Child Welfare Law, Immigration Policy, and Their Intersection (June ...

Child Welfare Law,Immigration Policy,and Their IntersectionHoward Davidson, J.D.Director, ABA Center on Children and the Law202/662-1740 davidsonha@staff.abanet.org

Child Protective Services /Child Welfare System Mandates• Titles IV-B B and IV-E, , Social Security Acthelps fund state home-based and foster careservices. Although unaccompanied immigrantchildren/non-citizen citizen children of undocumentedparents aren’t “IV-E E eligible”, all states providesome foster care that is fully state-funded, andsome foster care may also be federal Title XXfunded (so its not part of the federal $ ban)• CAPTA: : Child Abuse Prevention and TreatmentAct (42 U.S. Code §5101) mandates CPSprovide protective services to all children

Eligibility for Federal Benefits forThose Not “Qualified Aliens”• 8 U.S. Code § 1611(b)(D): Exception tofederal benefit ineligibility: “necessary services”to protect life or safety (e.g., CPS; foster careplacement & family preservation services)• Attorney General’s s Order 2049[http://www.usdoj.gov/archive/opd/agorderf.htmwww.usdoj.gov/archive/opd/agorderf.htm]Specifies “necessary services” to be--crisiscounseling and intervention, services/assistancerelating to child protection, violence and abuseprevention, , and short-term term housing/shelterfor runaway, abused or abandoned children

Important Change for ChildWelfare Agencies in P.L. 109-432• Tax Relief and Health Care Act of 2006• Amends federal child welfare law to requirestates, as part of their child welfare stateplan, to verify citizenship or immigrationstatus of any child in foster care using eitherIV-E E or IV-B B funding (and so certify by 6/20)• Law also requires HHS to determine throughthe CFSR process whether state is inconformity with this• Will states be expected to do this for purelystate-funded foster care and other services?

CAPTA 2003 Sense of CongressAmendment“It is the sense of Congress that theSecretary should encourage all States andpublic and private agencies or organizationsthat receive assistance under this title toensure that children and families withlimited English proficiency who participatein programs under this title are providedmaterials and services under suchprograms in an appropriate languageother than English.”

Special Immigrant Juvenile Status8 U.S. Code § 1101(a)(27)(J)• Gives visa authority for an under 21 child’spermanent residency if: under jurisdiction ofjuvenile court (including legal guardianship);can’t be reunited with parents due to abuse,neglect, or abandonment; eligible for “longterm foster care”; return home not in child’sbest interests; & found “dependent” by courtor legally committed to a state agency• Judicial education critical: Benchbook / SIJS& VAWA Manual at www.ilrc.org

Immigrant Child VictimProtections in the ViolenceAgainst Women Act• VAWA (provisions in 8 U.S. Code § 1154)--Non-citizenchild (up to age 21) may “self-petition” for lawful permanent residency inU.S. if “abused” by their U.S. citizen orlawful permanent resident parent (includingan adoptive parent).-- Or, non-citizen“protective” parent whois victim of battering can petition on behalf ofboth themselves and their children

Five Suggested Principles for Law andPolicy Regarding Child Welfare Services toUndocumented Child Immigrants1) Cases of child immigrants who have beenvictimized should be handled by a childwelfare agency, and not through a criminaljustice system process2) Child welfare agencies should be requiredto serve immigrant children and familiesregardless of immigration status, andaccept prompt custody of unaccompaniedor separated children where necessary forchild’s s safety, permanency, and well-being

3) Child welfare agencies should provideculturally-sensitive support and services toimmigrant families4) For unaccompanied/separated immigrantminors, child welfare agencies shouldfacilitate prompt inquiries/decisions onsafety of repatriation, including expeditiouschecks on suitability of child’sparents/relatives both in U.S. and in othercountries5) Child welfare agency attorneys should,where appropriate, bring about legalactions that, with court support, can helpunaccompanied or separated childrenremain in-country, when appropriate fortheir protection

Connecticut Department of Children andFamilies Policy 31-8-13 13 (12/05)• Clearly states that agency services areavailable regardless of immigration status,including “family preservation efforts toavoid family members being separatedthrough incarceration due to violation ofimmigration status of deportationprocedures” and that CPS shall servechildren who don’t t have documentationpapers. Identification of undocumentedpersons “shall not result in” reporting toDHS. Says that workers should aidchildren in their care to get Green Cards.

New York City’s s Implementation of“Local Law 73”• Immigration and Language Guidelines forChild Welfare Staff addressing immigrationstatus issues in CPS investigations andfoster care placements, working withimmigrant clients, & language issues [at:http://www.nyc.gov/html/acs/downloadswww.nyc.gov/html/acs/downloads/pdf/immigration_language_guide.pdfimmigration_language_guide.pdf]• Provides“LanguageIdentification Card” tohelp determine family’s s primary languageand then provide language-specific services(ACS clients speak 35-plus languages)