US Supreme Court Says that Guatemalan Illegal Immigrant’s Parenting Rights Were Fairly Terminated!UPDATED

By on 1-27-2011 in Adoption, Encarnacion Bail Romero, Ends Justifying Means, Guatemala, Missouri, Parental Right Termination

US Supreme Court Says that Guatemalan Illegal Immigrant’s Parenting Rights Were Fairly Terminated!UPDATED

This ongoing saga began in 2007 when Encarnacion Bail Romero was arrested and jailed in an immigration raid of a local poultry plant. “She was later charged with offenses related to the illegal use of false or stolen Social Security numbers.” At that time, two aunts who each had children took care of her baby, Carlos.

Disputed adoption gets new hearing
[St. Louis Today.com 1/26/11 by Nancy Cambria]


At the time of her arrest, in May, 2007, her son was six months old.

According to After Losing Freedom, Some Immigrants Face Loss of Custody of Their Children

[New York Times 4/23/2009 by Ginger Thompson]

“[W]hen a local teachers’ aide offered to find someone to take care of Carlos, the [two aunts] agreed.”

“An adoption petition arrived at the jail a few weeks later. Ms. Bail, who cannot read Spanish, much less English, said she had a cellmate from Mexico translate. With the help of a guard and an English-speaking Guatemalan visitor, Ms. Bail wrote a response to the court.

“I do not want my son to be adopted by anyone,” she scrawled on a sheet of notebook paper on Oct. 28, 2007. “I would prefer that he be placed in foster care until I am not in jail any longer. I would like to have visitation with my son.”

According to Romero, she went to court 6 times to figure out what had happened to her child.

“A year and a half after she went to jail, a county court terminated [the] rights to her child on grounds of abandonment” Seth and Melinda Moser of Carthage, MO are the adoptive parents. The child is now 4 years old.

The St. Louis Today article says that “[t]he 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.”

Additionally, “the court was passionately split 4-3 on how to resolve who should get custody of the boy and when.” “[T]hree 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 is still awaiting deportation. “She is working [at the poultry plant]. Providing for herself and her family, and she has living arrangements and can provide for Carlos,”

Even the local Missouri children’s hospital pediatrics bioethics blog has weighed in on this case this week.

They conclude that “Given the trial record, it is clear that an injustice has been done to the mother. It is equally clear that, at this time, the best interest of the child would probably dictate that he remain with his adoptive parents, since he has, apparently, emotionally bonded with them”

CMH blog
[Children’s Mercy Hospital Bioethic blog 1/15/11 by jlantos]

The hospital blog and the 4 Missouri Supreme Court justices do not take into account the injustice done to the CHILD not being allowed to bond with his mother. Furthermore, there is no indication that the child has been counseled to what his circumstance is or that his mother has been fighting to reunite with him. Another amazing “I’m entitled to a child even when the biological parent is fighting desperately for custody for years” story.

Update: This article describes Carlos’ living situation before their separation. “Before the arrest, Bail lived with her brother and his family. The baby, whom she affectionately calls Carlitos, stayed in their care for a couple of days and then the brother asked another sister to care for the boy.”

It glosses over the actions of the Moser’s. “As time passed and Bail was still in jail, the family began keeping the boy in their home during the week while the sister had him on weekends.

At one point that family heard of a young couple wanting a child. They introduced the Mosers to Carlos.

After several visits and an overnight stay, the Mosers took the boy into their home in October 2007, five months after his mother was arrested.”

Carlos was approximately 11 months old when he went to live with the Moser family. They changed his named to Jamison. As for what Carlos knows of his situation: “The Mosers, who declined to be interviewed for this story, have told Jamison small pieces of what’s going on. They’ve told him he has another mommy and that there may come a time when he goes to be with her.”

http://www.kansascity.com/2011/01/29/2619499/children-of-illegal-immigrants.html
[The Kansas City Star 1/29/11 by Laura Bauer]

Update 2: February 28, 2012 is the day for the retrial after last year the Missouri Supreme Court reversed the termination of Encarnacion’s parental rights. This new article describes the adoptive parent’s criminal record. smiley icons It completely glosses over how the Mosers came to have him in the first place-by lamenting to Encarnacion’s siblings that they want to adopt which led to them having him for overnight visits.

