Submitted by Lawrence Rafferty, (rafflaw), Guest Blogger

A couple of months ago, my daughter recommended that I take a look at an adoption case that was just ruled on by the Missouri Supreme Court.  I did not have a chance to look at in-depth until recently and it is both interesting and heart wrenching.  It involves a Guatemalan immigrant mother whose baby was born in the United States while she was in the country illegally and the baby was adopted while the mother was in prison.  Thankfully, the Missouri Supreme court ordered a new adoption hearing which could still be another hurdle for the biological mother, but she now has a chance at regaining custody of her son.  Missouri Supreme Court

The boy, Carlos, was born on October 17, 2006 and his mother was a poor illegal immigrant who was living with relatives in Missouri.  The conditions that the mother and newborn lived in were poor and the mother eventually found work at a poultry processing plant in Barry County, Missouri.  On May 22^nd, 2007, Homeland Security –Immigration and Customs Enforcement raided the plant and the mother was arrested and ultimately jailed for identity theft.  Carlos was initially taken care of by the brother of the biological Mother, but he eventually ended up with the family of his mother’s sister who could not take care of him either, due to her financial situation.  The boy was then cared for by a family on request of the Aunt and eventually that care became a full-time situation.

The caretakers eventually sought out a couple who were looking to adopt a child and the nightmare for Encarnacion Bail Romero and her son, Carlos took a turn for the worse.  While she was in prison on the identity theft conviction, the Adoption proceeding commenced.  The adoption procedure was fraught with errors and ineffective representation by the attorney representing Ms. Romero, according to the Missouri Supreme Court.  The court’s decision did not terminate the rights of the adoptive parents, but it will allow Ms. Romero to produce evidence that she did not abandon the child in an attempt to rebut the evidence produced by the adopted parents at the original hearing.  This positive Supreme Court decision could be a double-edged sword for Ms. Romero, because the lower court on remand could still determine that she had abandoned the child.

It is interesting to note that the decision included comments by three of the Justices that they would have returned the child outright to Ms. Romero, with a proper transition period.  The Court’s decision also indicates that included in the errors that caused them to overturn the adoption was the fact that the adoptive parents, Seth and Melinda Moser hired and paid for the attorney who was to “represent” the biological mother at the original hearing.  The Court also stated that the adoptive parents limited the documents that they gave to the attorney and told him that they hired him to make sure the biological mother would not be successful at the hearing!  Needless to say this attorney failed in his representation of the biological mother in many instances.

“Counsel simply appeared at the hearing after a single telephone call with the mother, introduced a single letter from her and cross-examined the adoptive parents’ witnesses. Even in that regard, he failed to object to their hearsay statements, and that failure was prejudicial for it is the only evidence cited that the mother did not choose to have her son be cared for by her family or that there was a lack of communication during the 60-day abandonment period. Counsel failed to object to the lack of proper service, to the lack of notice of the custody hearing, to the failure to comply with the statutory requirements for an independent investigation and the many other statutory violations. Counsel failed even to appeal from the judgment. Only because outside pro bono counsel learned of the mother’s situation shortly before the time for filing a late notice of appeal had run is the mother even in this Court. Counsel’s ineffectiveness is patent on the record and requires reversal of the judgment below.  The adoptive parents seek to strike the evidence that shows that the mother was in contact with her son and made calls from prison, as well as the transcript showing that Ms. Davenport simply lied when she said the mother was surprised that her son was living with the sister. The mother is entitled to effective assistance of counsel, however, and this Court’s rules provide no forum for her to show such ineffectiveness as there is no adjunct or collateral proceeding in termination cases in which such evidence can be presented. “  Missouri Supreme Court

In my opinion, this case is an example of how an adoption can be pushed through without the normal judicial requirements being followed or pursued.  The adopted parents seemed to have attempted to game the system, knowing that the biological Mother was in jail and did not speak English.  The attorney who was hired by the adopted parents, was less than professional in his so-called representation of the biological mother and now the biological mother has been separated from her son for almost 4 years.  Even if Ms. Romero is successful in getting the lower court to agree with the Supreme Court’s take on the facts, it will be a difficult and probably painful transition for the child.  The best interest of the child is supposed to be the central theme in any adoption and for some reason, that theme was lost in the initial adoption hearings.  Now the new adoption proceeding might favor the adoptive parents due to the fact that taking the child away from the only parents that he may remember will be challenging.  How do you say “Catch-22” in Spanish?

The good news in all of this is that the system did realize its errors and the Supreme Court has attempted to right the wrong that was done to Ms. Romero and her son, Carlos.  I just hope that in righting the wrong, that they have not made it easier for the adoptive parents to re-convince a lower court of the original allegations.  In light of the participation in the Supreme Court review by international players like the Guatemalan consulate and the Guatemalan Ambassador to the United States, and domestic players like the ACLU and the University of Chicago’s Immigrant Child Advocacy Project, I think Ms. Romero stands a much better chance of regaining her rights to bring her son home with her.

I wonder what cultural biases, if any, aided this miscarriage of justice?  How can a biological parent’s rights be eliminated or hampered by an immigration charge or conviction?  Just because a Mother and/or Father are not citizens, the best interest of the child should still lean in favor or the Mother or Father, without serious and undeniable evidence that suggests the child should not be in their care.  Did that happen here?

As a parent and a grandparent, I will follow this case to see how the lower court remedies the problems uncovered by the Supreme Court decision.  I will report back as soon as learn of any decision. Thanks to my daughter, Lauren for providing me with the link to this case!

Additional Sources:  Duke School of Law Abstract;  St.Louis Today &  USA Today