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									   Immigration Issues
Impacting Child Welfare
  and Child Trafficking
            Howard Davidson, J.D.
Director, ABA Center on Children and the Law
           American Bar Association

  CAPTA State Liaison Officer Webinar–
            June 25, 2010
             Why Is This Important for
             Child Welfare Agencies?
   Nearly 1 in 4 U.S. children live in immigrant families
   Children of immigrants represent 8.6% of all who
    come to the attention of the child welfare system
   But foreign-born children represent less than 3% of
    all who come to the child welfare system’s attention
   Latino children are overrepresented among children
    of immigrants with child welfare system involvement
   One study of undocumented immigrants found, for
    64% of Latinas, a primary barrier to seeking help
    from social service agencies, related to domestic
    violence, is fear of deportation
   One study found children of Latino immigrants 6
    times as likely as children of Latino natives to be
    sexually abused
   The Pew Hispanic Center estimates there were
    5.5 million children in the U.S. in 2008 who had
    at least one unauthorized (undocumented) alien
   1.5 million of those children were undocumented
    themselves; the other 4.0 million children were
    born in the U.S. and thus were American citizens
    who potentially face having a parent deported
   They also report 8.8 million people living in
    “mixed-status” families, including 3.8 million
    undocumented adults and .5 million
    undocumented children, and 4.0 million U.S.
    citizen children
     Some Federal Benefits Are Permitted for
    Otherwise Ineligible (Non-Qualified) Aliens
   1996 Personal Responsibility and Work Opportunity
    Reconciliation Act makes undocumented persons
    ineligible for certain federal public benefits (e.g., IV-E)
   8 U.S. Code §1611(b)(1)(D)(iii): Exception to
    ineligibility: services “necessary” for protection of life
    or safety (e.g., CPS services; foster care placement &
    family preservation & reunification services)
   Attorney General’s Order 2049, 61 FR 45985 (1996):
    Specifies these “necessary services” to 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
           Child Protective Services /
         Child Welfare System Mandates
   A child who is a legal permanent resident, refugee,
    asylee, or Cuban or Haitian entrant alien who has
    been battered or subjected to extreme cruelty, or
    was granted conditional entry -- is IV-E eligible
   Even if immigrant children aren’t “IV-E eligible” all
    states provide fully state-funded foster care, &
    some foster care may be Title XX (non means-
    tested) funded. There is no bar to using Title IV-B
    services for children and families, since they don’t
    require individual eligibility determinations
   CAPTA mandates CPS protective services to all
         Citizenship / Immigration Status
             Provision of P.L. 109-432

        Tax Relief and Health Care Act of 2006
   Amends federal child welfare law to require states,
    as part of their child welfare state plans, that they
    have procedures for verifying citizenship or
    immigration status of every child in foster care,
    whether or not child is receiving IV-E funding (law
    is silent on actually verifying each child’s status or
    simply on sharing information on their state’s
    verification procedures)
   Law also requires HHS to determine through CFSR
    process whether the state has a “program” that is
    in conformity with the requirement
      How Can CPS Agencies Do Better in
    Identifying and Serving Child Trafficking
 From 6/14/10 U.S. State Department Annual
  Trafficking in Persons Report (information in the
  report on the U.S.A.):
“Extensive programs…also assist (the trafficked
  child) population, as do child protective services
  agencies in all states and territories…. It is not
  clear to what extent these programs identify and
  assist child trafficking victims among the children
  they serve (but NGOs reported that)
  these…agencies require training to better identify
  and work with trafficking victims.”
   From Shared Hope International’s
Sex Trafficking Policy Recommendations
Four-Point Overhaul of Child Protective
   Services Required
1)   [CPS] regulations & protocols are sorely
     outdated and ill equipped to respond to the
     sex trafficking of America’s children
2)   Nonetheless, a majority of trafficked children
     have had contact with CPS in some degree --
     Many are current wards of the state or were
     in foster care or group homes at the time of
     their recruitment and victimization through
     pornography and prostitution
3)   CPS is underfunded and overstretched and
     desperately needs the training and
     resources to better protect their clients

