Dalton couple fights to regain custody of their five children

photo Domitina Mendez wipes away tears as her husband, Ovidio Mendez, discusses their efforts to regain custody of their five children.
photo Domitina Mendez holds photos of two of her children, Ever Mendez, left, age 5, and Debbi Mendez, age 3. She and her husband, Ovidio Mendez are Guatemalan indigenous Mayans who lost custody of their five children when the Georgia Department of Child Protective Services took their children in 2008. In June a Whitfield County judge permanently removed their parental rights in part because they don't speak English and the judge felt the parrents couldn't take care of the children's special needs and dozens of monthly doctor's visits.

CHILDREN IN THE CHILD WELFARE SYSTEMThe percentage of Hispanic children victims of neglect and/or abuse hasremained consistent in the last four years, but there's no data of how manyare immigrants or children of immigrant parents.GEORGIA: Total/Hispanics/Percent• 2006: 37,407/2,650/7• 2007: 32,951/2,390/7.3• 2008: 25,949/1,690/6.5• 2009: 22,653/1,611/7• 2010: 19,050/1,296/6.8WHITFIELD COUNTY: Total/Hispanics/Percent• 2006: 438/141/32• 2007: 429/121/28.2• 2008: 358/114/32• 2009: 290/79/22• 2010: 214/67/31Source: Georgia Department of Human ServicesCHILDREN IN CUSTODYTENNESSEE: Total/Hispanics/Percent• 2006-2007: 8,414/272/3.2• 2007-2008: 7,858/257/3.3• 2008-2009: 6,907/244/3.5Source: Tennessee Department of Children's ServicesSEPARATIONS EXPECTED TO RISEAs the number of U.S. immigrant detentions and deportations increases, researchers expect the number of children in foster care will rise, as well.A record 397,000 illegal immigrants were deported during fiscal year 2011, and in the first six months of 2011, the federal government removed more than 46,000 parents of U.S.-citizen children.A recent study by the Applied Research Center, which calls itself a "racial justice think tank" and has offices in New York, Chicago and California, estimates more than 5,000 children are in the foster care system whose parents were detained by immigration officers or deported.Most child welfare departments lack systemic policies to keep families united when parents are detained or deported, according to the report, "The Perilous Intersection of Immigration Enforcement and the Child Welfare System.""Historic levels of detention and deportation, combined with a clear lack of child welfare policies are resulting in the separation of thousands of families across the United States," the nonprofit organization wrote in its report.There are no exact numbers of immigrant families involved in the child welfare system because agencies are not required to track them. But nationwide, there are more than 5 million children who were born to at least one undocumented parent.

DALTON, Ga. -- As Ovidio and Domitina Mendez drove back from their children's medical appointment, they noticed police cars parked outside their house.

As soon as they got out of their car, they were told through a Spanish interpreter that the Georgia Department of Family and Children Services was there to take their four children.

DFCS workers had visited the Mendez family two weeks earlier in July 2008 to investigate how the Guatemala natives and their U.S.-born children, who have severe disabilities, were living. The couple were told then that two of the children were malnourished and that the family needed to find a new home.

The couple say they did that.

"We came back home [from the doctor's office] without knowing what was going to happen," said Ovidio Mendez in Spanish. "They just said, 'Stay there. I'm sorry, but we came for the children.'"

The children, now ages 5 through 7, started crying and throwing tantrums, Domitina Mendez said.

"They had to take the boy by force, then I started crying. They are my children. I was sad because they were taken away from me," she said.

And DFCS came back in November 2008 for her fifth child, Debbi, just 14 days old.

"I begged them not to take my baby," said Domitina Mendez, 24, "but the interpreter told me to calm down or it was going to be worse."

Since then, the five children have been cared for by a foster family who wants to adopt them, even as the Mendezes try to regain custody.

A hearing to have their case reopened is set for Thursday in Whitfield County Juvenile Court after a June 2011 ruling that terminated their parental rights.

In her ruling, Judge Connie Blaylock said she didn't believe the parents could care adequately for the five children with their complicated medical needs and the dozens of medical appointments they require every month.

But advocates working with the family believe their inability to speak English and their illegal status were the main factors that led to the rights termination.

Guatemalan consul Beatriz Illescas in Atlanta has helped the family from the beginning, including with legal aid. She said their parental rights were terminated primarily because they don't speak English and because of their legal status.

"They took their children away despite the fact that they never found proof of negligence or abuse," said Illescas, who testified in the parental rights termination hearing.

"I think it's great that [the state] has the children's best interest at heart, but please don't arbitrarily decide there's abuse and violence when there's no proof," she added.

