Justice has been delayed for Felipe Montes. Last week, Montes listened via Skype from Mexico as a child welfare caseworker and the foster parents who now have custody of his children argued before a judge that his three kids should be adopted. In late 2010, Montes was deported from North Carolina and lost his kids to foster care. He’s fighting to have them returned to him, but according to Montes’ attorney, the child welfare department has become increasingly determined to keep Montes’ children in the United States.

The hearing, held last Thursday in an Alleghany County court room, dragged on all day until closing hour and has now been continued until May 29.

Over the phone from Mexico, Montes told Colorlines.com this week that he would not give up fighting. "All that I want is my children and I will do what it takes to get them," he said. "I’m not going to stop at nothing."

Colorlines.com first heard of Felipe Montes’ case last year while completling work on the Shattered Families investigation. The investigation conservatively estimated there are over 5,100 children of deported parents in foster care. In February, Colorlines.com published the story of the Montes family. After the piece was published over 20,000 people signed a petition calling for the Alleghany County child welfare department to reunify Felipe Montes and his children. The case gained wide national press attention. 

Yet Montes’ attorney Donna Shumate says the Alleghany County child welfare department has ignored the calls for reunification and came to court on Thursday with guns blazing against reunifying Montes and his children.

"I can safely say that the department has not changed its position and if anything they’ve become entrenched," Shumate said.

In previous court documents, the child welfare department argued that because Felipe Montes lived in a home without running water in Mexico he was unfit to care for his children. But last week, the Mexican consulate in North Carolina addressed these concerns by supplying the court and child welfare department with a flawless review of Montes’ home and the services and support that his children would have available to them in Mexico.

Now, according to Shumate, it’s become clear that the department simply objects to reunification with or without a compelling reason. She says they’re grasping at straws to cast him in a bad light. The Alleghany County Department of Social Services argued in court that Montes was not a good father when he lived in the United States because the county had provided the family with support before Montes’ deportation.

"They said this indicated he was not able to care for his children," she said.

Shumate responded that Felipe Montes and his wife Marie Montes received preventive services from the Department of Social Services precisely so that they could continue to support the children.

"Isn’t that what the department is for?" she said. "Child welfare is supposed to help families stay together."

Marie Montes, who along with her attorney was present at the hearing last week, told Colorlines.com, "We did ask for things, but we were told to ask for them when we needed help." She now believes it was a trap. "Now we see that that was not a good idea. They’re using it against us."

After Felipe Montes was deported, their children were removed from Marie Montes’ custody. Without Felipe to support the family, Marie, who has struggled with disability and substance abuse issues, could not support the children alone. But rather than placing the children with their father, the department moved them to foster homes with strangers and put them on track to be adopted.

"It was [the case worker’s] opinion that the children’s best interest is to stay in the United States and be adopted," Shumate said. "That’s what they’re running with now."

"Officially," says Shumate, "the department is recommending that the best interests of the children should prevail over the constitutional rights of the parent."

The child welfare department’s argument reflects a growing trend around the country in which child welfare departments and juvenile courts are ignoring long held legal principals of parental rights and family reunification and making arguments about the best interest of children based on the citizenship status of parents.

The legally questionable treatment of undocumented parents is compounded dramatically when those parents are deported. The Colorlines.com investigation found that when mothers and fathers are deported by federal immigration authorities, child welfare departments often argue that reunification is not in a child’s best interest.

Montes’ three children are split between two foster homes, the youngest, who is just over one year old in one home and the other two, now two and four years old, in another. The foster parents in both homes testified in court that the children are happy and should stay in the foster homes.

Until yesterday, Marie Montes had not seen any of her three children since October, the last time the child welfare department facilitated a visit between the kids and their mother. Yesterday she went along as her sister picked her own children up from daycare. Marie told Colorlines.com that she followed her sister into the daycare and saw her oldest son playing with other children on the floor.

"I was so happy to see him," she said. "He came to me. He was asking me when me and daddy are going to come and get him."

"He seemed like he was going to cry and I don’t want to upset him," she said through tears on the phone. "I wanted him to know that we are still trying. I don’t want him to think that we don’t love him no more."