4)   Each state should review their [CPS]
     statutes and regulations to ensure that
     specific protections for children who
     are sex trafficked are included --
     Florida’s example is a model of change for
     other states to consider
     Florida DCF Procedures on Intake and
       Investigative Response to Human
             Trafficking of Children
   May 1, 2009 policy directive addresses how state
    hotline will handle child trafficking reports and CPS
    staff will handle suspected trafficking situations
   Special law enforcement coordination &
    multidisciplinary case staffings
   Describes process of getting “certification” for non-
    citizen child trafficking victims from HHS/ORR, and
    appropriate services for this population
   Makes it clear that out-of-home care is available for
    both citizen and non-citizen child victims
   Says that aid will be given for safe repatriation
   Training on human trafficking issues has been
    provided to some representatives of Florida DCF
    through the DCF Protections of Child Victims of
    Human Trafficking Working Group, focused primarily
    on aiding foreign national victims of both labor and
    sex trafficking -- but some information about
    domestic minor sex trafficking is included
   The DCF Working Group also created human
    trafficking training for Florida’s Abuse Hotline
    employees and for a mixed group of providers,
    including child protective investigators, community
    based care agencies, guardians ad litem, mental
    health professionals, child protection teams, child
    welfare services, child victim advocates, child
    welfare attorneys and refugee services providers
    2008 Provisions in Amended Federal
              Trafficking Law
   Public Law 110-457 (William Wilberforce
    Trafficking Victims Protection Reauthorization
    Act of 2008)
   Section 212 authorizes, when there’s credible
    evidence a child may have been subjected to
    trafficking (and if child applies for T visa
    status), 120 days of eligibility for interim
    assistance from U.S. Dept. of Health and
    Human Services (and then long-term
    assistance while their T visa application is
   Legal advocates are needed to help child
    victims file T visa claims
 CAPTA 2003 Sense of Congress
“It is the sense of Congress that the
Secretary should encourage all States and
public and private agencies or
organizations that receive assistance under
this title to ensure that children and
families with limited English proficiency
who participate in programs under this title
are provided materials and services
under such programs in an
appropriate language other than
Multi-Ethnic Placement Act of 1994

     MEPA (PL 103-382, 42 U.S. Code
      Section 622): A state or other entity
      covered by MEPA-IEP may not delay
      or deny the 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.
      Special Immigrant Juvenile Status
              8 U.S. Code § 1101(a)(27)(J)
   Gives visa authority for an under 21 child’s
    permanent residency if:
    1) Declared “dependent on” juvenile court
    2) Placed by court in child welfare agency or
    individual adult custody or guardianship
    3) Reunification with one or both parents is “not
    viable” due to abuse, neglect, or abandonment
    4) Return home is not in child’s best interests
   Legal & judicial education on this is critical:
    See– Benchbook & SIJS materials at:
SIJS Process Improvement Provisions in
   2008 Trafficking Law Amendments

     Provides for expeditious adjudications of
      SIJS status (within 180 days of filing)
     HHS Consent for Juvenile Court jurisdiction
      needed ONLY if child is in HHS/ORR
     Eligibility for SIJS need not be predicated
      upon a formal juvenile court adjudication of
      abuse, neglect, or abandonment – but
      rather simply upon a finding that parental
      reunification would not be viable due to the
      child’s maltreatment or abandonment
Immigrant Child Victim Protections in the
     Violence Against Women Act

     VAWA (provisions in 8 U.S. Code Section
      1154)– A non-citizen child (up to age 21)
      may “self-petition” for lawful permanent
      residency in U.S. if “abused” by their
      U.S. citizen or lawful permanent resident
      parent (including an adoptive parent).
      -- Or, a non-citizen “protective” parent
      who is a victim of battering can petition
      on behalf of both themselves and their
      Children’s Eligibility for “T” and “U”
            Visas, and for “Asylum”

