Foster Care Reform Update

04/05/2007

In this issue:

  • Policy Spotlight: Issues at the Intersection of Immigration and Child Welfare Law
  • Nebraska Court Opinions: In re Interest of Amoria M. et al.
  • Nebraska Legislative Actions
  • Federal Legislative Actions: Kinship Caregiver Support Act
  • Notice: Nebraska Supreme Court invites public comment on Proposed Guidelines For Guardians Ad Litem for Juveniles in Juvenile Court Proceedings

POLICY SPOTLIGHT

Issues at the Intersection of Immigration and Child Welfare Law
In light of the growing number of new immigrants in Nebraska and the recent immigration raids taking place, our policy spotlight focuses on the legal issues surrounding the children who might have been affected by these raids or could be affected by future raids.

When Immigration and Customs Enforcement (ICE) takes a person into custody during a raid or other circumstances, the undocumented person’s children are not taken into custody as well. As a result, practically speaking, the children are often left waiting at school or day care centers, for example, until family members or friends are notified. In the best circumstances, the children are in the care of a relative or family friend and are not immediately put into state custody. However, with the biological parent subject to deportation, when is it appropriate for the state to take custody of their children and on what grounds?
When undocumented parents are deported, they have the right to determine whether their child will stay in this country and be separated from his or her parents or if the child will accompany his or her parents. See Acosta v. Gaffney, 558 F.2d 1153, 1158 (3rd Cir. 1977) (discussing how the rights of an American-born child are affected by the deportation of the child’s parents). However, it is important to note at the outset that federal courts, including immigration courts, have no authority to make or enforce custody determinations; the sole ability to do so is vested in state family and juvenile courts. E.g., Johns v. Dept. of Justice, 653 F.2d 884, 894 (5th Cir. 1980); See also David B. Thronson, Choiceless Choices: Deportation and the Parent-Child Relationship, 6 Nev. L.J. 1165, 1203 (2006). Additionally, immigration courts have no ability to determine whether a parent is fit to make decisions for his or her child, although there have been instances where an immigration court has ordered counsel for the Department of Homeland Security to notify state child welfare officials about the immigration proceedings and a parent’s statements made during the proceedings regarding a child. Olowo v. Ashcroft, 368 F.3d 692, 703 (7th Cir. 2004) (discussing the mother’s statements that she would take her daughters with her if deported even though she knew her daughters would face female genital mutilation once returning to Nigeria). Thus, regardless of the federal government’s involvement with the parent, state law continues to govern the removal of the children.

One question to arise in this debate is whether the parent’s absence while in ICE custody or the parent’s eventual deportation amounts to “abandonment” and would be a ground for removing the children and placing them in state custody. Under Nebraska law, abandonment is not a specific ground for the state to take immediate or temporary custody. Neb. Rev. Stat. § 43-248; Neb. Rev. Stat. § 43-266. Therefore, it can be argued that in an emergency situation such as during or immediately after an immigration raid, the State cannot remove a child simply because the parent has been detained by immigration officials so long as the child is not in surroundings that endanger his or her welfare. If the child is being cared for by a family member or other concerned person during the parent’s detention and the home is safe and appropriate, there is no reason to take immediate custody of the child.

However, abandonment is a ground for juvenile court jurisdiction under Neb. Rev. Stat. § 43-247(3)(a) as well as for termination of parental rights under Nebr. Rev. Stat. § 43-292(1), if the parent has abandoned the juvenile for six months or more immediately prior to the filing of the termination petition. Whether a parent who is deported can be said to have abandoned the child has been litigated in Nebraska. In a case brought by Nebraska Appleseed, In the Interest of Mainor T, 267 Neb. 232 (2004), the mother’s parental rights to her children were terminated after she was deported to Guatemala. The Nebraska Supreme Court, however, reversed the termination because the mother did not leave the country voluntarily and was attempting to return to Nebraska to participate in reunification services with the help of an immigration attorney. Id. at 242. Nebraska courts have held that intent is an important element of abandonment and abandonment requires a finding that a parent “intentionally withheld from a child, without just cause or excuse, the parent’s presence, care, love, protection, maintenance, and the opportunity for the display of parental affection for the child.” In re Interest of Sunshine A. et al., 258 Neb. 148, 156 (1999). Therefore, it can be argued that detention by ICE or deportation does not amount to “abandonment” for purposes of Nebraska’s child welfare laws. For more information on these issues, please contact Sarah Helvey.

