Emerging Child Welfare Practice Regarding Immigrant Children in Foster Care: Collaborations with Foreign Consulates

ABOUT THIS ISSUE BRIEF

As the number of immigrant children and children of immigrants in the U.S. has grown, child welfare agencies are serving an increasingly diverse spectrum of families, including many with at least one parent or some children who were born outside the U.S. To improve their work with these families, a number of child welfare agencies have in recent years developed Memoranda of Understanding (MOUs) with foreign consulates promoting cooperation in cases involving children who are nationals of another country.

This ASPE Issue Brief describes agreements between state or county child welfare agencies and foreign consulates regarding cooperation that should occur when immigrant children and/or children of immigrants are placed in foster care. These agreements, currently operating in a handful of jurisdictions, represent an emerging child welfare practice. This brief was prepared by ASPE’s Laura Radel. We thank the state officials who shared their experiences working with consulates on behalf of children in foster care: Jean Ortega-Piron in Illinois, Arleen Lucero in New Mexico, and Leah Stajduhar and Vickie Stock in Washington.

Office of the Assistant Secretary for Planning and Evaluation

Office of Human Services Policy

US Department of Health and Human Services

Washington, DC 20201

Background

As the number of immigrant children and children of immigrants in the U.S. has grown, child welfare agencies are serving an increasingly diverse spectrum of families, including many families in which at least one parent or some children were born outside the U.S. This is true both in states that historically have been home to large immigrant populations and also in states and communities that are less accustomed to immigrant families. Child welfare agencies can face several challenges in working effectively with immigrant families, beyond issues of differing norms regarding childrearing and parental behavior. In particular, cases involving one or more parents and family members who do not reside in the U.S. or a parent who is in the custody of Immigration and Customs Enforcement can be particularly complex.

To improve their work with these families, a number of child welfare agencies have in recent years developed Memoranda of Understanding (MOUs) with foreign consulates promoting cooperation in cases involving children who are nationals of another country or whose parents are nationals of another country. The 1963 Vienna Convention on Consular Relations, an international agreement to which 163 nations including the U.S. are parties, requires that the appropriate consulate be notified when a citizen of a participating nation is in the custody of the government of another participating nation. A specific provision of the agreement¹ applies to foreign national children² in the custody of a child welfare agency. In addition to this general obligation for notification when a foreign national child of a signatory country enters foster care, several states and counties in the U.S. have established bilateral agreements with their local Mexican consulates to foster cooperation on individual child welfare cases. Still others have developed policies on consular notification and cooperation that extend to cases involving foreign national parents whether or not their children are citizens of the parent(s) home country.

In order to better understand the practice of consular agreements on child welfare issues, we identified MOUs or similar documents from 11 states or counties (counties were all in California which has a county administered child welfare system). In two instances, we examined policy guidance regarding consular notification and casework practice with children in immigrant families rather than MOUs (these were from Missouri and Washington). We identified these MOUs and policy guidance through contacts with national advocates, Internet searches, and by inquiring through listserves of state child welfare officials maintained by HHS’s Administration for Children and Families. We did not conduct an exhaustive search; undoubtedly other agencies have similar agreements or policies in place. These examples do, however, provide a range of detail and include states and counties with more and less extensive immigrant populations. We believe they are illustrative of the variety of agreements in place around the country. In addition to our examination of written documents, we spoke with officials of three states responsible for implementing the agreements or policies in order to understand their history and utility. These interviews were with staff from Illinois, New Mexico, and Washington and took place in September of 2012.

The section below identifies the parties to the agreements we reviewed and summarizes their content in general terms. The summary is followed by descriptions of how the agreements are used in practice based on interviews with state officials responsible for their implementation. Finally, Table 1 at the end of this brief identifies in more detail the provisions included in the agreements and which provisions were part of each of the agreements and policies we examined. Note that all MOUs identified were with Mexican consulates. Mexico maintains an extensive network of consulates around the U.S. and its national social services agency has available an array of services that can be mobilized to serve children and parents repatriated from the U.S. Despite inquiries, we were unable to identify any agreements with other nations’ consulates. This may be due to the fact that fewer children in foster care or their parents are nationals of other nations or that the consulates of other nations have fewer legal and social services resources to offer their citizens in the U.S. The state policy guidance we reviewed for Missouri and Washington apply to all immigrant children taken into foster care regardless of the nation from which they or their parents immigrated. These policies are included here because their features are quite similar to the consular MOUs reviewed.

