Shoes are left by people at the Tornillo Port of Entry near El Paso, Texas, June 21, 2018 during a protest rally by several American mayors against the US administration’s family separation policy. (Photo by BRENDAN SMIALOWSKI/AFP via Getty Images)
Susan Bibler Coutin interviewed Naomi Glenn-Levin Rodriguez, whose article “Present Absence in Dependency Law: The Erasure of Noncitizen Parents in the San Diego-Tijuana Region” appears in the November issue of PoLAR.
Your article opens with the story of your experience reviewing the Esperanza Foster Family Agency’s case files in order to update their data base. While doing so, you came across a note “Mother deported. Likely in Mexico,” and as you looked through the file for more information, you discovered that no one had investigated further. The deportation was treated as an absence that did not need further explanation, a hole that law could fill in with the legal construct, “abandonment.” What is striking to me about this story and about your article is the presumption of normalcy that underlies this brief file note. How did it come to be seen as unremarkable that deportation removed a mother not only from the United States but also from her child’s life? How did we reach a point societally in which no further investigation about this mother’s location, intentions and relationships was required? How could the mother who was deported be dismissed so easily? Imagine if the note had said, “Mother injured. Likely in hospital,” for example. I imagine that an injured mother would have been treated differently.
Social workers, and legal scholars, often have the requisite story to tell about a judge or lawyer making an outrageous legal claim or judicial ruling that seems to be outside the intent of the law—terminating custody of a mother on the basis of her not speaking English (Flatow 2014) or, in my own research, a social worker recounting a case where a lawyer argued that his client, a child with asthma, should not be reunified with a father in Mexico because Mexico is “too dusty.” These stories highlight how law can be mobilized to enact particular sorts of exclusions. But these stories are exceptions, not practices that any of the social workers I knew would describe as normal or unremarkable. The social workers and legal actors I interacted with in my research operated under the premise that children should be legally separated from parents only when they have been determined to be unfit, through allegations of abuse, neglect, and abandonment. So the question for me is how detentions and deportations become reframed as instances of abandonment, abuse, or neglect. As you note, the hospitalization of a parent would be treated as a temporary circumstance with no bearing on parental rights from a child welfare perspective. Importantly, the same can be said for incarcerated parents who face significant challenges but also retain more legal protections for their custody rights than detained or deported parents.
There is a significant body of work (Heidbrink 2014, Alston 1994, Parker 1994, among others) that draws attention to the legal framework of “best interest” that enables the sorts of translations described above. All too often the idea that remaining in the United States is inherently desirable for all children is mobilized to enact legal separations of parents and children in the name of “best interest.” This sort of slippage, of course, is shored up by a strong sense of U.S. exceptionalism and the sort of xenophobic arrogance that we see instantiated in so many different ways in the present political moment.
When asking how social workers and dependency lawyers have come to see these forms of “legal violence” as unremarkable (Menjivar and Abrego 2012), it is also important to consider the gaps that emerge between overlapping legal systems. Child Welfare policies and procedures include mechanisms for coordinating with immigration enforcement officials. Immigration enforcement officials, in many circumstances, have the latitude to not detain in the first place or to release a parent in order to avoid the emergence of child welfare concerns. However, immigration enforcement policies, like carceral policies and practices more broadly, generally approach detainees or deportees as individuals, rather than as members of families. Similarly, child welfare social workers typically see immigration concerns as outside of their purview. In this sense, the translation of a deported parent to an “abandoning” parent happens in the gap between these systems, in a no man’s land that neither social workers nor immigration officers feel directly responsible for. Crucially, the case note described above was written by a social worker at a foster family agency whose primary mission was to address the needs of Latinx families in foster care. These social workers were thus particularly cognizant of these concerns but did not feel empowered to address them within the constraints of the child welfare apparatus.
