US Supreme Court considers whether jailed Guatemalan immigrant should regain custody of sonJEFFERSON CITY, Mo. — A Guatemalan woman who lost custody of her son after she was caught up in a 2007 immigration sweep asked the Missouri Supreme Court on Tuesday to overturn an American couple's adoption of the child.
Encarnacion Bail Romero was sentenced to two years in a federal prison after pleading guilty to aggravated identity theft. She has been seeking to regain custody of her now 4-year-old son, Carlos, since leaving prison last year.
The state supreme court is being asked to decide if the American-citizen child of an illegal immigrant can be considered “abandoned” if the child is in the care of the woman’s relatives while she is in jail. She asked her brother to take care of her son while she was in prison. He asked her sister to do it. The sister asked a minister’s family to babysit. The minister contacted another family that soon started adoption proceedings. The adoption petition she was given was in English, which she does not speak.
The child has lived with Seth and Melinda Moser, of Carthage, since he was about 1 year old. Another couple who had been helping Romero's family care for the boy after her arrest had contacted the Mosers about adopting him.
The Mosers' attorneys have said the court terminated Romero's parental rights in 2008 after finding she had not tried to maintain contact or provide for the child while she was in jail.
Romero's lawyers contend the adoption process was flawed and that Romero was not given sufficient legal representation before losing custody of her son, who was born in the U.S. and is a U.S. citizen.
The state Supreme Court agreed to take up the case after an appellate court overturned the trial court decision that gave custody to the adoptive parents.
Much of the discussion before the high court Tuesday focused on the legal intricacies of the case. However, Supreme Court Judge Richard Teitelman called the case a "tragedy." He said a person does not “give up every fundamental right to be a parent” just because that person is in jail.
Rick Schnake, an attorney for the Mosers, said Romero abandoned her child after the immigration sweep and left few options for who should care for the boy. Schnake said the boy would be better off staying with the couple, with whom he has lived for several years and who speak the same language as him.
"I don't see it in his best interest that he be ... taken away from parents who are the only mommy and daddy that he knows," Schnake said. The Mosers stood several feet behind Schnake as he spoke with a cluster of reporters. They did not comment.
Romero was not immediately deported so that she can challenge the adoption, according to her attorneys. They say she never abandoned her son and that a recent U.S. Supreme Court ruling has since limited federal authorities' ability to use the law under which she was sentenced to prison.
Speaking through a translator, Romero told reporters after the hearing that she was pleased to be in court when the case was considered. She said she was thankful her son was healthy but sad that she was not with him.
"My child should be with me. He is my son. And I want to be with my son," Romero said.
The hearing generated significant interest. Among those watching was Guatemala's ambassador to the U.S., who sat near Romero at the front of the room. The Mosers listened near the back of the courtroom.
Guatemalan Ambassador Francisco Villagran de Leon said the dispute was the result of a lack of clear American immigration rules and that the case was not uncommon. He said parental rights should not be terminated because of violations of U.S. immigration laws.
"Children of undocumented immigrants should not be given an adoption without their consent, should not be given an adoption just because they are here illegally. That is no grounds for taking a child away from his or her mother," the ambassador said.
The Guatemalan consulate filed a written argument with the state Supreme Court siding with Romero.
Her lawyer argues that fourteen mistakes were made in the case, including that court made mistakes in terminating her parental rights because she had not abandoned her child. He also says the courts ignored laws on private adoptions.
A circuit judge in Jasper County has upheld the adoption. A state appeals court has reversed that decision.
The Supreme court could take several weeks to rule.
Listen to the entire Supreme Court hearing 53:15 mp3