Attorneys for foster parents of 8-year-old citizen sue to stop Mass. from sending her to Guatemala

The foster parents of an 8-year-old girl are appealing a federal court ruling that clears the way for the Massachusetts Department of Children and Families to send the U.S.-born child to live with her father in Guatemala.

The foster parents sued in federal court in September, saying the transfer to Guatemala was tantamount to a deportation, which only the federal government can do. District Court Judge Angel Kelly on Friday dismissed the case, saying federal courts do not have jurisdiction on state actions, and that the case does not meet the exceptions allowed by law.

The child has lived with her foster parents in New Bedford since 2021, after being placed in the custody of the Department of Children and Families. The lawsuit says her biological father has never parented the child and accuses him of the statutory rape her mother. He was deported in November 2024.

The father's attorneys did not respond to WBUR's request for comment.

The foster parents' attorneys argued the child does not have a relationship with her father and has never lived with or had "meaningful communication" with him. She was conceived when her mother was 15 years old and her father was 29, the attorneys wrote.

The judge outlined in her dismissal that the father in January 2022 began supervised visits with the child and "engaged with DCF" to start trying to gain custody of his daughter. The agency in May 2024 changed its "permanency" goal for the child from adoption to reunification with her father.

In September 2025, a juvenile court then gave the child's biological father custody of the girl, but stayed its order because he lived in Guatemala. At that time, the court gave DCF temporary custody and "directed DCF to transition" the child to her father's custody in Guatemala.

DCF said it must follow court orders. However, "due to state and federal privacy requirements, the Department cannot provide information about specific cases,” a DCF spokesperson said.

Unless a federal appeals court intervenes, attorneys for the foster parents say the child could be placed on a plane within days.

Kirsten Zwicker, an attorney for the foster parents, said the state is “effectively deporting” a U.S. citizen to a country where she may not have legal status.

“There is no indication that her emotional and psychological needs can be met in Guatemala,” Zwicker said. “The state has not explained under what authority it is sending a U.S. citizen child to a country where it has no jurisdiction.”

The child does not hold Guatemalan citizenship or a Guatemalan passport. Attorneys also said she doesn't speak Spanish.

“She’s being forced to relocate indefinitely to a foreign country where she doesn’t know the culture, she doesn’t speak the language, and the individual she’s being placed with doesn’t speak her language,” Zwicker said.

Friday's ruling was focused on the court's jurisdiction, and did not address any of the facts of the case.

Zwicker said the judge's dismissal is not an approval of the state's actions.

“What we are doing is challenging the constitutionality of a state government agency removing a U.S. citizen from the United States without any due process or oversight,” she said.

Zwicker also said DCF would have no oversight of the 8-year-old once she leaves the U.S.

“If this were a domestic placement, they would have to follow-up with a sister agency,” Zwicker said. “They acknowledge they will have no ability to do that. So effectively, when they leave her at the airport with her biological father, that is it.”

DCF declined to answer questions about whether it has carried out similar transfers in the past. The agency said it contracts with International Social Service USA to conduct international home studies and parental assessments for children whose families live abroad, but did not explain how oversight would function in Guatemala.

For now, the child remains in Massachusetts while the U.S. Court of Appeals considers whether to intervene.