In the Shadow of Child Protective Services: Noncitizen Parents and the Child-Welfare System
abstract. This Essay argues that the noncitizen parent exists between two often-conflicting legal identities: that of an immigrant and that of a parent. In immigration law, the noncitizen parent is viewed as “immigrant” first. By contrast, the family law system privileges the parent-child relationship and the best interest of the child. Yet because of the realities indigent noncitizen parents face inside and out of family court, their identity as parents may be especially vulnerable. At nearly every juncture of a child-welfare proceeding, interaction with family court can expose a noncitizen parent—even one with legal status—to immigration enforcement. This Essay argues that as a player invested in the welfare of families, Child Protective Services should take an active role in shielding these parents from immigration consequences and ensure their immigration status does not disadvantage them in family court. In select cases, this would require intervening directly in criminal and immigration proceedings.
In principle, noncitizen parents enjoy the same constitutional protection of their parental rights as citizen parents. In reality, however, this is not always the case. A parent’s immigration status shapes her interaction with the child-welfare system at every stage of a family court proceeding. This Essay argues that the indigent noncitizen parent exists between two often conflicting legal identities: that of an immigrant and that of a parent. In immigration law, the noncitizen parent is viewed as “immigrant” first.1 By contrast, the family law system theoretically privileges the parent-child relationship and the best interest of the child. Yet because of the realities indigent noncitizen parents face outside of family court, their identity as parents may be especially vulnerable. The confluence of these two legal regimes—and the fact that each field’s practitioners traditionally are siloed—creates problems for noncitizens in both areas of the law.
This Essay focuses on noncitizen parents facing neglect charges in the New York child-welfare system. As a Yale Law Journal Public Interest Fellow at The Bronx Defenders’ Family Defense Practice, I represent many indigent noncitizen parents in Bronx Family Court.2 As time-constrained public defenders with heavy caseloads, my colleagues and I can grasp only so much of how immigration status interferes with our clients’ lives both in and out of court. Even so, we are witness to the myriad status-related injustices our noncitizen clients confront. And, as I recount below, we see that child-welfare proceedings expose our clients to immigration enforcement or otherwise jeopardize their legal status.
New York is fertile ground for the study of the interaction of immigration status and the child-welfare system for two reasons. First, the state has the second-highest immigrant population in the country,3 making it rich in case studies. Second, New York has adopted progressive policies related to immigrants, including some directly relevant to the child-welfare context.4 It is therefore significant that recent studies5 reveal important shortcomings on the part of both the New York City Administration for Children’s Services (ACS) and New York courts in grappling with status-related challenges.
Noncitizen parents are often exposed to child-welfare interventions on grounds of neglect that are intimately connected to their immigration status because this status constrains their ability to access social support systems. As Part I reviews, many noncitizen parents are ineligible for public benefits, while others face language and institutional barriers, as well as fears of immigration enforcement, which impede access to critical social services.
Once in family court, these parents—whose ability to provide for their children is undermined by rigid immigration laws—are paradoxically tasked with proving their fitness to parent. Part II discusses how these parents’ immigration status often encumbers their ability to do so. Noncitizen parents face unique challenges in accessing preventive welfare services—services that already are ill-equipped to address immigration-related circumstances animating a child-welfare case. And, should Child Protective Services (CPS) remove their child, parents face further difficulty in completing already onerous reunification plans. Accordingly, children of noncitizen parents may be at higher risk of being removed from their parents’ care and separated from them for extended periods of time.6 Furthermore, as Part III outlines, it is possible that children of noncitizen parents are likelier to be placed in foster care with strangers, with detrimental effects on the parent-child relationship and the child-welfare case. Thus, compromised by immigration and public welfare laws that pivot on a parent’s non-citizen status, the mixed-status family is further imperiled by the child-welfare system.
In Part IV, I explain that the confluence of the two legal regimes is problematic on both sides: not only do immigration circumstances contribute to poor outcomes in child-welfare cases, but involvement in the child-welfare system may also impede the ability of members of a mixed-status family to stabilize their immigration statuses. And at nearly every juncture of a child-welfare proceeding, interaction with family court can expose a parent—even one with legal status—to immigration enforcement.
What should change? And perhaps just as critically: who should lead these changes? The Administration of Children’s Services assumes the ostensible mantle to “[k]eep NYC children & families safe & well.”7 Yet this Essay is replete with examples of how the agency falls short of its mandate for mixed-status families, because of information-sharing structures and inadequate caseworker training, among other realities. There are also federal constraints: due to federal disclosure laws,8 an agency cannot lawfully prevent its employees from reporting unauthorized parents to immigration officers. New York now has a “don’t ask” policy, with some exceptions.9 But in some of my clients’ eyes, ACS is simply, and inescapably, the Government. And not simply any Government: for the noncitizen parent, this Government may recall the repressive regime they fled, or the deportation apparatus that increasingly looms in their conscience.
Despite these hurdles, a well-trained, culturally competent caseworker who is versed in the difficulties mixed-status families face can be critical to the outcome of a child-welfare case. More significantly, comprehensive legal representation—a representation attuned to status-specific obstacles and pitfalls in family court proceedings and guarded by client-attorney confidentiality—might be necessary to address the anti-family structures of these different legal regimes.