   8 U.S Code Sections 1101(a)(15)(T) and (U) and
    Section 1158
   For victims who have been “trafficked”
    (cooperation with police is NOT a requirement for
    T visas) either for sexual purposes or for unlawful
    labor or services, or who have been victims of
    serious crime who are cooperating with police (U)
   See DOJ 1998 guidelines on child asylum claims:
     What Should Child Welfare Agencies,
     Through Law, Policy, and Training, be
     Doing to Address Immigration Issues?

Twelve child immigrant-sensitive measures that
should be in state child welfare law and policy:
1.   References to immigrant children, including
     unaccompanied immigrant minors
2.   References to immigrant parents, documented
     and undocumented
3.   References to children or families being in U.S.
     under refugee, asylum, or other protected
     immigration status
4.   References to child/family’s immigration status
5.   References to “Special Immigrant Juvenile
     Status” (SIJS)
6.   References to child and protective parent
     eligibility for special VAWA protections
7.   References to agency having to make contact
     with the child and family’s national consulate,
     when a child is taken into custody (Vienna
8.   References on notice to, and possible foster
     care or kinship care placement of child with,
     relatives, documented or undocumented, in
     U.S. or elsewhere
9.    References to child trafficking victims or
      child victims of serious crimes (T and U
      visa issues)
10.   References to language & nationality
      determinations and provision of language-
      appropriate & culturally-appropriate
11.   References to process of checking on
      safety and suitability of possible return of
      child (repatriation) to another country (i.e.,
      out-of-country home studies)
12.   References relating to referral of immigrant
      children and families to legal services
      programs or immigration attorneys
           Models for Intervention
   Delivering Culturally-Sensitive Placements
    and Services: Unaccompanied Refugee
    Minor (URM) Program/U.S. HHS Office of
    Refugee Resettlement; Available to refugee
    minors, those granted asylum, victims of
    trafficking, others
   Not Treating Immigrant Child “Victims” as
    Offenders: U.S.-ratified Optional Protocol to
    CRC on Sale of Children, Child Prostitution
    and Pornography, Art. 8 / Trafficking Victims
    Protection Act, Section 107 & 2005
    additional language on use of special
    residential facilities for child trafficking
   Providing Every Child an Advocate for their
    Court Cases, ideally an Attorney: The Child
    Abuse Prevention and Treatment Act (CAPTA)
    requires states to provide a Guardian Ad
    Litem (GAL), Attorney, or Court Appointed
    Special Advocate (CASA) for every child
    involved in an abuse or neglect related
    juvenile court proceeding (attorneys are
    appointed in all but 11-12 states)
   ABA Immigration Commission has issued ABA-
    endorsed Standards for the Custody,
    Placement and Care; Legal Representation;
    and Adjudication of Unaccompanied Alien
    Children in the U.S. (2004)
From BRYCS (Bridging Refugee Youth &
  Children’s Service) Clearinghouse…
            “Children should never have to
            represent themselves in legal cases,
            including immigration cases; they
            should have access to legal help.
            Child welfare agencies can play an
            important role in the long-term safety,
            stability, and self-sufficiency of such
            children by linking them with
            appropriate attorneys, in addition to
            providing targeted assessment and
 Serving Foreign-Born Foster Children: A Resource for Meeting the Special Needs
 of Refugee Youth and Children, Lutheran Immigration and Refugee Service &
 U.S. Conference of Catholic Bishops Migration and Refugee Services (2004)
     Eight Suggested Principles for Law and Policy on
            Providing Child Welfare Services to
             Undocumented Child Immigrants
1.    Child immigrants victimized by abuse, neglect, or
      abandonment, or otherwise fleeing violence in their
      families, should be served by child welfare agencies
      as a child protection case, without constraints on
      agency/caseworkers providing all services/referrals
      the child needs that should be available to U.S.
      citizen children
2.      State/county child welfare agencies should be
      required to serve immigrant children & families
      regardless of immigration status, and accept
      prompt custody (including foster care if needed) of