While I think these are some of the issues at play in the choice to accept parental absence without further investigation, it seems to me that these processes hinge on the contemporary political climate and the white supremacist and anti-immigrant discourse that, while certainly not new, is currently rampant in the public sphere. You asked how we have reached a point societally where social workers and the broader public are satisfied by a case note like the one described above. This question seems to me to be linked to similar questions that are being asked in the contemporary moment—how did we arrive at a place where separating young children from their parents could be reframed as an acceptable and imaginable tactic for border enforcement?
OAKLAND, CA – SEPTEMBER 09: Honduran father Juan and his six-year-old son Anthony attend Sunday Mass on September 9, 2018 in Oakland, California. They fled their country, leaving many family members behind, and crossed the U.S. border in April at a lawful port of entry in Brownsville, Texas seeking asylum. They were soon separated and spent the next 85 days apart in detention. Juan was sent to Tulsa, Oklahoma, while his son was sent to a detention shelter New York. They were one of almost 2,600 families separated due to the Trump administration’s “zero tolerance” immigration policy. Juan said it took six weeks from the time of separation until he was able to make a phone call to his son. They were finally reunited in July and are now living in Oakland as their asylum cases are adjudicated. (Photo by Mario Tama/Getty Images)
Well actually, you just raised another issue that I wanted to ask you about, namely, how the erasure of noncitizen parents is connected to family separation more generally, whether at the border, as parents are detained apart from their children, or transnationally, as family members are unable to rejoin relatives who have immigrated. Also historically, some family ties have been given greater legal recognition than others—the case of slavery comes to mind, as well as the role of race and ethnicity in child welfare cases more generally. What is incredible about the cases that you analyze is that deportation could be understood as the nation abandoning some of its residents through legally imposed exile; in which case, the parents who are deported would be the victims of abandonment, rather than perpetrators of it. You touch on this in your response to the first question, but I wonder if you could reflect further on the broader phenomenon of family separation and abandonment, as well as who is abandoning whom.
There is a long history of the erasure of parents alongside the incorporation of children into the national citizenry that targets noncitizen parents, parents of color, and non-Christian parents, among others. This history is, of course, not limited to the U.S. context, but extends to many post-colonial nations that continue to struggle to repair the long-term damage done to communities through (state-sponsored) family separation. I don’t think we can have a good understanding of the discretionary processes through which child welfare decisions are enacted without situating those decisions relative to this history, which has indelibly shaped the contours of social welfare policy and social work practice. We see this at play any time adults assume that children are better off in white, middle-class, Christian, U.S. homes than with families whose social positionalities diverges from these categories. Histories of U.S. adoption illuminate these practices quite clearly (see Briggs 2012 for a compelling analysis of these trends).
This history intersects with immigration law, which delimits what family ties matter, and how they matter, through delineating the degree to which the movement of one family member might enable, or foreclose, the movement of another. One key aspect of this is the way that immigration law restricts who counts as family, typically prioritizing parent-child relationships over grandparents, siblings, same-sex partners, or guardianship arrangements not formalized by law. Yet, as we see in contemporary family separations, the prioritizing of parent-child relationships seems to be eroded in the name of protecting the nation from a “surge” at the southern border. The deportation of the parent of a U.S. citizen child —resulting in that family’s separation—is reframed as in the best interest of the child. Similarly, the deportation of both parents and young children is reframed as in the best interest of the U.S. state, as necessary immigration enforcement and as a strategy to deter future immigration.
Your question reminded me of Roberto Gonzales’ “Learning to be Illegal” and the way it maps out the abandonment of 1.5 generation youth who have come of age in the U.S. public school context. These youth grow up with the belief (and to some degree the experience) that they have been incorporated into their local communities, only to be rejected (or literally expelled) when they turn eighteen and realize that they cannot pursue the life that they have been preparing for. In this sense, we might think about noncitizen parents as being abandoned by the nation-state in which they are living and raising their families. We might also consider the degree to which U.S. citizen children of undocumented parents are themselves abandoned by a state whose immigration laws and enforcement practices deny them access to their families; at the same time, the state fails to see this as an erosion of the rights of U.S. citizens.