But beyond culturally competent advocacy, we must also grapple with the meanings of “family” and “child welfare” themselves. If our laws and policies are truly to promote the value of family unity, improved representation and casework alone is not enough. The legal and policy scaffolding of the New York child-welfare system itself must be revamped to rigorously—and affirmatively—combat the harms wreaked by the immigration system on families.
As a public defender, I meet most of my clients at intake, the Bronx Family Court’s equivalent to the criminal arraignment process. Handed a petition that lays out allegations of child neglect, I typically have less than fifteen minutes to speak to a respondent parent until we go before a judge. In our crisis-driven practice, we often meet parents on their very worst day: their child may already have been removed, and they may be facing exclusion from their household (frequently resulting in homelessness). Some parents have had ACS involved in their lives for months, while others are confronting the system for the very first time. During intake, I have little time to pause and consider how a client’s immigration status may have played a role in bringing her to court.
From a legal perspective, whether or not immigration status plays a role in the initiation of neglect proceedings matters.10 In New York, a neglected child is one “whose physical, mental or emotional condition has been impaired or is in the imminent danger of becoming impaired as a result of the failure of his parent . . . to exercise a minimum degree of care.”11 Under New York case law, a “minimum baseline of proper care for children [is one] that all parents, regardless of lifestyle or social or economic position, must meet.”12
Both the decision to remove a child and the decision to refer a case to family court contemplate the family’s needs and whether preventive services successfully addressed them. Immigration status plays a role in these determinations. While appellate courts throughout the country agree that immigration status alone cannot form a basis for a finding of neglect,13 a “parent’s immigration status may contribute toward circumstances that present an ‘imminent danger of abuse or neglect’ for the child,”14 which is also the standard ACS must meet to justify a child’s removal.15 In New York, a finding of neglect requires a showing not only of actual or imminent physical or emotional harm to a child, but also a causal connection to a parent’s failure to exercise a minimum degree of care.16 Thus, the ways in which a parent’s legal status interferes with her efforts to provide care may be dispositive in a child-welfare case and may impact the preservation of family integrity. The causes of action for neglect under New York law illuminate the vulnerabilities a parent’s immigration status can create.17
Immigrant parents’ financial situation, coupled with their limited access to public benefits,18 affects their ability to “exercise a minimum degree of care” in providing for their children’s basic needs. For example, parents with unauthorized status overwhelmingly work in low-paying sectors and are subject to higher risk of employer abuse and labor law violations.19 Despite facing extreme poverty, however, these parents do not have access to most subsistence assistance. For instance, unauthorized immigrants are ineligible for: the Supplemental Nutrition Assistance Program (SNAP), otherwise known as food stamps; Medicaid, except for in emergency conditions; Temporary Assistance for Needy Families (TANF); Supplemental Security Income (SSI); Home Energy Assistance Program; and they have restricted access to housing programs.20 Legal permanent residents are similarly ineligible for some of these benefits for their first five years of legal residence,21 a time when they may be most needy.
Compounding parents’ ineligibility for numerous programs are immigration-related obstacles that result in low participation rates in programs for which they, or their children, may be eligible. For example, both the application and eligibility verification processes may present steep challenges for parents who are less educated or have limited English or computer literacy.22 Noncitizen parents also face difficulties in providing the requisite documentation, including certifications of income or employment and birth certificates for noncitizen children.23
Access barriers generated by immigration-related fears are even starker. New findings document that under the Trump Administration, noncitizen parents are increasingly reluctant to enroll in publicly funded programs, such as food stamps or the Women, Infants, and Children Program (WIC), another federal food aid program, out of fear that their information will be shared with immigration officials or will result in the denial of their immigration applications.24 “Illegality” is experienced as a family unit, as eligible members of mixed-status families are deterred from applying for benefits when they are required to provide sensitive information about other family members who may not have legal immigration status.25 Families may also fear—in some states, justifiably26—that social service providers will report unauthorized family members to immigration authorities.27 Additionally, noncitizens may increasingly be wary of the immigration consequences of receiving welfare benefits.28
Validating these fears, on September 21, 2018, the Trump Administration announced new regulations that would penalize undocumented immigrants who use public benefits—including food assistance and housing vouchers. Under these new regulations, public benefits use would constitute “heavily weighed negative factors” when immigrants apply for permanent resident status.29
These realities—whether directly or indirectly driven by immigration and public welfare policies—have repercussions for the material welfare of children.30 Children’s nutritional health is one representative example. A recent study chronicling the barriers faced by SNAP-eligible children from mixed-status families concluded that “[f]or approximately two million low-income United States Citizen (USC) children, applying for SNAP may jeopardize their families and home life.”31 SNAP mandates reporting to United States Citizenship and Immigration Services (USCIS) undocumented individuals identified during the application process.32 Federal guidance calls for states to accommodate eligible members of mixed-status families, but many have failed to implement these guidelines.33 Unsurprisingly, only fifty-five percent of eligible children who have noncitizen parents receive SNAP.34 Children of immigrants also are at risk of residing in overcrowded housing due to lack of financial resources and benefits ineligibility.35
The lived experience of the mixed-status family also is relevant to medical-neglect cases. Even though New York children in low-income families are eligible for Children’s Health Insurance Program (CHIP) regardless of immigration status,36 immigration-related fears dampen participation in both this program and Medicaid.37 A 2015 study found that increased risk of deportation is associated with decreased Medicaid use.38 Such fears also dissuade some undocumented immigrants in New York from going to free health clinics.39 The various legal statuses within a mixed-status family may also shape decisions about medical care. “[S]tratified access to care based on legal status may usurp the family dynamic,”40 with parents choosing to eschew services altogether to avoid intrafamily disparities in treatment, or choosing to share medication between eligible and ineligible relatives. And because parents’ own health care usage is a strong predictor of that of their children,41 the low usage by undocumented parents only lessens the likelihood their children receive health care as well.
