It was two years ago that Felipe Montes was deported from his home in small town North Carolina, tearing him from his children. And it was nearly four months ago that he won rare clearance from immigration officials to come back to the country and fight for them. Yesterday, just after noon, Montes sat beside his court appointed lawyer in a small-town courtroom and listened as a judge ordered his family back together.
"I did not know what would happen today," Montes told me yesterday afternoon as he sat on the couch in his father-in-law's home. "I am relieved. For the last two years, everything I do is for my kids."
Felipe Montes, an undocumented immigrant from Mexico, moved to Sparta, N.C., in 2003 to work on Christmas tree farms. He married a local woman, Marie Montes, and they had two children. But in late 2010, Montes was deported from his home after racking up a series of fines for traffic violations, because as an undocumented immigrant he's barred from obtaining a driver's license. He left behind his two kids, Isaiah and Adrian, then 1 and 3, and his wife, who was pregnant at the time.
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Just two months after he was detained, county child welfare officials removed the two toddlers and the newborn baby, Angel, from Marie Montes. The child welfare department said she could not care safely for the kids; she's previously lost custody of four other children and has long struggled with drug use and mental health problems.
The children were quickly placed in foster care with couples who hoped to adopt them, and the Alleghany County Department of Social Services advocated Montes's parental rights be terminated. Though Montes asked county child welfare officials to send his sons to him in Tamaulipas, Mexico, the agency refused, arguing that his home lacked running drinking water and was otherwise insufficient for young kids.
Despite mounting national coverage of the case after Colorlines.com broke Montes's story in February, and 20,000 signatures on a national petition launched by the Latino advocacy group Presente.org to demand the family be reunited, the children remained in foster care, until now.
The Montes family's saga has drawn such close scrutiny not because it is extraordinary, but because it is increasingly normal. As the federal government deports tens of thousands of parents each year, child welfare departments handle a growing number of cases like his, in which struggling families are ripped apart. Many parents and children are permanently separated.
A Colorlines.com investigation released a year ago estimated that there were least 5,000 kids in foster care whose parents were detained or deported. Existing government data first secured by Colorlines.com last year shows that in the six-month period between January and June 2011, the federal government deported 46,000 parents of U.S. citizen kids.
The Judge's order yesterday is a major victory for Felipe Montes, but it does not mark an end to his family's struggle with borders. Though Judge Michael Duncan said that Isaiah, 5, Adrian, 3, and Angel, 2, should be returned to their father, they must first spend two months living with Montes in North Carolina on a "trial placement." Montes is scheduled to appear in court again on Feb. 19. If all goes well for the father, Judge Duncan will close the case and let Montes take his children with him to Mexico.
Montes is expected to leave the country on Dec. 23, when his rare humanitarian parole from federal immigration authorities ends. Ann Robertson, an immigration attorney hired by the Mexican Consulate to represent Montes, said today she will apply for an extension so that he can remain in the country at least until the case is closed.
The Failed Case Against Felipe Montes
Last week, for the first time since the case began, Judge Duncan opened the courtroom to the press. In two days of questioning, Louise Paglen, a local insurance law attorney appointed to represent the children's best interests, cast Montes as a deeply neglectful father who willfully broke the law and who can now not be trusted to parent his children.
Though Montes didn't lose custody until after his deportation, the child welfare department and Paglen have previously resisted reuniting the boys with their father in Tamaulipas. Documents from the Mexican government show the house has space for the boys and is close to a school and a hospital, but Montes's opponents cited the home's concrete floors and a lack of running drinking water as evidence it was not adequate for children.
Child welfare law circulates between two legal standards. The first, called the fitness standard, asks whether a parent is able to take care of their kids and can provide a safe home. The second asks, what's in the best interest of the children? Experts generally agree that courts can't consider the second question until the first has been answered. In other words, as long as a mom or dad can care for their kid and has not harmed them, the family stays together.
But as I've reported previously, in a growing number of cases around the country that involve undocumented and deported parents, this legal order has been reversed, and child welfare departments, children's advocates and courts have applied the best-interest standard without establishing a parent is unfit.