¹ Article 37 reads, in part, “If the relevant information is available to the competent authorities of the receiving State, such authorities shall have the duty…to inform the competent consular post without delay of any case where the appointment of a guardian or trustee appears to be in the interests of a minor or other person lacking full capacity who is a national of the sending State.”
² A foreign national child includes non-citizen children and U.S. citizen children who have dual citizenship in a parent’s home country. Nations differ as to whether dual citizenship is granted to U.S. born children of their citizens. A list of countries that grant dual citizenship may be found at: http://www.immihelp.com/citizenship/dual-citizenship-recognize-countries... and includes, for instance, both Mexico and Guatemala among many others.

Agreements and Policies Reviewed

We identified 9 MOUs and 2 closely related policies from the following jurisdictions:

• State of Illinois (with the Mexican consulate in Chicago, IL)
• State of Iowa (with the Mexican consulate in Omaha, NE) ³
• State of Nebraska (with the Mexican consulate in Omaha, NE)
• State of New Mexico (with the Mexican consulates in El Paso, TX and Albuquerque, NM)
• State of Missouri (this was a policy regarding immigrant children, not an MOU)
• State of Washington (this was a policy regarding consular notification, not an MOU)
• Los Angeles County, California (with the Mexican consulate in Los Angeles, CA)
• Monterey County, California (with the Mexican consulate in San Jose, CA)
• Riverside County, California (with the Mexican consulate in San Bernadino, CA)
• Sacramento County, California (with the Mexican consulate in Sacramento, CA)
• San Diego County, California (with the Mexican consulate in San Diego, CA)

Each is a relatively short document; they range in size from 1 to 9 pages in length. Several of the agreements are posted on the Internet. Links to those available publicly may be found at the end of this brief.

³ There is no Mexican consulate in Iowa; the consulate in Omaha, Nebraska serves the needs of Mexican citizens in Iowa.

Content

The agreements varied considerably, with some much more detailed than others. The only element common to all of them was the requirement that the consulate be notified whenever the child welfare agency had custody of one of its citizens or the child of one of its citizens. Some other elements appeared in many agreements, but many provisions appeared in only one or two of them (see Table 1 for details). The Vienna Convention on Consular Relations is mentioned in the preambles to most of the MOUs examined and underlies all of the agreements reviewed. None of the agreements mentions Immigration and Customs Enforcement or provide roles for that agency with respect to these cases.

The most common obligations of the U.S. child welfare agencies provided for in these agreements are:

1. to notify the consulate that one of its nationals or the child of one of its nationals is in the agency’s custody;
2. to provide access to the child by a consular representative; and
3. to provide periodic updates and information to the consulate about cases involving its nationals.

The most common obligations of consulates provided for in these agreements are:

1. to facilitate requests for home studies on potential placements in the foreign country (e.g. a relative or deported parent);
2. to abide by confidentiality rules applicable to child welfare cases;
3. to provide certified copies of birth certificates for immigrant children in the child welfare agency’s custody;
4. to assist in searches for parents or relatives in the foreign country; and
5. to facilitate the child’s return to his or her country of origin (or to the parent’s country of origin) if that is found to be in the child’s best interests.

Beyond the more common provisions of these agreements, there were many provisions that appear in only one or two of the agreements examined. For instance, the agreement with New Mexico provides that the Mexican Consulate will collaborate on cases in which a family may have entered Mexico to evade a child protection investigation, while agreements in Illinois and Iowa note that the Mexican Consulate will facilitate requests for placement supervision by the Mexican national social services agency (e.g. the preparation of monitoring reports on the child). These less common provisions vary widely and some originate in particular past cases in which cooperation had been problematic under a particular set of case circumstances prior to the initiation of the consular agreement.

Illinois: A Decade of Cooperation with the Mexican Consulate

Illinois has among the largest immigrant communities in the nation and is a well-established destination for immigrant families. Given this context, the Illinois state child welfare agency, known as the Department of Children and Family Services (DCFS), established a specialized Immigration Services Unit that is responsible for assisting staff on immigration issues related to foreign-born children who are in the custody of the agency. This unit deals with citizenship status issues for children and youth in care, including: obtaining legal permanent resident status for foreign-born children and youth, establishing citizenship status for qualified youth who are permanent residents, replacement of permanent resident cards, refugee status adjustment, stay of deportation, asylum, removal of conditional status and assistance in obtaining birth documents from foreign consulates or embassies. In addition, the agency has developed a pamphlet about child abuse investigations in Spanish describing how and why investigations are conducted and what parents may expect during an investigation. The state has also established clear guidelines for placing children with undocumented relatives when that is determined to be in the child’s best interests.