      unaccompanied or separated children to assure
      child’s safety, permanency, and well-being
3.   Child welfare agencies should provide culturally-
     sensitive support and language-appropriate
     services to immigrant children and families, using
     resources of grass roots immigrant community
4.     For unaccompanied/separated immigrant
     minors, child welfare agencies should facilitate
     prompt inquiries/decisions on the safety of
     repatriation, including -- after diligent family-
     finding efforts -- expeditious checks on the
     suitability of a child’s parents and relatives as
     placements for the child, both within the U.S. and
     in other countries
5.    If a state/county child welfare agency decision
     is made to repatriate a child, that should only
     be done through close coordination with child
     welfare authorities in the country of return,
     with special attention given to the child’s safety
6.     Child welfare agency attorneys should, where
     appropriate, promptly institute legal actions
     (including juvenile court proceedings that
     provide the predicate for SIJS status or that
     find a child to be a victim of family violence or
     trafficking) that can help unaccompanied or
     separated children remain in-country, when
     appropriate for their safety, permanency, and
7.    Child welfare agencies should not institute
     termination of parental rights (TPR)
     proceedings against deported or immigration-
     detained parents without giving them full
     opportunity to be present and participate
     actively, through competent counsel, in such
     proceedings, and deportation/detention should
     not itself be used as a basis for TPR
8.     Child welfare agencies should promptly follow
     the consular notice requirements of the Vienna
     Convention on Consular Relations as soon as it
     takes a foreign national child into child
     protective custody or institutes a state court
     action that could affect parental rights, but
     consult with counsel if doing so could subject
     the child or family to danger
       State/Local Laws and Policies
      Addressing Immigrant Children
   Florida Law, Section 39.5075 and .013 (2005)
    Recognizes SIJS process in “dependency”
    cases (and keeping court jurisdiction post-18
    for completing it); need for child welfare
    agency to report to court on child’s
    immigration status and steps to address it;
    services “must be provided” without regard to
    immigration status unless otherwise
    statutorily prohibited; agency case plan must
    recommend whether permanency plan will
    include child remaining in U.S.
   If case plan says child should remain in U.S.,
    agency is required by law to evaluate whether
    child is eligible for SIJS and if so it “shall petition
    the court” (within 60 days) for the findings and
    order required, with the child’s views heard
   Florida child welfare policy: 65C-9.001-003
   Illinois Law Chapter 705, Section 405/2-4a (2003)
    recognizes SIJS procedures
   Illinois DCFS has MOU with Mexican Consulate on
    notification/access issues (and Policy Guide)
   New York City implementation of Local Law 73 on
    access to services to non-English speaking persons by
    NYC Administration for Children’s Services
       “Immigration and Language Guidelines for Child
        Welfare Staff” addressing immigration status issues
       in CPS investigations and foster care placements,
       working with immigrant clients, & language issues
      “Language Identification Card” to help determine
       family’s primary language/provide language-specific
       services (ACS clients speak 35-plus languages)
   NY State OCFS 2008 guidance to county child welfare
    agencies on SIJS --
   Texas Department of Family & Protective Services
    CPS Policy 6580– addresses notifying foreign
    consulate requirement (under Art. 37(b) of Vienna
    Convention on Consular Relations) when child
    taken into care, getting home studies in foreign
    countries, repatriation/stay in U.S. decision,
    repatriation requirements, verifying immigration
    status of foster kids, agency citizenship &
    immigration status verification process, SIJS
    process, agency transportation of undocumented
    children/parents, and forms & checklists
   Oklahoma Department of Human Services has
    similar requirement re. Consular notification
    (Instructions to Staff 340:75-1-31)
   California County Child Welfare Agency work with
    immigrant families (from 2008 CWLA publication):
   Connecticut Department of Children and Families