NEBRASKA COURT OPINIONS

In re interest of Amoria M. et al., A-06-771 http://court.nol.org/opinions/2007/february/feb27/a06-771.pdf. (Decided February 27, 2007, not designated for permanent publication) The Nebraska Court of Appeals upheld a juvenile court order finding that it was in the best interests of the nine minor children in this case to remain under the jurisdiction of the juvenile court. In this case, two parents had been living with their nine children in a one bedroom home that the record indicated was “filthy” and had no water or other utilities for several months because the parents could not afford to make the payments. The Department of Health and Human Services (DHHS) recommended terminating the juvenile court’s jurisdiction over the family because the children had returned to in-home placement and the court had been supervising the family for over a year. The DHHS appealed the juvenile court’s order which continued the court’s jurisdiction, arguing that Neb. Rev. Stat § 43-288 places a one year time period limitation on court supervision over children who are allowed to remain in the family home under Neb. Rev. Stat § 43-284 or § 43-286. The Court of Appeals held that because hearings regarding the family were held every three months and the conditions imposed on the family were slightly different after each hearing, there was no violation of Neb. Rev. Stat. §43-288. The DHHS also argued that under In re Interest of D., 209 Neb. 529 (1981), the court could not “deprive a parent of the custody of a child merely because the parent has limited resources or financial problems.” The Court of Appeals noted that the cited case concerns the termination of parental rights, not the trial court’s right to maintain jurisdiction and found that terminating jurisdiction would not be in the children’s best interest in the present case because the parents had failed to meet the permanency objective of maintaining steady employment and housing. Finally, the DHHS challenged the trial court’s adoption of the recommendation of the “LB1184 Treatment Team” which found that terminating jurisdiction was not in the children’s best interests. DHHS argued that the rehabilitation plan did not propose material provisions related to the conditions giving rise to the case. The Court of Appeals held that materiality existed in this case because the provisions of the rehabilitation plan provided corrective conditions to the family’s underlying problems.

NEBRASKA LEGISLATIVE ACTIONS

The following lists show bills which: 1) were included in previous Foster Care Reform Updates as bills selected by Appleseed as raising systemic issues in the child welfare system and 2) have been designated as a priority bill and/or have advanced out of committee.

LB 53 – Prohibit smoking in certain foster homes. Introduced by Sen. Howard.

LB 112 – Provide for the judicial emancipation of minors. Introduced by Sen. Erdman.

LB 157 – Provide for leaving an infant with a firefighter or hospital staff member. Introduced by Sen. Stuthman.

LB 457 – Change provisions governing court review of foster care placement. Introduced by Sen. Hansen.

LB 461 – Provide rights for foster parents. Introduced by Sen. Dubas.

FEDERAL LEGISLATIVE ACTIONS

S. 661 - Kinship Caregiver Support Act. Introduced by Senator Hillary Rodham Clinton (D-NY) and Senator Olympia Snowe (R-ME).

  • The Kinship Caregiver Support Act would establish a Kinship Navigator Program in states, large metropolitan areas and Indian tribal organizations to assist kinship caregivers in navigating needed programs and services. The program would provide families with guidance to obtain health care coverage for the children in their care, apply for housing assistance, locate childcare, enroll children in school, and gain access to other services. The bill would also establish a Kinship Guardianship Assistance Program to provide federal assistance to states for subsidized guardianship programs to make it possible for grandparents and other relatives who become kinship caregivers to receive the same subsidy a foster family would receive. In addition, the legislation would require notice to relatives when children enter foster care.
  • For full text of the bill - http://thomas.loc.gov

Note: This is not an exhaustive list of legislation or cases. The bills and cases in this update are selected by Appleseed as those raising systemic issues in the child welfare system.

NOTICE

The Nebraska Supreme Court has invited interested persons to comment on Proposed Guidelines For Guardians Ad Litem for Juveniles In Juvenile Court Proceedings. Comments must be in writing and must be submitted no later than May 1, 2007. More information and the proposed guidelines are available on the Nebraska Supreme Court’s website at http:www.supremecourt.ne.gov/rules.

For more information about the Child Welfare System Accountability Project, please visit: NeAppleseed.org/children
For more information about Nebraska Appleseed, please visit: NeAppleseed.org
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