Another ground for neglect is the alleged use of excessive corporal punishment.42 Here, too, the immigration experience of parents may play a role—though admittedly one more of correlation than causation. Excessive corporal punishment is defined as a parent’s unreasonable infliction of punishment, usually physical, on a child.43 Many cultures, however, employ corporal punishment that might be deemed “excessive” under New York case law. Indeed, studies have reported on the relative prevalence of authoritarian parenting styles, including the use of corporal punishment, among noncitizen parents.44 Immigrant parents are generally less aware of American norms or of the reach and practices of CPS. Thus, they may not be on notice as to what corporal punishment may be “excessive” by American standards. Nonetheless, in New York, a single incident, if severe enough, may constitute neglect.45
ACS removed the children of one of my clients following her alleged use of excessive corporal punishment. Tara,46 my client, is a legal permanent resident who only arrived in the United States in the last couple years. Immediately upon meeting me at intake, Tara exclaimed that she did not know this form of discipline was prohibited in the United States, and that it was prevalent in her home country. She swore she would never discipline her child in the same way again, and immediately began engaging in a service plan—parenting, anger management, counseling—that ACS had laid out to demonstrate her “rehabilitation.” Almost half a year later, however, Tara’s children are still out of her care; her ability to acknowledge and “take responsibility” for what happened are constrained by a parallel criminal case and looming, if latent, immigration consequences. As Part IV will recount, creating a record (even on minutiae such as country of origin) can have dire immigration consequences. But in family court, these status-related constraints can simultaneously work to silence parents’ stories. Forgoing an emergency hearing precisely to avoid such a record, Tara relented to following the slow timeline set by the court.
Under New York law, neglect can also be found when a parent has failed to exercise proper supervision of a child. Such cases include parents who have left their children alone for an extended period or with an inappropriate caretaker.47
The immigration status of noncitizen parents contributes to the risk of neglect findings on the grounds of inadequate supervision.48 While immigrant parents, especially undocumented workers, are subject to longer and more unpredictable working hours, they also have less access to childcare support systems due to financial, language, or other status-related barriers to public benefits.49
Culture plays a role here too. In some cultures, young children are relied upon to care for their younger, even infant, siblings.50 The migration experience of recent immigrants may further exacerbate this trend, with children serving as “culture brokers” between the parents and the new society, with children taking on significant responsibilities related to family functioning.51 Indeed, some have observed how these two contexts—the migration experience and cultural parenting norms—interact to reinforce reliance on children for supervision. “[I]mmigrant families draw on pre-migration frameworks and practices as ‘coping strategies’” in the face of “family instability and the need for increased resources and social support.”52
Relying on a “catch-all” provision of the Family Court Act, ACS also brings neglect actions for “failure to protect.”53 These cases contemplate several different scenarios. First, despite positive steps in New York to address domestic violence,54 a “failure to protect” case may still be brought against a victim of domestic violence herself if the violence occurred in front of her child.55 Second, a parent may “fail to protect” a child against neglect perpetrated by another household member.56 In both cases, immigration status can play a role in the ultimate disposition of a case.
For a noncitizen victim of domestic violence, her immigration status may inform her response. The legal, social, and financial barriers present in many cases of domestic violence are exacerbated when immigration status is at issue, as immigrant women may have even more limited social and financial support systems.57 In addition, the looming possibility of deportation and fear of authorities might deter her from reporting domestic violence.
For similar reasons, noncitizen parents may be deterred from reporting or intervening in a child’s abuse or neglect at the hands of another caregiver. A recent New York case is illustrative. A child had allegedly been abused by his stepfather, resulting in a broken leg. However,
[o]n the way to the hospital in a taxi, [the step-father] told [the mother] that they would have to lie about what happened . . . or else he would call immigration authorities and have her deported. She was reliant on [him] to have her legal residency extended from the two-year visa she had at that time.58
Thanks to an attentive attorney and a judge receptive to coercive immigration realities—and possibly because the mother left the abusive relationship soon after this incident—the charges against the mother were dismissed. But judges often rule the other way, and many seem to conceive of immigration-related vulnerabilities as intractable barriers to parents’ ability to protect their children.59
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Focusing on the mixed-status family specifically illustrates how immigration law weakens a family’s integrity, even prior to entry into the child-welfare system. Public policies redraw dependency lines and shape family decisions and relationships. For instance, public welfare law undermines the mixed-status family by conditioning eligibility on immigration status, atomizing the family unit. Through “sponsor deeming”60 and by conditioning status on spousal relationships, for example, immigration law traps many noncitizens within cycles of poverty and in coercive situations. In all these ways, the experience of the indigent mixed-status family exemplifies how a parent’s precarious legal status compromises family unity and welfare.
