Can Parental Rights Be Terminated For Not Speaking English?

Can Parental Rights Be Terminated For Not Speaking English?

by Michelle Kaminsky, Esq., December 2009

While the debate over whether new immigrants to the United States should be required to learn English always seems to be floating somewhere near the surface of American society, it has recently dipped into a new pool—the area of parental rights. One Tennessee juvenile court judge is developing a bit of a reputation for admonishing immigrant women; if they don't learn the language, he will consider terminating their parental rights to their children.

Can he do that?

So far, Judge Barry Tatum has warned up to 5 women in this way. One such case was that of Felipa Berrera, a Mexican immigrant living in Lebanon, Tennessee. Berrera is Mixtec and speaks only the Mixteco dialect—neither English nor Spanish. Berrera's 11-year-old daughter had been taken from her because of allegations of neglect and abuse, and last October, Berrera appeared before the judge with an interpreter. She denied the allegations and asked that the family be ordered to attend counseling.

Judge Tatum denied the request, scheduled the next hearing for April of this year, and reportedly told Berrera that if she didn't acquire at least a 4th grade mastery of English by then, he'd consider terminating her parental rights.

The "Learn English or Else" court order was not open to the public, as is usual in juvenile court proceedings, but Berrera's attorney read a portion of it to a news source, giving insight into Judge Tatum's rationale: "If the mother is able to learn English, she will be able to speak to her daughter for the first time in a substantive manner and will show her that she loves her and is willing to do anything necessary to connect with her."

But at the hearing in April, which was open to the public, Judge Tatum didn't require Berrera to answer basic questions in English. Instead he said he had no jurisdiction to set a trial regarding termination of parental rights because there is an ongoing, separate custody case in another court.

In another case earlier this year, Judge Tatum also warned eighteen-year-old Victoria Luna to study English and use birth control after her toddler was taken because of neglect allegations. Judge Tatum later restored full legal custody to Luna.

Judge Tatum hasn't said much publicly regarding his "Learn English or Else" orders, but when asked what mastery of the English language has to do with parenting skills, he reportedly said, "It's common sense."

Although Judge Tatum hasn't yet actually terminated anyone's parental rights on the basis of their lack of English proficiency, could it happen? Is it legal?

The Tennessee American Civil Liberties Union (ACLU) and the Tennessee Immigrant and Refugee Rights Coalition are just two of the groups that say no, calling the practice discriminatory and unconstitutional. Linking English proficiency and parental rights, they would argue, is a violation of mothers' rights; namely infringing on the constitutional right to raise children as one sees fit—which includes choices of schooling, religion, and in most instances, medical care.

Immigrant mothers already face a difficult road in juvenile court proceedings, as interpreters aren't always available at court proceedings—courts in the southeastern United States are particularly ill-equipped in this area. Moreover, even though courts are required to inform consulates when their nationals are involved in proceedings, it often doesn't happen in juvenile cases.

When Judge Tatum makes his English admonitions, do they even have legal force? As juvenile records are sealed, we can't know for sure what gets written down as part of a legally enforceable order and what are simply words of advice, however misplaced, from the bench. Regardless, though, as a family law professor from VanderbiltUniversity has pointed out, such advice should pertain to behavior that could contribute to abuse or neglect; whether or not a mother speaks English doesn't seem to fit into that category.

Regardless of the legal force of Judge Tatum's ultimatum, his warnings about termination of parental rights undoubtedly affect the immigrant mothers who face them—coming from a government official, these are heavy words to use with those lacking much experience in the American legal system.

Lebanon, Tennessee is 20 miles east of Nashville and has seen its immigrant population swell in the past decade or so. There are about 500 Mixteco speakers, and 1200 migrants in total in this community that was 83% white in the 2000 census. The community seems to be split in its opinion of Judge Tatum's approach, but a sizable group feels that assimilation is essential. In Judge Tatum's own words, he is concerned that "we have an American citizen who runs the risk of losing out on all the opportunities if she's not assimilated into the culture."

Perhaps Judge Tatum's orders are well-intended and do focus on the future opportunities that will be available to both the mother and child; but threatening to terminate parental rights is not only an extreme way of getting this point across, it also injects a politically-charged viewpoint into parental right hearings—a most inappropriate place.

The language spoken at home shouldn't even be an issue in abuse and neglect cases. If Judge Tatum and others in his position would like to help immigrant families learn the English language, offering to pay for courses and tutoring services would demonstrate altruistic concerns much more effectively than threats of losing their children.