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I've Helped Separate Kids from Parents in Court, So I Know How Awful It Is

The job was among the hardest things I’ve ever had to do.

by Issac J. Bailey
Jun 22 2018, 6:28pm

A mother and son from Honduras as they're discovered by Border Patrol agents on June 12 at the Texas border. Photo by John Moore/Getty

She was a little girl, about six years old. Her dark eyes and dark hair and a smirk of a smile gave her the look of a character on a Disney Channel show. She was smart, so smart. I was taken in by her instantly.

I came to know her through her mother, a wondering-if-she’s-homeless thin, drug-addicted, mentally ill white woman with dishwater blonde hair in baggy pants and an oversized white T-shirt. She was reserved and barely answered any questions the only time we spoke, though seemed eager to please me when she did, like a daughter would a father.

When I first met them, the six-year-old took her place on the carpeted floor across from her mother, who was sitting cross-legged in a small play area. Mom pulled out Burger King bags and kid-sized packets of nuggets and chocolate milk. She spread out a few toys from Dollar General. Her daughter reacted as though she had been invited to a Christmas party in Heaven.

The cute six-year-old told a corny joke and they laughed. Loud. She ate the funny-shaped chicken nuggets and told another corny joke. They laughed again. She sipped from her chocolate milk box and made a funny noise with her mouth, chocolate milk exploding through her nose. The belly-rocking laughter erupted again. It went on that way for maybe an hour. In the middle of it, I had to remind myself that the six-year-old cutie wasn’t the mother. She had simply seen a lot in her young life and was worldlier than the usual six-year-old because of it.

I suspect that little girl didn’t know what happened when her mother was 13 years old—that was the first time her mother was raped—but that incident, long before she was born, was impacting her nonetheless. It put in motion a series of events that put her own young life at risk, multiple times, until she was taken in by a foster care system designed to protect kids growing up in circumstances like hers.

That’s why it was so hard several months later when I sat in a courtroom and told the judge I believed the mother should forever lose the right to see her children. That was in my role as a guardian ad litem in South Carolina family court. I represented children, investigated child custody and foster care cases, and was charged with deciding what was best kids. As a father, I wanted kids to remain with parents whenever possible. As a guardian, my primary job—my only job—was to legally advocate on the behalf of children, no matter what parents or the Department of Social Services wanted.

So when the New York Times reported that White House adviser Stephen Miller said it was an “simple decision” to implement a policy (since reversed) that would separate kids from parents who crossed the border illegally, I couldn’t understand. That job was among the hardest things I’ve ever had to do. The breaking up of families is a decision that is supposed to be exceedingly difficult and rare and only done with extreme care and after all other viable options have been exhausted. It should not be part of a scheme to try to convince people desperate enough to make a dangerous 1,800-mile trek to the US to not bother trying. It should not be used to force Democrats to the bargaining table to accept an unnecessary wall on our Mexican border and new restrictions on legal immigration.



It is gut-wrenching to have to tell parents their children are no longer theirs even after you’ve given the parents months, and sometimes years, to straighten out their lives. The separation hearings I was involved in didn’t happen until after the parents frequently failed drug tests and refused to go to parenting courses or showed little evidence that they could provide stable, safe environments for the children they brought into the world. Some of the kids we saw faced the threat of rape and other forms of sexual assault if they remained where they were. Others were being raised by parents who were so addicted they couldn’t care for themselves, let alone their children.

Even while advocating for the termination of parental rights, I grieved for some of the parents, because as kids they had grown up in environments in which they had been repeatedly abused. It felt cruel to essentially punish them by saving their children from the horrors from which no one saved them when they were children themselves. But not once did I regret recommending a permanent removal, because I knew we had done everything we could to avoid that outcome. That’s why it is so frustrating to see the Trump administration using kids as political poker chips.

And it scares me because I know that if these migrant kids, who are still apart from their parents, enter the foster care system in any state, the process will long and arduous. It can last years, even under the best of circumstances. These kids would be entering the system under the worst-case scenario—a system that has long been flooded with cases and under-resourced. Their parents often don’t know where they are, meaning they are unlikely to show up to family court hearings, which will often mean leaving just the guardian ad litem and an attorney representing the child welfare system in a particular state to present their cases to the judge.

Under such circumstances, how could a guardian recommend sending a kid back to their parents when they don't know who the parents are or the environment into which they’d be returned? And if the guardian knew that the parents had decided to take a death-defying trip to flee violence in their home country, how could they, in good conscience, recommend sending children back into that?

Maybe the Trump administration anticipated all of this before implementing a policy previous presidents considered but decided against because of its apparent cruelty. But we’ve seen no evidence of such a plan. That’s why I fear stories suggesting that some of these kids separated from their parents may never see them again will turn out to be true.

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