In America the United States Supreme Court has found and held that all parents have the right to the care, custody, control, and companionship of their children unless they are proven unfit. “the interest of parents in the care, custody and control of their children–is perhaps the oldest of the fundamental liberty interests recognized by this Court.” Troxel vs Granville 530 US 57 (2000)
Furthermore, North Carolina’s own courts have found, “`[i]n order to justify depriving a parent of the custody of a child in favor of third persons there must be substantial reasons or, as various courts have put it, the reasons must be real, cogent, weighty, strong, powerful, serious, or grave.’ 67 C.J.S. Parent and Child § 12, page 651.” James v. Pretlow, supra. Nor is the fact that a parent or parents seeking to retain custody of their child, or to obtain custody of their child, may not be as able financially to take care of the child as the party seeking to defeat their custody sufficient to justify the court’s depriving the parents of custody and awarding it to some third person. 2 Nelson, Divorce & Annulment, § 15.15, p. 245 (2d ed. rev. 1961).
As a result of the “deep and meaningful relationship” existing between parent and child, the preliminary determination required by the relevant constitutional provisions “must not be lightly undertaken” and “must be supported by clear and convincing evidence.” Id. At 53, 550 S.E.2d at 503 (citing Santosky v. Kramer, 455 U.S. 745, 747-48, 71 L. Ed. 2d 599, 603, 102 S. Ct. 1388, 1391-92 (1982)).
Parental rights may only be terminated if the specific criteria in GS 7B-1111 are met, being a resident of another country and poverty are not legal reasons for terminating parental rights, in fact 7B-1111 specifically states that poverty cannot be used as a reason for terminating parental rights, so DSS’ claim that the children are better off with their foster parents because the father does not have running water in Mexico is in error…running water is not a requirement of parenting. So were our ancestors unfit because they did not have running water? My grandparents did not have running water, or an indoor bathroom until 1984, yet I was always clean, well fed, and loved and so was their house and clothes.
Amish people do not have running water, so should the state rush in and remove their child and call them unfit, based solely on that?
I would also like to mention that Mexico does have an issue with running water, it is not just this father’s home, but millions of Mexican residents that lack running water, through no fault of their own, so should America go in a take all Mexican children from their homes? Running water does not determine whether you are a good parent, who adequately provides care to your children and should not be used in this case to deny, by all accounts, a healthy, loving parent child relationship. If DSS can take these children from this father for this reason, they can take a child for any reason without justification.
The grounds for terminating parental rights in North Carolina are:
§ 7B‑1111. Grounds for terminating parental rights.
(a) The court may terminate the parental rights upon a finding of one or more of the following:
(1) The parent has abused or neglected the juvenile. The juvenile shall be deemed to be abused or neglected if the court finds the juvenile to be an abused juvenile within the meaning of G.S. 7B‑101 or a neglected juvenile within the meaning of G.S. 7B‑101. (There has been absolutely no abuse or neglect alleged against this father!)
(2) The parent has willfully left the juvenile in foster care or placement outside the home for more than 12 months without showing to the satisfaction of the court that reasonable progress under the circumstances has been made in correcting those conditions which led to the removal of the juvenile. Provided, however, that no parental rights shall be terminated for the sole reason that the parents are unable to care for the juvenile on account of their poverty. (This father has not willfully left his children in foster care or a placement outside the home, in fact he has fought to have his children place with him, he was deported and unwillingly separated from his children and wife.)
(3) The juvenile has been placed in the custody of a county department of social services, a licensed child‑placing agency, a child‑caring institution, or a foster home, and the parent, for a continuous period of six months next preceding the filing of the petition or motion, has willfully failed for such period to pay a reasonable portion of the cost of care for the juvenile although physically and financially able to do so. (There is no evidence that this father has willfully failed to pay a reasonable portion of his children’s care)
(4) One parent has been awarded custody of the juvenile by judicial decree or has custody by agreement of the parents, and the other parent whose parental rights are sought to be terminated has for a period of one year or more next preceding the filing of the petition or motion willfully failed without justification to pay for the care, support, and education of the juvenile, as required by said decree or custody agreement. (Does not apply in this case)
(5) The father of a juvenile born out of wedlock has not, prior to the filing of a petition or motion to terminate parental rights: (Does not apply to this case since the parents are, according to the article, legally married.)
a. Established paternity judicially or by affidavit which has been filed in a central registry maintained by the Department of Health and Human Services; provided, the court shall inquire of the Department of Health and Human Services as to whether such an affidavit has been so filed and shall incorporate into the case record the Department’s certified reply; or
b. Legitimated the juvenile pursuant to provisions of G.S. 49‑10 or filed a petition for this specific purpose; or
c. Legitimated the juvenile by marriage to the mother of the juvenile; or
d. Provided substantial financial support or consistent care with respect to the juvenile and mother.
