July 12, 2017 Articles

Tips for Safety Planning for Children of Undocumented Parents

By Jennifer Baum

In 2013, more than 5 million children in the United States (over 7 percent of the total U.S. child population) were living with at least one undocumented parent, according to the Migration Policy Institute. The overwhelming majority of these children (80 percent) were U.S. citizens. The Washington Post reported that more than half a million of these children’s parents have in fact been deported since 2009. That’s a lot of U.S. children living day to day with the sudden loss, or risk of sudden loss, of a parent through deportation.

Children of deported parents, like children from disrupted households generally, are at increased risk of poverty; psychological trauma (including depression, behavioral problems, and cognitive and emotional deficits); educational impairment (lower grades and attendance); homelessness and housing instability; lack of access to health care; food insecurity; and other negative outcomes. But the prognosis for children of undocumented or mixed-status families is worse than that for families without immigration concerns because language barriers and parental fear of deportation create additional obstacles to accessing social services. The good news is that child advocates can play a meaningful role in mitigating some of this harm by advising and assisting deportable parents on how to plan ahead for their at-risk children. This article identifies some discussion points and concrete action plans for working with deportable parents and their children.

Preparing the Children
Child advocates come to their clients through a variety of legal contexts, including child protection, juvenile delinquency, educational advocacy, custody/guardianship, family offense, and supervision cases. Any advice or assistance given to family members should reflect the context of the relationship and each family’s individual characteristics. Whom does the advocate represent, if anyone? Are there any conflicts of interest in working with other family members?

What to tell the children? Assuming there is no conflict of interest, a first step would be to help parents determine what conversations to have with their children. Parents should consider the age and maturity of each child, and which family members are deportable. In a mixed-status family, one or both parents may be deportable, along with one or more of the children or other relatives. Parents should contemplate the family’s unique composition and construct age- and circumstance-appropriate conversations or other preparations for each of the children. This is easier said than done.

The process of describing the actual details of deportation could itself leave younger children traumatized. Instead, parents can indirectly prepare younger children by strengthening and maintaining the relationship between the children and their designated emergency caregivers, easing the effects of a sudden transition to the caregiver’s household should such eventually become necessary. If the designated caregiver lives far away, a family might use Skype, FaceTime, WhatsApp, and other free messaging and video conferencing apps to keep bonds strong.

In planning out their conversations with older children, parents should first ask them what they already know, and then correct any misinformation they may have about the family specifically, or immigration in general. Parents should then carefully give children an accurate explanation of the family’s circumstances. (Advocates can obviously play a significant role here in educating the parents about their rights and responsibilities—there are many fact sheets from local and national organizations online; see below.) Older children might be able to handle more information, but might also overshare what they learn, such as with younger siblings or others outside of the family. Parents should therefore consider instructing older children on how to politely decline discussing “private information” such as immigration status with other adults.

Parents should also think about whether some or all of the children themselves are deportable, and explain what that might mean for each family member: will the parents seek to have everyone join them, and on the same timeline? How will a mixed-status sibling group stay in touch until they can be reunified? Even if the parents are unsure of all of the answers themselves, letting children know they can discuss it with them will give them a sense of participation and control.

These can be complicated conversations. The Massachusetts School of Professional Psychology created a free workbook, Family Forever: An Activity Book to Help Latino Children Understand Deportation, that can be accessed online. Resources such as these can help parents with suggested language to use and topics to cover during conversations with their children, before a deportation occurs.

Advocates might also consider enlisting a social worker or other mental health professional to facilitate conversations between parents and their children. Always be mindful, however, of a potential resource’s reporting requirements before disclosing immigration status or information that might put the family at risk of a child protective investigation.

When to tell the children? Parents should begin discussions with children and caregivers before they are detained, as communication with detained parents can be challenging or nonexistent. A U.S. Immigration and Customs Enforcement (ICE) “Parental Interests Directive” acknowledges and reaffirms apprehended parents’ rights and responsibilities, but the practical realities of visiting parents in immigration detention centers that can be located hours away naturally limits the ability to communicate at all. Additionally, communication with parents who have been deported can be next to impossible in the often chaotic early days of return.

