A 2018 case studyconducted by the American Bar Association’s Center on Children reported that there are 70 million children under the age of 18.1 Within this total, about 18.2 million children under the age of 18 live with at least one immigrant parent. Most of these children already live in family units with members who are U.S. Citizens, Lawful Permanent Residents, have some other lawful status, or do not have lawful status altogether.
Because of the huge number of families with immigrant familial ties, juvenile courts are no strangers to handling cases involving immigrants, and this also includes the child welfare agencies who are still obligated to take up these cases.
Azucena C. Guizar, Marquette 2022, is a Milwaukee native and first-generation Mexican-American law student, is interested in civil and criminal litigation.
The Applied Research Center (ARC) estimated that in 2011 that about 5,100 children with parents who were deported, or were facing deportation, were in the child welfare system.2 These children enter the welfare system, it said, because the children were suspected to be suffering abuse or neglect, and the parent was turned over to immigration authorities.
In addition, the ARC said that a child welfare agency was already involved in the children’s family matters prior to any detention occurring with the parent, or the children were turned over to child protective services following detention by immigration authorities “either because no other caregiver was available, or the arrested parent was not provided the opportunity to make child care arrangements.”
Courts and child welfare agencies are very often forced to consider how immigration law and policy may affect not only the children and their parents, but also the caregivers.3 However, the courts and child welfare system are reluctant to explicitly address and provide solutions to the issues involving these immigrant families as a whole, favoring to sweep them under the rug.
A Reluctance to Place Children with Undocumented Caregivers
The ARC reported that there is a “prevalent bias against” unlawful immigrant parents and unlawful caregivers among child welfare agencies and family court judges.4 Child welfare agencies and family court judges find that it would not be in the child’s best interest to be reunited with their parents or caregivers with unlawful status, due to concerns about the “limited access to public benefits or services and the inability to demonstrate sufficient employment or attain a driver’s license,” as well as of the threat of deportation.
According to Bill Bettencourt and Yali Lincroft, two of many researchers citing issues that frequently appear in the child welfare system with immigrant families, language barriers are a significant problem. 5 They say that child welfare workers and attorneys agree that is not enough access to translation services and bilingual staff to help communities with growing immigrant populations.
Because of the language barrier, welfare agencies are often limited in effectively supporting these families with essential programs or assessments and providing them with an adequate understanding of any information that could help with their cases. Bettencourt and Lincroft also found that child welfare agencies lack experience when working with immigrant families.
A most concerning problem is the reluctance of child welfare agencies to place children with immigrant family members, according to Bettencourt and Lincroft. For example, a Texas study concluded that “children of immigrants were far less likely to be placed with relatives than children of native-born Latinos,” possibly due to the unlawful status of these family members. This becomes an obstacle for many of these individuals when trying to obtain a foster care license to care for these children.
Unfortunately, with the very real potential of facing the consequences due to their immigration status, families are forced to create contingency plans to ensure that their children are taken care of – whether or not these children U.S. citizens. Sometimes the only option parents have is to arrange for their children to be placed with other family members or close friends with unlawful status.
Only a small number of jurisdictions allow undocumented individuals to obtain foster care licenses.6 In 2017, about 20 states had “standards that require citizenship or documented immigration status” before persons can become caregivers. Of these 20 states, Michigan (only in some cases), Massachusetts, New Jersey, and Oregon, have accommodated licensing requirements for undocumented family members.
In contrast, 11 other states, including Arizona and Mississippi, have licensing requirements that explicitly prohibit undocumented persons from being caregivers, or implicitly “create indirect obstacles” for these people to become caregivers. For example, all states mandate that persons seeking to become caregivers must have U.S. government-issued identification documents such as a driver’s license or Social Security number. States also require background checks. However, being able to provide U.S. identification and go through background checks is often an issue for undocumented individuals.
By 2018, with the anti-immigration agenda pushed by the Trump Administration and the threat of family separation being bigger than ever, New York and Maryland signed laws called the “standby guardian” laws, which allowed parents in deportation proceedings to designate legal guardians to care for their children for 12 months.7 Other states, such as New Jersey and Pennsylvania, followed suit with similar laws to protect the interests of these children.
