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November 13, 2010 permalink
Under the American constitution all persons born in the United States are citizens, even if their parents are illegal immigrants. Pop culture derides these kids as "anchor babies", believing that once a family has one citizen, all the rest can get into the country. Conservatives even want to change the constitution to restrict citizenship.
Today's story shows the reality of life for children of illegal immigrants. Guatemalan mother Encarnacion Romero give birth to a boy in the United States. In May 2007, when the boy was one year old, she was caught in an immigration sweep and jailed for two years. Her son was left with relatives, soon to be adopted by Seth and Melinda Moser. Now the Missouri Supreme Court is dealing with the question of what to do with the boy. The mother is returning to Guatemala in any case, the issue is whether she will go alone or with her son.
Adopted boy at center of immigration dispute
JEFFERSON CITY • Backed by her country and a horde of supporters, a Guatemalan woman living in southwest Missouri sat before the Missouri Supreme Court Tuesday afternoon seeking custody of the child she hasn't seen in nearly four years.
The woman, Encarnacion Romero, sat in the front row, her pitch-black hair pulled back in a ponytail, unable to fully follow the proceedings. Romero doesn't speak English. A few rows back sat Seth and Melinda Moser, the Carthage, Mo., couple who adopted Romero's then 1-year-old boy after Romero was arrested and jailed in an immigration raid on a Barry County poultry plant in 2007.
The Mosers argue that even if their adoption wasn't proper — which is key to Romero's case — it wouldn't be in the best interest of the child to take him away from the parents he knows now and send him to another country.
The boy, who is a citizen of both the U.S. and Guatemala, speaks only English. Romero is awaiting deportation.
"This is a tragedy," Judge Richard Teitelman said during questioning in the case Tuesday. "The longer the case goes on, it's a case of justice delayed is justice denied."
The case is more than tragic, argued the Guatemalan ambassador to the United States — it's a symbol of the ongoing national and international debate about what to do with immigration policy in America.
"We believe this is a very unfortunate result of the problems of immigration policy in this country," said Ambassador Francisco Villagran de Leon, who attended the arguments before the court and has been providing support to Romero. "Children of undocumented immigrants should not be given up in adoption just because they are here illegally."
Romero was one of 136 alleged undocumented immigrants picked up at a raid of a Barry County chicken processing plant in May 2007 and later charged with various offenses related to the illegal use of false or stolen Social Security numbers.
While Romero was in jail, her child, an infant at the time, was passed around among family members before eventually being adopted privately by the Mosers.
In court documents and arguments in court today, Romero's attorneys argue that she was denied due process rights because the adoption took place while she was in jail, where she lacked proper legal representation. A state appeals court has previously ruled in her favor.
The case has drawn widespread attention nationally and internationally. It's a clash of two seemingly unrelated interests — those concerned about the aftermath of immigration raids that often lead to split families, and those who are fighting for the rights of adoptive parents. And both sides argue they only have the best interests of the child in mind.
Rick Schnake, the Joplin, Mo., attorney representing the Mosers, said that removing the child from the family he has known for the past few years would only compound the tragedy.
"This little boy is 4 years old. He doesn't speak Spanish, he speaks English," Schnake said in making his case to the seven-judge panel. "I don't mean to be caustic about it, but it's not the child's fault she was (in jail)."
But a ruling in favor of the adoptive parents would deeply impinge on critical parental rights, said Tony Rothert, legal director for the American Civil Liberties Union of Eastern Missouri.
"If the adoption is allowed to stand, it would set a dangerous precedent," he said in a phone interview Tuesday, noting birth parents are entitled to legal counsel at hearings and contact with their children throughout the custody proceedings.
"When these are just discarded, as they were in this case, the whole system would fall apart," he said.
In its brief, the American Civil Liberties Union of Eastern Missouri said the birth mother was denied proper legal representation because the adoptive family took it upon itself to hire an attorney to act on behalf of the birth mother during court proceedings intended to both terminate her parental rights and OK the adoption.
In questioning, it's clear that several judges questioned that apparent conflict of interest.
"There's a legion of cases under Missouri law that you can't have that kind of conflict," said Judge Laura Denvir Stith.
What complicates Romero's case, as her attorneys argued Tuesday, is that she served two years in prison for violating a law that was determined unconstitutional by the Supreme Court shortly after she was incarcerated.
"That just compounds the tragedy here," Rothert said. "She probably never should have gone to prison."
And further, the adoptive court apparently ignored questions raised about the Mosers when the couple had applied to the state of Missouri to become foster parents, including the father's criminal record and a history of abuse on the mother's side of the family.
