A North Carolina state judge ordered three U.S. born children to be reunited with their deported Mexican father yesterday, a move toward resolving a two year legal fight that has drawn international attention.
Social services officials in rural Alleghany County had sought to terminate the parental rights of Felipe Montes, who crossed the border illegally in 2003 to work on Christmas tree farms near the mountain town of Sparta. Montes later married a U.S. citizen and the couple had three sons.
U.S. Immigration and Customs Enforcement agents arrested Mr. Montes in 2010 after he was repeatedly ticketed for driving without a license, which he was barred from getting without a valid Social Security number under North Carolina law.
Montes was deported to Mexico and the boys were placed in state custody after social workers determined his wife, Marie Montes, was unable to properly care for them on her own. Marie Montes collects federal disability payments for a mental illness.
The two older boys, now ages 3 and 5, were sent to live with one foster family, while the youngest, a toddler, was placed with another. Those families have since sought to adopt the children.
District Court Judge Michael Duncan's ruling, which came after a week-long hearing, could clear the way for the children to live with their father in El Encino, a small village in the Mexican state of Tamaulipas.
"I love my kids and I will do whatever I need to do to be with them," Montes, 32, said yesterday by phone from Sparta. "I grew up without my mother and father. I didn't want my kids to grow up and face the same thing. I didn't want them to say some day I did not fight for them."
Montes was allowed to return to the U.S. temporarily in August on a humanitarian parole so that he could attend the court sessions. He has been attending parenting classes in the hope of regaining full custody of his children.
Immigration reform activists call Montes' plight an example of how deported parents are often permanently separated from their American children.
A 2011 report from the Applied Research Center, a New York-based racial justice think tank, found about 5,100 children in 22 states were in foster care after their parents were either detained or deported. The federal government doesn't compile national numbers on such separations.
Though immigration officials say it is not their intent to break up families, there's no uniform policy to ensure parents undergoing deportation can arrange for their children's care.
The First Focus Campaign for Children, a Washington D.C. based immigrant advocacy group, used Montes' situation this year to push for two new laws in California aimed at preventing family separations triggered by deportation. Spokeswoman Yali Lincroft predicted yesterday's ruling in North Carolina will set a legal precedent other courts will pay attention to.
"Hopefully, this case will make the child welfare system aware of due process, so that this sort of thing doesn't happen again," Lincroft said.
Allegany County officials moved to terminate Montes' parental rights after the deported father sought to have his children sent to Mexico, where he works at a walnut farm and shares a house with his uncle, aunt and three nieces.
A home study by Mexican social services authorities shows the cement block house has a refrigerator, satellite television, microwave and plenty of space for children to play. There's a school a few minutes away. But North Carolina officials balked at sending the three boys to live in El Encino, expressing concern the house there doesn't have running water.
Under Duncan's ruling, Montes' sons will go to live with him Dec. 7 in a Sparta hotel room paid for with the help of the Mexican government. The judge said he wanted to monitor how the boys are doing until Feb. 19, when a follow-up hearing is scheduled. The judge could grant Montes full custody and clear the way for the boys to go to Mexico with their father.
Montes' current visa is set to expire Dec. 23. His immigration lawyer, Ann Robertson, said on Nov. 27 she will apply to get the humanitarian parole extended until the court case is resolved.
Montes recently found out his wife is expecting their fourth child. He said he looks forward to the day his family can live together under one roof.
"The plan is to do whatever the judge asks me to do so I can get full custody and go back to Mexico with my kids," he said.