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Disputed adoption gets new hearing

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Mother, adoptive parents of Guatemalan boy

Encarnacion Romero, left, is the biological mother of the boy at the center of an adoption dispute. His adoptive parents, Seth and Melinda Moser are shown at right.

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."

Doug Moore of the Post-Dispatch contributed to this report.


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Backed by her country and a horde of supporters, a Guatemalan woman living in southwest Missouri is trying to regain custody of her then 1-year-old son after she was arrested and jailed in an immigration raid on a Barry County poultry plant in 2007.

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