Seeking a Solution
There is no clear-cut solution to allowing undocumented persons to be caregivers for children placed in the child welfare system, even with parental consent. Resolving the issues is complex, because the solution is in the hands of lawmakers at the state level.
Although federal law does not require that a foster parent be a U.S. citizen, policy and laws regarding an individual’s eligibility to obtain a foster care license vary state-by-state.8 As mentioned above, many states have licensing requirements that expressly exclude undocumented persons from being foster parents, or that create significant barriers to approval of licenses.9
What can be done to seek a more permanent solution is to advocate for clear and concise state policies that protect the rights and eligibilities of individuals with unlawful status to care for undocumented and U.S. citizen children of immigrant parents without the fear of facing immigration consequences themselves just for coming forward.
Some advocates are trying to push lawmakers at all levels to establish “federal programs to support children in the form of health insurance, nutrition assistance and the like to exempt caregivers from [being] a ‘public charge.’”10
It is important to emphasize that Title VI of the Civil Rights Acts of 1964 exists to protect individuals from discrimination based on race, sex, gender, age, and national origin, and this provision applies to the child welfare system.11
In particular, Title VI protects against discrimination based on one’s national origin, which includes “a person’s birthplace, ethnicity, ancestry, culture related to national origin, or ability to speak English.”12
If the courts and child welfare system have the duty to protect the interests of children, which includes “the duty to avoid discrimination on the basis of race, color, or national origin” for child protective services provided and other agency responsibilities, why make it almost impossible for these children to be placed with their undocumented caregivers who are willing and able to care for them?
Any possibility of receiving a clear answer remains swept under the rug.
This article was originally published on the State Bar of Wisconsin’s Children & the Law Section Blog. Visit the State Bar sections or the Children & the Law Section webpages to learn more about the benefits of section membership.
1 Immigrants in the Child Welfare System, American Bar Association (ABA) Center on Children and the Law, May 2018.
2 Falling through the Cracks: The Impact of Immigration Enforcement on Children Caught up in the Child Welfare System, Applied Research Center (ARC), December 2012.
3 ABA, supra note 1.
4 ARC, supra note 2.
5 Bill Bettencourt and Yali Lincroft, “The Impact of ASFA on Immigrant Children in the Child Welfare System,” 29 Child Law Practice 2, 24 (April 2010).
6 Victoria Rocha, “Can Undocumented Immigrants Become Foster Parents in Your State? It Depends.,” The Imprint: Youth & Family News (September 21, 2017).
7 Teresa Wiltz, If Parents Get Deported, Who Gets Their Children?, The Pew Charitable Trusts, Oct. 25, 2018. See also Rachel Turan, Undocumented Kinship Caregivers: Facing Challenges, Foster Care Newsletter (March 1, 2019).
8 ABA, supra note 1.
9 See, for example, Immigrant Caregivers: The Implications of Immigration Status on Foster Care Licensure, American Bar Association Center on Children and the Law, August 2017.
10 “Field Guidance on Deportability and Inadmissibility on Public Charge Ground,” Federal Register, Vol 84, No. 101, (March 26, 1999) (explaining that the “public charge” for the purposes of determining the admissibility of a person with unlawful status, means an unlawful person who is or is more likely to become primarily dependent on the government for support by either “the receipt of public cash assistance for income maintenance” or “institutionalization for long-term care at government expense”).
11 Title VI Guidance Letter, U.S. Department of Health and Human Services Office for Civil Rights Administration for Children and Families, October 2016. See also Title VI Overview for DHS Recipients of Financial Assistance, Department of Homeland Security, April 15, 2016 (explaining that recipients of federal financial assistance are prohibited from discriminating persons in some of the following ways: deny programs, financial assistance, or other benefits; segregate or treat persons who are seeking program services differently than others; and “treat persons differently from others in determining eligibility to receive services”).
12 See Title VI Overview for DHS Recipients of Financial Assistance (explaining that recipients of federal financial assistance are prohibited from “utilizing criteria or method of administration which have the effect of subjecting” a person to discrimination regardless of intent, and the recipients must make reasonable efforts to provide persons with limited English proficiency (LEP), access to any programs and services offered by the recipient).