Metropolitan News-Enterprise


Monday, July 16, 2012


Page 1


Court of Appeal Rules:

Trafficking Victim Entitled to Dependency Protection


By a MetNews Staff Writer


A minor who was brought to the United States by her father in order to serve as a sex slave is entitled to the protections of California’s dependency system, as well as those of federal law, the Fourth District Court of Appeal ruled Friday.

Div. One overturned orders by a San Diego Superior Court commissioner, who terminated the court’s jurisdiction over a special needs child identified as Y.M., and denied her petition to terminate reunification services to the father.

Commissioner Michael Imhoff did not necessarily err in concluding that it would be in Y.M’s best interest to remain in federal custody, nor is the court precluded from terminating jurisdiction, Justice Judith Haller wrote for the court. But if the court is to terminate the case, she said, it should base that decision on current circumstances, “with a full understanding of its jurisdictional authority.”

Social workers testified that they became aware of Y.M. after she suffered a head injury during a violent altercation between her father and another family member. After family members claimed seing the child and father had been in an inappropriate sexual situation, and following an abnormal physical examination, the father was arrested and was subsequently deported to Mexico.

Adjustment Problems

The juvenile court sustained a dependency petition and placed the child in foster care and later in a group home. She had significant adjustment problems, which were eventually attributed to a long history of sexual abuse.

Authorities initially believed the child was from Mexico, based on a birth certificate presented by her stepmother, who said the mother was living in Chiapas. But they learned the certificate was a forgery, and that she was actually from Guatemala.

Further investigation by U.S. and Guatemalan authorities led to the conclusions that the father, who had not seen or spoken to the then-14-year-old in years, arranged to have her abducted from her home in Guatemala and brought to the United States illegally; and that the father had sex with the girl on an almost daily basis, allowed others to have sex with her as well, and hit her when she objected.

The father was arrested at the U.S.-Mexico border on federal sexual trafficking charges, and Guatemalan authorities opened an investigation into whether the mother, who did not report the disappearance,  had any role in her victimization. It was also determined that the child—who was transferred to a facility for refugee children—was eligible for a special visa, along with services that the federal government makes available to sex trafficking victims.

Return Sought

Counsel was appointed for all parties. The mother moved to have the child returned to her, while the child—who had been placed in a locked psychiatric facility—moved to be removed from the federal program and returned to San Diego, to have reunification services for the father terminated, and to be found eligible for “special immigrant juvenile” status, which may lead to permanent residency.

 The commissioner ruled that the court was required to defer to federal authorities, reasoning that the U.S. and Guatemala had signed a protocol— which the commissioner likened to a treaty—dealing with treatment of Guatemalans brought to this country by sex traffickers. He also concluded that termination of the state court’s jurisdiction was appropriate since she was in a federal program designed “to repatriate her to her home country.”

Haller, however, said the commissioner’s jurisdictional ruling was error because the protocol is not a treaty and does not preempt state law.

The United States, the justice explained, “is an internal Guatemalan document” that does not displace American law. Nor, she added, had Guatemala sought the child’s return, and in fact the authorities there were concerned about the role of the child’s mother and other relatives there in her abduction.

The jurist further explained that the federal anti-trafficking laws and state dependency laws serve different purposes and should be applied independently.

“Although the state and federal government afford protection to child victims of human trafficking, there are important differences between the two systems,” she wrote, explaining:

“The dependency system is child-centered and is designed to protect the child, reunify the family where safe for the child and find a permanent home for the child when reunification is not possible.

“Its guiding light is the child’s best interests.  By contrast, the purpose of the federal law is to combat human trafficking, ensure just and effective punishment of traffickers and protect their victims....Although a federal agency is responsible for ensuring that the interests of the child are considered in decisions and actions relating to the child while in the federal agency’s actual or constructive custody, and in deciding whether repatriation is appropriate, the federal agency’s objectives are broader and not necessarily focused solely on the child’s best interest.”

The case is In re Y.M., D060420.


Copyright 2012, Metropolitan News Company