by Prudence Beidler Carr, JD & Cristina Cooper, JD
This article provides an analysis of themes that have emerged from over twenty years of child welfare case law in which parental immigration status has been a part of the factual record. Key legal rules emerge from this body of case law that provide guiding principles for child welfare agencies, caseworkers, legal professionals, and courts as they address the range of situations where a parent’s immigration status may have implications for child welfare proceedings. For example, this article reviews the connection between deportation and abandonment, reasonable efforts for parents who have been detained or deported, the standard of living in another country as a factor in the court’s best interests analysis, and options for facilitating a parent’s participation in child welfare court proceedings even if they are not in the country.
Most importantly, this article helps clarify the basic legal tenet that a parent’s immigration status, including possible detention or deportation, cannot be used as a basis for providing lower constitutional protections either for the parent or the child under U.S. law. In many of the reviewed cases, although this legal tenet informed the final state supreme court decision, children’s and parents’ rights were vindicated only after many years of appellate litigation, foster care placements, and terminations of parental rights that were ultimately found to be erroneous. Those harms can never be undone.
In other words, even if justice was achieved in the final written decision, in no case was prolonged litigation, and the harms that accrued during case delays, a goal of the parties or professionals involved. This material is created with those losses in mind. We hope that readers will be able to use these five guiding principles derived from past cases in daily practice today to help prevent similar legal errors from occurring in the future as a part of our collective mission to serve child and family interests under the law.
Five Guiding Principles for Child Welfare Cases Involving Immigrant Parents
First Principle: All parents have constitutional interests in caring for their children, regardless of immigration status or presence in this country.
Pursuant to the Fourteenth Amendment of the U.S. Constitution, all parents have a right to make decisions concerning the care, custody, and control of their children, regardless of immigration status. As the U.S. Supreme Court explained in Troxel v. Granville, 530 U.S. 57, 66 (2000), the rights to family integrity derive from long-standing precedent and are only disrupted when a parent is found unfit to care for their child. As with other Constitutional protections, parental rights extend to all persons within the United States, including immigrants who lack lawful status. Zadvydas v. Davis, 533 U.S. 678 (2001). State Supreme Courts across the country have repeatedly affirmed that parents who lack immigration status in this country have the same constitutional interest in the care, custody, and control of their children as citizen parents. That interest is not altered by detention, deportation, or exclusion from the United States under immigration law.
In an illustration of how these rights operate in practice, in 2012, the Idaho Supreme Court reversed a termination of parental rights decision involving a father who had been deported to Mexico before his daughter’s birth. In re Doe, 281 P.3d 95 (Idaho 2012). The child had been removed from her mother’s care in the United States as an infant and no evidence had ever suggested the father was unfit as a parent. The Idaho Supreme Court explained that under the U.S. Constitution the father retained a fundamental liberty interest in maintaining a relationship with his child regardless of where he lived. The court also explained that although the child had been in foster care for slightly over two years, that was not through any fault of the father because he could not lawfully enter the country and had not been represented in child welfare proceedings though he had tried to be engaged in the case. The court concluded that the child should have been placed with the father in Mexico once it was determined that the mother was unable to successfully complete her case plan.
Because all parents have a fundamental liberty interest in the care, custody, and management of their children, they have corresponding procedural due process protections such as a right to participate in hearings and to have legal counsel represent them in any child welfare case.
Second Principle: All parents have procedural due process rights to participate in child welfare legal proceedings, regardless of immigration detention or deportation.
Because all parents have a fundamental liberty interest in the care, custody, and management of their children, they have corresponding procedural due process protections such as a right to participate in hearings and to have legal counsel represent them in any child welfare case. Although this can be more complicated to facilitate in cases involving parental detention or deportation, those factors do not nullify the parent’s rights to participate in proceedings.
As an example, the Nebraska Supreme Court overturned a termination of parental rights decision when it found procedural protections were not provided sufficiently in a case where the mother had been detained and deported during the pendency of the child welfare proceeding and never had an opportunity to be represented or heard in those hearings. In re Mainor T. and Estela T., 674 N.W. 2d 442 (Neb. 2004). The court expressly noted that when a parent has been actively working toward a reunification plan but immigration law has created additional obstacles, courts can consider (and agencies can support or seek) exceptions to the Adoption and Safe Families Act (ASFA) rule requiring agencies to seek termination after a child has been in foster care for 15 out of the last 22 months.
Third Principle: Neither detention nor deportation constitute abandonment.
