'BEST' INTERESTS AND 'BAD' PARENTS: IMMIGRATION AND CHILD WELFARE THROUGH THE LENS OF SIJS AND FOSTER CARE.

• Author: Jameson, Ellyn

INTRODUCTION I. HISTORY AND BACKGROUND ON FOSTER CARE AND SIJS A. Foster Care B. Special Immigrant Juvenile Status (SIJS) II. PARALLELS BETWEEN SIJS AND CHILD WELFARE A. SIJS and Voluntary Foster Care Placements: A Comparison B. SIJS and Kinship Care: A Comparison III. INTERSECTIONS AND TENSIONS BETWEEN CHILD WELFARE AND SIJS IV. SUGGESTIONS FOR CHANGE CONCLUSION INTRODUCTION

At first glance, the immigration system and the domestic child welfare system may appear to be worlds apart, but in fact they have much in common and often overlap. This Comment offers a targeted look at a particular process within the U.S. immigration system, Special Immigrant Juvenile Status (SIJS), and how it intersects with and parallels the domestic foster care system. Both SIJS and foster care struggle to meet the competing goals of preserving and reuniting families on the one hand and punishing "undesirable" families on the other. The tendency of these systems to see families in terms of innocent children against "bad" parents, and the ability of our society to tolerate systems that punish parents in this way, is part of a long history of discrimination in this country, particularly against poor families of color. This comparison between SIJS and the domestic foster care system will highlight some of the underlying assumptions that make both processes so harsh for the families involved and discuss how the apparent tensions between the two systems are actually rooted in the same harmful normative ideas.

Part I provides an overview and history of both SIJS and foster care and explains how SIJS functions within the broader immigration and child welfare systems.

Part II takes a more in-depth look at some important parallels between SIJS and two sub-areas of the foster care system: voluntary placement of youth in foster care by their parents and kinship care. SIJS shares certain problematic ideas and structures with both voluntary placement and kinship care.

In voluntary placement agreements and SIJS, parents and children alike are forced by a lack of other alternatives into systems designed to be punitive and to keep families apart. In voluntary placements, parents often have no other viable options for receiving needed support--particularly for children with severe emotional and behavioral problems--besides the child welfare system; these parents then become trapped in a system that assigns them the blame for being bad parents rather than one that acknowledges society's role in creating the family's desperate circumstances. Youth seeking SIJS status often do so because it is the only pathway toward legal status in the U.S. they qualify for, and many do so through one-parent SIJS, in which a non-abusive parent retains custody of the youth. However, the benefit of SIJS status comes with strings attached, which end up needlessly separating families. Principally, SIJS recipients are prohibited from ever sponsoring their parent--even the non-abusive parent--for legal status. The lack of other necessary supports (both socioeconomic and migratory) forces families into these systems, yet as a society we have failed to acknowledge or take responsibility for this lack of alternatives for achieving needed support and stability. Additionally, parents are blamed for their involvement in those systems, furthering the oversimplified narrative that these systems protect innocent children from "bad" parents. This rigid "innocent child/bad parent" framework serves to mask the structural inequalities and discrimination that those "bad" parents face that force them into processes like SIJS and foster care. And by casting children as passive victims, it drowns out the voices and agency of youth themselves.

Likewise, the parallels between SIJS and kinship care demonstrate the way both systems fail to respect the autonomy of these marginalized families, particularly those with nontraditional structures that arise as a result of systemic problems such as poverty, the carceral state, and the broken immigration system. Instead of supporting extended, multicultural, and multinational families, both kinship care and SIJS view them with suspicion and subject them to invasive state surveillance as a precondition of the support they seek. SIJS imposes an adversarial model of custody on families and relationships that, prior to state involvement, might not have been adversarial at all, and places undocumented sponsors at direct risk for supporting children. Similarly, kinship care requires that extended family members comply with the intrusive supervision requirements of foster care. This phenomenon in both systems is also a direct result of societal narratives that view those adults and families as undeserving and untrustworthy.