DENVER, COLORADO – JULY 02: (L-R) Lupe Lopez, Amy Bautista 3 at the #CloseTheCamps United We Dream, American Friends Service Committee, and Families Belong Together led protests across the country at members of Congress’s offices to demand the closure of inhumane immigrant detention centers that subject children and families to horrific conditions. Constituents delivered a letter asking the members to visit a detention facility this week, stop funding family detention and deportation, and use all their powers to close the camps on July 02, 2019 in Denver, Colorado. (Photo by Tom Cooper/Getty Images for MoveOn.org Civic Action)
Your discussion of the limitations of what counts as a family and of the complexities of abandonment makes me think of the concept of legal fiction. Annelise Riles (2011:24) defines a legal fiction as “a statement that is consciously understood to be false, and hence is irrefutable” and she further notes that “the very point of a legal fiction … is to place limits on reality, or, rather, to draw a line between legal forms of reality and other forms of reality” (2011:25). In your article, I noticed “abandonment,” “fitness,” “best interest,” and even “effort to locate” could all be construed as legal fictions. For example, as discussed above, you document the ways that deportation is taken as evidence that a parent has abandoned their child even though it is the government that forces the deportation, child welfare officials presume that it is in the best interests of a child to be placed permanently in a family, and sending a single letter to the last known address of a parent is taken as a good faith effort to locate the parent even though this effort is quite minimal. Is the concept of legal fiction important in your analysis, and if so, what lines do legal fictions draw in the cases that you analyze? Do legal fictions materialize in particular forms of documentation? And what do we achieve as ethnographers by calling them out?
The concept of legal fiction is compelling in that it provides a productive framework for understanding the processes that, as you note, translate deportation into parental abandonment or that allow a social worker and dependency court judge to seemingly collaborate to agree that a parent is untraceable when the effort to locate them has, by most accounts, not truly been made. In the context of my research, legal fictions serve to affirm and enable dependency processes to continue, and legal determinations to be made, with a degree of confidence on the part of the dependency judge, despite the morass of unknown and open questions (Where are the parents? What is truly best for this child?). The processes I describe are fraught with unknowns. As one dependency judge I spoke with noted, her work was about predicting the future, which is, of course, an impossible task. As such, legal fictions cohere in documents which create a paper trail that serves the primary purpose of assuring social workers and legal actors that they have made a thoughtful and sound decision within agency and legal constraints. They also facilitate the production of a “legal” separation—i.e., the letter of the law has been followed such that the decision appears legitimate.
As I discussed above, a primary problem is the gap between child welfare and immigration systems. I see the documentation of these legal fictions as a way to navigate the impossible task of either system addressing a social problem that extends across multiple systems, nations, and borders. The legal fiction of a document solidifying parental absence, or a court determination of parental unfitness, forecloses the possibility of examining other decisions that might have been made or other lights in which a situation could be seen. Multiple readings are deeply problematic for lawyers and social workers who are working towards permanent, legal decisions about child custody.
I appreciate your question about what we gain as ethnographers by calling out these legal fictions. One of the biggest challenges of working with social workers is how to understand their processes without vilifying their intentions or their results. A question I grapple with often is how so many people with such seemingly good intentions could contribute to producing outcomes that are so deeply destructive to youth and their families. One answer to this question is to understand the way legal fictions operate to solidify particular interpretations and construct a legal reality that is experienced as clear and concrete, even though it could equally well be seen as obfuscating and incredibly fragile. When a case note states that a parent has abandoned their child, for example, that abandonment becomes solidified as true, particularly when that case file is passed on to the next social worker involved in the case. Legal fictions are deeply troubling in the way that they put limits on other realities, other narratives, that could potentially shape a child’s or parent’s trajectory but they also allow social workers, immigration officials, and legal actors to do their work.
