Placement and Permanency
Q: Can a child be placed with a parent or relative who is not a legal resident of the U.S.?
A: Yes. California law states that a child may be placed with a parent or relative “regardless” of the “immigration status” of the parent or relative. This is true even if the parent was previously a noncustodial parent. 6
Q: What about a nonrelative extended family member (NREFM)? Can a child be placed with a NREFM who is living in the United States but is not a legal resident?
A: This is unclear. Unlike with parents and relatives, California law does not specifically allow for placement with NREFMs who are undocumented. However, the California Department of Social Services has issued All County Letter 14-21, that interprets state law to mean that, “immigration status alone cannot be used as a disqualifying factor when making placement and custody decisions,” and this includes placements with NREFMs. 7
Q: How does the county run a background check on a relative, prospective guardian, or another who does not have legal residency?
A: An identification card from a foreign consulate or a foreign passport are valid forms of identification for conducting a criminal records check and fingerprint clearance. 8
Q: Can a social worker place a child outside of the United States?
A: Yes, but only after the juvenile court makes a finding that doing so is clearly and convincingly in the best interests of the child. 9
Q: Should the social worker provide a relative caregiver, who does not have legal residency, information about adoption and guardianship options?
A: Yes, in fact, a relative caregiver must be given information regarding permanency options of guardianship and adoption (and the long-term pros and cons of each), regardless of immigration status. 10
Q: The court is about to schedule a hearing to permanently plan the child (at the .26 hearing) where it may be terminating parental rights. Does the fact that the parent is detained or deported affect the court’s decision?
A: The court will order what it finds to be in the best interests of the child. However, the law does require that before setting the hearing, it take into account any barriers to a parent’s ability to maintain contact with the child because of the detention or deportation. 11
6 See Welf. & Inst. Code § 361.2(e).
7 All County Letter 14-21.
8 See Welf. & Inst. Code § 361.4(b)(2).
9 See Welf. & Inst. Code § 361.2(f).
10 See Welf. & Inst. Code §§ 366.21(i)(2)(B), 366.22(c)(2)(B).
11 See Welf. & Inst. Code § 366.215.