright, a spokeswoman for the Ponca Tribe.

Contact the writer:

402-473-9583, martha.stoddard@owh.com

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