13.1 Limited English Proficiency (LEP) Services

[Unless otherwise noted, the following section is from NYSOCFS, 2023 October]

Title VI of the Civil Rights Act of 1964 requires all recipients of federal funds to provide meaningful access to services and programs for persons with limited English proficiency (LEP). Those with limited proficiency in English are individuals who do not speak English as their primary language and who have a limited ability to read, speak, write, or understand English.

Agencies must offer LEP persons involved in child protective cases with appropriate, free, and timely language assistance by providing oral interpretation and translation of “vital documents.”  All agencies receiving any federal funding, directly or indirectly, are mandated to comply with these requirements. This includes all local social service departments and agencies with which they contract to provide protective services.

13.2 Compliance with the Indian Child Welfare Act

The federal Indian Child Welfare Act (ICWA) protects the best interests of Native American children by supporting their cultural identity in issues pertaining to foster care, termination of parental rights, emergency removals, and adoption proceedings. The law establishes minimum federal standards for the removal of Native American children from their families.

The Office of Children and Family Services addresses the requirements for implementation of ICWA in child custody proceedings, including voluntary and involuntary foster care and termination of parental rights proceedings, emergency proceedings, and the voluntary relinquishment (surrender) of parental rights involving Indian children.

In every case, inquiries regarding the child’s status as a Native American child must be made of the family and, depending on age and capacity, the child. If there is reason to know that the child is American Indian or Alaska Native, all protections afforded under ICWA apply until it has been determined by the court that the child does not meet the definition of an Indian child.

In each child custody proceeding initiated by a social services official, the official must notify the child’s parent or Indian custodian (and each tribe or nation in which the Native American child is a member or citizen or may be eligible for membership or citizenship) of the pending proceeding and of the right of the parent/Indian custodian/tribe to intervene in that proceeding. The notification must be made by registered or certified mail with return receipt requested. Treating the child as a Native American child from the early stages of a case prevents delays and possible changes in foster care placement.

Federal statutory and regulatory standards limit application of ICWA only to Indian children who are members or citizens of federally recognized tribes or nations, or are eligible for membership or citizenship, and the biological child of a member or citizen of a federally recognized tribe or nation. New York State extends the application of most of the provisions of ICWA to children who are members/citizens of state-only recognized Indian tribes/nations.

There are nine tribes/nations in New York State:

1. St. Regis Mohawk Tribe (located in Franklin County, New York, also known by its Mohawk name, Akwesasne)
2. Cayuga Nation (a member of the Haudenosaunee Confederacy, located between the Seneca Nation to the west and the Onondaga Nation to the east)
3. Seneca Nation of Indians (located in western New York)
4. Tuscarora Nation (located in Niagara County)
5. Onondaga Nation (located south of Syracuse, a member of the Haudenosaunee Confederacy)
6. Tonawanda Band of Senecas (one of two federally recognized Seneca tribes in Western New York)
7. Oneida Indian Nation (headquartered in Verona, New York)
8. Shinnecock Indian Nation (based at the eastern end of Long Island)
9. Unkechaug Nation (located on the Poospatuck Reservation in Suffolk County)

Both federal and state laws allow the emergency removal of a Native American child from the custody of his or her parents or Native American custodians, or the emergency placement of such child in a foster home or childcare facility to prevent imminent physical damage or harm to the child. ICWA has established preference provisions for both foster care and adoption placements: first preference is placement with a member of the child’s extended family; second preference is with a member of the child’s tribe/nation; and the third preference is with other Native American families.

13.3 Working with Immigrant Families

It is not uncommon for caregivers who are not documented citizens of the United States to have their legal status used against them. Members of these communities may be distrustful of state agencies and law enforcement officials for many reasons, one of which may be related to negative experiences with government agencies in their countries of origin.

CPS may need to use intervention strategies for families dealing with immigration issues that are different from the intervention strategies used in cases where immigration status is not a factor. This includes preparing a safety plan that considers the cultural expectations and realities that a family may be experiencing. All plans should be tailored to fit the specific needs of the family while promoting a safe environment for the child. The safety plan is vital in preventing the unnecessary placement of children into foster care if their parents or caretakers are detained by Immigration Customs Enforcement or deported to their countries of origin.

In New York State, a caregiver’s lack of proper immigration status is neither an allegation of abuse or neglect nor a violation of the minimum degree of care. However, whenever CPS responds to a report of suspected child abuse or maltreatment, they must be alert and sensitive to the possibility that the caregivers may lack proper immigration status. The family does not have to reveal their immigration status, nor should they feel pressured into doing so as a condition of an impartial CPS investigation.

A caregiver may not be ready or able to discuss the existence of an immigration issue because of the fear of the potential consequences, such as deportation, and they may have worries about how CPS might act regarding their children. It is important to show concern for the caregiver’s well-being along with the required CPS focus on the safety of the children in the home and their level of risk of harm.

CPS personnel should set aside any biases they may have regarding immigration and the immigrant community. It is important to suspend judgment and understand that one solution, such as returning to their country of origin is not always the safest strategies for the caregivers or the children. It is important that CPS personnel recognize the limitations of their knowledge and draw upon available resources, such as a supervisor, an immigration advocate, or materials from the New York State Office for New Americans or some other community resource.