PDonna Burton, U.S. Customs and Border Protection

The San Ysidro border port of entry.



Recently, Secretary John Kelly of the Department of Homeland Security said the agency was considering separating children from parents caught crossing the border in an attempt to deter illegal immigration from Mexico. In part, Secretary Kelly justified this drastic measure by stating that the government turns unaccompanied minors over to the Department of Health and Human Services and “they do a very, very good job of putting them in foster care….” and children would be “well cared for as we deal with their parents.”

Immediately, opponents, including the American Academy of Pediatrics, argued that the trauma experienced by the children through separation outweighed any perceived benefit. In addition, an immigration expert observed that foster care would be at a considerable cost and could result in judicial inefficiency as “separating children from their mothers could mean that they would have individual, rather than joint, asylum claims, possibly in separate jurisdictions.”

This month U.S. Senator Kirsten Gillibrand (D-NY) and fifteen other senators called on DHS and U.S. Department of Health and Human Services to provide data within 30 days regarding this proposed policy. In the letter, the senators acknowledged that the foster-care system was already “straining” to meet the needs of children in placement as they inquired about how such a policy was, among other things, going to be implemented while meeting the therapeutic and emotional needs of the children and without overburdening the system.

As a child welfare attorney, Secretary Kelly’s statements caused me grave concern as they seemed ill-informed about the realities of foster care in the U.S., particularly in Texas, where the majority of children might be placed after being separated from their parents at the border. To describe Texas’ foster-care system as strained is an understatement.

In 2015, in a class-action lawsuit brought by Children’s Rights, Inc. from New York City, U.S. District Court Judge Janis Jack in Corpus Christi –  in an order more than 250 pages long – ruled that long-term foster care in the state was unconstitutional. In that December 2015 decision, Jack bluntly stated that the “broken” system violated the 14th Amendment, which gives people the right to be free from harm while in state custody—including the right to be free from “rape, abuse, and psychotropic medication and instability” which had become the norm in that system. Jack demanded accountability and ruled that a special master must be appointed to oversee radical reform at the Department of Family and Protective Services.

Fourteen months after Jack’s decision, which remains on appeal, the Texas Legislature just passed two bills to address the some of the findings she made. However, Texas is a long way from implementing the measures needed to overhaul the system.

Texas is suffering a shortage of foster homes. In January, Texas’ first lady sent a letter to approximately 750 faith leaders asking for help in placing foster-care children who had been sleeping in child-welfare offices while they awaited placement. That same month, 24 children spent at least two nights each in CPS offices. Tragically, a teenager recently died when she was struck by a car after she ran away from a CPS office where she was temporarily being housed.

In her 2015 decision, Jack found that children in Texas’ long-term foster care have been subjected to “years of abuse [and] neglect,” and observed that “[t]he Court does not understand, nor tolerate, the systemic willingness to put children in mortal harm’s way.”

Contrary to Secretary Kelly’s assertion, Texas has a long way to go before it will be able to provide quality and safe foster care placements for children who already live in the U.S. Separating children from their parents at the border and placing them in foster care in Texas during lengthy immigration proceedings is not the answer.

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Dawn J. Post is co-borough director at the Children’s Law Center in Brooklyn.The views expressed are those of the author and not the organization.