This is the third article in a Rewire.News series on the treatment of pregnant migrants under the Trump administration’s “zero-tolerance” policy. Read the first article here, and the second article here.
It has been almost a year since President Donald Trump signed the executive order purporting to end his policy of separating parents and children at the U.S.-Mexico border. However, his administration’s broader zero-tolerance policy continues today—and because of it, a particularly heinous form of family separation is playing out in Texas.
As Rewire.News reported in part one of this series, migrants prosecuted under the “zero-tolerance” policy are remanded to U.S. Marshals Service (USMS) custody, and this is when lapses in medical care happen. Advocates told Rewire.News pregnant migrants detained in USMS custody are not receiving adequate services, and they are shackled when accessing prenatal and postpartum care. Some women are even shackled during birth, as Rewire.News reported in part two of this series.
Advocates also report that some asylum seekers in the Western District of Texas who have given birth in USMS custody were forced to hand over their newborns to the Texas Department of Family and Protective Services (DFPS). Reuniting with their newborn hinges on their release from federal custody, and whether they can access legal help to navigate the child welfare system. We learned that women who find their way to advocacy organizations appear to be reuniting with their newborns, but Rewire.News was unable to verify what happens to the children of women who do not have access to legal help.
“You Have a Legal Right to Your Baby”
Late last year, Dr. Shelly (a pseudonym), an OB-GYN in the Western District of Texas, said there were multiple cases where pregnant migrants who had just given birth at her hospital were forced to give their children up to Texas DFPS.
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“I don’t know if they lose their babies for good,” the doctor said. “But I do know the process is torturous for them.”
Dr. Shelly did not share her real name or the name of her Texas hospital out of fear of repercussions. Rewire.News has confirmed that her hospital contracts with facilities that detain prisoners, including migrants, and some of her patients are pregnant asylum seekers in USMS custody.
Around Thanksgiving, Dr. Shelly said, Texas DFPS attempted to place a detained woman’s newborn in foster care. The woman “cried for 72 hours straight,” Dr. Shelly told Rewire.News. The OB-GYN held the woman at the hospital for five days so that she could see a psychologist. (USMS standards usually allow for 48 hours in the hospital following vaginal delivery or 72 hours following a cesarean section.)
“I was worried she was going to hurt herself when they took her back to the detention center,” the doctor said. “Luckily in her case, they were eventually able to locate an aunt-in-law, her uncle’s wife, who lived in Chicago. But this wasn’t a blood relative, and it wasn’t someone she’d ever met before.”
USMS didn’t allow the woman to have visitors, not even the aunt-in-law who was going to take custody of her newborn, according to Dr. Shelly. The doctor said her colleague dashed back and forth between the waiting room and the patient’s room, taking photos of the aunt-in-law and the patient so they would have some idea of what each other looked like.
“When the nurses still thought the baby was going into foster care, they tried to help [the patient] memorize the name of the hospital,” Dr. Shelly said. “They were saying, ‘We have your fingerprints, we have your baby’s footprints. You have a legal right to your baby.’ In case she got deported without her baby, the nurses wanted her to know the hospital where she gave birth and understand that we had the records to prove this was her baby.”
Dr. Shelly said she doesn’t know if the U.S. citizen newborns of detained parents are eventually adopted or whether detained patients are deported without regaining custody of their babies. The OB-GYN is also unsure if foster parents have any obligation to remain in communication with parents remanded to USMS custody.
According to USMS, the onus for child care placement is on the detained parent, though it appears as if asylum seekers who give birth in USMS custody don’t have many choices at all.
“Child placement and care is the responsibility of the prisoner. Under no circumstances may the newborn child be returned to the detention facility with the prisoner, except in accordance with the detention facility’s visiting policy, if any,” according to a statement from a USMS spokesperson to Rewire.News. “The [USMS] may assist the prisoner, as appropriate, in contacting the prisoner’s family or community social service agency to assist the prisoner in determining the placement of the child. It is the responsibility of the prisoner to notify the court, the [USMS], the hospital, and the attending physician, in writing, of her placement decision as well as the financial responsibility arrangements she has made for her child’s care.”
Paul Zimmerman, a spokesperson for the Texas DFPS, told Rewire.News the agency does not have data “to indicate the frequency of this scenario.” Approximately 21,554 immigrants are in USMS custody, but it is unknown how many have given birth in custody. Rewire.News has filed a Freedom of Information Act (FOIA) request with USMS to obtain this information.
