Missouri Circuit Court Judge David Dally terminated Bail Romero's parental rights in 2008, writing in his decision. "Illegally smuggling herself into the country is not a lifestyle that can provide any stability for the child."
The case was appealed to the Missouri Supreme Court where the case was called "a travesty of justice." That court reversed the decision and sent the case back to the lower court for a retrial.
In tomorrow's decision, Judge David Jones will determine if Bail Romero's parental rights will be reinstated or if Carlos will remain with the Mosers. Both sides argued their case before the judge earlier this year in a trial that lasted over two weeks.
Attorney Richard Schnake, who represented the Mosers in Missouri Supreme Court, previously stated Romero lost her parental rights not because she was in the country illegally, but because she abandoned her child.
"The case is not about her status in this country as an illegal alien," he said. "She did not try to maintain any sort of relationship with her child. The trial court terminated her parental rights because she abandoned her child, not because she's illegal and not because she went to jail. If she had maintained involvement in the child's life, she would not have had her parental rights terminated."
The opinion released by the Supreme Court in 2011, though it voided the decision awarding custody to the Mosers and reinstated Bail Romero's parental rights, supported some of Schnake's claims that the child was "abandoned" by Bail Romero. "After her arrest and incarceration," says the opinion, "the evidence at trial showed no involvement by Mother in Child's life." The opinion states that the adoptive parents sent two letters to Bail Romero in jail, one of which was refused.
But lawyers for Bail Romero submitted to the court a letter handwritten in Spanish by Bail Romero and translated in English, dated October 2007 in which Romero she says, "I don't want my son, Carlos, to be adopted by anyone…." The letter also says, "I would prefer that my son be placed in foster care until I am not in jail anymore. I would like to have visitation with my son."
If Bail Romero, who has been allowed to remain in the U.S. pending the decision, wins the case, she will regain custody of the child after a transitional period. But she remains vulnerable to future deportation.
Advocates for immigrant parents believe cases like Bail Romero's draw more attention to the ripple effect of separating families and bring us closer to more substantive immigration policy discussions.
"If Encarnacion wins it's a real victory for the argument that immigrant parents are entitled to due process even if they are detained or deported," said Emily Butera, Senior Program Officer, Detention and Asylum Program Women's Refugee Commission. Butera believes if the decision yields in favor of the Moser family it's a sign that "…we need to continue to raise the profile of this issue…to make sure everyone in the case had a chance to represent their interests and their rights."
Legislation has been proposed at the local and national levels to address the issue, including a bill introduced in Congress just last week by Rep. Lucille Roybal-Allard, D.-California called the Help Separated Families Act. Many undocumented parents, however, continue to face the threat of being separated from their children.
"I'm encouraged by the progress we have made but at the same time I don't think that it's fast enough or at the scale that it needs to happen," said Rinku Sen of the Applied Research Center.
"No matter what happens at the conclusion of this case there is no good outcome for anyone involved," said Emily Butera, Senior Program Officer, Detention and Asylum Program Women's Refugee Commission. "It's just heartbreak all around and it didn't have to happen."