Guatemalan migrants recently released from federal detention sit with their three-year-old daughter at a bus depot on June 11, 2019, in McAllen, Texas. (Photo by LOREN ELLIOTT/AFP via Getty Images)
Your discussion of unknowns and of the gap or “no man’s land” between legal systems makes me think of the multiple forms that absence takes within your analysis. In your article, you describe absences as both “spectral” and “material.” You write, “The absence of detained or deported parents operates as a material presence in the context of child custody cases. Through the nexus of immigration and child welfare protocol described below, the immigrant parent is remade as a sort of ghost, a spectral presence without physicality” (p. 11). Both spectrality and materiality are important to your analysis, but they could be perceived as opposites. How can we understand the relationship between that which is spectral and that which is material? And how do the unknowns that haunt legal certainty and the gap between legal systems and create contribute to spectral/material absences?
One of the issues that propelled me to explore the concept of present absence in this article was my desire to understand how legal actors and social workers were dealing with all of the questions raised by the child welfare system’s lack of ability (or lack of a mandate) to really take on the question of how immigration enforcement is impacting family unity and child welfare outcomes more broadly. Approaching absence as both spectral and material creates space for social workers to both not know (where is the parent? Will they return?) and to know (this decision is in the child’s best interest).
Actually, our discussion of “legal fiction” is a great way to frame the distinction between a spectral and material absence. In this sense, the haunting nature of the spectral absence is mitigated, and the materiality of that absence is produced, through child welfare processes that make permanent, legal truths out of partial information and a lot of unknowns. Because social workers often have so many gaps in their knowledge in terms of parents’ whereabouts, family dynamics, or questions about who might provide the best home for a child, the absence of those parents and the unanswered questions that absence produces create a lingering sense of open-endedness—a parent could potentially reappear at any moment and challenge the tentative conclusions a social worker has drawn about how the case should proceed. At the same time, the detention and deportation regime makes it unlikely that the parent will return in time to challenge or interrupt the child welfare process. As the case proceeds the social workers and legal actors involved in the case need the certainty of legal fictions to support the court process—a parent is either absent or present, having either “abandoned” their child or being actively engaged in regaining custody.
This is one reason I include the case of a U.S. citizen mother, Brenda, who does not deny the charge of “child abandonment” to contrast with the way “abandonment” is constructed materially for parents whose reason(s) for being absent is less clear. Her child’s case extends for far longer and, because she is able to be present, is far more complicated than those cases where a file notes a parent as “absent,” translates that into “abandonment” and then moves on to consider what is the best outcome for that child. Notably, this was so despite her not denying the charge that she abandoned her child. It is much more difficult to construct a parent as having legally abandoned their child when they are able to bodily appear in court and appeal the decision to terminate their parental rights. The physicality of this mother stands in stark contrast to the materiality of the case note that stands in for the absent voice of a spectral parent, produced as absent by the court process but still a haunting, unknowable presence.
A woman holds a sign with photos of migrant children who have died in US custody as people protest against the upcoming ICE raids and detentions of refugee asylum seekers at a vigil outside the main ICE detention center in downtown Los Angeles on July 12, 2019. – Numerous vigils were held across the US as part of the Lights for Liberty movement’s campaign to call for an end to “inhumane conditions at the border” and the deportations of refugee asylum seekers. (Photo by MARK RALSTON/AFP via Getty Images)
Thank you for this fascinating, though disturbing, account of the ways that some noncitizen parents are rendered spectral even as their absence materializes in legal and other records. I also very much appreciate your discussion of the way that you juxtapose narratives in order to reveal the gaps between them.