This Part analyzes the continued salience of noncitizen parents’ immigrant identity in the possible next stages of a child-welfare proceeding: removal of a child and a family’s reunification. This Part tracks the tension between noncitizen parents’ dual identities, drawing on growing evidence that mixed-status families may be more susceptible to adverse case outcomes.61
In a child-welfare proceeding, one of the most significant decisions is whether a child will be removed from his or her parent’s care. A child’s removal is not only excruciating for the family but also significant for the ultimate legal outcome of a child neglect case. This is partially, but by no means exclusively, because of the enactment of the Adoption and Safe Families Act (ASFA).62 Under ASFA, ACS must file termination of parental rights petitions for all children who have been in foster care for fifteen of the previous twenty-two months, with only a few exceptions.63 Furthermore, ASFA requires permanency hearings to be held within twelve months (rather than eighteen, as had previously been the case), shortening the length of time services are offered to parents before they can contest a child’s continued removal.64
ACS can remove a child prior to a finding of neglect in several different ways. A child may be removed on an emergency basis without a court order,65 but ACS is mandated to appear before court the next court day.66 A court can grant a request for removal before or after the agency files a petition alleging maltreatment if “immediate removal is necessary to avoid imminent danger to the child’s life or health.”67 To assess imminent danger, New York law requires a court to consider both the best interests of the child and the agency’s efforts, such as through provision of services and other assistance, to prevent the need for removal. These preventive services include day care, homemaker services, parent training, transportation services, emergency shelter, and rent subsidies.68
Upon a child’s removal, a primary focus of a child-welfare proceeding becomes the family’s reunification. With certain exceptions, the state retains the burden to take reasonable steps towards reunification by helping the parent overcome what it alleges are “parental inadequacies.”69 Under New York law, the child-welfare agency must assess a family’s needs after a child is removed and come up with a “family service plan” in consultation with the parent and based on an assessment of the family’s needs.70 This plan must include relevant time frames and necessary services and assistance for the family. To identify these services, the agency is supposed to consider the projected effectiveness of the plan, including the family’s concurrence with the plan; the ability and the motivation of the family to access the services; and the consistency of the plan with the family’s needs and socio-economic and cultural circumstances.71 In particular, the agency “must always determine the particular problems facing a parent with respect to the return of his or her child . . . .”72 As with preventive services, family service plans may include a range of assistance and service referrals for parents, as well as provide for visitation with the child. For example, where relevant, the agency should help the caregiver “obtain adequate housing, employment, counseling, medical care or psychiatric treatment,” and facilitate visitation.73
A 2011 U.S. Department of Health and Human Services report identified several predictive factors for successful reunification. These include the stability of foster care placement; visitation with parents and siblings; the family’s needs and the services provided to it; the family’s involvement in case planning; and the caseworker’s visits with the child and parent.74 Service delivery was also often dispositive, and complicated by problems including a dearth of certain services, barriers to transportation, and long wait periods.75 Relatedly, the study found that inaccurate assessments of family needs impeded reunification.76
Children of mixed-status families might be subjected to higher rates of improper and extended removals than children in families where immigration status is not at issue.77 Crucially, the system itself creates a blind spot for a parent’s immigration-related realities. Child-welfare workers are instructed not to inquire about immigration status unless absolutely necessary.78 Consequently, they might be unable to identify the extent and nature of these parents’ actual needs.79 Compounding this dynamic, caregivers with undocumented relatives or who are undocumented themselves might withhold information critical to preventing removal or facilitating reunification.80 Such information could include informal employment and other resources that may be available to them, such as undocumented friends or relatives who could serve as viable support sources.81 I have had clients hesitate about identifying family or friends—potential “resources,” in ACS parlance—because these individuals do not have a legal immigration status. In these ways, these parents’ immigration statuses “hinder the ability [of caseworkers] to capitalize on client strengths and resources.”82
In addition, both bias and lack of cultural awareness operate to expose these families to more frequent removals. Some have advocated for providing child-welfare workers with cultural-competence training, noting that from the outset, caseworkers are tasked with making very subjective assessments about a child’s safety in his parent’s care, and on the parent’s ability even to benefit from services.83 In a similar vein, others have suggested that cultural differences between caseworker and client can result in erroneous assessments that ignore the underlying, immigration-related issues confronting immigrant families.84 Concurrently, language and cultural barriers may undermine parents’ capacity to respond adequately to child-welfare interventions in order to prevent removal. Thus, a lack of training may further impede caseworkers’ ability to identify, or respond to, challenges specific to noncitizen parents. Field studies substantiate the significant role these biases play.85
Service plans for mixed-status families may be especially deficient.86 Ostensibly, these plans must be tailored to the specific needs and circumstances of a given parent,87 and they must “affirmative[ly], repeated[ly], and meaningful[ly]”88 address those handicaps that led to the child’s removal in the first place. However, the agency is limited in its ability to remedy the situation where immigration status is an underlying factor of the child-welfare case.89 The most direct intervention would be to help a noncitizen parent access more stable status. Indeed, one New York court found that the agency had made reasonable efforts where it assisted the mother with, among other things, her immigration status.90 Yet an agency’s ability to assist parents seeking a different immigration status is limited in most cases, with only some parents eligible for adjustment and with limited financial resources and immigration training for agency staff.91 Troublingly, when an agency does provide immigration assistance (and even when it does not), a parent’s ability to adjust successfully may become a measure of her fitness to parent.92
More than anything else, a noncitizen parent’s immigration status interferes with her ability to complete her service plan in a timely and successful manner, or to take advantage of preventive services necessary for the completion of the plan. For citizen parents, family service plans impose onerous requirements;93 immigrant parents face additional and unique obstacles to completing them.
