Family Law

North Carolina May Terminate Deported Father’s Parental Rights

Parents without legal immigration status in this country not only have to worry about the possibility of being deported, but now they may also have to worry about the potential of having their parental rights to their U.S.-born children terminated after the parent is deported. In the case of Felipe Montes, a Mexican national who married and had three children with a U.S. citizen, his deportation could mean the end of his parental relationship with his children. The State of North Carolina is seeking to terminate Mr. Montes’ parental rights in an effort to allow the foster parents of his three young sons, who were placed in foster care two weeks after Montes’ deportation, to adopt.

Mr. Montes was the primary caregiver, not only to his children, but to their mother, who is mentally ill. Under the Immigration and Nationality Act, deportation can be cancelled under the “hardship exception,” which authorizes cancellation of the deportation of a “deportable alien” if such removal would cause hardship to a spouse, parent or child of a U.S. Citizen or other person lawfully admitted for permanent residence. In theory, this exception should have been Mr. Montes’ ticket to avoid deportation. Unfortunately, that was not the case.

Lack of Access During Deportation Proceedings

In most cases, when a person is taken into Immigration and Customs Enforcement (ICE) custody, they are denied the opportunity to make proper arrangements for the care of their children and families. Once in ICE custody, they are prevented from taking part in subsequent family court hearings, phones or attorneys. This was true in Mr. Montes’ case.

Currently, there is no way for deported or detained parents to make decisions about or be reunited with their children. The lack of ability on a deported or detained parent’s part to participate in the lives of their children, even remotely, makes it easier for courts to determine that parent is unfit.

This undated photo provided by Felipe Montes via the Applied Research Center shows Montes and his wife, Marie Montes, and one of their three boys. The children were placed in foster care after Felipe Montes was deported back to Mexico in late 2010. (AP Photo/Felipe Montes via the Applied Research Center)

Does Deportation Render a Parent Unfit?

Prior to his deportation, Felipe Montes’ only brushes with the law were minor traffic violations precipitated by his inability to renew his license after a 2007 law requiring driver’s license applicants to have a valid Social Security Number, rather than a federal tax ID number. He was the sole provider — a landscaper — and caretaker for his wife and children. He did not smoke, drink or do drugs. His only legal transgression was being unable to afford the costly, time-consuming green card application process.

Many states allow a finding of unfitness as a parent where the parent is abusive, neglectful, fail to provide proper care for their children, fail to visit, provide support, or are incacerated. Although Montes’ inability to visit or provide support for his children is due to his deportation — a condition he could not legally control, the State of North Carolina is seeking to terminate his parental rights on those grounds.

A Budding Crisis?

According to a 2011 study, about 5,100 foster children in 22 states are children of parents who were either deported or detained by ICE. Because the government does not compile national numbers on this issue, the numbers produced in that study could be the tip of the iceberg. Additionally, due to the number of grandparent-headed households, there could be many more children ending up in the foster care system due to the deportation or detention of their primary caregivers. Many immigration and family relations experts believe these numbers could signal the beginning of a nationwide crisis in child welfare.

Regardless of one’s position on immigration, there are two clear issues with Mr. Montes’ case and others like it. First, it is well-settled law that the right of a person to parent his or her children without onerous governmental intervention is a fundamental right. Termination of parental rights constitutes the legal death of a familial relationship — it is the family/juvenile court’s death sentence. Finally, if ICE detention and deportation policies and practices do not change, the states will have to deal with the impending explosion of children in an already overburdened child welfare/ foster care system.

In the meantime, immigration detainees or deportees, like Mr. Montes, wait helplessly as the courts determine whether or not they can be parents again.