“A tug-of-war over a five-year-old boy is at the center of a national debate over parental rights and immigration, and a sign of what critics say is a growing trend in which immigrants are being deemed unfit parents because they crossed the border illegally.

Seth and Melinda Moser of Carthage, Missouri say the boy they call Jamison is their son, and that returning him to his birth mother after five years will cause him untold harm.

“I could not love him more, had he come out of me physically,” Melinda Moser said in an interview with a Missouri television station. “I can only imagine the trauma that he would go through in feeling like people that did love him have betrayed him, you know?” [This is not about you!Have you told him that his mother has fought for him since Day One?]

His birth mother, Encarnacion Bail Romero, says Carlos was taken from her against her will while she was in federal custody for an immigration-related crime, and hopes to regain custody in a trial that starts later this month.

“I’m his mother, I’m the mother of Carlitos,” she told ABC News in an interview to be broadcast tonight on “ABC World News with Diane Sawyer” and “Nightline.”

The report is the first in a series from five graduate school journalists chosen to work with the Ross investigative unit as Carnegie Fellows, who found that stepped-up enforcement of immigration laws has had the unintended side effect of wrenching thousands of children away from their parents, sometimes forever.

According to a report from the Applied Research Center, “Shattered Families,” as of the summer of 2011 an estimated 5,100 children in 22 states were in foster care after their parents were either detained or deported. Immigration attorneys and children’s welfare advocates say a small but troubling number, like Jamison, have been put up for adoption to American families after their birth parents were stripped of their parental rights.

“It’s a massive national problem,” said John De Leon, an attorney for the Guatemalan Consulate who worked to help Encarnacion Bail Romero secure a visa to stay in the country while she fights for custody of her son.

How many families are involved? “Do the numbers,” he said.

The ARC report concluded that at least 15,000 more children will face “threats to reunification with their detained and deported mothers and fathers” over the next five years.

“I can tell you that if you were to go into any dependency court, any child welfare court in the country today, any community where there are immigrants, this is a problem,” De Leon said.

In May 2007, when Carlos was just seven months old, his mother was arrested in an immigration raid at the poultry plant where she worked in Missouri. She was charged with aggravated identity theft and sentenced to serve two years in prison, after which she would be deported back to Guatemala.

Carlos hasn’t seen his mother since. In 2009, three months after Bail Romero was released from prison, the U.S. Supreme Court rejected the use of aggravated identity theft charges in cases like hers.

“I started to ask for help and asked what could I do to find out where my son Carlitos was,” said Bail Romero. “Nobody could help me because I don’t speak English.”

Within months of his mother’s arrest, Carlos had been transferred into the custody of a local couple interested in adopting a child. While his mother sat in a jail cell, he began living in his new home full-time.

One year later, with Bail Romero unable to understand the language in which the adoption proceedings were being carried out, unable to attend court hearings and despite her statement that she did not want her son to be adopted, Seth and Melinda Moser legally adopted the little boy.

Bail Romero got out of prison in 2009 and has been fighting to get her son back ever since.
“I never gave my consent for the boy to be adopted by anyone,” she said.

Still, the judge had ruled that Bail Romero had willfully abandoned her son and couldn’t offer him a future. The Mosers, in contrast, were found to be fit parents who were ready to take care of a child.

Bail Romero’s “lifestyle, that of smuggling herself into a country illegally and committing crimes in this country is not a lifestyle that can provide stability for a child,” Circuit Court Judge David C. Dally wrote in his 2008 decision terminating her parental rights. “A child cannot be educated in this way, always in hiding or on the run.”

Dally’s judgment had held no mention of Seth Moser’s own criminal background. According to court records, Moser, as a teenager, served almost a year in jail after pleading guilty to a felony count involving possession of stolen property. According to Bail Romero’s court filings, Moser also has admitted to drug use. [One could say that you possess a stolen child now as well!]