The Illinois DCFS was the first child welfare agency in the nation to establish an MOU with the Mexican consulate. An initial agreement on consular notification was signed in 2000, followed by a more extensive agreement on cooperation in 2004. The agreement has been renewed several times since then, most recently in 2011. Information on the specific provisions of Illinois’ agreement may be found in Table 1. Most of the foreign born children in DCFS custody are Mexican as are most of the foreign national parents who come into contact with the agency. On occasion other consulates have approached DCFS about whether they also should establish MOUs, but because they only have a few children in care from any foreign nation other than Mexico, these consulates ultimately chose not to pursue formal agreements with DCFS. The state cooperates with other consulates on a case by case basis but there has not been sufficient volume to institutionalize procedures and roles.

The state’s original agreement with the Mexican consulate was precipitated by a series of cases in which parents’ lack of legal status in the U.S. delayed or prevented reunification with a parent who otherwise would have likely been granted custody. The Mexican Consul in Illinois at the time was eager to address the rights of Mexican parents with children in DCFS custody and began discussions with Illinois’ child welfare agency to make sure that consular assistance could be made available in these cases. A dozen years after the agreements were drafted, these sorts of cases are much more rare, though they do still occur, according to Jean Ortega-Piron, Guardian/Deputy Director of the Illinois Department of Child and Family Services and one of the DCFS officials who led the negotiation of the original agreement and who continues to be an advocate within the agency for immigrant children and children of immigrants in foster care⁴.

The MOU in Illinois provides a structure for initiating contact with the consulate to notify consular staff of a child in care and to request assistance from the Mexican social services agency, Sistema para el Desarrollo Integral de la Familia (known by its acronym, DIF) as needed. Illinois does not have large numbers of non-citizen children or children from immigrant families in care, but there are enough that the state finds it helpful to have a process and expectations for staff. Obtaining the parent’s consent to release information allows the sharing of information between DCFS and the Mexican Consulate that would otherwise be prohibited because of confidentiality restrictions. The agency believes that such information sharing results in better service for the family.

The Mexican Consulate provides assistance to DCFS in a number of ways. For instance, in a recent case, DIF performed a home study on a relative who was being considered as a placement resource and is conducting monitoring visits in Mexico now that the child has been placed across the border. In another recent case, the consulate arranged for the father to participate in court proceedings by phone from a consular office in Mexico and consular officials interpreted. Consulate officials often obtain birth certificates for children. Even outside the scope of the written agreement, the MOU has proven helpful. For instance, consular staff work with DCFS to conduct outreach in the immigrant community, host joint trainings with DCFS staff and make presentations to the courts. DCFS officials note that these actions are intended to ensure Mexican citizens (parents and children) are treated fairly by U.S. agencies and courts, and are not used to question the child welfare agency’s safety decisions.

⁴ Ms. Ortega-Piron has retired since the research for this brief was conducted.

New Mexico: More Recent Collaborative Efforts

New Mexico’s agreement with its Mexican consulate is more recent than Illinois’s, dating to 2009. According to Arleen Lucero who manages the MOU for the state, the agreement has opened the lines of communication between government agencies on either side of the agreement. “It is beneficial to both agencies and is in the children’s best interest.” She finds that the agreement is especially helpful in allowing child welfare agencies to share information with the consulate that would otherwise be considered confidential. (Caseworkers obtain parental consent in order to allow the exchange of information.)

The MOU requires that basic information be provided to the consulate at the time a Mexican citizen child comes into care. (See Table 1 for details on the provisions contained in the agreement.) A form has been developed to facilitate consular notification and ensure that consistent information is provided in these cases. There is an additional form that caseworkers can use to request assistance from the consulate, for instance to obtain a child’s birth certificate or to request a home study be conducted on a potential placement resource in Mexico. Other common requests include assistance in providing notification to a secondary parent in Mexico (i.e. not the one from whom the child was removed) or to arrange for parental participation in hearings by telephone. The consulate has also been helpful in obtaining a Mexican passport for a child being placed with parents or relatives in Mexico. Occasionally the consulate can arrange for visits between parents and children at its border facility, though that is rare. More common is arranging for phone contact. Case workers can also request assistance for services beyond what is specifically outlined in the MOU.

New Mexico uses the agreement primarily in cases where the child is a Mexican citizen, but it can also be used for U.S. citizen children with a parent in Mexico. In addition, the agreement is used occasionally in the other direction, to repatriate U.S. citizen children to New Mexico after they have been placed in foster care by Mexican child welfare authorities.