As Montes's case progressed, his attorney Donna Shumate says it became clear that arguments against the father based on the conditions in Mexico would not hold legal water--because Montes had never harmed his kids. So eventually the county changed paths. Last week, Santiago Reales, an Alleghany County social worker who started overseeing the Montes case in August, said on the stand that the Department of Social Services had switched its position and now backed reuniting the boys and their father.
But Paglen remained firmly committed to her position that the boys should remain with their foster parents. To make this point, Paglen concocted an argument that Montes had always been a bad and neglectful father, even before his deportation.
Montes admits that his family has struggled. His job as a landscaper in North Carolina was seasonal and he sustained injuries that left him out of work for several months. As an undocumented immigrant, he collected no workers compensation during that time and the family relied on Marie Montes's disability check alone. At times, they could not pay the bills, and Montes had trouble getting his kids to daycare on time and delivering his wife to a drug treatment program an hour away.
Their poverty and his wife's illness made it hard to be a perfect parent, and in the 14 months before his deportation, five reports were filed with the Department of Social Services alleging that Felipe and Marie Montes had neglected their kids. One said the family's heat had been turned off for failure to pay a heat bill. Another report said that Adrian was delivered to school with dried feces on him that left his skin raw. Another from the daycare noted that the boys had bruises.
Paglen jumped on these incidents, saying in closing arguments last week, "The question for the court here is do we have a fit parent, a parent who has shouldered his responsibilities with regard to his children."
No, she said. In fact, Paglen argued, Montes "was financially dependent on the resources that were provided for the benefit of his wife and children." Ultimately, she said, "The state of North Carolina was raising these children, not Mr. and Mrs. Montes."
But Montes's Attorney Donna Shumate argued that social workers investigated each report of neglect, and found that Felipe Montes had not neglected his kids and was fully capable of caring for them.
It was this point that the judge found most compelling. Judge Duncan told the parties that he relies on trained social workers from the Department of Social Services to look into allegations of neglect and he trusts their assessment.
"At no time have [social workers] substantiated any reports of neglect prior to the father being deported," Judge Duncan said. "The court cannot find that the father is unfit, that he has acted in a manner inconsistent with his constitutional protected status."
"The permanent plan is reunification with the father," said Judge Duncan.
When Montes leaves the country with his kids, he will once again depart a place that's become his home. Sparta has welcomed Mexican immigrants who in the last decade arrived as migrant workers to cut and bail Christmas trees and ended up staying. The main street brags at least three Mexican restaurants beside the Burger King and a few southern food establishments.
Before his deportation, Montes was deeply rooted here, and he still is. After court on Tuesday, the father walked around the corner and up a hill to the small rented home where his father-in-law lives. Inside, Montes sat talking to one of his wife's cousins, Tim McMillan, a middle aged man who'd come by to visit. They chatted about the current hourly pay on the Christmas tree farms, where McMillan, who was born in Sparta and has lived in the area all his life, hopes to pick up some work.
McMillan stood up to leave and catch a ride back to his house on the other side of the mountain. "Like I said man, the Lord works in mysterious ways," he said to Montes. "You take care of them kids, you take care of your youngins."
"I will," Montes said.
"Oh, I know you will."
As immigrants like Montes are increasingly integrated into poor white families like this one, mounting deportations leave these communities pocked with holes.
In the back of the courthouse yesterday, after the judge issued his order, a white woman holding a newborn baby stopped me as I walked through the double doors into the hallway. "You know, he's not the only one," she said. "My husband is arrested now and they'll deport him."
Through tears, the new mother, who didn't want to give me her name, explained that her husband was arrested for driving while drunk. "I'll be left here alone to raise this baby and my step kids," she said.
Forced to leave his home, Montes says he's ready to return to Mexico, his other home, where he lives in a town even smaller than Sparta with an aunt and uncle who raised him as a boy.
Louise Paglen argued to the judge last week that Montes and his kids won't have the resources they need to survive in Mexico. "We know he is not going to have that kind of support in Mexico," she said.
But Montes says that's not the case. "They'll have everything they could need there," Montes told me. "And they'll be taken care of by their own family. By me and my uncle and aunt."