The Mosers, through their lawyer, Joseph Hensley, declined to be interviewed by ABC News for this story. Hensley has told the court that Moser has turned his life around since his legal problems as a youth.

It wasn’t until two months after Dally’s decision legally transferred parental rights to the Mosers that Bail Romero was appointed a lawyer by the court. Then, seven months later, Bail Romero was appointed another lawyer, one who was initially contacted by the Mosers.

Without any policies in place to regulate the care of U.S. citizen children while their parents are detained, immigrant parents are unable to attend court hearings, contact caseworkers, complete parenting classes or take any of the necessary steps to meet the strict timelines dictated by juvenile courts.

“And the result is that nobody is really recognizing that there’s a parent there trying desperately to communicate that they want to still be involved with their child,” said Nina Rabin, an immigration attorney with the University of Arizona’s Immigration Law and Policy Institute.

And it’s those parents that are slipping through the cracks between two huge bureaucracies, she said.

“These are parents that this is happening to, that have the same bond with their children that we have with our children,” Rabin said. “And to separate them with so little thought and so little flexibility seems beyond any punishment I can think—I mean, it’s worse than any punishment I can think of, to do that to a parent.”

A spokesman for ICE, the federal government’s Immigration and Customs Enforcement agency, said such cases are rare. “ICE is sensitive to the fact that encountering those who violate our immigration laws may impact families,” said spokesperson Brian Hale. “ICE uses prosecutorial discretion in releasing individuals from ICE custody for humanitarian reasons such as being the sole caregiver of minors and when we are aware that the detention of a non-criminal alien would result in any child (U.S. citizen or not) being left without a parental caregiver. We take great strides to evaluate cases that warrant humanitarian release.”

Last, year, the custody battle over Carlos landed in the Missouri Supreme Court, where judges called it “a travesty of justice.” The court reversed the decision to terminate Bail Romero’s rights as a parent and sent the case back to the original court for a retrial, which is set for Feb. 28.

Some who push for tougher enforcement of immigration laws say the parents in such cases are to blame. “When parents break the law, they undertake a certain amount of risk that there are going to be consequences,” said Daniel Stein of FAIR, the Federation for American Immigration Reform.

“Anyone can feel for the torment that this poor woman is going through, recognizing that she doesn’t have the educational and the language capabilities to fully defend and vindicate her rights,” said Stein.

“Nevertheless, she knew she came to this country illegally, she knew she broke the law,” he told ABC News.

Bail Romero cries and clutches a tiny passport photo of her son as she talks about him. It’s the only picture she has of him. She knows that the two no longer speak the same language and that he won’t recognize her when he sees her, but she has faith that she will see her son again soon.

“I know he needs me,” she said. “He needs me a lot because I’m the mother of Carlitos.”

The Mosers argue that it is better for Carlos to stay with them, not in Guatemala with his mother after her impending deportation.

“In terms of best interest, I mean, that almost goes without saying,” the Mosers’ attorney, Joseph Hensley, told the court in 2008, according to a brief filed by Bail Romero’s attorneys. “[This] child is an American citizen. The mother is a Guatemalan citizen, and she will be returning to Guatemala. … I think the best interest standard always weighs very, very, heavily in favor of my clients.”

Bail Romero says she’s thankful to the Mosers for taking care of her son, “but, as Carlitos’ mother, I need him to be with me,” she said, “because I’m his real mother.””

Adoption Battle Over 5-Year Old Boy Pits Missouri Couple Vs. Illegal Immigrant
[Hispanically Speaking 2/1/12]

REFORM Puzzle Piece

The adoptive parent entitlement is despicable.

Update 3: Grrrr…. “Saying she had abandoned her child, a Greene County judge terminated the parental rights of a Guatemalan woman and said her son should stay with the Carthage couple who adopted him in 2008.The ruling this morning by Judge David Jones was announced outside the courthouse by an attorney for the woman, Encarnacion Bail Romero. She left the courthouse with tears in her eyes.Her attorney, Curtis Woods of Kansas City, said she was unable to speak. Woods said he was disappointed with the ruling and was considering an appeal.

The judge’s decision means Seth and Melinda Moser can go ahead and legally adopt the boy.

