In the best interest of immigrant and refugee children : Deliberating on their unique circumstances

Each year, state juvenile courts provide thousands of immigrant and refugee children with access to consistent and reliable caregiving and a stable environment. To examine how courts interpret "the best interests" of immigrant and refugee children, this article examines 24 cases in courts across the United States, which indicate they use a territorial approach when evaluating the best interests standard. Although legal status was not an issue, many related factors were. Consequently, the courts restricted immigrant parents' rights in caring, guiding, and visiting their children; increased the risk of wrongfully terminating parental rights; and intensified the unpredictability of immigrant and refugee children's welfare in the long run. This article suggests an approach that encourages communication between social workers and the courts to address the special needs and circumstances of immigrant and refugee children on three key topics: the material and moral welfare of the child, and social welfare for immigrant and refugee families. Thousands of immigrant and refugee children become mired in the U.S. court and child welfare systems each year. They include asylum-seeking children entering the United States without legal guardians and immigrants' children who land temporarily in the foster care system. Estimates indicate that in 2004, 5,000 unaccompanied minors arriving in the United States were detained in federal custody-a 50% increase from 1997 (Seugling, 2004). The number of unaccompanied minors who are not detained and thus are ineligible or unable to present claims to remain is probably much greater. For instance, Mexican consular authorities report that in 2002 alone, 9,900 unaccompanied minors were returned to Mexico (Thompson, 2003). In addition to unaccompanied children, an increasing number of immigrant and refugee children are put in the foster care system each year as abused, neglected, or abandoned, regardless of their legal status. No statistics are available to tell how many end up in juvenile dependency court proceedings and foster care each year. According to federal data, however, about 1.6 million children under the age of 18 in the United States are undocumented immigrants (AB 1895 Assembly Bill, 2004). Considering that 14 million children were reported living with at least one foreign-born parent in 2002 (approximately 19% of all U.S. children), and that 2.7 million of these were foreign-born (Fields, 2003), the number of immigrant and refugee children in the child protection system should not be underestimated. During the past several years, the plight of the 5,000 or so unaccompanied immigrant and refugee children in federal custody has garnered significant attention from the media, Congress, the legal community, and the public. The U.S. Citizenship and Immigration Services (USCIS) has been criticized for its poor performance in caring for these children, especially in light of its combined roles of jailer, prosecutor, and guardian (Navarro, 1998). In November 2002, Congress passed the Homeland security Act (HSA), transferring basic care, custody, and placement functions from the USCIS (called the Immigration and Naturalization Servise [INS] until March 2003) to the Department of Health and Human Services (DHHS). The department claims it retains the exclusive authority to place detained children in state juvenile dependency proceedings and foster care (Nugent, 2004). Immigrant and refugee children, therefore, depend on state juvenile courts to provide access to reliable caregiving and a stable environment. Although transferring the care and custody of unaccompanied children from the USCIS to DHHS was part of the U.S. government's largest reorganization in the last 50 years (Manns, 2002), the conditions for immigrant and refugee children have not improved because the reorganization did not include necessary, substantive reforms. One critical consideration is the paramount standard in the legal and social welfare fields: in the best interests of the child. …