For all the emotion behind the arguments in the case, the state's high court could decide it on the mundane matter of court rules. The Mosers argue that Romero filed her paperwork seeking to overturn the adoption after the time limit allowed by the courts, leaving the Supreme Court with no jurisdiction in the case.
Several judges made it clear in their questioning during the case that they had concerns with how the adoption was handled, but the balancing act for the court, Chief Justice William Ray Price Jr. indicated, would be weighing the best interests of the child against the rights of Romero.
The court could return the case to the trial court level, or it could award custody to Romero or the Mosers.
In their legal briefs filed with the court, the Mosers argue that giving the child back to Romero could in effect make the boy a victim of his mother's deportation.
"He faces involuntary deportation to Guatemala if this adoption is undone and he is forced to follow appellant when her deportation occurs," wrote attorneys Schnake and Joseph Hensley.
But an advocate for female immigrants said such an argument shows that child custody decisions regarding their U.S. born children are too often based on unfair biases without properly taking into account whether the illegal immigrants are adequate parents.
"We have people in the child welfare system unfairly saying we don't think it's a good idea for the child to be reunited with the parent in the parent's country because we don't think the country is a good place for the child to grow up," said Emily Butera, a program officer with the Women's Refugee Commission, which filed a brief in support of Romero.
Since Romero was released from prison, she has been living in southwest Missouri not far from the Mosers but has still been unable to see her son. Attorneys for both sides disputed whether an attempt had been made for mother and son to meet.
The Guatemalan ambassador said the U.S. government has agreed to delay Romero's deportation until the case is resolved, but that she plans to return to her home country — hopefully with her son — once the case ends.
"She has a lot of faith," said Omar Riojas, one of Romero's Seattle-based attorneys. "She's a strong, strong woman."
Source: St Louis Post-Dispatch
Addendum: Three Missouri supreme court judges wanted to send the boy back to mom immediately, but a majority of four sent the case back to the family court for more proceedings.
Disputed adoption gets new hearing
JEFFERSON CITY • An international custody battle between a Guatemalan mother and a Missouri couple who adopted her son while she was detained after an immigration raid will go back to a lower court to be resolved.
In a decision released Tuesday, the Missouri Supreme Court unanimously agreed that Encarnacion Romero's legal rights as a parent were unfairly terminated when a lower court failed to take proper legal steps.
The "manifest injustice" resulted in the adoption of the child to Seth and Melinda Moser, of Carthage, Mo., who have cared for the boy since he was an infant, the court said.
But the court was passionately split 4-3 on how to resolve who should get custody of the boy and when.
Most of the judges ruled that a lower court should rehear the case with new evidence before weighing whether to remove the child from the only parents he has known for most of his life.
The decision would ensure "that both mother and adoptive parents will have a full and fair trial that respects mother's fundamental rights and the best interests of the child," read the 46-page majority decision, written by Judge Patricia Breckenridge.
But three judges argued that the mother should have her child back immediately. They lashed out at circuit court proceedings that they said failed to demonstrate Romero was unfit to keep her child.
Judge Michael Wolff argued that those failures demand she be reunited with the boy "not in 90 more days or 900 more days, but now."
Romero was arrested and jailed in an immigration raid on a Barry County poultry plant in May 2007. She was later charged with offenses related to the illegal use of false or stolen Social Security numbers. While Romero was in jail, her child was passed around among family members before being adopted privately by the Mosers.
Romero's attorneys argued that she was denied due process because the adoption took place while she was in jail, where she lacked proper legal representation. A state appeals court had previously ruled in Romero's favor.
The Supreme Court ruling restores Romero's parental rights, giving legal standing to seek visitation and full custody. But it also allows the lower court to again consider taking away those rights.
One of the attorneys for the adoptive parents said Monday that his clients would continue to press for the termination of Romero's rights in the circuit court.
"I think it's a foregone conclusion that they are going to try and keep their son," said Richard Schnake, of Springfield.
William Fleischaker, a Joplin-based attorney for Romero, said he was very pleased with the ruling.
"That's all we ever wanted was to have this lady's day in court to make her case, and we've got that now," he said. "This time the court will have an opportunity to hear all of the evidence."
Romero's case drew support from various national and international women's and immigration rights groups, which filed several briefs to the high court in her support.
Francisco Villagran de Leon, the Guatemalan ambassador to the United States, who attended the Supreme Court arguments, offered support to Romero and said publicly that the case highlighted the ongoing international and national debate surrounding immigration policy in America.
"We are pleased the court recognized that the mother's rights had not been respected and the state's own laws and due process were not followed," said Fernando de la Cerda, minister counselor for the Guatemalan Embassy. "We hope that in a new court trial, these errors will be corrected so that Ms. Romero will receive justice and have her parental rights restored."