In January 2011, the Missouri Supreme Court ruled 4-3 that the Jasper County Circuit Court violated state law when granting the adoption in 2008. The high court ordered another trial — which occurred earlier this year in Springfield — where both sides got a chance to show the child should be with them.

Child welfare and immigration advocates across the country have been watching the case. They say it is among a few that has brought attention to the plight of children who get tangled in the system when moms or dads are detained or deported.

Bail last held her son Carlos on May 22, 2007, the day she was picked up in an immigration raid at a Barry County poultry plant.

The next year he was adopted by the Mosers. They called him Jamison and built a life with him in their Carthage home, where he likes to play ball and watch Nickelodeon.

Bail was in jail when her son first went to stay with the Mosers, who have no other children. Bail’s lawyer said that when the couple filed for adoption, Bail didn’t understand the gravity of what was happening. The document explaining how her parental rights would be severed was in English. She speaks Spanish.

Two days after Bail received those documents, a judge gave custody to the Mosers. The adoption became final a year later.

After the first hearing in October 2007, Bail sent a letter from her jail cell to the Mosers’ attorney that said she didn’t want her son adopted.”

[The Kansas City Star 7/18/12 by Laura Bauer]
Update 4: “The adoptive family, Seth and Melinda Moser, left the building immediately following the ruling.
The Mosers were “ecstatic, and very emotional,” according to their attorney Joe Hensley, of Joplin.
“They are looking forward to going on with their lives,” he said.
Hensley said the decision was contained in a 62-page ruling terminating the biological mother’s parental rights on the grounds of “abandonment, neglect and parental unfitness.”
“None of the grounds were about her being an illegal alien,” Hensley said. “We’re extremely pleased with the judgment because it was a vindication not only for the Mosers, but for everyone involved that was trying to do right by a child that had been neglected.”
Hensley said the decision also authorized the adoption of the child, though he said some additional documents still need to be filed before the action is considered complete.
“We respectfully disagree with the decision,” said Joplin attorney Bill Fleischaker, who also represented Romero.
He said he believed the judge’s decision “was based on a number of factors that were the result of language barriers, cultural differences, the fact that she (Romero) was an undocumented alien and, especially in the early stages, had no understanding of the legal system here in the United States.”
“Part of our decision to appeal will be based on our ability to establish that those factors weighed too heavily in the judge’s decision,” he said.
Fleischaker said attorneys who worked on the case were donating their time and were brought together “because of our willingness to fight for the underdog.”
The case attracted interest and support for the natural mother, from groups that advocate for immigrants and women. Guatemala’s ambassador to the U.S. attended when the case was argued before the Missouri Supreme Court.
Romero left the child with her brother when she was arrested in May 2007 on immigration charges while she was working at a Barry County poultry processing plant. Her brother turned the child over to a sister, and she left the baby with another Carthage couple, who agreed to adoption by the Mosers.
Months later, while she was incarcerated on immigration-related crimes, Romero learned the child had been adopted by a Jasper County family.
She would have been deported immediately, but the George W. Bush administration at the time was requiring illegal immigrants to first serve jail time in the United States for immigration-related crimes for which they were convicted.
She served a two-year sentence and is being allowed to stay in the country to try to regain custody of the child. She is to be deported after that issue is resolved.
Romero’s attorney said he is uncertain if there will be an impact on that status as a result of the decision, adding “she’s here legally at this point.”
The mother’s parental rights were terminated after the circuit court agreed with arguments on the Mosers’ behalf, namely that the child had been abandoned because the mother made no attempt to maintain contact with or provide for the child during the two years she was incarcerated.
The adoption was granted after a hearing on October 2008. But the Missouri Court of Appeals reversed that decision in July 2010.
The court found that the Jasper County court lacked authority to transfer custody of the child to the Mosers, lacked authority to consider the adoption petition and lacked authority to terminate the biological mother’s parental rights.
The Mosers appealed to the Missouri Supreme Court. The high court last year ordered a new hearing, finding that requirements of state law were not followed in the original case.”
[The Joplin Globe 7/18/12 by Susan Redden]

“‘I could not love him more, had he come out of me physically,’ Mrs Moser told a Missouri television station. ‘I can only imagine the trauma that he would go through in feeling like people that did love him betrayed him.’Romero, who calls the boy Carlitos, said that he was taken against her will in 2007 when she was imprisoned.She told ABC News: ‘I’m his mother, I’m the mother of Carlitos.’”

