Immigration Issues Impacting Child Welfare and Child Trafficking

1. Immigration Issues Impacting Child Welfare and Child Trafficking Howard Davidson, J.D. Director, ABA Center on Children and the Law American Bar Association 202/662-1740 davidsonha@staff.abanet.org CAPTA State Liaison Officer Webinar– June 25, 2010

2. Why Is This Important forChild 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

3. 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 parent • 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

4. 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

5. 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 children

6. 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 informationon 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

7. How Can CPS Agencies Do Better in Identifying and Serving Child Trafficking Victims? • 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 andassist child trafficking victims among the children they serve (but NGOs reported that) these…agencies require training to better identify and work with trafficking victims.”

8. From Shared Hope International’sSex Trafficking Policy Recommendations Four-Point Overhaul of Child Protective Services Required • [CPS] regulations & protocols are sorely outdated and ill equipped to respond to the sex trafficking of America’s children • 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 

9. CPS is underfunded and overstretched and desperately needs the training and resources to better protect their clients  • 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

10. 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

11. 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

12. 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 pending) • Legal advocates are needed to help child victims file T visa claims

13. CAPTA 2003 Sense of Congress Amendment “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 areprovided materials and services under such programs in an appropriate language other than English.”

14. 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.

15. 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 and 4) Return home is not in child’s best interests • Legal & judicial education on this is critical: See– Benchbook & SIJS materials at: www.ilrc.org/immigration_law/ remedies_for_immigrant_children_and_youth.php

16. 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 custody • 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

17. 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

18. 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: www.uscis.gov/graphics/lawsregs/handbook/ 10a_ChldrnGdlns.pdf

19. 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: • References to immigrant children, including unaccompanied immigrant minors • References to immigrant parents, documented and undocumented • References to children or families being in U.S. under refugee, asylum, or other protected immigration status

20. References to child/family’s immigration status confidentiality/non-disclosure • References to “Special Immigrant Juvenile Status” (SIJS) • References to child and protective parent eligibility for special VAWA protections • References to agency having to make contact with the child and family’s national consulate, when a child is taken into custody (Vienna Convention) • References on notice to, and possible foster care or kinship care placement of child with, relatives, documented or undocumented, in U.S. or elsewhere

21. References to child trafficking victims or child victims of serious crimes (T and U visa issues) • References to language & nationality determinations and provision of language-appropriate & culturally-appropriate services • 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) • References relating to referral of immigrant children and families to legal services programs or immigration attorneys

22. 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 ImmigrantChild “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 victims

23. 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) www.abanet.org/publicserv/immigration/ Immigrant_Childrens_Standards.pdf

24. 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 intervention.” 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)

25. Eight Suggested Principles for Law and Policy on Providing Child Welfare Services to Undocumented Child Immigrants 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 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

26. Child welfare agencies should provide culturally-sensitive support and language-appropriate services to immigrant children and families, using resources of grass roots immigrant community resources 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

27. 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 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 well-being

28. 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 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

29. 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.

30. 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) www.f2f.ca.gov/res/pdf/ IllinoisMOUMexicanConsulate.pdf www.state.il.us/DCFS/docs/PG200402.pdf

31. 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 www.nyc.gov/html/acs/downloads/pdf/ immigration_language_guide.pdf • “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 -- www.f2f.ca.gov/res/pdf/Special_Immigrant_Juvenile_Status.pdf

32. 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): www.cwla.org/voice/0809immigrantfamilies.htm

33. 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: www.dhs.state.mn.us/main/groups/publications/ documents/pub/dhs16_149979.pdf

34. 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 & Families http://ipl.unm.edu/childlaw/docs/BEST-PRACTICES/0709-WorkingWithUndocumentedAndMixedStatusImmigrantChildrenAndFamilies.pdf • 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.

35. 10 Elements of Judicial Advocacy for Child Welfare Agency Assistance if a Parent is in Immigration Detention 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 Judges should advocate for these to be family-focused and based on best interests of the child principles 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

36. 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 needed Judges hearing cases involving immigration-detained parent(s) should never base decisions upon predictions/conclusions of the parent’s immigration case outcome 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

37. Judges should help assure that confidentiality of information gathered in the course of providing services to the separated child is maintained 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 Judges should assure that child welfare agency case plans are regularly updated with parents’ and other relatives’ locations Judges and their child welfare agency should work with DHS to provide for parents’ presence at dependency/custody court hearings

38. HELP for Separated Children ActHR 3531/ S3522 • Screening parents/guardians by child welfare agencies/NGOs • 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

39. Materials on Immigrant Children in the Child Welfare System • The Impact of Immigration Enforcement on Child Welfare www.firstfocus.net/sites/default/files/ CaughtBetweenSystems.pdf • Immigrant Families: Public Benefits & Child Welfare Financing www.firstfocus.net/sites/default/files/ PublicBenefits_0.pdf • Language, Culture, & Immigration Relief Options www.firstfocus.net/sites/default/files/r.2010-5.20.lincroft.pdf

40. Want to be more involved with these issues? • Join the interdisciplinary www.americanhumane.org/protecting- children/programs/child-welfare-migration • 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