Detained parents should make sure to immediately tell the arresting agents that there are minor children at home, and if applicable, that the detained parent is the sole caretaker of the children. Parents should repeat this statement often to other agents with whom they may subsequently interact, to make sure ICE is aware that the detainee has children at home. This may result in a stronger bond application, fewer transfers to remote detention facilities, or quicker arrangements for visits with children.

When to tell others? Parents should communicate information and plans to trusted friends or relatives as soon as possible. When parents are removed and there is no plan for their children’s care, the children may find themselves left home alone and child protective workers may be called in. Once child protection is called, the Adoption and Safe Families Act (ASFA) sets families on a slow march toward potential adoption—but this march may not be as slow as a deportation case. Unless parents plan quickly for the care of their children outside of foster care, or communicate regularly with case workers in the event their children are placed into foster care, the children might be freed for adoption before a deportation case is concluded. A family’s perils can therefore snowball into multiple legal proceedings and ultimately permanently separate children from their parents. That is another reason why it is so important to plan ahead.

An undocumented or mixed-status family’s support network often includes other undocumented adults. But whenever possible, family members should enlist a nondeportable adult as the designated caregiver in their safety plan, to protect the children from multiple disruptions. Seeking out potential caregivers with lawful presence as back-up resources should therefore begin as soon as possible.

Assembling a Deportation “Go Bag”
Most of us are familiar with the recommendations of disaster preparedness experts to put together a “go bag” before the Big One. The same theory applies to deportation, which could be an immigrant family’s “Big One.” A deportation go bag would contain essential survival tools and information for the relatives left behind.

A deportation go bag or kit should contain copies of all of a family’s important documents, such as:

  • birth certificates (of all family members, with certified translations);
  • parents’ immigration records (if any);
  • powers of attorney and standby guardianship papers (see below);
  • court orders (custody/guardianship orders, orders of protection, etc.);
  • banking, car title, and other financial and personal property records;
  • log-ins and passwords;
  • health records;
  • prescriptions;
  • school records;
  • documentation concerning special needs (IEPs, early intervention assessments, etc.);
  • contact information for relatives in the home country with whom deported parents might initially stay;
  • contact information for an immigration attorney in the United States (preferably one who is already familiar with the family or who comes with a personal recommendation); and
  • instructions for accessing saved money and resources to help care for the children.

The go bag, whether physical or virtual, can also contain letters, photos, and prerecorded video messages to the children assuring them that they will be reunited as soon as possible, and statements about parents’ wishes for the children that can be used in a family court. A virtual go bag securely contains the same information as a physical one, but stores it all digitally, either online or on a flash drive (make sure to use only secure programs or providers, or password protected media). Many go bag documents can also perform double duty: in addition to assisting children in transitioning to a new, temporary caregiver, documents like children’s school and health records can also help in a bond application by establishing longtime presence and community ties.

In addition to assembling a go bag, parents should memorize the names and phone numbers of the people in their support network, as they will not be able to check their phones for this information once they are detained.

Consider Seeking Legal Advice
Parents do not need a lawyer to implement most features of an emergency preparedness plan, but consulting with an attorney could help a parent prepare for a bond application or a legal defense, and draft more complicated legal documents, if such are necessary. Parents who do not want, or cannot locate, counsel can educate themselves online: many local and national advocacy organizations (such as the ACLU, National Immigration Law Center, and LawHelp) have posted “know your rights” materials to their websites in English and Spanish.

There are not enough legal aid organizations to meet the needs, including the geographic needs, of all of the undocumented U.S. parents and their at-risk children throughout the country, but all of the measures described below can be implemented without an attorney. However, depending on a parent’s individual circumstances, many families might benefit significantly from the advice of counsel, such as in drafting legal papers (power of attorney, guardianship, standby guardianship papers), collecting prior immigration paperwork, ascertaining the existence of relevant court orders (orders of protection, child welfare orders), and other legal tasks.

Providing for the Care of the Children
There are numerous legal mechanisms for ensuring the care and custody of children, ranging from privately arranged powers of attorney, to formal court orders for guardianship, to foster care. A comprehensive survey of state law is beyond the scope of this article, but the most common legal devices are described below. Remember that the rules for each instrument vary and are governed by individual state laws.

