By TONY MESSENGER and NANCY CAMBRIA
St. Louis Post Dispatch
November 10, 2010
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 evidence in that civil proceeding that the Mosers had been denied an application to the state of Missouri to become foster parents, in part because of 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."
http://www.stltoday.com/news/local/metro/article_3e99fc06-5fe5-56a6-9826-47b140bc41d1.html