(6) That the parent is incapable of providing for the proper care and supervision of the juvenile, such that the juvenile is a dependent juvenile within the meaning of G.S. 7B‑101, and that there is a reasonable probability that such incapability will continue for the foreseeable future. Incapability under this subdivision may be the result of substance abuse, mental retardation, mental illness, organic brain syndrome, or any other cause or condition that renders the parent unable or unavailable to parent the juvenile and the parent lacks an appropriate alternative child care arrangement. (The reasons these children were removed from their mother were out of this fathers control, since he was no longer in the home or able to re-enter this country because of deportation, in order to care for his children. It should also be noted that these conditions did not exist when this father resided in the home, with his children)
(7) The parent has willfully abandoned the juvenile for at least six consecutive months immediately preceding the filing of the petition or motion, or the parent has voluntarily abandoned an infant pursuant to G.S. 7B‑500 for at least 60 consecutive days immediately preceding the filing of the petition or motion. (This father has not willfully abandoned his children)
(8) The parent has committed murder or voluntary manslaughter of another child of the parent or other child residing in the home; has aided, abetted, attempted, conspired, or solicited to commit murder or voluntary manslaughter of the child, another child of the parent, or other child residing in the home; has committed a felony assault that results in serious bodily injury to the child, another child of the parent, or other child residing in the home; or has committed murder or voluntary manslaughter of the other parent of the child. The petitioner has the burden of proving any of these offenses in the termination of parental rights hearing by (i) proving the elements of the offense or (ii) offering proof that a court of competent jurisdiction has convicted the parent of the offense, whether or not the conviction was by way of a jury verdict or any kind of plea. If the parent has committed the murder or voluntary manslaughter of the other parent of the child, the court shall consider whether the murder or voluntary manslaughter was committed in self‑defense or in the defense of others, or whether there was substantial evidence of other justification. (Does not apply in this case)
(9) The parental rights of the parent with respect to another child of the parent have been terminated involuntarily by a court of competent jurisdiction and the parent lacks the ability or willingness to establish a safe home. (I would say this father wants to establish and is capable of establishing a safe home for his children, but is being prevented from doing so by the state of North Carolina and DSS.)
(10) Where the juvenile has been relinquished to a county department of social services or a licensed child‑placing agency for the purpose of adoption or placed with a prospective adoptive parent for adoption; the consent or relinquishment to adoption by the parent has become irrevocable except upon a showing of fraud, duress, or other circumstance as set forth in G.S. 48‑3‑609 or G.S. 48‑3‑707; termination of parental rights is a condition precedent to adoption in the jurisdiction where the adoption proceeding is to be filed; and the parent does not contest the termination of parental rights.
(b) The burden in such proceedings shall be upon the petitioner or movant to prove the facts justifying such termination by clear and convincing evidence. (1977, c. 879, s. 8; 1979, c. 669, s. 2; 1979, 2nd Sess., c. 1088, s. 2; c. 1206, s. 2; 1983, c. 89, s. 2; c. 512; 1985, c. 758, ss. 2, 3; c. 784; 1991 (Reg. Sess., 1992), c. 941, s. 1; 1997‑390, ss. 1, 2; 1997‑443, s. 11A.118(a); 1998‑202, s. 6; 1998‑229, ss. 11, 28; 1999‑456, s. 60; 2000‑183, s. 11; 2001‑208, s. 6; 2001‑291, s. 3; 2001‑487, s. 101; 2003‑140, s. 3; 2005‑146, s. 1; 2007‑151, s. 1; 2007‑484, s. 26(a).)
A look at North Carolina law, and North Carolina and United States legal opinions easily answers this question, so why then is DSS still fighting to illegally detain these children and keep them from their father? I believe this is another demonstration of the uncontrolled and unchecked power of DSS. A prime example of DSS’ total disregard for the laws of this state and country. What this case basically comes down to is the illegal taking of Senor Montes’ children, not out of fear that he will hurt them, but because DSS believes that these children will be better off with someone else because their father lives in Mexico and doesn’t have running water. DSS believes these children are better off being raised by strangers, then by a father who loves them so much, that even after being deported…he has still found a way to fight for custody of his children. Just because DSS disagrees with the living conditions of a foreign country, or their way of life, does not make that way of life wrong.
District Court Judge Michael Duncan heard for eight hours the arguments as to whether Felipe Montes, who lived in Sparta for nine years, is capable of bringing up his children in Mexico or whether it would be better to put them up for adoption.
The judge heard Thursday from the state Division of Social Services and set another hearing for May 29, when Montes’ attorney, Donna Shumate, will have the chance to argue the importance of reuniting the family.
“This is a complicated, difficult case, but we expect to win. I’ve had the support of other attorneys in different parts of the country, and we’ll prepare for our hearing,” Shumate said.
Felipe Montes’ nightmare began on a day in October 2010 that started out like any other. He made breakfast for his wife and children and got the kids ready for daycare. (Isn’t this man entitled to citizenship since he is married to a U.S. Citizen?)
Montes, 33, was the sole provider for the family and the children’s primary caregiver, as his wife – a U.S. citizen – suffers from an unspecified disabling mental illness.
Unable to get a driver’s license because he was undocumented, Montes had been arrested several times for driving without a license, but continued to drive so he could work.
When he went to court to pay his fines, two U.S. Immigration and Customs Enforcement agents were waiting for him.
They handcuffed him and transferred him to a detention center in Georgia, from where he was deported to Mexico on Dec. 3, 2010, as his wife was expecting the couple’s third child.
Soon after Felipe’s deportation, his wife, Marie Montes, lost custody of their children due to economic difficulties and a decline in her health.
Marie, 31, told Efe that she expects to join her husband in Mexico once the judge returns custody of the children to Felipe.
“He’s an excellent father,” she said, and noted that Montes is “desperate” to see his kids because “he loves them with all his heart and so do I.”
The woman told Efe that the DSS has not let her speak with or see her children and that has caused her stress and insomnia.
“I did what I could during the three months that I had the kids. I want them sent to him. I have health problems with my kidneys and I take medicine, but I repeat, I’m not a drug addict like say I am,” the mother said.
Montes is not an isolated case, according to the Applied Research report “Shattered Families,” which shows that more than 5,000 children of deported or detained immigrant parents are currently in foster homes.
DSS says the Montes children would be better off with their current foster families than with their dad in Mexico, because there is no running water where he lives. (no parental rights shall be terminated for the sole reason that the parents are unable to care for the juvenile on account of their poverty. North Carolina General Statute 7B-1111 (a)(2))