This leads me to my final question, which is about accountings. Above, you mention the “lingering sense of open-endedness” associated with unanswered questions, and in your article, you describe the short twelve-month time frame within which social workers must develop a permanent placement plan, the limited time that parents have to demonstrate that they have complied with court requirements, and the ways that these timeframes clash with the timing of prison sentences, detention and deportation, efforts to end abusive relationships, or overcoming addiction. Could you comment on how time was part (or not) of the calculations that take place in the cases that you analyzed? Lastly, does your own use of narratives challenge these accountings?
Although any accounting, as any history, or any narrative, is partial, I’ve found in my research that the field of child welfare is filled with accountings where fragmentation and partiality are central to the account itself. Social workers and legal actors do not claim to have the whole picture but rather strive to make a decision that feels measured and grounded in what information they do have available to them. Partial and fragmented information produces a particular sort of knowledge, shored up by social workers’ position as experts in the field of child welfare. As I describe in the article, social workers and legal actors do seem compelled by the belief that a liminal state can be damaging for children long-term. As such, they tend to privilege that quick move towards a permanent solution over other potential priorities, such as maintaining ties to family and community.
In my own narrative structure, I address these accountings in two ways. The first is that I turn my attention to the gaps, the missing elements, and the foreclosed pathways so as to understand not only what is being left out of the narrative frame but also how we can better understand the stories that are being told about these children and families through attention to the omissions. My focus is on the impact of that case note “Mother deported. Likely in Mexico,” rather than attempting to trace that mother or the caseworker who wrote the initial note to piece together a narrative that might feel more complete. Secondly, I try, in my writing, to work with the fragmented narratives, and the partial accountings, that are part and parcel of work in the child welfare system, where children and families come in and out of the system, family members disappear (and are made to disappear) abruptly, and case outcomes are sometimes unclear. In this sense, my attention to the gaps is not so much to fill them, to make one smooth, complete narrative, but rather to ask what other fragmented stories might be told, and how tracing the presence of particular sorts of absences might help us see the workings of this system in a different light.
Naomi Rodriguez received her PhD in Anthropology from the University of California, Santa Cruz. Her book, Fragile Families: Foster Care, Immigration, and Citizenship (University of Pennsylvania Press, 2017), draws on ethnographic fieldwork with Latinx families whose lives are shaped at the nexus of child welfare services and immigration enforcement to examine how these overlapping legal systems play central roles in the ongoing production of citizenship, race, and national belonging. She currently teaches at Hobart and William Smith Colleges in Geneva, NY.
Susan Bibler Coutin is Professor in the Departments of Criminology, Law and Society and Anthropology at the University of California, Irvine. She is author of Exiled Home: Salvadoran Transnational Youth in the Aftermath of Violence (Duke University Press, 2016).
Works Cited
Alston, Philip. 1994. “The Best Interests Principle: Towards a Reconciliation of Culture and Human Rights.” International Journal of Law and the Family 8:1-25.
Briggs, Laura. 2012. Somebody’s Children: The Politics of Transracial and Transnational Adoption. Durham, NC and London: Duke University Press.
Flatow, Nicole. 2014. “Judge Who Took Away Immigrant’s Baby Said Lack of English Would Cause ‘Developmental’ Problems.” Think Progress, March 13.
Gonzales, Roberto, 2011. “Learning to be Illegal: Undocumented Youth and Shifting Legal Contexts in the Transition to Adulthood.” American Sociological Review 76(4):602-619.
Heidbrink, Lauren. 2014. Migrant Youth, Transnational Families, and the State: Care and Contested Interests. Philadelphia, PA: University of Pennsylvania Press.
Menjívar, Cecelia and Leisy Abrego. 2012. “Legal Violence: Immigration Law and the Lives of Central American Immigrants.” American Journal of Sociology 117(5):1380-1421.
Parker, Stephen. 1994. “The Best Interests of the Child–Principles and Problems.” International Journal of Law and the Family 8:26-41.
Riles, A., 2011. Collateral Knowledge: Legal Reasoning in the Global Financial Markets. University of Chicago Press.
PoLAR: Political and Legal Anthropology Review 