Ravae Graham, spokeswoman for the Georgia Department of Human Services, which oversees DFCS, said she couldn't comment on a specific case. But generally, the ability to speak English and legal status are not determining factors in terminating parental rights.

"Safety and well-being is assessed and addressed regardless of the family's language or nationality," she wrote in an email. "Translator/interpreter services are provided at no charge to the client."

Those who work with families or the child welfare system said it's a growing problem nationwide.

"We've seen a number of cases where kids are removed largely because of language or cultural misunderstandings," said Mary Bauer, legal director for the Southern Poverty Law Center in Montgomery, Ala.


The Mendezes said the children's pediatrician contacted DFCS to say the children were getting worse.

All of the children have disabilities and have been diagnosed with possible mitochondrial disorder. Dr. Ayman Rifai, a pediatrician at Prime Pediatrics in Dalton, Ga., who is not involved with the case, said the disorder is inherited and can affect multiple organs, including the nervous system. It can cause seizures, developmental delays, difficulty swallowing that can lead to poor nutrition, and in some situations affect eyes and ears.

Some of the children have problems walking and experience convulsions.

A case manager for Whitfield County estimated during a court hearing this year that the state had spent $400,000 on the children over 21/2 years since they were removed from the Mendez home and more than $20,000 on services for the parents including in-home services, transportation and parent aides.

The state had allowed the Mendezes to see their children during doctors' appointments and in supervised two-hour visits, sometimes at their home, and other times at birthday parties or public places like gas stations, until Blaylock terminated their parental rights.

They last saw their children in September for a birthday party. That day DFCS told them there wouldn't be any more visits, Domitina Mendez said.

"I was really sad," she said. "We haven't seen them since."


Immigration status alone is not enough to terminate someone's parental rights, said Yali Lincroft, policy and program consultant for First Focus, a bipartisan children's advocacy organization. Yet there have been multiple cases where it has been used against the parents.

In Lebanon, Tenn., in 2004 a Mexican immigrant who spoke an indigenous language was told she needed to learn English or risk losing custody of her daughter. An agreement was reached, and the mother regained custody of her daughter.

In Jackson, Miss., the Clarion-Ledger newspaper reported in 2009 that a woman was charged with neglecting her child, in part, because "she has failed to learn the English language," and "was unable to call for assistance for transportation to the hospital" to give birth. A year later the mother was reunited with her baby.

A 2007 Missouri case involved a Guatemala native arrested for being in the country illegally who later pleaded guilty to aggravated identify theft. After she was arrested, her son, a U.S.-born citizen, was passed through different households and finally adopted. The mother challenged the adoption, and in 2010 an appeals court ruled the boy had to be reunited with his mother immediately.

Often, problems with authorities arise from cultural misunderstanding, said Bauer.

For example, officials may ask why a mother hasn't bought baby formula or purchased a crib, when in that culture mothers breast feed and sleep with their babies, Bauer said.

The view of an illegal immigrant also has changed over time, said Marcia Zug, an assistant professor of law at the University of South Carolina School of Law.

"Many of the child welfare workers may think it's better for an American child to be raised in the U.S. by an American family," she said. "Given the anti-immigrant feeling in the country, people are more sympathetic to these arguments."

photo An infant's clothes and a high chair are seen in one of the rooms at the home of Domitina Mendez and her husband, Ovidio Mendez, Guatemalan indigenous Mayans who lost custody of their five children. The Georgia Department of Child Protective Services took their children in 2008, and in June a Whitfield County judge permanently removed their parental rights in part because they don't speak English and the judge felt the parrents couldn't take care of the children's special needs and dozens of monthly doctor's visits.


The Mendezes spend $650 a month on a four-bedroom home, hoping they'll have their children with them once again. They've spent more than $5,000 on child support and thousands of dollars in legal fees.

"We are going to keep fighting," said Ovidio Mendez. "They are our children; we have to fight for them."

"How can a parent be happy without her children?" said Domitina Mendez.

Their living room is almost empty except for a blue carpet with the alphabet, numbers and shapes in bright reds, yellows and greens on it. Plastic bins full of toys rest against the wall.

The rooms are painted in pink and blue. There are cribs and children's beds inside, one for each child. One room is almost empty except for a pink party dress -- size 0-3 months -- that hangs from a pink hanger. It was Debbi's, explains Domitina Mendez; the foster mother gave it to her to keep.

After three years, when the children see their parents they hug them and say, "I love you, Mommy" and "I love you, Daddy," in English, Domitina Mendez said. They no longer speak Spanish.