Part III describes how the common normative ideas underlying both SIJS and foster care give rise to tensions when the two systems intersect in state dependency courts. While child welfare law, at least in principle, strives for reunification as a primary goal, SIJS youth have no such protection, as reunification is explicitly prohibited if they are to receive immigration status through SIJS. While dependency law is supposed to leave the door to reunification open as long as it is in a child's best interests, SIJS applicants ask courts for an immediate and permanent determination. While the foster care system, at least in theory, is not supposed to equate poverty with neglect, SIJS-eligible youth must often make the exact opposite argument. In essence, the few protections the child welfare system has for families are by design not applicable to immigrant youth, making the adjudication of SIJS in state juvenile court an uncomfortable fit at best.

Finally, Part IV concludes by proposing changes to the SIJS statute as currently written based on this comparative approach. While foster care is far from perfect, it contains important lessons about the importance of reunification and reliance on extended family networks that can and should be applied to SIJS. Such policy changes may not happen in the near future, but I include some considerations for advocates in both systems that may help to change the conversation.

As a threshold matter, there are certainly situations in which youth seeking SIJS and foster care protections have suffered terrible abuses; this Comment does not argue otherwise or address those cases. Rather, this Comment looks systemically at how families are underserved and undermined by the rigid viewpoints reflected in U.S. child welfare and immigration laws, highlights problems in each through a comparative approach, and shows how discriminatory narratives in our society give rise to and reinforce those problems.

1. HISTORY AND BACKGROUND ON FOSTER CARE AND SIJS

   The histories of SIJS and foster care are intertwined. SIJS was initially created in response to the needs of undocumented youth in the state foster care system. (1) Both have gone through substantial legislative changes throughout their histories that have been framed by rhetoric of protecting innocent children while painting their families as undeserving or even evil. (2) While the history of foster care is much longer than that of SIJS, the creation and evolution of SIJS featured the same arguments and rhetoric. Understanding this common history is necessary to fully understand the current processes in place in SIJS and foster care and how they affect both the families and children they serve.

   1. Foster Care

      The history of the child welfare system in the U.S. has been characterized as a pendulum that "swings from expressing the predominant objective of keeping ... families together to making protection of children from parental harm its top priority." (3) The foster care system has its roots in the mid-nineteenth century, when the Children's Aid Society of New York sent thousands of children, often the children of poor immigrants, west on orphan trains to new homes. (4) While child welfare law is principally a state law issue, the federal government began to pass legislation relevant to foster care beginning with the Social Security Act of 1935, which provided the first federal funds for services to abused and neglected children. (5) In 1980, the Adoption Assistance and Child Welfare Act required "reasonable efforts" by state agencies to help children remain at home. (6) That same law was amended in 1997 with the Adoption and Safe Families Act (ASFA), which encouraged quick termination of parental rights and adoption as a remedy for the inarguable harms that extended time in substitute care can inflict on children. (7) The predictable result of those changes was that state child welfare agencies became less focused on reunification and more concerned with adoption or concurrent planning, causing often insurmountable obstacles for parents who have mental health or addiction problems, are living in poverty, or are incarcerated. (8)

      This historical shift away from reunification and toward adoption makes sense when viewed alongside the shift in public discourse during that same time period; poor families were increasingly disparaged for receiving welfare benefits, in particular single Black mothers. (9) ASFA was passed immediately following the 1996 welfare reforms that dramatically reduced available aid to the same poor families most at risk of involvement in the child welfare system. (10) As a result, the same families that were required under ASFA to more quickly show that they could provide for their children in order to achieve reunification were stripped of the safety net with which to do so. (11) This contradiction is a reflection of how "Americans' compassion toward poor children has always existed in tension with the impulse to blame their parents." (12)

      Currently, there are over 440,000 youth in foster care nationwide, the vast majority of whom are placed in care for reasons relating to neglect. (13) Only sixteen percent of new entries into foster...