Anthony E. Rothert, of the ACLU of Eastern Missouri, which filed one of the briefs in Romero's support, said Tuesday that it was a relief that all of the judges agreed Romero's due process rights had not been met.
"This never would have happened had she been a citizen," Rothert said. "She was treated differently by the lower courts."
Rothert said he was confident Romero would retain her parental rights if a lower court trial were to take place because the court now had a complete record of evidence indicating that the birth mother had not abandoned her child.
"Some of this information wasn't in the record because she was not adequately represented, but it's in the record now," he said. "If the adoptive parents decide to go forward with that, we know what the evidence is going to be, and they're not going to win."
In the Supreme Court ruling, the majority states that it "makes no suggestion as to who will or should prevail."
And while the majority faults the lower court for failing to meet investigation and reporting requirements before denying Romero her parental rights, the opinion also finds fault with the birth mother.
The high court said Romero failed to act quickly and aggressively enough to assert her legal rights. And it found substantial evidence in the lower court record to show she was negligent in seeking to ensure her son had adequate care while she was incarcerated, demonstrating a "lack of maternal affection for and involvement with her child."
But Wolff and Laura Denvir Stith wrote two dissenting decisions. Both argued that there was enough evidence on record for the court to reverse both the termination of the mother's parental rights and the Mosers' adoption without requiring a new hearing. Wolff argued that there was no evidence that the birth mother willfully and continuously neglected the child for six months prior to the hearing.
Romero is currently living in Carthage awaiting deportation.
One of her attorneys, Omar Riojas, said Tuesday that Romero would immediately seek visitation rights with her child.
He said he was unable to speak to her about the ruling Tuesday because she was still at her job at a poultry plant.
"She is working. Providing for herself and her family, and she has living arrangements and can provide for Carlos," Riojas said.
The judges' passionate written arguments released Tuesday agonized over the welfare of the child and the fate of all the parents.
"Every member of this court agrees that this case is a travesty in its egregious procedural errors, its long duration, and its impact on mother, adoptive parents, and, most importantly, child," the majority ruling stated.
Wolff painted the case in biblical terms, referencing the story of Solomon who was called upon to resolve a child custody dispute.
"At least Solomon had the option to decree that the child be cut in half," Wolff wrote in his separate opinion. "All we lesser judges have is the law, and it is our duty to make sure that the law is obeyed."
Source: St Louis Post-Dispatch
Addendum: Back in the trial court, the mother loses again.
Judge gives Mo. couple custody of illegal immigrant's child
A Greene County juvenile court ruled Wednesday in favor of a Missouri couple seeking to adopt the child of a Guatemalan woman who had been arrested and detained for working in the country illegally.
The decision culminates a lengthy international custody dispute over the child that put American immigration policies under scrutiny and drew outrage from a Guatemalan diplomat and others fighting for immigrant rights.
Judge David Jones ruled in a closed Springfield, Mo., courtroom that the 5-year-old boy's birth mother, Encarnacion Bail Romero, had abandoned the child. The ruling terminated the birth mother's parental rights and paved the way for Seth and Melinda Moser of Carthage, Mo., to formally adopt the child.
The couple have raised the boy since he was an infant. The boy, Carlos Jamison Moser, who goes by the name Jamison, just completed preschool, said the family's attorney, Joe Hensley.
"The Mosers are very happy," Hensley said. "This is something that's been hanging over their heads for years. They're ready to close that chapter of their lives and move on."
Romero, who has been allowed to remain in the country awaiting the outcome of the dispute, was present in the courtroom. Neither she nor her attorney could be reached for comment.
Those working for immigration rights who had watched the case closely said they were disappointed.
"Cases like these are the byproducts of fundamental gaps in the immigration and child welfare systems that make it all but impossible for parents in immigration detention to participate in proceedings affecting custody of their children," said Emily Butera of the Women's Refugee Commission's detention and asylum program.
The case garnered international attention in 2008 after Romero challenged the Mosers' adoption of the child. At the time of the adoption, Romero was in detention awaiting potential deportation to Guatemala after being arrested in May 2007 during a raid on illegal workers at a poultry plant in Barry County.
While Romero was in custody, her child, an infant at the time, was passed around among family members before eventually being adopted privately by the Mosers. That adoption was overturned in the appellate court.
The decision Wednesday follows the January 2011 Missouri Supreme Court ruling that sent the case back to the circuit courts after finding that the mother's rights had not been upheld in a Jasper County court.
