Collaborative on Global Children's Issues

Disincentivizing Congregate Care

Congregate care settings, also called group homes or institutions, have been defined as facilities housing seven children or more. While the trend in the child welfare context has been to move away from detaining children in large congregate care settings, this has not been the case in the immigration context. For example, while the median number of child welfare system-involved children in congregate care settings in 2018 was 10.5%, from January 2018 to September 2019 90.2% of unaccompanied children were detained in facilities of 50 children or more while awaiting reunification. (During this period of time, most unaccompanied children were detained in facilities housing 200 or more children, due in large part to the use of large-scale “emergency” facilities— a trend that shows little sign of slowing.)

Child welfare literature makes clear that congregate care systems are harmful to the health, safety, and development of children, and that children placed in them are more likely to experience abuse and negative educational outcomes. The Children's Bureau (which, like ORR, is housed in the Department of Health and Human Services' Administration for Children and Families) has acknowledged “there is consensus across multiple stakeholders that most children and youth, but especially young children, are best served in a family setting.”

In addition to health and safety considerations, the use of congregate care settings is disfavored in the child welfare context since Black and Brown children are disproportionately more likely to be placed in these facilities. Equity considerations should also motivate a new approach in the immigration context – a system comprised mostly of congregate care settings – particularly when over 90% of kids in ORR custody are Latinx.

Federal law and policy can be a valuable tool in ensuring fewer unaccompanied children are placed in congregate care settings while awaiting family reunification. The Family First Prevention Services Act, adopted by Congress in 2018, codified the need “to invest in funding prevention and family services to help keep children safe and supported at home, to ensure that children in foster care are placed in the least restrictive, most family-like, and appropriate setting.” This act imposes limits on federal funds for congregate foster care settings, providing a financial incentive for state and county governments to avoid placing children in these settings wherever possible. In California, the local child welfare agency is now held to a higher standard when recommending that a child be placed in a congregate care setting. Judges presiding over dependency proceedings must be persuaded that all efforts to place the child in a community/family-based setting have been exhausted, that the child has specialized needs that can only be met in a congregate care setting, and that there is a plan in place to ensure the child moves to a less restrictive setting. Adopting policies that limit funding for congregate care settings and impose evidentiary burdens on the government agency proposing to place children in them could also be applied to children in ORR custody to reduce the reliance on congregate care placements.

Due Process and the Presumption of Parental Fitness

Children are generally safer with their parents or adult caregivers. In the child welfare context, if a child has been removed from one parent based on allegations of abuse and neglect, there is a presumption in favor of returning children to the noncustodial parent. In California, for example, the government must release the child to the noncustodial parent (regardless of their immigration status) unless it is established by clear and convincing evidence that such placement would be detrimental to the child. Many unaccompanied children are seeking to reunify with a previously noncustodial parent living in the United States. The parents of immigration system-involved children faced what scholars like Lauren Heidbrink have identified that the cumbersome ORR reunification process creates a presumption that sponsors are unfit and places the burden on the sponsor to overcome this presumption. Furthermore, case managers employed by ORR facilities have broad discretion to deny sponsorship applications; unfettered discretion leaves open the possibility of individual bias to impact release decisions, in the same way that prosecutorial discretion leaves room for bias to dictate racially disparate outcomes in the criminal justice system. Creating a judicial process whereby ORR has the burden of demonstrating why a child cannot be safely reunited with the parent seeking sponsorship could operationalize a presumption of fitness. Creating a process of judicial review for sponsorship denials (such as through the process proposed by NCYL) whereby an impartial judge determines whether the government has met its burden in keeping family members apart would add fairness and transparency to what is now a highly opaque reunification process.

Conclusion

One of the biggest strengths immigrant children arriving in the United States have are their family members living in communities across the nation. By drawing on policies and due process protections for child welfare system-involved families and applying them to the immigration context, we can disincentivize the detention of unaccompanied children in congregate settings, making it easier for them to access familial protection. Concurrent with this policy change, we can create a culture where immigrant kids are presumed to be better off with their families, just like their U.S.-born peers.

Emily Bartholomew began her legal career representing children in California foster care. After completing an LL.M. on children’s rights and interning with the UNHCR in Malta, she moved to Texas to defend detained unaccompanied children in removal proceedings. She currently works as a program manager at the Vera Institute of Justice. The views and opinions expressed here are her own.