Power of attorney. Many, but not all, states allow parents to designate, extrajudicially, another adult to stand in loco parentis to the child, through power of attorney. A power of attorney is a revocable private agreement that can grant the holder the authority to make decisions on behalf of a child, such as where the child lives, where he or she goes to school, and certain medical decisions. Powers of attorney can have expiration dates. They can also provide the authority to govern property, finances, business dealings, etc. Simple forms are available online and may require one or more witnesses and notarization. Some states require, and others may permit, powers of attorney to be registered or filed with the state to be enforceable. Some states do not permit designations of child custody through power of attorney, but may offer other options. For instance, New York, which does not offer powers of attorney for the care and custody or minor children, nevertheless recognizes 30-day and six-month privately arranged designation of person in parental relation forms. Each state varies in what legal instruments it offers its residents. Parents should make sure they understand what forms to use, and where to file them to become effective.

Guardianship. Guardianship is a court order determining the permanent or long-term care and custody of a child. It is not revocable because it is issued by a court, not the parent. There are no expiration dates on a guardianship order, but it will terminate automatically when the child reaches the age of majority or upon further court order. Guardianship cases can be handled pro se, but if guardianship is contested or there are questions about the fitness of a guardian, an attorney should be consulted. Guardianship cases involve court appearances and may involve fingerprinting and other background checks.

Standby guardianship. Roughly half of the states provide “standby guardianship” authority for designated adults to automatically assume temporary care of a child upon the occurrence of a triggering event. Many states require the triggering event to be a serious illness, so immigration detention or deportation may not qualify. Some states require a court order, but others allow extrajudicial agreements that comply with local requirements for witnesses and notaries. Standby guardianship can be revoked, and therefore protects a parent’s rights better than a straight guardianship order would.

Foster care. Voluntary placement into foster care is an option available to all parents, though it may be difficult to effectuate from within immigration detention. A detained parent might become the subject of a child protective investigation for failing to return home during a period of immigration detention. But a parent or advocate may seek to convert an involuntary placement into a voluntary one, allowing the parent to regain custody of the child if the parent is released on bond, successfully defends his or her case, or is deported and wishes to send for the child after repatriation.

Informal arrangements. Many families use informal arrangements to care for their children. Some advantages are that such arrangements are flexible; they do not, in themselves, affect parental rights; and they can be effectuated immediately and revoked at any time. But disadvantages include placing an absent parent at risk of a child protective investigation, lack of clear decision-making authority concerning the health and education of the children, and increased poverty resulting from caregivers’ inability to access government benefits for such children.

Reunifying Children with Parents Abroad
Whenever possible, parents should obtain passports for their children ahead of time. Passports are good identification for U.S. citizen children, and will allow them to travel outside of the United States to visit a deported parent. Passports are also essential for undocumented children, as countries other than Mexico may decline to accept a child (whether deported or nondeported) without a passport or other travel documents, leaving them in limbo, or possibly detention, for longer. (Passports are not necessary for repatriations to Mexico.) U.S.-born children might also be able to obtain dual citizenship from their parents’ country of nationality. To obtain a passport, parents should contact their consulate or embassy (contact information is readily available online). The documentation and application requirements will vary depending on the issuing country. In larger immigrant communities, a consulate may hold a “passport day” to help children obtain necessary documents from their home country.

Safety Planning for Immigrant Families Is Here to Stay
Preparing children of deportable parents for an uncertain future is now a reality all immigrant families must acknowledge. Advocates can speak with community leaders, school officials, houses of worship, and social services agencies about incorporating immigrant family safety planning into the services they already offer to local families. Advocates can organize volunteers to draft powers of attorney or other legal documents on behalf of deportable parents. They can also assist in obtaining copies of the legal documents needed for a go bag.

In these ways, advocates can help reduce the potential trauma to left-behind, or temporarily left-behind, children. And all signs point to a growing demand for these services in the coming months and years.

Jennifer Baum is a professor of clinical legal education at St. John’s University School of Law in New York City, New York.

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