On Aug. 10, a traveling judge will take the bench in an Alleghany County, N.C. courtroom and, before the day is over, decide the fate of three children.
Federal immigration authorities deported the boys' father, their primary caretaker and the family breadwinner, to his native Mexico in 2010. Their American-citizen mother has mental health problems that make it difficult for her to work or care for the boys alone. The two foster families caring for the boys have expressed interest in adopting them. There's just one problem: their father, Felipe Montes.
Montes never agreed to surrender custody or willingly ceased contact with his sons. He has never been accused of mistreating his children. And, he wants to raise his children in Mexico.
"That's really all this man wants," said Donna Shumate, a court-appointed lawyer representing Montes. Montes could not be reached for comment late last week. "He wants to parent his own children."
The Montes children, whose names are part of a sealed court record, are snagged in the friction between the nation's evolving immigration enforcement apparatus and family law. And, their situation, while little known, is far from unique.
Last year, there were at least 5,100 children living in foster care across the United States because their parents had been deported or detained by immigration authorities, according to a report released by the Applied Research Center. The center is a think tank that researches racial justice issues.
"In many jurisdictions there is no clear policy," said Seth Wessler, the center researcher responsible for the report. Wessler has also written about the issue for Colorlines, the center's news site. "Deported parents are treated as if they have fallen off the face of the earth or, there is an argument made that children are better off in the United States, even if that is with strangers, than with their parents in another country."
When children are taken into state custody, social workers generally place them with relatives, family friends, in a group home setting or with a foster family. To regain custody, parents must meet with child welfare officials, attend court hearings and comply with the terms of an agreement that usually includes things such as drug or alcohol rehabilitation, attending parenting courses or improving conditions in their homes, Shumate, the lawyer, said.
Under the terms of a 1997 federal law, parents must generally demonstrate cooperation and progress within two years or risk losing custody of their children forever. But when parents are detained by U.S. Immigration and Customs Enforcement, they are sometimes difficult to find because of ICE policies that limit the information that can be obtained about people in the agency's custody.
On average, parents spend about 30 days in detention before being deported, and do so in a facility an average of 370 miles from the cities where they once lived, according to the Applied Research Center report. Parents who attempt to protest removal often remain in detention for longer periods, according to the report.
During that time, courts typically begin the process of assessing whether child welfare workers are making, "reasonable efforts," to help a family reconnect, said Lori Walston, a spokeswoman for the North Carolina Division of Social Services, which oversees the child welfare agency in Alleghany and other counties.
"Reasonable efforts can be complicated when geographical and cultural boundaries are present in a case," Walston said in a statement emailed to The Huffington Post. State and federal laws bar Walston from speaking about most children in state custody, or the specifics of their cases. "While challenging, these complications are not insurmountable."
But across the county, when a parent has been detained by immigration authorities or deported, many social workers seem to struggle with those challenges, said Wessler, of the Applied Research Center. According to Wessler, ICE also generally does not facilitate parent involvement in child welfare cases.
Wessler examined deportation and child welfare data in 22 states, visited six detention centers and spoke with nearly 70 detained parents facing deportation. Of these, only four reported that ICE agents actually asked if they had children. And Wessler found multiple cases where child welfare workers claimed in court that parents were unfit, irresponsible or a danger to their children because of their immigration status alone.
In San Diego, the jail where ICE holds detainees is visible from the courthouse where judges hear family court cases, Wessler said. Inmates held in the same jail on a wide variety of charges are brought to family court to participate in hearings. But ICE refuses to transport parents being held for possible deportation to the same building, the Applied Research Center's report found.
"In the vast majority of these cases, you have people making decisions about these children without any input from their parents at all," Wessler said.
While Wessler found evidence of at least 5,100 children pushed into foster care after their parents were detained by immigration officials or deported, such situations are rare, said Gillian Chistensen, an ICE spokeswoman, in a statement emailed to The Huffington Post.
ICE works with individuals in removal [deportation] proceedings to ensure they have ample opportunity to make important decisions regarding the care and custody of their children. Furthermore, as outlined in the agency's June 2010 Civil Enforcement Priorities memo, ICE will typically not detain individuals who are the primary caretakers of children.
Wessler found cases in several border communities where particularly dedicated child welfare workers contacted foreign consulates and reconnected deported parents with their kids. But many children put in state custody after their parents have been detained or deported were not living in border states.
Legislation introduced in the U.S. Senate and House of Representatives in 2009 and reintroduced in 2011, The Help Separated Children Act, languished and was not referred to the floor of either body for a vote.
This month, the Latino Policy Coalition called on the United Nations to compel the United States to identify children separated from their parents by deportation or immigration detention.