During that Supreme Court hearing, the Mosers argued that even if their adoption wasn't proper — which was key to Romero's case — it wouldn't be in the best interest of the child to take him away from the parents he knows now and send him to another country.
The boy, who is a citizen of both the U.S. and Guatemala, speaks only English.
Attorneys for Romero, who does not speak English, said she was not given proper legal counsel or proper communication with the court, nor did she fully understand her rights and the proceedings of the juvenile courts and the adoption process.
They further argued that she served two years in prison away from her child for violating a law that was determined unconstitutional by the Supreme Court shortly after she was incarcerated.
At the time of the Supreme Court arguments, the situation drew criticism from Guatemalan Ambassador to the United States Francisco Villagran de Leon, who said children of undocumented immigrants should not be given up for adoption just because they are here illegally.
Although justices on the Supreme Court unanimously agreed that Romero's legal rights as a parent were unfairly terminated when the Jasper County court failed to take proper legal steps, the court split 4-3 on how to resolve who should get custody of the boy and when. The majority ordered the case back to the lower courts.
One justice cast the case in biblical terms, referencing the story of Solomon who was called upon to resolve a child custody dispute.
"At least Solomon had the option to decree that the child be cut in half, " Justice Michael Wolff wrote in a separate opinion. "All we lesser judges have is the law, and it is our duty to make sure that the law is obeyed."
Romero's attorney, Curtis Woods, said that his client was "very upset" and that he planned to appeal Wednesday's ruling..
Source: St Louis Post-Dispatch
In a decision the Moser's describe as a Christmas gift, the Missouri supreme court has put the last nail in the coffin for mother Encarnacion Romero. She will not see her child again.
Missouri Supreme Court refuses to hear challenge to adoption decision
A Guatemalan woman seeking to overturn the adoption of her biological child by a Carthage couple has exhausted those efforts — unsuccessfully — in the state court system.
The Missouri Supreme Court has refused to hear an appeal filed on behalf of Encarnacion Romero that challenged a Missouri Court of Appeals decision terminating her parental rights.
The decision came on Christmas Eve and was characterized as “a Christmas gift” by Joe Hensley, attorney for Seth and Melinda Moser, of Carthage.
The ruling means that there are no more options for the biological mother in state courts, Hensley said, and that any further appeal of the adoption would have to go to the U.S. Supreme Court.
The Mosers have raised the child — now 7 years old — since he was a year old. Legal battles have gone on since 2008.
Supporters of the biological mother have argued that Romero lost custody of the child because she is an immigrant in the country illegally.
The appeals court upheld arguments on behalf of the Mosers, finding that the natural mother had forfeited her rights because she abandoned and neglected the child.
Bill Fleischaker, of Joplin, who is among several attorneys volunteering in the case on behalf of the natural mother, said he had been notified of the decision. He said there has been no decision with his co-counsel on potential options or how to respond to the ruling.
Attorneys for Romero had requested that the high court hear their challenge of an appeals court decision handed down in October that terminated Romero’s parental rights and upheld the child’s adoption by the Mosers. The appellate court ruled in a unanimous, 81-page decision.
Romero, who had been arrested on immigration violations, challenged a July 2012 decision that she had forfeited her rights because she had abandoned and neglected the child.
That decision marked the second time the adoption had been before the Missouri Court of Appeals. The same panel of judges earlier had ruled against the Mosers and found that the adoption approved in Jasper County Circuit Court should be reversed. The Mosers appealed that decision to the Missouri Supreme Court, which ordered a new trial on the adoption and parental rights issues.
That case was heard by Greene County Juvenile Court Judge David Jones in a two-week trial. In a 62-page ruling, he terminated the biological mother’s parental rights on the grounds of “abandonment, neglect and parental unfitness.”
Issues surrounding the case have attracted international attention. The Guatemalan ambassador to the U.S. attended an earlier hearing when the case was before the Missouri Supreme Court.
The child was 11 months old when the mother was arrested in May 2007 in an immigration raid while she was working at a Barry County poultry processing plant. She left her child with her brother, who turned him over to a sister. She then left the baby with a Carthage couple who agreed to the adoption by the Mosers.
The mother’s parental rights were terminated based on arguments that the child had been abandoned because the mother made no attempt to maintain contact with or provide for the boy during the two years she was incarcerated, even though she had the means to do so.
Though much of the arguments focused on the time when the mother was in jail, the court also found that she left the child in a hospital after giving birth, that she failed to keep doctor appointments or obtain baby formula or other help available for the child, and that she made no arrangements to ensure that the infant would be cared for in case she was arrested. The court found that the biological mother was an unfit parent and that a change in custody would not be in the best interests of the child.
Source: Joplin Globe