PRESENTATION BY:Yali Lincroft, MBA, Policy Consultant, First Focus & Program Officer, Walter S. Johnson Foundation

Howard Davidson, JD, Director, American Bar Association Center on Children and the Law

Immigration Issues Impacting Children & Families Involved in the Child Welfare System

North Carolina Court SystemRaleigh (Sept 13, 2013)

1

About First Focus/First Focus Campaign for Children

First Focus/First Focus Campaign for Children is a bipartisan advocacy organization dedicated to making children and families a priority in federal policy and budget decisions. www.firstfocus.net

Primary sponsor for California SB 1064 (de Leon), New York S4185 (Parker) and federal HR6128 (Roybal-Allard). Co-author of “Children’s Principles for Immigration Reform” (signed by over 200 organizations) and assisted in development of recent ICE parental directive memo.

http://ffcampaignforchildren.org/2

About MCWNN

• Began in 2007, the Migration and Child Welfare National Network (MCWNN) is a coalition focused on the intersection of immigration and child welfare. The network has three primary area of focus – research, policy/advocacy, and promising practices and is hosted by the Jane Addams College of Social Work - University of Illinois.

3

Sample Resources on MCWNN website

Child welfare agency policies, training ppt, research articles, and social worker toolkits. For more information, go to http://www.mcwnn.uic.edu

4

About Children of Immigrants• Comprise one quarter of all children in the U.S. • Will represent one-third of all US children over the

next 40 years.• Children of immigrants represents all the growth in

national workforce• 5.5 million children, 4.5 million of whom are U.S.

citizens, have at least one undocumented parent• 27.8 % are living below federal poverty, compared to

18.6% of native born • 27% (47% Mexican origin) parent completed less than

high school education• Least likely to have access to health care

55

• Demographic changes in electorate helped Obama win second term

• Since beginning of year, many predicted political momentum from Nov election would influence immigration reform debate

6

After the Presidential Election …

Status of Comprehensive Immigration Reform (CIR)

In June, Senate passed S744 with bipartisan support and support of the White House:

• Border enforcement measure • Expansion of HB1 and employment based visas• Require an exit system in place for tracking departures

of foreigners.• Offer major exemptions for DREAMers, giving them

faster path to citizenship• Senate plan will alter waiting periods to 13 years (10

years wait for green card, then 3 years for citizenship).7

BUT … House Opting for Piecemeal Legislation

• House refuse to vote on S744. Five bills reported out of committee. SAFE Act (HR2278) is enforcement only approach to immigration:– Grant states full authority to create and enforce

own civil and criminal penalties for federal immigration violations

– Expand definition of “aggravated felony” and criminalize illegal entry

– Cut funding for DACA and other prosecutorial discretion

8

• Some argue that a more aggressive use of executive solution ahead (e.g., Sen. Marco Rubio)

• Examples of Administrative Action:– June 2012, Deferred Action for Childhood Arrivals (DACA) issued; 245,493

people approved as of March 2013. – Jan 2013 new regulation allows certain immediate relatives of US citizens

to file a waiver for unlawful presence and await a decision while residing in the US prior to consular processing.

– August 2013 ICE Parental Directive announced.

Obama Administrative Policies on Immigration

9

• Congress is only in session for 9 days in September• Attack on Syria and Budget Battle is taking up Congress’ time• Unlikely Republican leadership will agree to move forward

with any immigration legislation until January 2014

Uphill Battle Ahead

10

FF Campaign for Children: Testimony to Senate Judiciary Committee (March 18, 2013)

• Direct, clear, and reasonable pathway to citizenship, including distinct pathway for immigrants brought to US as children.

• Ensure immigration judges are able to consider hardship to US citizen children in decision regarding their parents.

• Reform immigration enforcement policy to prevent detention of parents whenever possible; ensure parents granted due process and right to make decision about their children’s care.

11

• Require child welfare agencies adopt policies to promote reunification when possible.

• Ensure newly legalized immigrants have equal access to affordable healthcare, nutrition assistance and income supports without additional waiting periods, as well as family tax credits.

12

Complications of Immigration Law

• Constantly changing• Multiple layers of bureaucracy• Much discretion and exceptions from immigration

officials• Many barriers for consideration in each case• Different immigration laws applies based on when

and how the client arrived in the U.S., which country they left, if they have a criminal conviction,

• Can take a long time

13

Increased Number of Unaccompanied Alien Children (UAC)

• FY 2012, the UAC experienced an unprecedented increase in referrals from DHS, almost tripling the program’s size over the previous 8 years (from 6-7,000 referrals to 23,500 in FY2013)

• Profile of UAC have changed with children entering care with higher incidences of trauma, increasing complex needs

14

UAC Report from Women’s Refugee Commission, “Forced from Home”

What does this mean for child welfare?

• Population of Latino children confirmed as victims of maltreatment has more than doubled over past 20 years; 10% in 1995 to 20.8% in 2008

• Undocumented, noncitizen parents are likely to be fearful of contact with child welfare, due to fear of discovery and potential consequences and likely to under utilize public services.