Romero is unable to speak English fluently, and instead speaks Spanish. Jamison speaks English, and spoke his first words to the Mosers.

Romero was released in 2009 and had been fighting ever since to get her son back. Her attorney said that he plans to appeal the ruling.

Circuit Court Judge David C. Dally wrote in 2008 that her illegal status and ‘smuggling herself into a country illegally and committing crimes in this country is not a lifestyle that can provide stability for a child.’

The trial was closed to the public, and so certain details of what occurred in the trial are unclear.

According to CNN, Romero has two other children who are above the age of nine. Both are being looked after by her sister, who lives in Guatemala.”

[Daily Mail 7/20/12]
Update 5: “The case attracted the attention of the national media and advocacy groups that support women and immigrants. Guatemala’s ambassador to the United States testified on the mother’s behalf when the case came before the Missouri Supreme Court in 2011.
It was that kind of attention — and claims that the mother lost her child because of her immigrant status — that prompted Joe Hensley to release the judge’s 62-page ruling. Hensley represented adoptive parents Seth and Melinda Moser of Carthage.
The court decision handed down July 18 cleared the way for the Mosers’ adoption of the child after terminating the parental rights of Encarnacion Bail Romero.
“People need to understand the judge took away her parental rights because she neglected the child, and not because she was an illegal immigrant,” Hensley said.
Two days old
Records submitted for the trial showed Romero left the child in the hospital two days after he was born. She returned for the child after being contacted by social workers.
The child was 7 months old when the biological mother was arrested on May 22, 2007, at a poultry plant near Monett during an Immigration and Customs Enforcement raid.
The judge said incarceration itself “is not grounds for termination, but the court may consider that the mother continued to engage in criminal (activity) following the birth of her child, which exposed her to the risk of arrest, incarceration and deportation. Court may also consider what advance arraignments, if any, mother made for her child in case (she) was arrested and what steps mother took following her arrest, including whether she attempted to stay in communication with her child and provide support to him, however minimal, while she was incarcerated.”
The child, now 5 and named Carlos Jamison, has lived with the Mosers for more than four years. The court found it would be in the child’s best interests to allow adoption by the Mosers. Termination of the mother’s rights also was recommended by a guardian appointed by the court for the child, by juvenile authorities involved in the case and in an investigation by the state Children’s Division.
The court also ruled that separating the child from parents he has known since he was an infant “would have a lifetime negative affect.”
Appeal planned
The child was not left at the hospital “for any substantial period of time,” Bill Fleischaker said. “And, she never intended to leave him there.”
Fleischaker, a Joplin attorney helping to represent Romero, said after the ruling that the decision by the Greene County judge was based on a number of factors that were the result of language barriers and cultural differences, which are factors related to Romero’s status as an undocumented immigrant.
“Things like her reluctance to speak out or seek help from authorities were among things he relied on in the judgment,” he said. “We wanted the hearing open; I wish it had been, so the public could have heard all the evidence. I think their conclusion would have been different.”
Fleischaker said Romero’s representatives are planning to appeal the decision.
Hensley said he argued for a closed hearing, but believes an open hearing would have favored his clients.
“I’d like nothing more than for the public to see what happened. When her family took the stand, a lot of times they had to take the Fifth (Amendment to avoid self-incrimination.) The things they did testify about were 180 degrees from what really happened.”
For example, he said Romero’s family members talked about caring for the child on the weekend “when we knew he wasn’t there, and we had pictures.”
‘Chronic neglect’
Circuit Judge David Jones said that Romero’s decision to leave the newborn in the hospital was the start of a pattern of “chronic neglect” by the mother. He concluded she seldom sought services for Carlos, such as infant formula and immunizations, even though that help was available and was being accessed by other immigrants, including Romero’s relatives who also were living in Carthage.
His ruling emphasized that Romero, who had been arrested and deported before, made no arrangements for her son in case she was jailed, and rarely asked about him after that.