Notifications to the Mexican consulate and/or requests for assistance occur “at least once a week.” The state agency is also sometimes contacted by the consulate if the parent has reached out to the consulate directly after their child(ren) come into the state’s care. In these cases, the consulate typically is seeking information on case status and contact information for the child’s caseworker.

Training workers to routinely ask questions to ascertain the child’s citizenship status early in the case and notify the consulate as necessary has required extensive effort. The Mexican consulate has helped with trainings for U.S. child welfare staff about their notification responsibilities and the types of assistance the consulate can provide. Parents may not be comfortable disclosing information on their immigration status, but the information is needed to assess the child’s eligibility for various services.

The Mexican consulate has also been helpful in identifying staff liaisons in other Central or South American nations’ consulates when needed. New Mexico has not established MOUs with other nations because the volume is too low to necessitate such agreements, but it does reach out to other consulates for assistance when needed and to notify them that one of their citizens has been taken into the state’s care.

Washington: Consular Cooperation without an MOU

Several years ago Washington state’s child welfare agency focused on strengthening their working relationship with the immigrant community and compliance with the relevant Vienna Convention requirements. In particular, they focused on notification of consulates when immigrant children and children of immigrants are placed in foster care. According to Leah Stajduhar, Acting Chief of the Children’s Administration’s Office of the Program and Policy, Washington state decided to develop a policy to instruct caseworkers to ascertain the child’s citizenship at the time a child is placed in foster care and to provide guidance on performing consular notifications. State officials and consular staff have developed a good working relationship, but did not feel a need to institutionalize their working relationship in the form of an MOU. (In Table 1 the content of Washington’s policy may be compared with that of other states’ agreements with consulates.)

The focus of Washington’s efforts has been training to make sure staff understands their roles and the obligation to make consular notifications. The Assistant Attorney General’s office helped with training and is always notified in cases in which immigrant children come into care.

The state’s collaboration with the Mexican consulate included the development of a Mexican Consulate card. Staff distributes the card to Mexican immigrant families in their caseload. The card informs families about how to contact the Mexican Consulate and describes the services the consulate can provide to Mexican families that are involved with the child welfare agency. Consulate staff also participated in the state’s training efforts to instruct child welfare workers and stakeholders on how to contact the consulate and what the consulate can do for families of foreign nationals.

The Mexican Consulate has partnered where they have resources the state does not. The Consulate helped develop and funded printing for the consular card. They partner with state staff to set up home studies on relatives in Mexico and sometimes provide translation services to families for court proceedings. They have, on occasion, set up transportation for a child to Mexico and have located culturally appropriate services in rural areas that may not have services available in Spanish. The Consulate also generally provides support for families to make them more comfortable with child welfare proceedings. This has gone a long way toward building trust with the Hispanic community. Since the effort began, child welfare staff have found that families are less likely to flee during a child protective services investigation because of fear that child welfare officials will turn them in to immigration authorities.

The primary message in the State’s policy is to bring the Consulate(s) into the discussion immediately if there is an immigrant parent or child involved in a foster care case. They have had many cases in the past that would have gone more smoothly if the consular notification had happened at the outset. This ensures the children are represented properly. Most of their cases involve Mexican nationals but there have been some involving other nations as well. The state has a large Russian population and has recently been doing some work with the Russian Consulate, particularly around family services and translation for Russian speakers. Local offices reach out to other consulates as needed.

The state officials we spoke with would “definitely” recommend that other states reach out to their consulates. “Obviously it’s more important when there are significant numbers of children involved. But even if it’s only a few, the trust that such relationships build in the community is helpful beyond those kids and families currently in care.”

Conclusions

The states we spoke with consistently reported that cases involving immigrant families go more smoothly when consulates are involved from the early stages of the case. Involving the consulate from the outset can ensure the parents and children are properly represented and can prevent delays when permanency options are considered. Consulates can also assist with relative notifications so that federal notification requirements stemming from the federal Fostering Connections to Success and Increasing Adoptions Act of 2008 are met consistently.

Given that 24% of all children in the U.S. have at least one immigrant parent, and that in all but a few states at least 10% of children in low income families are children of immigrants⁵, it is likely that most child welfare agencies have investigated child maltreatment cases in immigrant families and have at least a few immigrant children in care. In these cases, consulates for the families’ countries of origin should be part of the child welfare agency’s network of collaborators and caseworkers should understand what is expected of them in these cases. Whether collaboration is formalized in a memorandum of understanding or left informal because cases are few or leadership prefers less structured working relationships, consulates can be partners in assuring families understand the legal process with respect to their parental rights. In addition, through collaborations with consulates child welfare agencies can access assistance communicating with parents or relatives located abroad or can work together to build relationships within local immigrant communities around child safety and parenting issues.