1. Lack of Linguistically and Culturally Appropriate and Financially Accessible Services and Casework
The same barriers that mediate a noncitizen parent’s use of public benefits affect a parent’s interaction with court-mandated and supportive services—even though New York child-welfare authorities are explicitly required to provide reunification services to parents ineligible for public benefits.94
First, a dearth of linguistically and culturally appropriate services hinders noncitizen parents’ access to meaningful services; where these exist, long waiting times hamper timely access.95 For example, in New York the child-welfare agency “is obligated to accommodate a parent’s special needs, including use of a language other than English . . . .”96 However, these services are few and far between, especially—from my experience--for less common languages, resulting in delayed and limited access.97 Based on my colleagues’ experiences, and those of my clients, this is one of the obstacles most frequently faced by our noncitizen-parent clients who speak little English. In several of my cases, ACS took months to locate services in the appropriate language. Even once they did, they provided referrals only in English—further delaying my clients’ ability to engage in services and reunite with their children. Where our clients are undocumented, their lack of insurance also results in significant delays, as free-of-charge services are usually far and few in between, and as litigation usually is needed before ACS pays for services.
At least as pivotal as access to meaningful services is a caseworker’s ability to communicate effectively with a parent. While caseworkers have access to translators, this telephonic recourse is not ideal because building a trusting rapport with a client is often critical to a caseworker’s success. In at least two of my cases, a caseworker’s misinterpretation of a parent’s statements resulted in inaccurate allegations and unhelpful service referrals.
But caseworkers’ cultural competence also matters. One study found a positive relationship between a caseworker’s cultural competence training and the use of family support services by immigrant clients.98 As an example, appropriately trained caseworkers might recognize that some services, such as mental health services, are stigmatized in certain communities,99 and work with parents by raising these issues affirmatively or by seeking alternative services. Furthermore, caseworkers are also tasked with working with support networks who could be a resource for a child’s placement or to supervise visits, many of whom will be part of the client’s particular cultural community.100
Cultural competence also facilitates accurate caseworker representations to courts. In particular, unexamined cultural differences may greatly affect how a caseworker perceives a parent’s compliance with a service plan,101 which in my experience is often dispositive in hearings for expanded visits or return of a child. When measuring compliance, caseworkers look at a parent’s responsiveness to feedback, attendance rate at services, interactions with providers, and help-seeking behavior, among other factors.102 Cultural differences modulate these determinations. For example, a parent may be less tolerant of strangers in the family home and less comfortable with relying on nonfamily assistance. Such sensitivity, or lack of sensitivity, to cultural norms “color[s] the impression formed by service providers.”103
In addition to facing obstacles to meaningful court-mandated services, immigrant parents are ineligible for many other supportive social services.104 Already, immigrant parents face financial, housing, and legal difficulties that impede their ability to complete reunification plans.105 Unlike similarly situated citizen parents, however, many immigrant parents do not have access to public subsistence benefits.106 Fear of detection or of disqualification from some kinds of immigration relief on public-charge grounds107 also discourages eligible parents (or those with eligible children) from seeking the benefits for which they or their children are otherwise eligible.108
At the Bronx Defenders, we are able to refer noncitizen clients to our benefits advisor as well as to immigration, criminal, and civil practice attorneys. Many of my noncitizen clients were not sure what public benefits they or their children were eligible to receive before our benefits advisor conducted a benefits screening with them and helped them submit an application. In at least one case, determining a client’s access to benefits required conversations with both a criminal and immigration attorney, as the availability of those benefits was contingent on renewing the client’s immigration visa. If and when Trump’s proposed regulations go into effect, immigration attorneys will be able to advise our clients as to the risks attendant to public benefits enrolling.
This dynamic is compounded by the fact that mixed-status families may lose benefits when child protective services intervenes. Mixed-status families experience hardships that are often ignored by, or unknown to, the child-welfare bureaucracy. In mixed-status families, for example, the benefits that U.S. citizen children receive—such as SNAP and housing subsidies—may mitigate some of the financial uncertainty an out-of-status parent experiences. A citizen child’s removal therefore exposes that parent to the loss of these benefits, which in turn makes reunification even harder.
Immigration status also makes it risky to meet certain reunification requirements, such as disclosure of participation in drug treatment, or simply agreeing to drug testing. These actions could be problematic for a noncitizen parent because admitting to drug addiction could have severe immigration consequences.109 Parents working towards reunification might also be wary to provide a government agency with a home address, fearing immigration enforcement. One colleague’s client rented a room in an apartment where other, unrelated tenants were undocumented. This complicated and delayed her ability to seek overnight visits with her children—a provision that the courts and ACS view as a critical step towards reunification.110
As a result of the employment markets to which they have access, noncitizen parents may also find it harder to abide by inflexible visitation requirements. Undocumented parents especially are more vulnerable to employer abuse and coercion,111 and would therefore find it more difficult to accommodate regular visits into their work schedules. Many caseworkers are oblivious to the immigrant parents’ particular employment situation, and the fact “that taking time off from their jobs in order to comply with visitation requirements placed undue hardship on families.”112
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If nothing else, after tracing the impact of legal status through a child neglect proceeding, it is clear that “[i]n these cases, process controls outcomes.”113 As Martin Guggenheim explains,
This is because child welfare process is all about family case planning: promptly identifying the barriers to the immediate return of foster children to their families of origin, agreeing upon appropriate services for parents, encouraging parents to take full advantage of these services, and working assiduously with parents to place them in a position to take back their children safely.114
On all of these fronts, noncitizen parents are gravely disadvantaged.