Much of that time during that period, Romero believed Carlos was being cared for by her sister Maria, Fleischaker said, adding “and she talked to her frequently.”
Hensley said transcripts of Romero’s telephone calls while she was incarcerated show that she knew, as early as July 10, 2007, that her family was no longer caring for the child.
“She knew where he was, she had the phone number; she never called,” he said. “And when she did talk to her sister, she didn’t talk about him, she talked about her criminal case and getting a Social Security number so she could work when she got out.” [Again she does not speak English. She is completely illiterate in Spanish!Her child ONLY speaks English, thanks to the APs! HOW do they propose that they communicate?This is NOT a minor issue in this case. She was subject to deportation at this point. The APs held all the power here.]
When she was arrested in 2007, Romero was living with a brother in Carthage. She called her sister and asked her to pick up Carlos at the baby sitter. The child spent the night with the sister, her husband and their two children. The sister then took him to a brother’s home, but he soon brought the child back.
The ruling also noted efforts by Laura Davenport, a bilingual Parents as Teachers educator with the Carthage School District, to help the infant. Davenport, who had seen Carlos earlier, located him when providing services at the sister’s house. Concerned about what she perceived as nutrition and developmental problems, Davenport brought formula for him. She also offered to contact Jennifer and Oswaldo Velazco, a couple who helped provide child care after another mother had been jailed. By early July, the couple were caring for Carlos full time.
The Valezcos learned of the Mosers, who were going through training to become licensed foster parents in the hopes of eventually adopting. In late September, the Mosers began visiting with the child. In early October, they began caring for him full time and filed papers aimed at adoption.
During that time, according to testimony and records cited by the court, Romero rarely asked about the child in telephone calls from jail. That was not the case when Davenport visited her in jail in September, according to transcripts of the meeting. Then, the PAT educator urged Romero to agree to the child’s adoption, but Romero refused, saying she would not give him up. [WHY was an educator pushing an adoption? Talk about COMPLETELY outside the scope of her job!]
Hensley said the full transcript of the conversation showed Romero talking to Davenport about wanting to get a passport for her child.
“She wanted to send him to Guatemala so she could stay here and work,” he said. “But there are parts where Laura tries to tell her how he is doing, and she changes the subject.”
‘MINIMAL’
The ruling also notes a few attempts — deemed “minimal” by the court — to check on the child after adoption petitions were filed in October 2007.
During the remainder of her incarceration at Osceola and then in federal prison, ending Feb. 15, 2009, Romero did not try to contact the child or provide for his support, according to the ruling. She did mail several notes to him starting in July 2010 and sent $100 in $20 increments in 2011.
The court record also showed that she received nearly $10,000 in child tax credits for the child.
Fleischaker said the credits were a result of a miscommunication between Romero and a tax preparer, adding “she filed an amended return.”
The court also concluded Romero would be “unfit” as a mother because she has two other children, ages 8 and 14, in Guatemala that she has not seen in seven years.
“She made it clear she has no desire to return to Guatemala to visit them, much less return there permanently to be a mother to them,” the judge wrote.
If Romero had gone to Guatemala to visit, she would not be able to return to the U.S. legally to seek custody of Carlos, Fleischaker said.
“Either way, she’s seen as an unfit mother, whether she goes to Guatemala to see her children there or stays to fight for Carlos,” the attorney said.Full text
The full text of the 62-page ruling is on a website — intheinterestofjamison.com — that includes background on the case and a link to an email address for Carlos Jamison’s adoptive parents, Seth and Melinda Moser. “
[The Joplin Globe 7/27/12 by Susan Redden]
Update 6/September 2, 2013

“A state appellate court is scheduled to hear arguments next week on behalf of a Guatemalan woman who wants to overturn a ruling that terminated her parental rights and allowed her son — now 6 years old — to be adopted by a Carthage couple.The case, set to be heard Sept. 9 in the Southern District Missouri Court of Appeals in Springfield, challenges a decision handed down a year ago that cleared the way for the adoption of the boy who has lived with Seth and Melinda Moser, of Carthage, since he was a year old.

