NCDP Perspectives

This post was originally published on June 28, 2018, in the Daily Beast.

The bandwagon of child care and health professionals who have characterized the federal government’s forced separation of migrant children from their parents as “child abuse by government” is overflowing. It would indeed be difficult to concoct a more traumatizing experience for already vulnerable infants and children than what these kids have gone through.

The fact is that, as a pediatrician, if I saw a child being subject to the terror these kids are experiencing, I would be ethically and legally obliged to contact the authorities.  But wait: The authorities are the perpetrators!

And it’s not just psychological trauma these kids are experiencing. There’s rampant child neglect, too, in the detention facilities.  Terrified young children desperately need emotional support from parents and some semblance of a “normal” environment. That’s not happening in the government’s detention centers, or what some call “baby jails.”

And to further compound the unabashed cruelty of what the government has done to thousands of warehoused infants and toddlers is the enforcement of misguided policies that prohibit physical contact with the youngest detainees—even when the best “treatment” for persistent anxiety, weeping, sleep difficulties, language regression, social withdrawal and other symptoms of severe stress is to calm the child by holding or hugging.

The restrictions may have made sense when originally designed as a way to avoid inappropriate contact with older children and adolescents by custodians and caretakers.  But applying that policy guidance to professionals caring for terrified babies, toddlers, and young children is punitive and cruel.

Allegations of “child abuse and neglect by government” are not just overblown rhetoric.  While officials acting under government policies and regulations have a degree of legal immunity, there are potential violations of applicable law in all 50 states.

For instance, the Texas Family Code Section 261.101 mandates immediate reporting of “abuse’ or “neglect” so that “every action in which a child’s physical or mental health or welfare had been or may be adversely affected is potentially covered.” Importantly, “failure to report suspected child abuse or neglect is a Class A misdemeanor, punishable by imprisonment of up to one year and/or a fine of up to $4,000.” All of this is serious and heart-breaking enough. The thought of children and parents who may never be reunited because adults are deported without their kids is tough to think about. While this week’s order by U.S. District Judge Dana Sabraw to reunify children and parents immediately is very welcomed news, reuniting many of the families may now be extremely difficult, if not impossible.

Unfortunately, in one of the worst examples of bureaucratic malpractice—if not malfeasance—in memory, the U.S. Department of Health and Human Services’ Office of Refugee Resettlement, which has been declared as responsible for the care and safety of these children, is often unable to locate the parents or having a way of even knowing the identity of babies, toddlers and the youngest detainees in their charge.

Finally, the notion of forcibly taking children from their parents, detaining them without parental permission, and transporting hundreds across state lines to undisclosed locations sounds a lot like kidnapping. Of course, the government has legal authority to separate children from their immigrant parents, but the effect sounds a lot like the crime:

According to New York law, “A person is guilty of kidnapping in the first degree when he abducts another person and when… (he) restrains the person abducted for a period of more than twelve hours with intent to…terrorize him or a third person…

And in Texas: Sec. 20.04:  “Aggravated kidnapping [is when] a person…intentionally or knowingly abducts another person with the intent to… terrorize him….”

Intent to terrorize? Of course. President Trump, Attorney General Jeff Sessions, and other administration officials claimed that their draconian policies separating and detaining children were designed to be a deterrent. They might as well have finished their thought and said what they really meant: deter other asylum seekers by terrorizing parents and children who dared cross the Southern U.S. border without authorization.

I’m a doctor, not a legal authority, but I can read. And I believe there’s even more for civil rights and criminal lawyers to look into, not the least of which are processes that may be undermining Constitutionally guaranteed due process for people coming across the borders and potential violations of the Civil Rights of Institutionalized Persons Act of 1980 which could apply to separated children in multiple detention centers.

The crisis of America’s worst self-inflicted tragedy in modern times is deeply disturbing to people across the political spectrum.

And for people around the world who are watching this whole nightmare unfold, how can they help wondering about what has happened to our nation’s bedrock commitments to democracy, human rights, and basic decency?

I am wondering myself.