Once the decision to remove a child is made, where that child is placed also has important ramifications for the child’s well-being, the parent-child relationship, and, relatedly, the progression of the parent’s legal case. A child can be placed with relatives (“kinship placement”) through either direct placement or foster care, or with strangers in foster care. As noted above, where the child is placed and the frequency of family visitation are two of the leading predictors for successful reunification; if a child is placed with family, a parent is likely to see their child more frequently and to be able to do so in a less restrictive setting.
It is possible that children of mixed-status families are less likely to be placed with relatives and more likely to move around in the foster system.115 To date, the most comprehensive study on the placement of children of immigrant families looked at variances in Texan children’s out-of-home placements based on their ethnicity and that of their parents.116 The study found that Texan children born in Latin America or to immigrant parents were less likely to benefit from placement with a relative.117 The study’s authors point to the fact that many relatives may be undocumented, and therefore may fear government contact or be reluctant to apply for benefits, such as child-only TANF, that would enable them to provide the care the child needs.118
A more recent study, which documented lower use of nonparent-caregiver TANF for kinship care among Latino families, seems to corroborate this hypothesis.119 Another focus-group study of caseworkers also identified “fear of system involvement and subsequent deportation” as deterring undocumented relatives from coming forward as kinship caregivers.120 It may also be possible that in some areas, mixed-status families enjoy lower levels of kinship support generally. One study found that most New York City immigrant parents had few friends or family to turn to for placement assistance,121 and likely fewer still with stable legal statuses. While parents could in theory turn to relatives in other countries, most child-welfare agencies do not routinely search for, nor could they easily monitor, foreign placements.122 Parents may also be unwilling for a number of reasons to send their child back to their home country.
My client, Chanice, faced such a predicament. She had only a few family members to turn to in the United States, and after some time with a relative, her children were placed in different stranger foster homes for months. While she had family resources in her home country, she had fled that country because of violence and because she had wanted her children to receive an American education. Sending her children back to her home country was out of question.
In New York, undocumented relatives can serve as foster parents under agency guidelines.123 But immigration-related challenges may discourage undocumented relatives from coming forward as potential resources. Regardless of the formality of the placement arrangement, relatives that choose to take in a child must accept certain conditions imposed by a court. In New York, release or remand to a relative or other suitable person requires a background check, which could include fingerprinting.124 Furthermore, that person’s home typically must be approved according to the regulations of the Office of Children and Family Services.125 Finally, the volunteer caregiver must submit to the jurisdiction of the family court, which may require cooperation with court officials and the child-welfare agency, and this typically entails agency appointments and home visits.126 A court could also impose an “order of protection” on the relative to ensure that the relative caregiver complies with the terms and conditions of the placement,127 and these may expose the caregiver to immigration-related consequences as detailed in Part IV.
Foster licensing requirements may also deter relatives with no status or those living in mixed-documentation households, cutting off an important source of foster funding that some relatives might well depend on to take in removed children. In New York, foster care licensing, or “approval,” includes a home study; background checks; fingerprinting of all adults in the household; a medical report; and reference checks.128 These fingerprinting practices can expose some noncitizens to immigration enforcement. Under its current policy, the agency in charge of fingerprinting individuals for family court proceedings, the New York Division of Criminal Justice Services, contacts U.S. Immigration and Customs Enforcement (ICE) when it is alerted that a noncitizen who it has fingerprinted has been convicted for a New York offense or has been previously deported.129 Citing this policy and the ICE arrest of a noncitizen after he was fingerprinted during the course of a guardianship application, a 2017 New York Practice Advisory alerted practitioners that fingerprint requests in family court proceedings could imperil noncitizens.130
Lack of information and language-related obstacles further constrain undocumented and even legal residents from becoming foster parents. Indeed, “[b]ecoming a licensed caregiver is a complicated process that includes a time-sensitive home study [and] training and physical space requirements . . . .”131 Such a time-intensive and complex process proves an insurmountable burden to many potential caregivers unfamiliar with the U.S. child-welfare system and with limited English proficiency.132
Placement in stranger foster care can be traumatic for any child, but may be uniquely detrimental for children of immigrants. While many states, including New York, direct agencies to help preserve the cultural heritage of children in their custody, studies find that children are almost never placed with language-appropriate foster homes.133 Such practices also create barriers for the parent-child relationship over time, because as children lose their native language skills, members of the family lose the capacity to communicate with one another and to connect over cultural common ground. On the surface what may seem to be “minor” transgressions onto the language integrity of families may be destabilizing to the parent-child relationship. One colleague’s client was chastised by a caseworker not to converse in Spanish—the family’s native tongue—with her child, because the visit was “supervised” and the caseworker was a non-Spanish speaker.