    Policy 31-8-13 (12/05) : Clearly states that agency
    services are available regardless of immigration
    status, including “family preservation efforts to avoid
    family members being separated through
    incarceration due to violation of immigration status
    of deportation procedures” and that CPS shall serve
    children who don’t have documentation papers.
    Identification of undocumented persons “shall not
    result in” reporting to DHS. Says that workers
    should aid children in their care to get Green Cards.
   Minnesota Department of Human Services 5/14/10
    bulletin to county child welfare agencies, CPS staff,
    lawyers, etc. on SIJS status:
   Utah Division of Child and Family Services Out-of-
    Home Care Practice Guidelines 303.10 (rev. 6/06) :
    agency “will seek to meet” and support the health
    care needs of kids in state custody regardless of
    immigration “status”
   New Mexico Child, Youth and Family Department is
    sponsor of best practices guide: “Working With
    Undocumented & Mixed Status Immigrant Children &
   Vetoed in California in 2004 by Governor:
    AB1895 would have required appointment of
    immigration attorney for every dependent child or
    ward of the court not a lawful permanent resident or
    U.S. citizen. Attorney would have to help child secure
    SIJS status.
        10 Elements of Judicial Advocacy
      for Child Welfare Agency Assistance
     if a Parent is in Immigration Detention
1)   Judges should encourage child welfare agencies to
     have protections for immigration enforcement-
     separated U.S. citizen & permanent resident
     children put into written policies and practices
2)   Judges should advocate for these to be family-
     focused and based on best interests of the child
3)   Judges should encourage MOUs/Protocols
     between the child welfare agency, ORR, and other
     agencies/services & that include training of police
     to minimize child trauma as a result of a parent’s
     immigration apprehension
4)   Judges should encourage the child welfare
     agency to have capacity to communicate in a
     child’s and family members’ native language
     & to provide interpreter services where
5)   Judges hearing cases involving immigration-
     detained parent(s) should never base
     decisions upon predictions/conclusions of the
     parent’s immigration case outcome
6)   Judges should help assure that, if a child
     wants to accompany their parent to country
     of origin, there is coordination with DHS and
     aid in the child first obtaining necessary
     travel documents, health & school records
7)    Judges should help assure that confidentiality of
      information gathered in the course of providing
      services to the separated child is maintained
8)    Judges should encourage the child welfare
      agency to maintain a list of programs qualified
      to provide linguistically appropriate services to
      the separated child, including identifying
      appropriate lawyers/guardians ad litem
9)    Judges should assure that child welfare agency
      case plans are regularly updated with parents’
      and other relatives’ locations
10)   Judges and their child welfare agency should
      work with DHS to provide for parents’ presence
      at dependency/custody court hearings
         HELP for Separated Children Act
                   HR 3531 / S3522
   Screening parents/guardians by child welfare
   Timely notification of schools, child welfare
    agencies, and NGOs regarding enforcement actions
   Access to free, confidential phone calls for
    parents/guardians to make care arrangements
   Collaboration between ICE and child welfare
    agencies to ensure parents have regular contact
    with children & can meaningfully participate in
    family court proceedings
   Consideration of the best interest of children in all
    decisions regarding the detention, release, and
    transfer of a parent or guardian
               Materials on Immigrant Children
                in the Child Welfare System
   The Impact of Immigration Enforcement on Child
   Immigrant Families: Public Benefits & Child Welfare
   Language, Culture, & Immigration Relief Options
                                   Want to be more
                                 involved with these
   Join the interdisciplinary
 Lots of material available there on the child welfare
    agency-immigration issue link, including:
      A Social Worker’s Toolkit for Working with
       Immigrant Families
      Wellbeing and Immigrant Families: The
       Intersection of Migration and Child Welfare

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