Mother sues over removal of child

Mother sues over removal of child
By Denise Malan (Contact)
Sunday, June 8, 2008

Removal of child

CORPUS CHRISTI — Mother and daughter were reunited tearfully on a sidewalk in El Paso in December 2006, only three days before the girl's fourth birthday.

For Monica Castro, that moment represented the end of her three-year fight to regain custody of her daughter, whom U.S. Border Patrol agents allowed to accompany her father to Mexico when he was deported. The girl was born in Texas and is a U.S. citizen, as is Castro. The father, Omar Gallardo, was an undocumented immigrant.

For the little girl, the reunion was confusing and sad. Her mother was a stranger. She wanted to go back to Mexico to the only family she had known.

"I started crying as soon as I saw her," Castro, 23, said last week from her Corpus Christi home. "I was just waiting for her to run up to me, saying, 'Mama.' But that didn't happen."

The girl was still in diapers and sucking on a pacifier, Castro said. It took months for her to adjust to a new life -- a different home, her mother, grandparents and aunts. It took months before she stopped crying at night for her abuelita back in Mexico.

Though Castro has her daughter, her court battle against the federal government is continuing and has garnered statewide attention. She filed suit in February 2006 in U.S. District Court in Corpus Christi, alleging constitutional violations and that the federal government made a custody decision that is legally up to the states. She asked for $5 million in damages.

U.S. District Judge Janis Graham Jack dismissed the case last year under a federal statute that grants the government legal immunity for discretionary actions by agencies or employees, and Castro appealed. Each side presented brief oral arguments Wednesday at the 5th Circuit Court of Appeals in New Orleans.

The case raises questions about Border Patrol authority and the custody procedures, though the appeals court is being asked only whether the government can claim immunity from the suit.

Susan Watson, Castro's attorney with Texas RioGrande Legal Aid, argued that the government can't claim immunity because it didn't have the authority to make custody decisions.

"There is no protection when governmental agents exceed the scope of their authority by statute or constitution," Watson said on a recording of the arguments available on the court's Web site.

U.S. Attorney John Smith argued that the agents didn't make a custody decision. Taking the girl away from the father before his deportation would have constituted a decision because the father has equal custody rights under Texas law, Smith argued.

Smith also contended that the girl, identified in court papers as RMG, wasn't illegally deported as Castro's suit says. Case law states that minor children who are U.S. citizens aren't deported if a parent makes the decision for them to go, and they can also return freely to the United States.

Castro, who was born and raised in Corpus Christi, lived with Gallardo in Shallowater, near Lubbock. She left him in 2003, when their daughter was nearly 1. But he refused to give her their daughter.

Castro said she called the local police and Texas Child Protective Services for help retrieving her daughter, though each agency said they couldn't help her. Without a court-granted custody order, Castro and Gallardo had equal rights to the girl.

So, as a last resort, Castro went to Customs and Border Patrol agents in Lubbock in December 2003 and told them Gallardo was in the country illegally and had taken their daughter. An agent told her that Gallardo was wanted in connection with a murder investigation in Amarillo and assured her their daughter would be returned to her if he was arrested, according to the lawsuit.

Smith argued in court last week that Castro was using the federal agents to make a custody decision by turning in her boyfriend, knowing this would mean she could get custody of her daughter because he would be deported. Then she sued them for making a custody decision, Smith said.

"It was an untenable situation for the Border Patrol because exactly what Monica Castro was asking them to do would have been in violation of the father's rights under Texas laws as we see them," Smith said.

Federal agents arrested Gallardo in the early morning of Dec. 3, 2003, and deported him back to Mexico less than 12 hours later along with the young girl, according to the suit.

Border Patrol officer Manuel Sanchez said in sworn testimony that he told Castro she could have the child if she came to the arrest. He admitted under questioning that he should not invite private citizens to arrests for safety reasons and could have called her immediately afterward to come get the child.

Castro said she was scared to go to the arrest but watched from her cousin's trailer nearby. She did not see her daughter being taken from their trailer.

When Castro arrived at the Border Patrol office two hours after the arrest, Sanchez told her Gallardo didn't want to give up the girl, and Castro would need a custody order, according to the suit. Castro found a lawyer, who agreed to take payment later, and raced the clock but was unable to get an order from a local court in time to stop the deportation. She later moved to Corpus Christi with her mother but without her daughter.

A Court of Appeals judge questioned Smith during his arguments about why Gallardo was deported so quickly, even though Border Patrol agents knew Castro was working on a custody order. Smith replied that only one bus per day comes through Lubbock to take undocumented immigrants back to Mexico. The Lubbock Border Patrol office is staffed only 12 hours a day. Detainees held overnight are taken to the local jail, which was not an option for the little girl, Smith said.

The judge also asked why the U.S. Border Patrol doesn't have procedures to follow in such custody-battle situations.

"I would hope that would be cured promptly now in light of this case," said the judge, who didn't identify himself on the recording.

Smith said agents called Child Protective Services, which in turn refused to step in unless the father was alleged to have abused or neglected the daughter, or there was a signed court order.

"They ought to be the agency to make sure the child is in the most beneficial custody where the parents cannot agree and one of the parents is about to be deported," the judge replied. "We may have an opportunity to educate them in that regard."

Gallardo and Castro, who were considered common-law husband and wife, officially were divorced in Nueces County in May 2005. Castro was appointed sole guardian of their daughter, though she didn't get the girl back for another year and a half through a series of events that started with a chance sighting.

Gallardo had re-entered the United States illegally, and some of Castro's relatives in the Lubbock area spotted him. They called Watson, Castro's attorney, who coordinated with U.S. attorneys and agents, who arrested Gallardo. Facing illegal re-entry charges, Gallardo struck a deal to hand over his daughter.

Castro and her daughter, now 5, have settled into a comfortable family life, and the girl starts school next year. Though the depositions, hearings and waiting for the court case haven't been easy, Castro said she wants her voice heard.

"I'm not the only one," Castro said. "It can happen to any mother, any father."

http://www.caller.com/news/2008/jun/08/mother-sues-over-removal-of-child/