Joe Hensley, attorney for the couple, said last week that the biological mother’s parental rights were terminated on the grounds of “abandonment, neglect and parental unfitness.”

That decision was handed down by Circuit Judge David Jones after a two-week trial in July 2012 in Greene County Juvenile Court.

The mother of the child, Encarnacion Romero, has remained in the United States to pursue appeals that started more than three years ago. The issue has received nationwide attention from groups that advocate on behalf of women and immigrants, including those who claim that the mother lost custody of the child because she is in the country illegally. Guatemala’s ambassador to the United States attended a hearing when the case was argued before the Missouri Supreme Court.

Romero was living in Carthage in May 2007 when she was arrested on immigration charges while she was working at a Barry County poultry processing plant. While at work, she left her child with her brother. After her arrest, her brother turned the child over to a sister, and she left the baby with another Carthage couple, who agreed to adoption by the Mosers. While serving a two-year sentence for immigration-related crimes, Romero learned that the child had been adopted.

The mother’s parental rights were terminated after a Jasper County Circuit Court judge agreed with arguments on the Mosers’ behalf — namely that the child had been abandoned because the mother made no attempt to maintain contact with or provide for the child while she was incarcerated.

The adoption was granted after a hearing in October 2008, but the Missouri Court of Appeals reversed that decision in July 2010. The appellate court found that the Jasper County court lacked authority to transfer custody of the child to the Mosers, lacked authority to consider the adoption petition and lacked authority to terminate the biological mother’s parental rights.

The Mosers appealed to the Missouri Supreme Court. The high court ordered a new hearing, finding that requirements of state law were not followed in the original case.

Hensley said he and the Mosers “are cautiously optimistic” that the ruling from last July will be upheld.

“There was a two-week trial, and the court issued a strong judgment,” Hensley said.

Joplin attorney Bill Fleischaker, among volunteer attorneys representing the biological mother, said he and others involved in the appeal “feel the court didn’t give the proper weight to the testimony” and made findings not supported by testimony.

“Some prerequisites of the adoption were never met,” he said. “We feel like these are issues that need to be decided.”

Legal status

ENCARNACION ROMERO would have been deported at the time of her arrest in 2007, but the George W. Bush administration was then requiring immigrants who were in the country illegally to first serve jail time in the United States for immigration-related crimes for which they were convicted.”

[Joplin Globe 9/1/13 by Susan Redden]
Update 7/September 10, 2013

“Evidence about whether or not the natural mother abandoned a child who is now 6 years old became the focus of arguments in an adoption case heard by the Southern District Missouri Court of Appeals today.A Guatemalan woman wants to overturn a ruling that terminated her parental rights and allowed her son to be adopted by a Carthage couple.

The case challenges a decision handed down a year ago that cleared the way for the adoption of the boy, who has lived with Seth and Melinda Moser, of Carthage, since he was a year old. That decision was handed down by Circuit Judge David Jones after a two-week trial in July 2012 in Greene County Juvenile Court.

The mother of the child, Encarnacion Romero, has remained in the United States to pursue appeals that started more than three years ago. The issue has received nationwide attention from groups that advocate on behalf of women and immigrants, including those who claim that the mother lost custody of the child because she is in the country illegally. Guatemala’s ambassador to the United States attended a hearing when the case was argued before the Missouri Supreme Court.”

[Joplin Globe 9/9/13 by Susan Redden]

Update 8: “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.

Deportation

IMMIGRANTS WHO ARE IN THE U.S. without proper documents and are jailed on violations of immigration law normally are deported, but Encarnacion Romero has been allowed to remain in the country to appeal the termination of her parental rights.”

[The Joplin Globe 12/26/13 by Susan Redden]

Update 8:“The U.S. Supreme Court is being asked to hear an appeal on behalf of a Guatemalan woman seeking to overturn the adoption of her biological child by a Carthage couple.

