A tug-of-war over a five-year-old boy that is at the center of a national debate over parental rights and immigration will be decided tomorrow, and little Carlos Jamison Moser of Carthage, Missouri will learn whether he will be reunited with a birth mother he doesn't know or continue to live with the local couple that adopted him after his mother was arrested on immigration charges.
The Missouri couple who adopted the child, Seth and Melinda Moser, have said that returning the boy they call Jamison to his birth mother after five years would cause him untold harm.
"I could not love him more, had he come out of me physically," Melinda Moser said in an interview with a Missouri television station in 2011. "I can only imagine the trauma that he would go through in feeling like people that did love him have betrayed him, you know?"
But the boy's Guatemalan birth mother is hopeful that she'll finally win custody of a child she says was taken from her against her will. Encarnacion Bail Romero has not been allowed to see the boy she named Carlos since he was taken away from her at seven months old following her 2007 arrest by federal officials during a raid on a local poultry plant.
"She's hopeful but she knows it's in the judge's hands and in her mind it's in God's hands as well," said Curtis Woods, an attorney for Bail Romero.
''I'm his mother, I'm the mother of Carlitos," Bail Romero told ABC News. "I know he needs me. … He needs me a lot because I'm the mother of Carlitos."
According to a report from the Applied Research Center (ARC) called "Shattered Families," as 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 by U.S. families after their birth parents were stripped of their parental rights. The report concluded that at least 15,000 more children will face "threats to reunification with their detained and deported mothers and fathers" over the next five years.
"Cases like this force us as Americans to grapple with the fact that the immigration policies we choose to support or ignore have real impact on real people," said Rinku Sen, Director of the Applied Research Center (ARC).
"It's a massive 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.
"If you were to go to any dependency court, any child welfare court in the country today, any community where there are immigrants, this is a problem," stressed De Leon.
The Mosers' attorney, Joseph Hensley, did not return calls requesting comment about the upcoming decision. But in court documents filed in 2008 Hensley said, "In terms of best interest, I mean, that almost goes without saying, this child is an American citizen. The mother is a Guatemalan citizen, and she will be returning to Guatemala…I think the best interest standards always weighs very, very heavily in favor or my clients."
A few months after Romero went to jail in May 2007, Carlos was transferred to the custody of Melinda and Seth Moser of Carthage, Mo, who later adopted the boy and raised him as their own.
Bail Romero was charged by the federal government with aggravated identity theft for using a false social security number to get a job, to which she pleaded guilty in October 2007. She was sentenced to two years in prison and ordered to be deported back to Guatemala when released.
"I started to ask for help and asked what I could do to find out where my son Carlitos was," Bail Romero told ABC News. "Nobody could help me because I don't speak English."
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."