The spokesperson did clarify that if no caretaker is available for the U.S. citizen newborn of a detained woman, the newborn would “come into state conservatorship.” The spokesperson said in an email: “We would look to establish a visitation plan as we would with any case, and continue working to reunify parent-child if possible or find appropriate relative placement. As with any case, termination of parental rights is a last resort and recommended to the court only if established to be in a child’s best interest.”
Patrick Crimmins, Texas DFPS’ media relations manager, denied his agency is facilitating these separations. Writing in response to a Rewire.News records request regarding the separation of migrant mothers in USMS custody from their U.S. citizen newborns, Crimmins said Texas DFPS didn’t have “any records” responsive to the request.
“The process or scenario you describe does not exist; migrants do not place newborns with DFPS. Children are only removed into the conservatorship of the State of Texas following an investigation into abuse or neglect, and a confirmed finding of abuse or neglect. Any removal also has to be approved by a judge.”
The experiences of advocates who spoke to Rewire.News conflict with Crimmins’ statement.
Taylor Levy is the legal coordinator of Annunciation House, an El Paso nonprofit that provides shelter and other services to newly arrived immigrants. She said she has personally seen “multiple cases” of asylum seekers giving birth in custody only to have their babies placed into the care of DFPS. She has also personally helped asylum seekers regain custody of their newborns from Texas DFPS.
“Migrants in criminal custody who have babies who are U.S. citizens are placed with DFPS if the mother is taken back to criminal custody, and the mother has no one with lawful status to agree to take in the baby,” Levy said.
She believes these separations, however temporary or long-term, are happening as “emergency ex parte placements later confirmed by a judge.”
A caseworker can conduct an emergency removal of a child before obtaining a court order, according to Texas DFPS’ website, simply by obtaining approval from their supervisor and program director. Once the child is in their care, an attorney representing DFPS will file a petition with the court to request an emergency hearing. The court must hold the emergency hearing on or before the first workday after the child was removed.
The caseworker then participates as a witness in the “ex parte emergency hearing,” meaning a hearing that is only attended by one party. In the case of a migrant woman in USMS custody, this would mean only DFPS attends the hearing.
If DFPS does not want to or cannot return the child to their parent, the agency must prove to the court one of several potential conditions as to why the child must remain in their care. For migrants in USMS custody, there are likely two conditions being cited: There wasn’t sufficient time to hold an adversary hearing, and “reasonable efforts” were made to prevent or eliminate the removal. This latter condition could mean that the caseworker attempted to place the newborn with a family member who has authorization to be in the United States, but no such family member existed.
Rewire.News reached out to multiple social workers in the Western District of Texas who might be willing to speak out about the family separations occurring in their hospitals, but none responded by publication time.
When asked about the information from Texas DFPS’ website, Zimmerman provided a new statement to Rewire.News, with the help of Texas DFPS’ legal team.
Zimmerman clarified that if a baby is born to a woman in local, state, or federal custody, the hospital may make a report to child protection authorities. If a parent or relative is not available to care for the child whose mother is in custody, a child protection agency may request temporary custody of the child.
“Determining whether there is a parent or relative available to care for the child is based on safety and overall ability to care for the child,” Zimmerman wrote in an email. “All removals of a child require a court order. If urgent circumstances make an ex parte order necessary, a noticed hearing must be held in order to continue any temporary order for custody.”
Zimmerman added that efforts made to reunite a parent and child “are tailored to a parent’s circumstances to the extent possible,” and that “the impact of a parent’s incarceration on reunification efforts may depend on the length of a prison sentence, the reason for incarceration, the availability of services in the specific facility and many other facets of a child protection case.”
The spokesperson also referred Rewire.News to U.S. Citizenship and Immigration Services (USCIS) because, according to Zimmerman, the agency “has policy regarding parents in custody that might be relevant.” However, USCIS said to Rewire.News that the agency “adjudicates affirmative asylum cases,” and that it has “no involvement in detention.”
“All of These Agencies Are to Blame”
There is a precedent for the court system using migration, immigration status, and detainment to strip migrants of their parental rights. An example of this is a 2007 case in which a judge terminated an undocumented mother’s parental rights, saying that “illegally smuggling herself into the country is not a lifestyle that can provide any stability for the child.” A second judge upheld the ruling, saying that the undocumented mother “abandoned” her U.S. citizen son when she was detained in federal immigration custody.
