States Update Guardianship Laws To Keep Children of Immigrants Out of Foster Care

As family separations caused by immigration enforcement ramped up last year under President Donald Trump, I wondered what happens to the children whose parents are detained or deported. I found that some have been placed in foster care if they don’t have other family or friends to assume responsibility for them — but it’s not known how many. 

The federal government doesn’t track what happens to children after their parents are detained or deported, and state data varies. Independent news reports are scarce and likely undercount the issue. But there’s evidence that in many states some of the children are being placed in foster care. 

In Oregon, for example, there have been at least two cases in which children who were separated from their parents were placed into foster care by the state. Jake Sunderland, press secretary for the state Department of Human Services, said that before last fall, this “simply had never happened before.” 

Separation from a parent can be deeply traumatic for children and lead to a broad range of health and psychological issues, including post-traumatic stress disorder. Some states have responded by updating their temporary guardianship laws to help immigrant parents better prepare care for their children in the event of their detention or deportation.

Lawmakers in New Jersey are considering a bill to allow parents to nominate standby, or temporary, guardians in the event of death, incapacity, or debilitation. The proposal adds separation caused by federal immigration enforcement as another allowable reason. 

Nevada and California passed similar laws last year. 

Yet some parents are hesitant to participate, said Cristian Gonzalez-Perez, an attorney at Make the Road Nevada, a nonprofit that provides resources to immigrant communities. The hesitancy is out of fear that Immigration and Customs Enforcement agents could access their personal information and use it to target them for detention or deportation. 

My colleagues Claudia Boyd-Barrett, Renuka Rayasam, and Amanda Seitz reported on a case in which ICE used data from the Department of Health and Human Services’ Office of Refugee Resettlement to detain parents under the impression they were reuniting with their children, highlighting the precarious situation for immigrant parents. 

Additionally, ICE detention makes it difficult to reunite parents with their children if they’ve been placed in foster care because reunification often requires court-ordered programs, said Juan Guzman, director of children’s court and guardianship at the Alliance for Children’s Rights, a legal advocacy organization in Los Angeles. Nominating a guardian is one way to ease immigrants’ feelings of helplessness when facing the threat of detention or deportation, Gonzalez-Perez said.