71 Am. U. L. Rev. 1977 (2022).
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Abstract
For too long, the United States has had a separate child-caring system for migrant children and families that operates alongside our domestic child welfare systems. The latter is a robust system focused on the principles of safety, well- being, and permanency; while the former flouts constitutional protections, separates children from parents, and perpetuates a system that is detaining children, warehousing them in large jail-like settings at worst, and sheltering them in large congregate care facilities at best. Children are being harmed, some irreparably.
Yet, if our child welfare laws reflect what we know to be proper standards for caring for vulnerable and traumatized children, why is it that these same protections are not afforded to migrant children and families? Why does the federal government get a pass? Does the fact that we are addressing the needs of migrant children and families alter the responsibilities of the agencies charged with caring for the children? What laws exist to hold the federal government accountable? And what would change if child protection principles were relied upon to guide the circumstances and care of migrant children in the United States? This Article seeks to answer these questions and to fully explore the application of child welfare principles in the immigration context, both in terms of family separation policies as well as the care and custody of migrant children.
It must be acknowledged that there are serious concerns with how our domestic foster care systems function, particularly their racist underpinnings, the disproportionate number of children and families of color involved within these systems, and the disparate outcome for children and families of color, especially Black and Native American children and families. Yet, we also must recognize that best practices in child protection, along with constitutional protections and international laws and norms, provide a necessary roadmap for ensuring that the basic rights and needs of migrant children and families are met. For when the government steps into the role of “parent” or caregiver, it must be held accountable for ensuring the well-being and protection of those in its custody whether they are a citizen or non-citizen. Accordingly, it is hoped that this Article is the beginning of a dialogue on why the federal government must cease flouting its own rules and policies and how it can begin to transform its policies to ensure that children are with family whenever possible, and if not, that they are well cared for and their needs met.
* Distinguished Clinical Professor of Law, Annamay Sheppard Scholar, Director, Child Advocacy Clinic, Rutgers Law School. This Article is dedicated to the many children and youth I have worked with over the years who have inspired and touched me in immeasurable ways, and who have taught me the importance of listening and ensuring that children and youth have a voice and the ability to participate in all decisions that affect their lives. This Article would not have been possible without the invaluable and exceptional research assistance provided by Sophia Awari, Erin Dolan, Elissa Frank, and Brenda Milouchev. A special thanks also is owed to Dalia Castillo- Granados, Joanne Gottesman, Jennifer Nagda, and Elissa Steglich for their thoughtful comments on earlier drafts.