The Missouri Supreme Court soon will decide the fate of Carlos, a 4-year-old boy who has lived with adoptive parents in Carthage, Mo., since before his first birthday.
Carlos has been victimized twice. He was made a refugee in his own land by a federal immigration system that heedlessly cut him off from his mother. He then was betrayed by a Missouri court that failed to provide basic due process in his adoption proceeding.
The Supreme Court heard arguments in In Re the Adoption of C.M.B.R. last week. The court’s duties are clear:
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It must restore the rule of law to these proceedings. It must begin a careful process of reuniting Carlos with his mother. And it must work to minimize the damage done and ensure that such tragedies do not recur.
Carlos was born in the United States in October 2006. His mother, Encarnación Bail Romero, a Guatemalan, had entered the country illegally and was working at George’s Inc., a poultry processing plant in Barry County.
In May 2007, Ms. Bail Romero and 135 other people suspected of being undocumented workers were swept up in an Immigration and Customs Enforcement raid at the plant. Ms. Bail Romero was arrested and charged with using a false identity. As she sat in jail, her brother and sister cared for Carlos. Jennifer and Oswaldo
Velasco, a couple working as baby sitters, looked after him on weekdays.
The Velascos quietly set in motion the process that led to Carlos’ adoption. In October 2007, apparently without his mother’s consent, the couple handed Carlos to Seth and Melinda Moser, a Carthage couple who, the Velascos knew, wanted to adopt Carlos. The Mosers filed a petition in the Circuit Court of Jasper County seeking an order of adoption.
Missouri law imposes layers of procedural safeguards in adoption proceedings designed to promote the interests of children and protect the rights of parents.
Judge David C. Dally either was ignorant of these requirements or utterly indifferent to them.
Only certain parties may place a child for adoption under Missouri law: the child’s parents, the state Children’s Division, a licensed child placement agency or an attorney, physician or member of the clergy acting as an intermediary for the parents. Baby sitters aren’t on that list.
A written report detailing the child’s status and circumstance also is required by law to be supplied to the court before a change in custody. No such report was submitted in this case.
Parents have a right to reasonable notice of proceedings that affect the custody or status of their children. They are entitled to the assistance of counsel. In Carlos’ adoption proceedings, these rights were ignored.
Ms. Bail Romero speaks only Spanish. But the court’s notice of Carlos’ custody hearing, issued one day before the hearing, was written only in English. The record is unclear whether it even was sent to Ms. Bail Romero.
She wasn’t present at the custody hearing. No lawyer was appointed to represent her. No one appeared on her behalf.
The court did appoint a lawyer to represent Ms. Bail Romero two months after Carlos’ custody hearing. But there’s no evidence the lawyer took any steps on her behalf or even contacted her.
Another lawyer appeared for Ms. Bail Romero 10 months later, at a hearing to approve the adoption. This lawyer had not been appointed by the court or hired by Ms. Bail Romero. He had been hired by the adoptive parents.
The Mosers alleged that Ms. Bail Romero had “abandoned” Carlos during the 60 days before their taking custody. In fact, she was in jail and soon would begin a two-year prison sentence, after which it was expected that she would be deported.
Under Missouri law, incarceration does not amount to child abandonment. There is evidence that Ms. Bail Romero emphatically opposed the adoption and thought Carlos was being cared for by family members during this period.
What’s most curious — and damning — about the case is how meager the record is on the question of Ms. Bail Romero’s parental rights. It was as if she were a non-person.
The trial court knew almost nothing about Ms. Bail Romero or her family. There was no formal statement from Ms. Bail Romero or investigation into how she might stay connected with Carlos while she served out her prison sentence — perhaps with help from her family or a foster family.
That’s how courts routinely handle the custody of children whose custodial parent is incarcerated. In this case, the trial judge, state child welfare officials, juvenile officers and the guardian appointed for Carlos did nothing. They did not even explore the possibility of keeping mother and child united.
Indeed, the adoption was approved after a hearing that lasted less than two hours. Neither Ms. Bail Romero nor any member of her family was present. The lawyer hired by the adoptive parents to represent Ms. Bail Romero did not appeal the ruling.
Carlos’ adoption was so deeply flawed that the Supreme Court has no alternative but to set it aside and restore Ms. Bail Romero’s parental rights.
That doesn’t mean Carlos should be immediately taken away from his adoptive parents. It simply means that a carefully planned and scrupulously monitored process of reunification must begin.
The proceedings should be overseen by a specially appointed judge, one with experience in helping unite children long separated from their parents.
For now, Ms. Bail Romero is in the United States lawfully. Her deportation has been stayed while she pursues reunification with her son. Together, Missouri’s courts, Ms. Bail Romero and the Mosers must work to achieve justice for Carlos.
It falls to the Missouri Supreme Court to bring some clarity child custody matters related to undocumented immigrants. Such matters should have been part of a comprehensive reform of federal immigration law, but Congress has been unable to stop posturing on the issue long enough to pass one.
Many families living in the United States include a parent who is an undocumented immigrant and a child who is a U.S. citizen. When immigrant parents are arrested and separated from these children, there’s no guarantee that federal officials will coordinate with the state courts that are responsible for child welfare.
Missouri courts must hold themselves accountable and establish systems to meet the special needs of undocumented immigrant parents and their children.
