"There's no question in my mind that she had no intent to abandon her child," Brane said. "The abandonment was found on the grounds that she was detained and was not physically able to visit her child."
Brane said Romero wants to return to Guatemala with her son. She has two other children in Guatemala being cared for by a sister.
"The real issue is if the parent wants to be deported with their child, what right do we have to say 'No, you cannot have custody of your child?' Romero's intent now is to go back home with Carlos, but he has already started a life here with another family...This is the kind of tragedy that needs to be avoided and can be avoided by doing the right thing early on and giving people access to the courts and to their children early on."
Without any policies in place to regulate the care of U.S. citizen children while their parents are detained, immigrant parents are unable to attend court hearings, contact caseworkers, complete parenting classes or take any of the necessary steps to meet the strict timelines dictated by juvenile courts.
"And the result is that nobody is really recognizing that there's a parent there trying desperately to communicate that they want to still be involved with their child," said Nina Rabin, an immigration attorney with the University of Arizona's Immigration Law and Policy Institute.
It's those parents that are slipping through the cracks between two huge bureaucracies, she said.
According to a report from the Applied Research Center, "Shattered Families," as of the summer of 2011 an estimated 5,100 children in 22 states were in foster care after their parents were either detained or deported. Immigration attorneys and children's welfare advocates say a small but troubling number, like Carlos, have been put up for adoption to American families after their birth parents were stripped of their parental rights.
"It's a massive national problem," said John De Leon, an attorney for the Guatemalan Consulate who worked to help Encarnacion Bail Romero secure a visa to stay in the country while she fights for custody of her son.
ABC News affiliate KSPR contributed to this report.