1. Representing immigrant clients: A National Perspective
Cristina Ritchie Cooper, JD
ABA Center on Children and the Law

2. Federal Child Welfare Laws
Child Protective Services – Federal law does not base eligibility for reimbursement of state child protection services, which include prevention services, on a parent or child’s immigration status if certain conditions are met. 
See 8 U.S.C. § 1611(b)(1)(D) and Attorney General Order No (1996) (see 61 Fed. Reg ) for those conditions. Title IV-B parts 1 and 2 are not considered Federal public benefits and can be provided regardless of a parent's or child's immigration status; this includes preventive services. U.S. Dept. of Health and Human Services, Admin. for Children’s Services, Child Welfare Policy Manual section 7.1 #2; ACYF-CB-PIQ (1/14/99).
Reunification with Parents – No part of Title IV-E prohibits reunification with parents who are undocumented or who live outside the U.S. 42 U.S.C. § 671(a)(15)(A)&(B).
Notice to Relatives –. No exception to requirements to search for and notify child’s adult relatives is included in the statute for relatives who live outside the U.S.; a sole exception is articulated for family or domestic violence cases. 42 U.S.C. § 671(a)(29).
Relative Placements – Title IV-E does not preclude placements with (or seeking other assistance from) relatives who are undocumented or living outside the U.S. 42 U.S.C. § 671(a)(19); ACF Child Welfare Policy Manual, 8.4B Title IV-E, General IV-E Requirements, Aliens/Immigrants.

3. Federal Agency Policy: ICE Parental Interest Directive
U.S. Immigration and Customs Enforcement, : Facilitating Parental Interests in the Course of Civil Immigration Enforcement Activities (August )
Directs ICE personnel to consider parental/guardianship status in making decisions about deportation and detention
Currently under review

4. ICE Parental Interest Directive, cont.
Directs field offices to consider parental/guardianship status to:
consider whether they should arrest and prosecute parents for immigration violations;
consider refraining from detaining parents initially;
attempt to keep detained parents/guardians near children or their child’s court case (including both child welfare proceedings and private custody cases);
arrange and ensure detained parents’ court participation;
arrange visitation with children as required by the court or the child welfare agency;
if a parent or guardian will be deported, allow him or her to contact others to help plan for the child(ren); and
consider facilitating return for previously deported parents who are facing termination of their parental rights.

5. Federal Agency Policy: HHS
U.S. Dept. of Health and Human Services, Children’s Bureau Information Memorandum 15-02: Immigration Enforcement and Child Welfare; Case Planning; Foster Care, (February 20, 2015), encourages agencies to adopt best practices, such as:
Prioritize identifying immigration status as a factor in permanency planning and “communicate any confounding issues to courts and service providers”
Example given is considering detention as a compelling factor in deciding not to file TPR petition when child has been in care for 15 of last 22 months.
Develop legal services referrals or other ways for families to assess immigration relief options for which they may be eligible;
Engaging immigrant families in leadership roles within the child welfare system, such as through parent partner programs, to support their participation in shaping child welfare policy and practice
HHS ASPE Issue Brief, Emerging Child Welfare Practice Regarding Immigrant Children in Foster Care: Collaborations with Foreign Consulates (December 2013),

6. MOUs with Foreign Consulates
Consulates can assist attorneys and agencies with:
Locating parents or relatives in the U.S. or abroad
Locating a detained parent
Identifying service providers in the parent’s country of origin
Facilitating reunification for parents in other countries
Working with U.S. immigration officials to secure a temporary parole to the U.S. of a parent for participation in dependency court proceedings or to meet case plan requirements
Bridging language and other communication barriers with the family in U.S. to find parents or relatives in the other country
Accessing documentation for child
Assisting with process for dual citizenship of child

7. MOUS, cont.
Mexican Consulate has MOUs with agencies in AZ, CA (and with LA County Juvenile Court), IA, IL, NE, NM
MO and WA have policies on consular notification
Others?
Center on Immigration and Child Welfare, specific-resources/

8. Vienna Convention
Requires notification to the consulate of a foreign national parent’s arrest or detention.
Vienna Convention on Consular Relations, 21 U.S.T. 77, Art. 36, ratified by the United States Dec. 24, 1969.
Terms also trigger consular notification in cases involving children: prompt notification required when “appointment of a guardian or trustee appears to be in the interests of a minor” who is a foreign national.
Vienna Convention at Art. 37(b). See also Art. 5(h).

9. Immigrant Foster Parent Certification
Explicit Bars
Potential Barriers
20 states with explicit citizenship or immigration-related foster care licensing standards
Administrative Code: Arizona, Colorado, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Missouri, New Jersey, New Mexico, Oklahoma, Oregon, Utah
Policy Manual: Georgia, Hawaii, Iowa, Mississippi, North Carolina, Tennessee, Virginia
Language/Communication: Alabama**, Arkansas, Florida, New Hampshire, Ohio, Texas.
State Residency: Maine, New Hampshire
Requests Citizenship-Related Information: Alabama, Alaska, Nevada, South Carolina, Texas.
Applicant Must Be “Law Abiding”: Illinois
© 2017 ABA Center on Children and the Law

10. Exceptions to Certification Requirements
Explicit Acceptance of Undocumented Caregivers as Foster Parents
Explicit Kinship Exception: Massachusetts, Oregon.
Non-Waivable: Arizona, Georgia*, Michigan, Mississippi, Missouri
General Waiver/Variance Provisions: Colorado, Hawaii, Iowa, Louisiana, New Jersey, North Carolina, Oklahoma, Tennessee, Virginia
Alternative Approval Processes: Colorado, Hawaii, Kentucky, Louisiana, Maryland, New Mexico, North Carolina, Utah
California
Indiana
Massachusetts
New York City
Oregon
© 2017 ABA Center on Children and the Law

11. Recent Caselaw of Note In re Doe, 281 P.3d 95 (Idaho 2012).
Between a parent and the state, the state must show the parent is unsafe, a much higher burden than the “best interests” analysis the trial court applied.
On appeal, TPR overturned and the child was ordered to be promptly returned to father in Mexico.
In re B & J, 756 N.W.2d 234 (Mich. Ct. App. 2008)
Involuntary deportation does not constitute “desertion” and, therefore, cannot be used as grounds to terminate parental rights
Agency’s subjective belief that children would have a better life in U.S. than in their country of nationality, alone, is insufficient to find that TPR is in the children’s best interests
In re M.R., 270 P.3d 607 (Wash. Ct. App. 2012).
All the parties supported custody w/ paternal grandparents.
The court removed the child due to their lack of documentation, suggesting the placement was too unstable.
The appellate court overturned the removal. The grandparents had been in the U.S. for 18 years, the child was very bonded with them and their extended family

12. Other resources Immigration Lawyer Referrals:
ICE Online Detainee Locator System:
Immigration Lawyer Referrals:
Women’s Refugee Commission parental rights toolkit:
Center on Immigration and Child Welfare:
ABA Center on Children and the Law’s Child Welfare & Immigration Project: html