• More undocumented, unaccompanied children likely to enter foster care.

15

California SB 1064: The Reuniting Immigrant Families Act (Oct 2012)

(1) Authorizes courts to provide extension (up to 18 months) in the family reunification period.

(2) Prohibits immigration status alone from being used as a disqualifying factor in determining an individual’s suitability as placement for child (including their own parent).

(3) Requires CDSS provide guidance on establishing MOUs with appropriate foreign consulates in custody cases.

(4) Requires CDSS provide guidance to social workers on assisting children eligible to apply for SIJS, U-, T-, and VAWA.

16

VIDEO/Article – New Immigration Customs & Enforcement directive may keep families

togetherhttp://research.jacsw.uic.edu/icwnn/parental-interest-directive/

See MCWNN website with page focused on parental directive

http://www.abc15.com/dpp/news/state/new-immigration-customs--enforcement-directive-may-keep-families-together#ixzz2eWJq7VzxABC News, Sept 2, 2013

17

ICE Parental Directive (Aug 23, 2013) 11064.1

• ICE immigration enforcement shouldn’t “unnecessarily disrupt…parental rights” particularly for parents “who have a direct interest in child welfare proceedings” & ICE says it will be “safeguarding parental rights”

• Will have national & field Parental Rights Coordinators

18

• Will hold parents in detention facilities “as close as practicable” to where children are living & where court proceedings are (and won’t transfer parents away)

• Will facilitate transportation/escorts for participation in-person at family court, & coordinate final orders of removal with parental arrangements for their children

• Will facilitate child visitation, alternative child caring arrangements, & temporary parental return through humanitarian parole on a case-by-case basis

19

HHS Answers Question: Does Federal Law Prohibit Undocumented Adults Providing Foster Care from

Receiving IV-E Foster Care Payments?

• No, as long as the child is IV-E eligible --“Foster and adoptive parents are not recipients of Federal

foster care and adoption assistance payments; rather, foster care and adoption assistance payments are made on the child's behalf to meet his or her needs” and “Foster care and adoptive home licenses/approvals are not considered a Federal, State or local public benefit” ACYF-CB-PIQ-99-01 (1/14/99)– and note that Title IV-E, Sec. 471 (19) mandates preference of relatives over non-relatives in child placements

20

Exceptions to Ineligibility for Federal Benefits to Non-Qualified Aliens

• 8 U.S. Code Section 1611(b)(D): Necessary services to protect life or safety (I would infer it includes CPS services, foster care placement & family preservation/reunification services)

• 1996 U.S. Attorney General’s Order 2049-1996: Necessary services include-- crisis counseling and intervention, services/assistance relating to child protection, violence and abuse prevention, and short-term housing/shelter for runaway, abused or abandoned children

• 2001 A.G. Order 2353-2001 (66 Fedl. Reg. 3613) Final version of 1996 Order, eff. 1/16/01, affirmed exception for protection of children and youth

21

1994 Multi-Ethnic Placement Act

• MEPA (P.L. 103-382, 42 U.S. Code Section 622; also a Title IV-E state plan requirement) says that: A state or other entity covered by MEPA-IEP may not delay or deny placement of a child for adoption or into foster care on the basis of the race, color, or national origin of the adoptive or foster parent, or the child involved. And foster parents must be recruited that are reflective of a state’s ethnic diversity

22

Fostering Connections Act– Title IV-E

• Public Law 110-351, Sec. 3 requires, within 30 days after removal of child from custody of parent, due diligence to identify and provide notice to adult relatives of the child (no mention of only providing notice to relatives in U.S.)

23

Other Federal Child Welfare Law Requirements Affected by a Parent or Child’s Immigration Status

• “Reasonable Efforts” (Title IV-E)–To avoid placing a child in foster care system; –To speed reunification of child with parent; –To facilitate legal permanency for foster child; and –To facilitate sibling contact

• “Diligent Recruitment” of ethnically diverse foster parents (Title IV-B)

• Verifying immigration status of children receiving agency services, not just foster care (Title IV-E)

• The 12 Month Permanency Hearing, and the “In Foster Care 15 of the Last 22 Months” TPR Mandate (Title IV-E)

24

Connecticut Department of Children and Families Policy 31-8-13 (12/05): Services shall be available regardless of immigration status, including “family preservation efforts to avoid family members being separated through incarceration due to violation of immigration status or deportation procedures”•CPS shall serve children who don’t have documentation papers•Identification of undocumented persons “shall not result in” reporting to DHS•Agency workers should aid children in their care to get Green Cards

6 State Child Welfare Immigration Policies

25

• Utah Division of Child and Family Services Out-of-Home Care Practice Guidelines 303.10 (rev. 6/06): Agency “will seek to meet” the support and health care needs of kids in state custody regardless of immigration status