This same scenario could be playing out for migrants who give birth in USMS custody after being prosecuted under zero-tolerance, but solid numbers are hard to come by. Agencies are unwilling to share this information with media, and women who have given birth in custody seem unwilling, unable, or afraid to speak out, based on Rewire.News’ multiple attempts to speak to asylum seekers about their experiences in USMS custody.
As Levy previously told Rewire.News, the Department of Justice often drops the charges against women forced to give birth in USMS’ custody. Once the charges are dropped, USMS then has to transport the migrant into Immigration and Customs Enforcement (ICE) custody so that ICE can release them.
In El Paso, women newly released from federal custody often find their way to Annunciation House, where Levy and other advocates help them navigate Texas’ child welfare system so that they can regain custody of their newborns. But Levy told Rewire.News she’s unsure of what happens to all of the children born in federal custody to women prosecuted under zero-tolerance.
Language barriers and access to legal help can make tracking their babies down insurmountable, especially if they don’t know where to look. Federal agencies do not regularly afford parents means to participate in custody proceedings, or the ability to coordinate with child welfare agencies for reunification.
“It’s unclear how long the separation is, and what happens to people who don’t end up with us,” Levy said. “The last case we had, we were able to get the mother back her baby within one or two weeks, but again, I don’t know what happens to people who don’t get to us.”
The Trauma of Seeking Asylum
Rachel Roth’s work as a reproductive justice scholar, consultant, and advocate focuses on the impact of imprisonment on women’s reproductive health and rights. Roth said the federal Adoption and Safe Families Act (ASFA) enabled courts to terminate a parent’s rights if their child has been in foster care for 15 months in a 22-month period. According to the American Bar Association, the deadline for the termination of parental rights can be extended when there is a compelling reason, but “a parent’s detention or deportation is not explicitly listed.” In fact, there is systemic bias against undocumented immigrant parents and relatives in the child welfare system, with some child welfare agency administrators, caseworkers, judges, and attorneys asserting that children are better off in the United States with U.S. adoptive parents.
Social workers also encounter obstacles when trying to help detained parents stay in communication with their children.
“When children are in foster care, social workers are obliged to keep parents updated and may be obliged to bring their children for visits, but this may not happen in practice, especially if the child’s mother is incarcerated far away,” Roth told Rewire.News. “Because many states have only one prison for women, or site prisons in rural areas are far from cities, and because [federal agencies] move people around the country at will, foster care agencies may not ensure that children can see their parents.”
Roth said only a small number of states have revised their foster care laws to give parents in prison more opportunities to maintain their legal rights to their children, but she is unsure if these laws apply to parents in federal custody.
Katharina Obser, a senior policy adviser at the Women’s Refugee Commission’s (WRC) Migrant Rights and Justice program, told Rewire.News it is her fear that agencies may be stripping migrants of their parental rights, simply because the Trump administration has decided to criminalize their ability to seek asylum.
U.S. Customs and Border Protection (CBP) could release these women shortly after they are first apprehended, and then refer them to organizations like Annunciation House that can offer support as they pursue asylum and prepare to give birth. But that’s not what happens.
“Choosing to refer women for prosecution in such late stages of pregnancy, knowing they will soon give birth and suffer these subsequent consequences, is really unconscionable—and all of these agencies are to blame,” Obser said. “CBP for referring them for prosecution, the U.S. Attorney’s Office for taking their case, and the U.S. Marshals for incarcerating them, which leads to tragic consequences. It’s a series of choices made by these agencies, they’ve all made the choice to target pregnant asylum seekers.”
Dr. Shelly told Rewire.News she has encountered multiple women in USMS custody who were forced to hand over their newborns to the child welfare agency. In fact, she has even delivered some of the babies who may ultimately be permanently separated from their asylum-seeking mothers.
In some cases, these women find their way to Annunciation House, where Levy and other advocates help them track down their babies. The organization’s legal coordinator told Rewire.News that when she speaks to women who’ve given birth in USMS custody, they’re “utterly shocked” because they did not anticipate the trauma that seeking asylum in the United States would entail.
“It’s horrifically traumatizing. Some women told me that after their babies were taken, they begged to be deported because they thought that would mean reuniting with their baby,” Levy said. “Just think about it. You’re 18, 19, 20 years old. You’re in an entirely new country. You just gave birth and your baby is taken from you after two days. You have no clue what is going to happen to your baby or if your baby is safe. You’re taken back to prison, your breasts are leaking milk, you’re in pain, and you sit in a prison cell with no idea when you’ll get released or if you’ll see your baby again. All of this because you crossed a line without permission.”