Several states are enacting new laws to prevent children of detained immigrants from entering foster care amid increased immigration enforcement under the Trump administration.
As immigration authorities ramp up operations, which President Donald Trump has described as the largest mass deportation effort in U.S. history, several states are taking legislative action to keep children out of foster care when their detained parents lack family or friends to assume temporary custody.
The federal government does not track the number of children entering foster care due to immigration enforcement, making it difficult to assess the full extent of the issue. In Oregon, for example, two children had been placed in foster care after being separated from their parents in immigration detention cases as of February, according to Jake Sunderland, a spokesperson for the Oregon Department of Human Services.
“Before fall 2025, this simply had never happened before,” Sunderland stated.
As of mid-February, nearly 70,000 individuals were being held by Immigration and Customs Enforcement (ICE). This figure marked an 84% increase compared to the same time the previous year, with a record 73,000 individuals detained in January alone. Reporting from ProPublica indicated that parents of approximately 11,000 U.S. citizen children were detained from the beginning of Trump’s presidency through August.
According to a report by NOTUS in February, at least 32 children of detained or deported parents had been placed in foster care across seven states.
Sandy Santana, executive director of Children’s Rights, a legal advocacy organization, believes the actual number of affected children is likely much higher. “That, to us, seems really, really low,” he remarked.
The separation from a parent can be profoundly traumatic for children, leading to various health and psychological issues, including post-traumatic stress disorder. Prolonged stress can increase the frequency of infections in children and contribute to developmental challenges. This “toxic stress” is also linked to damage in areas of the brain responsible for learning and memory, according to KFF.
During Trump’s first term, states such as Maryland, New York, Washington, D.C., and Virginia amended their laws to allow guardians to be granted temporary parental rights in cases involving immigration enforcement. The recent surge in enforcement actions following Trump’s return to office has prompted additional state responses.
In New Jersey, lawmakers are currently considering a bill to amend state law, allowing parents to nominate standby or temporary guardians in cases of death, incapacity, or debilitation. The proposed legislation would add separation due to federal immigration enforcement as an additional allowable reason.
Last year, Nevada and California enacted laws aimed at protecting families separated by immigration enforcement. California’s Family Preparedness Plan Act enables parents to nominate guardians and share custodial rights rather than having them suspended during detention. Parents can regain their full parental rights upon release and reunification with their children.
Juan Guzman, director of children’s court and guardianship at the Alliance for Children’s Rights in Los Angeles, highlighted the significant legal barriers to reunification once a child is placed in state custody. If a child is placed in foster care and the parent is unable to participate in necessary court proceedings due to detention or deportation, the likelihood of reunification diminishes.
Research from the Brookings Institution estimates that approximately 5.6 million children in the U.S. are citizens living with a parent or family member without legal immigration status. Within this group, 2.6 million children have both parents lacking legal status.
As the Trump administration continues its immigration enforcement campaign, Santana anticipates an increase in family separation cases, putting more children at risk of being placed in foster care.
ICE directives require the agency to facilitate detained parents’ participation in family court, child welfare, or guardianship proceedings. However, Santana expressed uncertainty regarding ICE’s compliance with these rules.
ICE officials did not respond to requests for comment regarding these matters.
Prior to the changes in California’s law, parents could only share custodial rights with another guardian if they were terminally ill. With the new preparedness plan, parents can identify individuals to assume guardianship, allowing the state child welfare agency to begin the placement process without opening a formal foster care case.
While Nevada expanded its guardianship law last year to include immigration enforcement, the measure requires parents to file notarized paperwork with the secretary of state’s office, which may be a burdensome administrative step, according to Cristian Gonzalez-Perez, an attorney at Make the Road Nevada, a nonprofit organization serving immigrant communities.
Gonzalez-Perez noted that many immigrants remain hesitant to complete government forms due to fears that ICE may access their information. He reassures community members that state forms are secure and accessible only by hospitals and courts.
The Trump administration has taken unprecedented steps to access sensitive information from various federal agencies, including the Centers for Medicare & Medicaid Services, the IRS, and the Department of Housing and Urban Development.
Both Gonzalez-Perez and Guzman emphasized that many immigrant parents are unaware of their rights. Nominating a temporary guardian and creating a family preparedness plan can help mitigate feelings of helplessness, Gonzalez-Perez explained.
“Folks don’t want to talk about it, right?” Guzman said. “The parent having to speak to a child about the possibility of separation, it’s scary. It’s not something anybody wants to do.”
According to KFF Health News, a national newsroom producing in-depth journalism about health issues, the ongoing changes in custody laws reflect a growing awareness of the challenges faced by families affected by immigration enforcement.