Ohio’s juvenile courts are asked to decide custody issues for unaccompanied immigrant minors.

Ohio’s juvenile courts are asked to decide custody issues for unaccompanied immigrant minors.

The following article appears in the December 2014 CNO Review.

Jeovani left the only home he’s ever known and traveled thousands of miles to come to Ohio. His family put their trust, and an undisclosed sum of money, in a complete stranger to get the 13-year-old from Honduras to the mother he had not seen since he was 3 when she moved to the United States. Jeovani's biological father abandoned the family when he was 5, and he has had no contact with him since then.

Traveling by bus, Jeovani made his way through Guatemala and then Mexico, where he crossed the Rio Grande in to Texas on May 28, 2014, and turned himself in to border patrol agents. In the month following, the teenager stayed in Texas while federal immigration officials processed his case and determined he could be placed, at least for the time being, with his mother Gloria in Ohio. They were finally reunited on June 29 as Jeovani stepped off a plane from San Antonio at Port Columbus International Airport.

Jeovani now lives in Columbus with his mom, stepfather, three brothers, and an extended family of aunts and uncles. While he adjusts to life as a sixth grader in a country he always dreamed of living in, Jeovani’s status as a permanent resident of the U.S. is still up in the air as his federal immigration case is pending. A separate custody case pending in juvenile court brings Jeovani’s, and other unaccompanied minors like him, from an issue affecting border states like Texas and Arizona to one that affects Ohio courts.

A Tale of Two Jurisdictions

The issue of unaccompanied minors who are in the United States illegally sets up two exclusive jurisdictions between U.S. and state courts. Federal immigration courts, such as the one in Cleveland, determine whether the child must be deported or if he or she can stay in the U.S. through circumstances such as asylum. Another way is to seek Special Immigrant Juvenile Status (SIJS), an immigration classification determined by the U.S. Citizenship and Immigration Services that may allow the child to then apply for permanent resident status.

A factor in determining SIJS is the custody action that comes under the exclusive jurisdiction of a state court. Under Ohio law, the juvenile court can determine the custody of any child not a ward of another court of the state in many situations. Those include abuse, neglect, or abandonment by one or both parents – just what would be needed in order to show eligibility for the SJI visa.

That’s the route that Jeovani’s attorney, Brian Hoffman of Muchnicki & Bittner in Columbus, is taking to ensure the teen can stay with his mother.

“The SIJ visa is the best-kept secret among lawyers, but for many children who have been abandoned by one or both parents, this is the best way to look out for their best interest,” Hoffman said. “Some juvenile court judges are hesitant to make a custody order because of the immigration component and they’re concerned that it’s outside their jurisdiction, but most understand that this is a separate matter from the federal court case.”

According to the U.S. Office of Refugee Resettlement, more than 500 unaccompanied minors have been placed in Ohio between January 1 and September 30, 2014, and a large number of them are in Franklin and Hamilton counties.

Franklin County Court of Common Pleas Domestic Relations and Juvenile Division Judge Terri Jamison has had several recent emergency custody cases come before her, with one of those cases being a child who fled gang violence in El Salvador. Judge Jamison, who before becoming a judge, represented illegal immigrant children as a guardian ad litem, looks to R.C. 3127.18 and 2151.011(C) for determining jurisdiction and the best interest of the child.

“We must use the standard that it is not in the child’s best interest to be returned to their country, and in the cases I’ve seen it is in their best interest to stay here in order to keep them from being taken advantage of,” Judge Jamison said.

Mercer County Probate Court Judge Mary Pat Zitter is also concerned about the welfare of the children. Though the county of about 40,000 people has not seen an influx of unaccompanied minors, Judge Zitter has seen an increase in the number of delinquent youth from other countries.

“The youth are coming in to my courtroom with someone other than their parent and I’m concerned about who has custody, whether the relatives have legal standing,” she said. “I’m worried that if I press the issue too much, they may drop out of school, get lost in the shuffle, and then be vulnerable to victimization.”

Another issue when dealing with custody in these cases is the requirement that parents whose rights are being severed be served notice – a difficult task if the parents’ whereabouts are unknown in a foreign country.

Lorain County Domestic Relations/Juvenile Court Judge Debra Boros faced that when trying to locate the parents of an unaccompanied minor from Mexico, even contacting the Mexican consulate for help.

“It was a difficult, time-consuming process and you add to that the language barrier,” she said of the experience. “We have to fulfill the requirement under our laws, and just because the child is here does not sever the rights of a parent in another country. We can’t assume the parents sent their children here voluntarily.”

Judge Boros, the immediate past president of the Ohio Association of Juvenile Court Judges, suggested it might be helpful for Ohio courts to exchange ideas on the topic of where to start when making sure the absent parent has an opportunity to participate in the process.

Awareness and Action

The conversation about unaccompanied minors has been included in continuing legal education seminars, including a portion of an Ohio Judicial College webinar in November titled “Paternity, Custody & Child Support.” A little more than 100 judges and magistrates participated in the discussion led by Ohio Legal Assistance Foundation Executive Director Angela Lloyd, who has been passionate about the issue since 1996 when she had an immigration law practice.

“You have kids, hundreds of them, at any moment in time that end up in Ohio without the benefit of two loving parents,” Lloyd said. “We need to focus on their best interests while they are here, and my hope is that judges will be open and receptive to these cases and feel confident in making those determinations as they do every day for children.”

Judicial College Interim Director Christy Tull expects more education on this subject in the future for the state’s judges and magistrates.

A call for more awareness and education is coming from the American Bar Association, which recently formed the Working Group on Unaccompanied Minor Immigrants. Columbus attorney Scott Friedman of Friedman & Mirman is a member of the group, and this summer visited San Antonio, Texas, to see where the children are housed until they are released to sponsors while they await immigration proceedings.

Friedman said the experience was eye-opening: “We heard from some of the kids of how they had to ride on top of trains with no food and water. You could see the pain in their eyes,” he said.

He added that at court hearings they observed some of the children did not have legal representation. The ABA working group would like to see more lawyers step forward to provide pro bono legal services.

Friedman recently took his first case, a 16-year-old whose parents are still in Honduras.

“I am a family law attorney and have no immigration law experience, but I felt it was important to do this.”

Hoffman, Jeovani’s attorney, sees the importance of the issue, too.

“When I look at these kids, I see a surgeon or the next Einstein, but not if they have to go back to the situation they worked so hard to escape from in their home country. It’s life or death for some of these kids,” he said.

Resources on the unaccompanied minor issue are available at courtnewsohio.gov/minors.

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