The couple comes from a village in Guatemala. Their first language is Mam, not Spanish. They speak very little English and work at local carpet factories but are not authorized to be in the country.

An immigration attorney from Atlanta is working to help them legalize their status since they've lived in the United States for more than 10 years and the children were born in Dalton.


The Mendezes were told by state workers that they needed to learn English because it was best for the children. Ovidio Mendez enrolled in classes at Dalton State Community College but said he stopped going because it was too expensive and he had to work.

Questions about English came quickly during the June termination-of-rights hearing, according to court documents. Then came questions about the parents' immigration status.

"Describe for the court why even three years after [the children went into the state's custody] you cannot speak English without an interpreter," Bruce Kling, special assistant attorney general for Whitfield County Department of Family and Children's Services, said to Domitina Mendez.

"I cannot speak English, but I did -- because I did not grow up speaking English," she replied in Spanish through an interpreter.

A case manager for Whitfield County Department of Family and Children's Services said in the hearing that learning English was not part of the plan given to the couple. She didn't know if it had been translated into Spanish.

In closing, Kling said, "We basically have two individuals with first- to second-grade educations and although they have the capacity to love and care for their children, they do not have the capacity to understand their immense medical needs to properly address them."

Bart Barnwell, the attorney who represented the children in court, disagreed.

"It appears that one of the big obstacles and hurdles the parents have encountered have been cultural differences," he said in his closing statement.

He didn't think the parents were capable of caring for the children when the state took them away, but he said they had worked on the case plan and he didn't think terminating their rights was in the children's best interest.

Among other arguments made during the hearing were that the parents couldn't legally obtain a driver's license to take the children to the 75 appointments they average in a month; they are unable to understand fully the children's medication needs and their medical conditions; and they lack help to care for the children, especially if both work.

The children's appointments include visits to doctors' offices and horse and speech therapy.

In the end Blaylock sided with the state.

"It is the sad truth that neither of these parents will ever be able to meet the extreme special needs of these five children on a day-to-day basis," she said. "They certainly love their children, but the children have not resided with them for three years. Debbi has never resided with them. The children are in need of, and deserving of, a permanent home."


Because the children are U.S. citizens, they qualify for services including Medicaid, which in Georgia includes nonemergency medical transportation services and home health care, according to its website.

The children also need special beds with padding at a cost of about $8,000 each, which the foster parents got through the state program Babies Can't Wait. The foster parents receive about $7,500 monthly -- $90,000 per year -- to care for the five children. If they adopt all five children, they will continue to receive financial assistance because the children have special needs; the exact amount was not mentioned in court.

The case manager testified that the state's financial responsibility will continue and probably grow under adoption plans.

"Why can't they help the parents care for those children like they are doing?" said Illescas in a telephone interview. "Separating the family is not the solution."

The children can qualify for any service a U.S. citizen qualifies for regardless of the legal status of the parents, Graham said.

And Domitina and Ovidio Mendez argue they've always had interpreters who can tell them about the children's treatments. The state and doctors' offices supplied the interpreters at no cost. Ovidio Mendez said he understands he needs to learn English and will continue to work on it.

photo Domitina Mendez shows a bedroom that was shared by three of her five children in their Dalton home.

Child welfare is a very difficult system to understand even if the person speaks English, said Lincroft.

"If they are assigned an attorney, does that attorney speak their language? He or she may speak Spanish, but if they are from an indigenous population, Spanish may already be a second language. So are you really communicating?" she asked.

"It's all of this confusion that I really believe makes these cases particularly challenging and difficult," she said.

Sandra Holder, administrator for the Tennessee Valley Region Department of Children Services, agrees communication is key.

The agency has bilingual staff and reaches out to churches and members of the community if they encounter someone like the Mendez's whose first language is not Spanish.

"If we can't communicate, that's significant," she said, "that's not good for anybody."

Case managers in Tennessee are also required to take cultural competency classes.

"You want to make sure you are doing the right thing and not judging them based on our own standards," Holder said.

"It's important to listen to them and try to see how they do things in their country and help them understand how we do things here," she added.

Graham, said that in Georgia they train bilingual staff, develop a centralized databank of language resources and form partnerships with community groups for outreach and education.

To help states, the Guatemalan consulate in Atlanta offers training to child welfare employees that cover everything from the role of the consulate to child rearing differences, said Illesacas.

Lincroft said the idea behind the welfare system is for the family to be functional again with the lowest level of government intervention.

"You don't really want the government to take care of the children, we are not good at raising children, but in order to have the lowest level of intervention, you need to know these communities," she said.