The policies and interagency agreements examined here vary widely and are illustrative of the range of measures in place to facilitate cooperation between child welfare agencies and consulates. There is no “one size fits all.” But by recognizing the range of what states and consulates have put in place in jurisdictions around the country child welfare agencies can consider whether such an agreement might be worthwhile to build cooperation with the consulates of whichever nation(s) are the countries of origin of significant numbers of children in foster care in their area of jurisdiction, and, if so, what sorts of provisions might be worthwhile to include.

For jurisdictions with few immigrant children or children of immigrants in foster care, choices will be made regarding manpower issues and whether resources for training and establishing working relationships can be prioritized. The state officials we spoke to believed that their efforts resulted in better representation and outcomes for families, increased trust in immigrant communities, and better casework practice more generally. We heard that knowing how to reach out makes the contacts more efficient, and that cases go more smoothly when the consulate has been involved from the beginning. The efforts do take time and resources to establish. However, as the practice becomes institutionalized at the local level, we also heard that less state level involvement is needed over time.

Many of the most difficult permanency decisions in the child welfare field arise when steps that should be initiated early in the case are skipped and questions are raised later in ways that delay permanency or result in heart wrenching choices about issues that should have been considered and resolved early in the case. Consular notifications can be helpful in keeping cases involving children of immigrants or immigrant children out of this category. Consulates can be helpful in the short term and consular notification may prevent complications if termination of parental rights is ultimately considered. However, notifications can occur appropriately only if caseworkers ask about children’s and parents’ countries of origin and are aware of their responsibilities to notify the relevant consulate if the child or the child’s parent is a foreign national, and when consulates are engaged as partners in assuring the rights of immigrant parents are respected while child safety is assured.

⁵ Migration Policy Institute Data Hub, Children of Immigrants under 18 in Poor and Low-Income Families, 2010, accessed October 23, 2012.

Table 1. Provisions of Memoranda of Understanding Between Child Welfare Agencies and Consulates

* The documents reviewed for Missouri and Washington were agencies’ policies on immigrant children rather than an MOU and dealt with children of all nationalities. Missouri's policy distinguishes between nations for which notification is and is not mandatory, which relates to whether the nation is among the signatories to the Vienna Convention on Consular Relations. In addition, Missouri's policy identifies issues regarding undocumented immigrants of which caseworkers should be aware.
a = While the MOU itself does not contain such a provision, such assistance or services are provided and are covered in policy guidance and/or procedures developed to implement the MOU.
Other related documents identified:
New York has developed a guide to obtaining birth certificates and passports for immigrant children, including application requirements for 10 consulates.
Consular notification forms (used to let foreign governments know when one of their nationals is in the custody of the child welfare agency) were identified
for several additional states and counties.

Links to MOUs and Policies Available Online

Illinois Memorandum of Understanding:
http://www.f2f.ca.gov/res/pdf/IllinoisMOUMexicanConsulate.pdf
Illinois Policy Guide on Notification of the Mexican Consulate:
http://www.f2f.ca.gov/res/pdf/IllinoisPolicyGuideMOUMexicanConsulate.pd

Iowa Memorandum of Understanding:
http://www.dhs.state.ia.us/policyanalysis/PolicyManualPages/Manual_Docum...

Missouri policy on consular notification:
http://www.dss.mo.gov/cd/info/cwmanual/section4/ch19/sec4ch19sub5.htm

Nebraska Memorandum of Understanding:
http://dhhs.ne.gov/children_family_services/Documents/PM-1-06MexC.pdf

New Mexico Memorandum of Understanding:
http://www.f2f.ca.gov/res/pdf/MOU_MexicanConsulate.pdf

Washington Policy on Consular Notification:
http://www.dshs.wa.gov/ca/pubs/mnl_pnpg/chapter4.asp

Los Angeles County, California Memorandum of Understanding:
http://www.f2f.ca.gov/res/pdf/ProtocolMexicanConsulateLAJuvenileCourt200...

Monterey County, California Memorandum of Understanding:
http://www.f2f.ca.gov/res/pdf/MontereyMOUMexicanconsulate.pdf

Sacramento County, California Memorandum of Understanding:
http://www.f2f.ca.gov/res/pdf/SacramentoMOUMexicanConsulate.pdf

Riverside County, California Memorandum of Understanding:
http://www.f2f.ca.gov/res/pdf/RiversideMOUMexicanConsulate.pdf