Parental deportation does not constitute abandonment, and without additional evidence of a willful failure to act or an intentional withholding of care and affection, a parent cannot be deemed to have legally abandoned a child simply because they live outside the United States. Courts must consider the parent’s efforts to support and be connected to the child, as well as how “voluntary” the parent’s departure may have been if they were deported under immigration law. When a parent has been detained or deported, courts must look at the parent-child relationship and contact with the child welfare agency to evaluate all circumstances surrounding a potential abandonment claim. Because of the constitutional protections at issue, agencies are also required to prove parental unfitness, not merely parental unavailability, before moving forward with a termination of parental rights petition. When there are no allegations of unfitness against a detained or deported parent there is likewise no basis for seeking to terminate that parent’s rights to their child.
In 2015, the Court of Appeals of New Mexico considered abandonment in a case involving a child who entered foster care based on allegations of neglect against his mother while his father was incarcerated and had an immigration hold. State of New Mexico ex rel. Children, Youth and Families Dep’t v. Alfonso, 366 P.3d 282 (New Mex. 2015). The agency filed a termination petition one month after the father had been deported and asserted that he had abandoned his child by failing to send gifts, financial support, or more than one letter. The court rejected this argument and found termination for abandonment to be improper because the father expressed a legitimate desire to take responsibility for the child well in advance of the termination proceedings and the facts supporting abandonment allegations were largely irrelevant as the child was an infant.
Fourth Principle: Agencies must make reasonable efforts that meet a parent’s needs regardless of immigration status.
Although it may be more challenging to provide reasonable efforts to support reunification when a parent has been detained or deported, nothing in the law removes this obligation on the agency based on a parent’s immigration status. Instead, existing case law makes clear that reasonable efforts need to match the requirements of a reunification plan so that the plan is feasible for the parent to complete despite potential detention or deportation. This rule applies for parents who have been detained by immigration authorities in the United States, have been deported from the United States and now live in another country, and parents who never lived in the United States. Such efforts require more than telling the parent the contents of a case plan and may necessitate investigation into resources available for the family and children in another country, including medical care for the child if needed.
In 2025, the highest court in New York State overturned a father’s termination of rights after concluding that the child services agency failed to provide diligent efforts to help an immigrant father and his child reunite. Matter of KYZ, Court of Appeals of New York, October 21, 2025, 2025 NY Slip Op 05781. Specifically, the court admonished the agency for failing to adequately accommodate the father's linguistic needs through interpretive services during family visits, medical appointments, and court hearings. Additionally, the court explained that although the agency identified the father's living arrangements and onerous work schedule as obstacles to reunification, there was little evidence of anything the agency did to help him secure appropriate housing or employment. As the court ultimately concluded, rather than facilitate reunification, the agency’s actions and inactions “ensured that the parent-child bond disintegrated.” Significantly, the court recognized the challenges of overturning a TPR after the child had been in foster care for more than 11 years but explicitly held that “such a delay cannot justify abdicating our role in holding the agency to its statutory burden [to provide diligent efforts]. The parent’s core constitutional right to the care and custody of their child demands no less.”
Fifth Principle: The standard of living in another country is not a legitimate basis for determining a child’s best interests in a termination of parental rights analysis.
When a parent lives abroad or may need to return to a foreign country, the agency has a responsibility to investigate reunification with that parent in his or her home country. Courts have made clear that in such instances, parental rights cannot be terminated based on finding a child might enjoy a more comfortable life in the United States. If there are other relevant factors surrounding safety concerns for the child in another country, those can be considered as part of the best interests analysis but only after a finding of parental unfitness on behalf of the parent.
As an illustration of this point, in a Texas case, the agency and Court Appointed Special Advocate had argued that termination of the father’s parental rights was appropriate because he lived in Mexico, had a new wife and family, and made too little money. In re E.N.C., et al., 384 S.W.3d 796 (Tex. 2010). The Texas Supreme Court reversed the termination decision and explained that it is possible for a person’s children to live with them following deportation. The court ordered the agency to offer the father a service plan to assess whether it would be feasible and appropriate for him to have custody of his children in Mexico. The Texas Court explained that children’s best interests are not determined by whether they would have access to “superior resources” in the United States. Rather, child welfare cases are governed by a “commanding presumption” that reuniting children with their parents is in their best interests no matter in what country the parent lives.
Conclusion
Without a doubt, parental detention and deportation can create challenges in child welfare cases. Those challenges do not alter individuals’ rights to parent their children and to engage in child welfare proceedings. To avoid significant appeals, delays, and potentially erroneous terminations of parental rights in cases that involve parental deportation and detention, we encourage caseworkers, judges, and attorneys to rely on these important guiding principles.
Prudence Beidler Carr, JD, is the Director of the ABA Center on Children and the Law.
Cristina Cooper, JD, is a Senior Attorney with the Center where she directs the Child Welfare and Immigration Project.