Attorneys for Encarnacion Romero filed the request on Monday. The action represents the court of last resort, after the Missouri Supreme Court late last year refused to hear the woman’s appeal. That action unsuccessfully challenged a Missouri Court of Appeals ruling that terminated her parental rights.

“We’ve asked, but that doesn’t mean that they’ll take it,” said Joplin lawyer Bill Fleischaker, one of several volunteer attorneys representing the biological mother.

“They hear very few of the cases filed,” he said.

According to information on the Supreme Court’s website, about 10,000 cases are filed annually, and fewer than 80 — less than 1 percent — are accepted for hearings by the court.

Joe Hensley, attorney for adoptive parents Seth and Melinda Moser, said he was notified Monday of the filing. The Mosers have been caring for the child — now 7 — since he was about a year old. Hensley said he has not yet met with the Mosers to discuss a response, noting that he, until Monday, was uncertain if an appeal would be filed.

“But nothing surprises me about this case anymore,” he said.

Fleischaker said the appeal would be based on due process issues, arguing that a “different standard” had been used in deciding to terminate the biological mother’s parental rights, that the mother lacked representation at the hearing when custody of the child was transferred, and that the ruling relied on the mother’s immigration status in determining if the adoption should be allowed.

Hensley said all those issues had been argued in earlier court hearings. The case has been before circuit courts, the Missouri Court of Appeals and the Missouri Supreme Court, each on two occasions.

The appellate court last October in a unanimous 81-page decision terminated Romero’s parental rights and upheld the adoption by the Mosers. The appeals court found that the natural mother had forfeited her rights because she had abandoned and neglected the child.

Romero was arrested in May 2007 in an immigration raid while she was working at a Barry County poultry processing plant. She left the 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 provide for the boy during the two years when she was in jail, even though she had the means to do so. The court also found that the mother left the child in the 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.”

U.S. Supreme Court asked to hear challenge from Guatemalan mother[The Joplin Globe 3/25/14 by Susan Redden]

Update 9:“The U.S. Supreme Court has refused to hear a Carthage, Missouri adoption case.
This appears to be the end of a long case that began when an undocumented woman from Guatamala petitioned to regain her parental rights.

“I don’t you know .. just it’s a roller-coaster its been a roller-coaster.”
The custody battle for Melinda Moser and her family is believed to be over according to attorneys in the case.

Moser is the adoptive mother of 7-year old Jamison Moser and for nearly seven years she’s fought to keep custody.

All the while, Jamison’s biological mother tried to use the courts to regain custody of her son.

A relieved Moser recalls the experiences.
“Kind of like people probably that suffer with a terminal illness, you never know which day will be your last. ”

Jamison’s biological mother,  Encarnacion Romero, had been arrested during an immigration raid and was later convicted of identity theft.

After leaving federal prison in 2009, Romero filed to overturn the adoption case and won.

The Mosers appealed to the Missouri Supreme Court, that reversed the lower court’s decision.

“There would be days the doubt fear and the worry would be overwhelming.”

Romero then filed a petition to the U.S. Supreme Court.

This is the new case that now every other case in the state of Missouri looks to and quotes when an adoption case comes up,” says Joe Hensley, the Moser’s attorney.

Hensley, of Joplin says the ripple effect of the case has forever changed the adoption process in Missouri.

“There’s been new guidelines set down for juvenile offices and how they are supposed to participate in private adoption, new standards for guarding items that came out as a result in this case”

“I would encourage people to not be afraid because those child regardless if they’re in your home for a day or a lifetime .. they need that love and that support,” Moser says.

Moser also says she still worried about Jamison’s security, but the Carthage Police Department continues to work with the family. Jamison is seven years old and has dual citizenship.
Reporters reached out to attorneys representing Jamison’s from biological mother, but did not hear back.”

Missouri Adoption Case Apparently Over – Supreme Court Passes[Ozarks First.com 7/2/14 by CBS news]

Hmm..isn’t this great! SmileyThe Mosers [Moser, as a teenager, served almost a year in jail after pleading guilty to a felony count involving possession of stolen property. According to Bail Romero’s court filings, Moser also has admitted to drug use] won!

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