As immigration authorities carry out what President Donald Trump has promised will be the largest mass deportation operation in US history, many states are passing laws to keep children out of foster care when their detained parents have no family or friends available to take temporary custody.
The federal government does not track how many children have entered foster care because of immigration enforcement actions, leaving it unclear how often it happens. In Oregon, since February two children had been placed in foster care after being separated from their parents in immigration detention cases, according to Jake Sunderland, a spokesman for the Oregon Department of Human Services.
“Before the fall of 2025, this had never happened before,” Sunderland said.
As of mid-February, nearly 70,000 people were being held by Immigration and Customs Enforcement. The record 73,000 people in custody in January represented an 84% increase from a year ago. According to a report by ProPublica, parents of 11,000 children who are US citizens were detained from the beginning of Trump’s term until August.
The NOTUS news agency reported in February that at least 32 children of incarcerated or deported parents had been placed in foster care in seven states.
Sandy Santana, executive director of Children’s Rights, a legal advocacy organization, said he believes the true number is much higher.
“That, to us, seems very, very low,” he said.
Separation from a parent is deeply traumatic for children and can lead to a variety of health and psychological issues, including post-traumatic stress disorder. Prolonged, intense stress can lead to more frequent infections in children and developmental problems. This “toxic stress” is also associated with damage to areas of the brain responsible for learning and memory, according to the KFF.
Maryland, New York, Washington and Virginia amended existing laws during Trump’s first term to allow guardians to have temporary parental rights for immigration enforcement purposes. Now the increase in enforcement that began after Trump returned to power last year has prompted a new wave of state responses.
In New Jersey, lawmakers are considering a bill to amend a state law that allows parents to appoint standby or temporary guardians in cases of death, incapacity or infirmity. The bill would add segregation due to federal immigration enforcement as another allowable reason.
Nevada and California passed laws last year to protect families separated by immigration enforcement. California’s law, called the Family Preparedness Plan Act, allows parents to appoint guardians and share custody, rather than suspending them, while in custody. They regain full parental rights if they are released and can be reunited with their children.
There are significant legal barriers to reunification when a child is placed in state custody, said Juan Guzman, director of children’s court and guardianship at the Alliance for Children’s Rights, a legal advocacy organization in Los Angeles.
If a parent’s child is placed in foster care and the parent cannot participate in the required court proceedings because they are in custody or have been deported, they are less likely to be able to be reunited with their child, Guzman said.
An estimated 5.6 million children are US citizens living with a parent or family member who does not have legal immigration status, according to research by the Brookings Institution, a Washington-based think tank. Within this group, 2.6 million children have two parents without legal status.
Santana said he expects the number of family separation cases to increase as the Trump administration continues its immigration enforcement campaign, putting more children at risk of being placed in foster care.
ICE guidelines require the agency to make efforts to facilitate the participation of detained parents in family court, child welfare or custody proceedings, but Santana said he is unsure whether ICE is complying with those rules.
ICE officials did not respond to requests for comment for this report.
Before the California law change, the only way a parent could share custody rights with another guardian was if the parent was terminally ill, Guzman said.
If parents create a preparedness plan and identify a person to take custody of their children, the state child welfare agency can begin the process of placing the children with that person without opening a formal foster care case, he added.
While Nevada lawmakers expanded the existing guardianship law last year to include immigration enforcement, the measure requires parents to submit notarized documents to the secretary of state’s office, an administrative step that can be burdensome, said Cristian Gonzalez-Perez, an attorney with Make the Road Nevada, a nonprofit that provides resources to communities.
Gonzalez-Perez said some immigrants are still hesitant to fill out government forms, out of fear that ICE could access their information and target them. It assures community members that government forms are secure and can only be accessed by hospitals and courts.
The Trump administration has taken unprecedented steps to access sensitive information through the Centers for Medicare & Medicaid Services, the IRS, the Supplemental Nutrition Assistance Program, the Department of Housing and Urban Development, and other agencies.
Gonzalez-Perez and Guzman said not many immigrant parents know their rights. Appointing a temporary guardian and creating a plan for their families is one way they can prevent feelings of helplessness, Gonzalez-Perez said.
“People don’t want to talk about it, do they?” Guzman said. “A parent has to talk to a child about the possibility of separation, it’s scary. It’s not something anyone wants to do.”
