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Children of illegal immigrants caught in middle of adoption fights

A Missouri Supreme Court opinion last week only delayed the final answer.

In a 4-3 decision, the high court said the Jasper County Circuit Court violated state law when granting the adoption. The high court ordered another trial where both sides will get a chance to show the child should be with them.

“I think these are all tough cases,” said Emily Butera of the Women’s Refugee Commission in New York. “I really feel for everyone involved; there is no good outcome.

“The only thing we can hope is that the publicity raised by this case will help fix the problem so other families won’t go through the heartbreak these families are going through.”

Bail was in jail when her son first went to stay with the Mosers, who have no other children. Bail’s lawyer said that when the couple filed for adoption, Bail didn’t understand the severity of what was happening. The document explaining how her parental rights would be severed was in English. She speaks Spanish.

Two days after Bail received those documents, a judge gave custody to the Mosers. The adoption became final a year later.

After the first hearing in October 2007, Bail sent a letter from her jail cell to the Mosers’ attorney that said she didn’t want her son adopted. Bail told reporters late last year that she wanted her son back.

“He has my blood,” she said through a translator. “One day he is going to grow up and know who his mother is.”

It could be months before the little boy knows which family he will grow up with. Some worry how the decision will affect him.“They are wanting to take him and put him with people he doesn’t know; he doesn’t speak their language,” said Joseph Hensley, a lawyer for the Mosers. “It’s going to be basically starting over for him. … It’s heartbreaking.”

Separated from son

Bail came to the United States illegally in 2006 so she could work and send money home to Guatemala to support her family, including two other children. She was pregnant with Carlos at the time.

The next year, she was picked up during a raid at George’s poultry plant in southwest Missouri, along with more than 100 other illegal immigrants. Bail, who was using someone else’s Social Security number, was arrested on a charge of aggravated identity theft.

She pleaded guilty and was sentenced to two years in federal prison. She faced deportation after completing that.

Before the arrest, Bail lived with her brother and his family. The baby, whom she affectionately calls Carlitos, stayed in their care for a couple of days and then the brother asked another sister to care for the boy.

“She thought her son was with family,” said Omar Riojas, a Seattle-based lawyer working pro bono for Bail.

When Bail’s sister wasn’t able to continue with all of the child-care duties herself, she asked a family from a Hispanic church in Carthage to help with babysitting. As time passed and Bail was still in jail, the family began keeping the boy in their home during the week while the sister had him on weekends.

At one point that family heard of a young couple wanting a child. They introduced the Mosers to Carlos.

After several visits and an overnight stay, the Mosers took the boy into their home in October 2007, five months after his mother was arrested.

The Mosers filed for adoption, asking that Bail’s parental rights be severed. According to court records, that document — written in English — was given to Bail in jail in mid-October.The Guatemalan mother didn’t have a lawyer then and wouldn’t for two months.

Lawyers for the Mosers said Bail was using an alias and initially wasn’t easy to contact. Once she received court papers, showing where her son was living and with whom, she didn’t write him letters, Hensley said.

“Everyone believes her parental rights were terminated because she was an illegal immigrant,” Hensley said. “They were terminated because she abandoned this child.”

Riojas disputes that. He said he and colleague Christopher Huck would prove that at the new trial.

“We have overwhelming evidence that she did not abandon Carlos,” Riojas said. “The mere incarceration of a parent is not per se abandonment.”

Bail didn’t attend the termination and adoption hearing on Oct. 7, 2008. She wrote a letter that was presented in court:

“I have suffered too much by knowing nothing about my little one, asking God to take care of him for me and let me be reunited with him soon,” she wrote. “… Look for the means to send my son with family in Guatemala. This is the telephone number of my sister in Guatemala. I spoke to her and she will welcome him in my country.”

The Jasper County Circuit Court, however, ruled that she had abandoned her son.

Bail “appeared to put forth no effort to locate (the child) and, in fact, should have known where (the child) was,” the court said. Further, the court questioned what kind of future the boy would have with her.

“(Her) lifestyle, that of smuggling herself into a country illegally … is not a lifestyle that can provide any stability for a child.”

The court terminated Bail’s rights to the boy, and the Mosers adopted him.

Supreme Court judges said several steps were missing in that trial.

“The trial court plainly erred by entering judgment on the adoption petition and terminating mother’s parental rights without complying with the investigation and reporting requirements,” Judge Patricia Breckenridge wrote in the majority opinion. “The trial court’s judgment terminating mother’s parental rights, allowing the adoption to proceed without mother’s consent to the adoption … although supported by clear, cogent, and convincing evidence on the record, is reversed.”

Three judges went further and said the child should be reunited with his birth mother immediately.

“The tortuous path to the decision in this case — as said of the road to hell — may be paved with good intentions,” Judge Michael A. Wolff wrote. “But good intentions are not enough to justify what has happened in the course of this case, now in its fourth year.

“The courts of this state, including this court, and our treasured adversarial system of justice have failed this child, and his birth mother, and have ensured that, whatever the ultimate outcome, hearts will be broken.”

Drawing attention

Immigrant advocates across the country are watching what happens to the Carthage boy. The case, they said, is drawing needed attention to a problem that has remained hidden for years.