In New York, ACS often falls short of providing appropriate placements for children of immigrant families, and court responses seem to vary greatly in accounting for these failings. One New York appellate court condemned the agency for removing a child from a Polish-speaking home to an English-speaking foster home.134 There, the court noted how “[o]ver the years, the record reflects that respondent and her child had difficulty communicating,” but that the agency nevertheless “supplied an interpreter for only portions of the supervised periods of visitation.”135 In another New York case, one judge ordered the child-welfare agency “to diligently search for Spanish-speaking foster homes . . . and to provide meaningful exposure to Spanish language for the children, sufficient for them to learn the language and begin to communicate in Spanish with their mother.”136 Over the next four years, the court would repeatedly determine that the agency had failed to make reasonable efforts in that direction and would order anew—and futilely, since the agency repeatedly failed to comply—that these steps be taken.137 In another example, in In re Elias P., after spending over five years with a non-Spanish speaking foster parent, only one of the four children retained any ability to converse in Spanish. As a result, upon the father’s deportation, he was unable to communicate over the phone with either the foster parent or children. The appellate majority affirming the termination of his parental rights was silent on this aspect of the children’s placement.138
When I meet a client on intake, one of the first questions I pose is where he or she was born, and, if abroad, what his or her immigration status is. While this question can sometimes be alarming to a noncitizen client, as a practice, we are aware of the many ways a neglect proceeding can expose a family to harmful immigration consequences. Upon the close of intake, I may make a number of referrals for the clients whom I have just met—referrals to a social worker, a parent advocate, or a civil practice advocate or attorney. Where relevant, I always make a referral to the immigration attorney on my team.
This is because at every stage of a neglect case, the family court proceeding can lead to numerous adverse consequences for a mixed-status family’s permanency and livelihood in the United States. For example, family court judges routinely grant orders of protection, many of them ex parte and some addressing nonviolent situations.139 Violating an order of protection, including civil and temporary orders, is a deportable offense.140 Even the mere existence of an order of protection could have immigration consequences, including higher risks of denials of benefits and heightened scrutiny of a noncitizen parent after travel abroad.141 As a practice, the Bronx Defenders requests short orders, instead of orders of protections, in family court, because the latter are automatically sent to a registry shared with the FBI and accessible by immigration officials.142 Despite recent court trainings regarding immigration consequences of orders of protection, some judges remain reluctant to issue these substitute orders in certain cases—even though family court proceedings are supposed to be rehabilitative and not punitive.143 (Other judges understand immediately why we request short orders, and almost always agree to supplant orders of protections with these.) Where the allegations are violations of orders of protection, I have advised several undocumented clients not to risk trial—even where I believe they have strong cases or where I suspect the nonrespondent might be acting vindictively. These concerns have sharply amplified in recent years, with the federal government broadening targets for deportation and increasing ICE arrests. Indeed, under the Trump Administration, immigration judges have denied bond and relief from deportation relying explicitly on family court findings, family court petitions, and family court orders of protections.
Short of removal, noncitizen parents face other serious immigration ramifications from a neglect proceeding. The issues raised in family court cases, such as drug use or suspected child neglect or abuse, can raise conduct-based bars to re-admission, to status adjustment, and to many forms of relief from deportation.144 Further, given the extensive weight the immigration system places on “good moral character,” family court involvement may lead to the discretionary denials of immigration benefits even if the findings are seemingly mild.145 Immigration attorneys are also documenting an uptick in “requests for evidence,” which can include requests for family court records and questioning at borders.146
These “red flags” for immigration officials may arise at different junctures of a family court proceeding; they may also emerge outside of those proceedings. For example, parents often agree to settle for alternative dispositions, such as suspended judgments or submissions, in order to speed up the return of their children. Immigration officials, however, may treat these orders akin to formal findings of abuse or neglect. Various admissions that are routine in family court—such as admissions to drug use or addiction, made to persuade the court that the parents are serious about obtaining treatment—present unique risks for noncitizen parents. Those admissions constitute a ground of inadmissibility to the United States.147 If a noncitizen parent is incarcerated during the course of a child-welfare proceeding, for example after being held in contempt of family court, he or she may come to the attention of immigration authorities. Finally, because many statuses and forms of relief are derivative of family relationships, a child’s removal or the termination of a noncitizen’s parental rights may undermine that parent’s immigration applications. Thus, whereas the ability to maintain custody or reunite with one’s child are core family defense objectives, for noncitizen parents, these may offer only Pyrrhic victories because the parents may lose their ability to remain in the United States.
Most of my noncitizen clients wish to stabilize their status in this country. Some are actively in the process of naturalizing, or applying for status, when I first meet them. Nearly all my legal permanent resident clients have asked me, sometimes in great anxiety, about the consequences of an ACS case on their ability to stabilize their status.
Because of the structure of our office, I am lucky to be able to connect my clients with an immigration attorney and to hold cross-practice client meetings. All too often, the immigration attorney’s advice is to pause any ongoing immigration application until the case is over. This was the scenario confronting my client Chanice, who is legally married to a U.S. citizen, and whose eldest child is undocumented like her. Due to her continuing family court case and an active order of protection, she has put on pause her immigration application and that of her child. Permanent status would have eased her daily anxieties about enforcement, broadened her employment options, and provided access to basic benefits such as health insurance. Instead, the continued monitoring of her family due to an open ACS case means continued exposure to the vagaries and risks of the immigration system.
