Flores and the Child Welfare Crisis at our Border
The settlement that protects children and families, regardless of immigration status, and our efforts to uphold it.
by Virginia Corrigan, YLC Staff Attorney
One of the issues that the Youth Law Center has been engaged with for many years is the treatment of immigrant children who are in the custody of the federal government. This issue has recently become a national flashpoint, as the government’s policy of separating children from their parents at the border and detaining children and families in unhealthy conditions has created significant controversy. This crisis is not an isolated one, however: many of the issues facing detained immigrant children and families are issues that the child welfare system has been grappling with for decades.
If you have been closely following the issue of family detention and separation, you’ve likely heard that there is a court case called Flores that prohibits the government from holding children with their parents in detention for more than 20 days. The Youth Law Center is of counsel to the plaintiffs in the Flores litigation. This means that we use our expertise in the foster care and juvenile justice systems to help advocate for humane and just conditions for immigrant children — and that we work to hold the government to its obligations under the Flores settlement. Those obligations include making sure that children are released as quickly as possible to a parent, guardian, family member, or other trusted adult, and that those children who cannot be released are held in shelters that are state licensed.
In May, the federal government implemented a so-called “zero tolerance” policy, under which it sought to prosecute adults who cross the border between ports of entry. As a result of this policy, more than 3000 children, including hundreds of children under five, were separated from their parents at the border and placed into children’s shelters that had previously been used to house children who crossed the border alone and who were waiting to be released to a parent, guardian, family member, or other trusted adult. Many of these children were taken away from their parents with no warning, with their parents being told they were being taken to have a bath. Most were not told where they were going, where their parents would be, how to contact each other. Many parents were not able to contact their children for days or weeks after being separated — those with experience in the child welfare system know how heartrending that is for parents and children, even when a parent knows a child is going to foster care.
Now imagine the terror and panic for both children and parents when a child is taken with no warning, no information about where they’re going, and no idea whether or how they will ever be reunited. And these are families who have already suffered significant trauma in their home countries and in their journeys to the United States.
In recent weeks, a federal court has ordered the government to end its policy of family separation and to reunite separated children with their families. Unfortunately, because the separation policy was pursued with little planning, there was no coordinated way of tracking parents and children, so some children and parents have been sent to different states, and some parents and children have even already been deported separately. The government has now missed the deadline for reunifying families. The child welfare system is currently working to implement best practices for reunification — in the immigration context we appear to be dealing with a situation in which there was never any plan that reunification would happen.
In response to that court order ending family separation, the government requested that the judge in Flores order that the government no longer has to abide by its agreement, and allow the government to lock children up with their parents in unlicensed facilities subject to no state oversight for as long as their immigration cases take — which can be months or even years. Fortunately, the judge denied the government’s request, saying that the government cannot jail children and families indefinitely, and “the children who are the beneficiaries of the Flores Agreement’s protections and who are now in [the government’s] custody are blameless…and their best interests should be paramount.” Despite this setback, the government will likely continue to search for ways to undermine the Flores agreement and avoid their responsibilities to children.
In response to this situation, the Youth Law Center recently released a position statement, outlining our view on this issue. And if you’re familiar with the QPI way of looking at the way we need to care for children, it’s pretty simple and commonsense! Essentially, we need to care for immigrant children in the same way we strive to care for all other children — with respect for their rights and fundamental dignity, and in a way that’s consistent with children’s developmental needs.
YLC has a four-point platform:
- First, in order to be healthy and thrive, children, and especially very young children, need parents. Separating children from their parents and placing them into congregate care, or shelters, causes children both immediate trauma and long-term harm.
- Second, separation of children from their parents is not required by law. The Flores settlement merely places limits on the harmful practice of family detention and requires that children in federal custody be guaranteed safe and healthy conditions.
- Third, children belong with families, not in congregate care. We all know that shelter facilities, such as those that are currently housing children who have been separated from their parents as well as unaccompanied minors, are harmful to children and particularly to young children. Shelters and tent cities are not equipped to provide the nurturing that these children need, particularly when you consider the significant trauma that these young people have suffered, both before and after separation from their parents.
- Fourth, family detention is not the answer. Locking children up with their parents instead of separating them would merely replace one harmful practice with another. The harmful effects of detention on children is well-documented: it causes significant mental health issues, including PTSD, depression, and anxiety, it undermines the parent/child relationship, and it compromises the ability of children and families to access the services, including the legal services, that they need to heal and to protect their rights.
In short, the Youth Law Center and QPI share a vision for children and families that extends beyond the foster care system. We believe that all children and families should be treated with dignity, respect, and care for their particular needs. And we have been working to ensure that those same principles and protections are provided to children who are new to this country.
In recent weeks, I have traveled to family detention centers in Texas to speak with children and families who are being held there. I have heard their stories, seen the conditions in the centers. We spoke with young people who spent days sitting in freezing cages with other children who were wailing for their parents. We spoke to mothers who witnessed children as young as six being torn from their parents’ arms. We have heard from children who speak Spanish as a second language, and who primarily speak indigenous languages such as Maam or Qeqchi, who were sent to family detention without anyone explaining to them what was happening. We have heard stories of officials berating parents for bringing their children to the United States — and these by and large are families who have come fleeing unimaginable violence and who have faced journeys fraught with danger.
YLC will continue to work to ensure that our country’s treatment of all children, including immigrant children, is consistent with the highest ideals of this nation, and with what we all know that children, and particularly children who have suffered significant trauma, need: the consistent support of a caregiver that will give them the opportunity to heal and thrive.