“This is happening state by state, county by county,” said Marcia Zug, a family law professor from the University of South Carolina who is studying how families can be torn apart when illegal immigrant parents are detained or deported. “I have cases from the Northeast, from the South, from the West and the Midwest.”

More than 108,000 illegal immigrant parents were removed from the United States between 1998 and 2007, according to a Department of Homeland Security report by the Office of the Inspector General. It isn’t known what happened to the children in each case.

The problem is there are no numbers showing how many children of illegal immigrants are privately adopted or placed in state custody and then adopted out when their parents are deported or detained.

Federal agencies don’t keep track of that. Neither do child welfare groups.

Arleasha Mays, spokeswoman for the Missouri Department of Social Services, said a court would place a child in state custody because of abuse or neglect or if the child was in imminent danger. If a caseworker knows the child or parents’ immigration status, that would appear in the case only if it was pertinent, Mays said.

“We don’t have data that accurately represent the number of illegal immigrant children placed in (children’s division) custody,” Mays said.

As advocates research immigrant families who have been torn apart, “we have to shake the trees to find these cases,” said Butera of the Women’s Refugee Commission.

They remain hidden, advocates said, for a few reasons. Sometimes illegal immigrant parents, already distrusting of law enforcement and immigration officials, may not initially reveal they have children.

“They’re afraid the child may be picked up,” Butera said. “Or if a person they are living with is undocumented, they’ll worry that they’ll be picked up.”

Homeland Security has a protocol that requires immigration agents to find out about children in large workplace raids. But in a smaller sting or when an illegal immigrant is picked up in a traffic stop or for another infraction, those questions may not be asked.

Other times these cases go undetected because they pass through state child welfare systems and are sealed.

“No one knows how many rights have been severed,” Riojas said. “That’s one of the things that is very scary.”

The cases that become known are the cases where illegal immigrants fight to get their children back, even after they are deported.

In 2009, another Guatemalan woman’s case reached the Nebraska Supreme Court. She was deported, her rights to her two children were terminated and they were kept in foster care in Nebraska.

After she told her story to an American minister working in Guatemala, he called John de Leon, a Miami attorney for the Guatemalan consulate.

In the end, de Leon worked with Riojas’ firm in Seattle and the woman was reunited with her two children.

De Leon said state social workers often don’t know how to go about reunifying children with parents who were deported or detained. So, regardless of what the parents want, social workers often assume the children would be better off in the United States.

“It is a fundamental violation of the human rights of these people,” de Leon said. “It’s almost legalizing the kidnapping of children.”

The case of the Carthage boy is a little different from the Nebraska case. He never was placed in state custody and he was privately adopted.

Advocates often see cases in which children are first in child welfare — picked up for possible abuse or neglect — and then the parents are picked up on immigration violations.

From there, advocates said, it can be a nightmare trying to keep track of their children. And while mom or dad are detained, or sometimes incarcerated, they can’t follow through with a parenting plan to get their children back.

“A lot of mothers I’ve talked to say, ‘I know I’ll be deported and I accept that,’ ” Butera said. “ ‘I just want my children to go with me.’ ”

‘Only family he knows’

Since he was 11 months old, the boy has been with the Mosers. Melinda quit her job as a hair stylist to stay at home with him.

“They loved him right away,” said Penny Brown, a close friend of the Mosers. “They are really the only family he knows or has ever known.”

Jamison is a typical little boy, Brown said, who clings to his mom when she leaves and is very loving, wrapping his arms around people he knows. He loves playing outside, throwing balls and running around. He’s old enough to play T-ball, and his adoptive parents plan to sign him up this spring.

The Mosers have relied on their faith during the legal struggle. They don’t dwell on what might happen, Brown said, though it’s in the back of their minds. They try to make life at home normal for Jamison.

“Any mother or father, having that going on, can you imagine if somebody said, ‘We’re not sure if he’s yours,’ ” Brown said. “ … They’re good parents, they love him, put him first, his needs.”

Bail is in the U.S., working in southwest Missouri. After she was released from prison, she received a stay on her deportation and has been allowed to work while she’s fighting the adoption. That stay lasts another year.

She has not seen her son since that May day almost four years ago, though she has requested visitation more than once and been denied, said Riojas, her lawyer. After the Supreme Court ruling Tuesday, Riojas requested visitation again.

Bail keeps a small passport photo of her son taken while she was in jail.

“Unfortunately, there’s been some time that has elapsed,” Riojas said. “But that should not be used as a sword to our client. They should not be able to profit from an illegal adoption. The best interest of the child is presumed to be with the natural parent.”

The Mosers, who declined to be interviewed for this story, have told Jamison small pieces of what’s going on. They’ve told him he has another mommy and that there may come a time when he goes to be with her.

He knows something is going on, said Hensley, the Mosers’ lawyer. But he doesn’t understand what it all means.

“He looks at Melinda and says, ‘You’ll still come and get me when I call, right?’ ” Hensley said. “He doesn’t understand he wouldn’t be here, he would be going to another country.

“How do you explain all this to a child that age?”