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A child’s removal is not the only form of family separation a noncitizen parent can face in family court. Many of my colleagues have clients who have been picked up by ICE during their family court case—including clients who have been picked up because of the allegations at the heart of their ACS case. Generally, this seems to occur when there are concurrent criminal cases—proceedings that have alerted ICE to the parents’ presence. Yet orders of protection can also alert ICE to the possibility of an ongoing ACS case. In some cases, ACS has subsequently withdrawn the petition, presumably on the logic that it is pointless to pursue an ACS case, or perhaps because someone in ACS recognized that having an open case might be detrimental to the parent’s fight to remain in the country and with her family. But there is no uniform policy in this regard. And it is not at all clear that just because ACS disappears from a detained parent’s life, that parent will not disappear from her child’s life.
Only in the mixed-status family are notions of family unity and family safety additionally threatened by national fault lines of citizenship and legal status. While immigration status alone cannot be a basis for a finding of neglect, the lack of stable status affects parents’ ability to provide for the material welfare of their children. In New York, the agency in charge of child welfare is relatively pro-immigrant in its mission, policies, and practices. Yet when noncitizen parents do come in contact with the New York child-welfare system, their immigration status encumbers their ability to navigate family court proceedings. These same proceedings can expose families to a form of family destruction foreign to parents who are citizens: deportation.
Armed with knowledge of her client’s legal status, a competent and well-intentioned caseworker may be able to better assist a parent with status-related barriers. Yet even that will often not be enough. The noncitizen parent’s limited access to benefits, and her fears of disclosing status to obtain benefits for her eligible children, remain consistent barriers to ensuring the safety of the child and integrity of the family. These fears are real: federal disclosure laws148 prevent agencies from barring their employees from reporting undocumented parents to immigration officers. And the Trump Administration has proposed policies that would block parents whose families rely on public benefits from securing or keeping legal status. Furthermore, ACS increasingly works alongside law enforcement officials, including in parallel criminal cases. Finally, even competent caseworkers are rarely sufficiently trained in immigration and cultural competency issues. Thus, in many cases it may be preferable for the parent to remain silent on her legal status—even though this silence might also work to her disadvantage.
Comprehensive legal representation can help address this dilemma. Where noncitizen parents are increasingly denied due process in the immigration realm,149 assiduous and holistic legal representation can help ensure prompt and fair process in the child-welfare system. Handicapped by their lack of true independence and limited immigration knowledge, even the best caseworker—whether ACS-affiliated or contracted—is most often an inadequate resource. By contrast, because lawyers must abide by attorney-client confidentiality rules and can work alongside immigration practitioners, they can help move forward the process of reunification at every stage of the proceeding.
But while comprehensive legal representation can best serve noncitizen parents facing charges of child neglect, the systems of child protection and family and child services must also change. If we are to live out the value of family unity, we must overhaul the public welfare, immigration, and family legal regimes. Short of that, numerous changes to state and local policies may be attainable.
First, New York State and its municipalities should take steps to protect parents from immigration enforcement and adverse immigration consequences as a result of their contact with child-welfare proceedings. As discussed above, practitioners and scholars have increasingly shed light on the ways a family court proceeding can render a mixed-status family vulnerable to a variety of immigration consequences. Perhaps most drastically, by subjecting parents to state surveillance and monitoring, an ACS case might expose, even inadvertently, undocumented parents to immigration enforcement. Implementing alternatives to fingerprinting and to orders of protection, as well as limiting federal access to these databases, are steps that would go far in shielding families from immigration enforcement. Latent immigration consequences also include discretionary rejections of immigration applications—denying a family’s ability to access services and stability in the United States, and sometimes leading directly to deportation. Here, ACS cooperation with requests to limit the record made in family court proceedings could help preserve a family’s wellbeing.
Merely shielding family court proceedings from federal immigration authorities is not enough: more can be done within the child-welfare system itself to ensure noncitizens get equal access to and quality of services. For example, ACS policies should be modified to ease the draconian requirements of clearing all household members—whether for visits or release. Guidelines for determining who and how people get cleared that are sensitive to immigration concerns of individuals while remaining effective to ensure child safety should be developed. ACS should agree to pay for services to which noncitizens may not have access, without forcing them to resort to litigation. More funding should be allocated to providing services in different languages, and caseworkers should be required to undergo recurring cultural competency and immigration trainings.
But if ACS truly intends to “[k]eep NYC children & families safe & well,” it cannot remain a passive player.150 It can and must intervene in criminal proceedings that could put immigrant families at risk.151 For example, ACS could advocate withdrawing a criminal case where a matter in family court addresses the exact same conduct—with the aim to rehabilitate rather than punish a family. ACS can and must intervene in removal proceedings instead of abdicating its responsibility and leaving family preservation to the whims of an immigration judge. For instance, ACS should withdraw its family court petition where prosecution in family court would further endanger a detained parent’s immigration status. An ACS caseworker or ACS lawyer could also contextualize any family court record and could advocate for the release of a detained parent on bond. ACS could articulate for the immigration judge how release on bond would enable engagement in services and family counseling that are crucial for the welfare of a child. Finally, ACS should also advocate for the favorable use of discretion to permit a parent to remain in the country for the wellbeing of her child, drawing on its stature as an authority on child welfare. With such interventions, ACS can and must challenge the false siloes of child welfare, poverty, and immigration.
Tal D. Eisenzweig wrote this Essay as a Yale Law Journal Public Interest Fellow at The Bronx Defenders’ Family Defense Practice, where she is a staff attorney.