26

Texas Dept of Family & Protective Services CPS Policy 6700:•Addresses obligation to meet the foreign consulate notice requirement (under Art. 37(b) of Vienna Convention on Consular Relations) when a foreign national child is taken into care•Indicates that consulate can help get home studies done in foreign countries, provide help in making the repatriation/stay the in U.S. decision, and can help assure the safe repatriation of children•Describes process of verifying foster child immigration status, obtaining SIJS status, and the agency’s transportation of undocumented children or parents•Provides sample forms & checklists

27

New Mexico Child, Youth and Family Department Best Practices Guide:

•Disseminates “Working With Undocumented & Mixed Status Immigrant Children & Families” -- www.f2f.ca.gov/res/pdf/Bulletin-BestPractices.pdf www.f2f.ca.gov/res/pdf/Bulletin-BestPractices.pdf (developed through the AECF Family to Family (developed through the AECF Family to Family program– see: program– see: www.f2f.ca.gov/Immigrants.htmwww.f2f.ca.gov/Immigrants.htm))

28

Oregon Department of Human Services Policy 413-120-09 (2010):•Addresses cases where a child may be moved to another country for adoption or adoptive placement in that country, pursuant to the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption•Recognizes that children do emigrate from state foster care to placements across the U.S. border (e.g., for permanent placement with relatives)•Addresses child safety, transition, travel, placement, other requirements•Also addresses the securing of SIJS status for non-citizen children of incoming adoptions to the U.S.

29

Implications of Other State Court Decisions -- Eight Reported Appellate Opinions

• When taking custody due to abuse/neglect by mother, but non-custodial father had no involvement in that maltreatment, his rights related to children must be respected. If seeking to terminate his parental rights, must first provide him services and a case plan that indicates what agency goal is for the child, and promote opportunities for contact with and support of his children. A parent’s inability to reside in the U.S., alone, doesn’t support the termination of their parental rights.

-- In the Interest of E.N.C. et al. (Supreme Court of Texas, 384 S.W.3d 796, October 12, 2012)

30

• When an undocumented immigrant child is taken into federal custody by the U.S. Department of Health & Human Services Office of Refugee Resettlement, a state court that was earlier hearing an abuse/neglect allegation involving that child does not lose its jurisdiction to make requisite findings for her to be eligible for Special Immigrant Juvenile Status. Also, by having that state court case stay open, she will have the benefit of appointed legal counsel.-- In re Y.M. (California Court of Appeals, Fourth District, 144 Cal.Rptr.3d 54, 207 Cal. App.4th 892, July 13, 2012)

31

• Dependency court proceeding can’t consider, in cases involving non-maltreating fathers who reside outside U.S., that child in state foster care “may enjoy a higher standard of living” here compared to where father resides, and it can’t be a factor in decisions to terminate father’s parental rights.-- In re Doe (Supreme Court of Idaho, 281 P.3d 95, June 20, 2012)

• Appellate court steps in to overrule agency’s removal of child from the home of undocumented immigrant grandparents, when such removal was based solely on their immigration status.-- In Re. Dependency of M.R. (Wash. Court of Appeals, Div. 1, 270 P.3d 607, February 16, 2012)

32

• Child welfare agencies must be diligent in providing timely notice of having gained custody of a child, in a way clearly understood to a non-custodial father who does not speak English. The same should be true for case plans that specify the father’s involvement with his child. As soon as a state court begins to hear an abuse/neglect case related to his child, the court should appoint legal counsel for him. -- In Re. P.S.S.C. and P.D.S.C (Appeal of R.S.A., Father), (Superior Court of Pennsylvania, 32 A.3d 1281, Nov. 29, 2011)

33

• Out of country father must be provided with adequate notice and opportunity to participate in state court dependency cases, such as through at least telephone participation, interpreter services, and assignment of legal counsel. Agency must also do a prompt notification that the parent’s child has been taken into custody to the parent’s foreign consulate. pursuant to the Vienna Convention on Consular Relations.-- In Re. R.W. and N.W. (Supreme Court of Vermont, 39 A.3d, 682, Nov 18, 2011)

34

• Parent held in federal immigration detention (or state or federal jail or prison) must be provided adequate notice and an opportunity to be heard in and present evidence at any state child welfare proceeding affecting their children, especially in a case to terminate their parental rights. They must also be given sufficient opportunities to find and arrange for alternative placement of their children, such as with family members, that can help avoid their child’s temporary or permanent placement with non-family members. -- In Re. Adoption of C.M.B.R. (Supreme Court of Missouri, 332 S.W.3d 793, January 25, 2011)

35

• When deported mother seeks reunification with child in foster care, agency must make reasonable efforts to reunify. It doesn’t end simply because parent now resides across a national border. Trial court, before terminating parental rights, must hear evidence proving “parental unfitness,” which can’t simply be based on parent’s immigration status or living in another country. Foreign consulates should be used to address the safety of child’s cross-border reunification, obtaining home studies in their country, & identification and provision of any needed child welfare services abroad.-- In Re. Interest of Angelica L. and Daniel L. (Supreme Court of Nebraska, 767 N.W.2d 74, June 26, 2009)

36