Illegal Immigrant Fights for Custody of Young Son

The boy was adopted while his mother was in jail for identity theft.

February 28, 2012, 11:54 AM

Feb. 28, 2012 — -- A custody battle between a Guatemalan mother who was arrested while in the U.S. illegally and the couple who adopted her son while she was in prison and raised him for most of his life is back in court today.

Guatemalan-born Encarnacion Bail Romero, who entered the U.S. illegally in 2006 while pregnant with her son and later gave birth, was in Missouri in May 2007 when Immigration and Customs Enforcement officers raided the poultry processing plant where she worked. Romero was arrested, along with about 100 other undocumented workers. Romero's son, Carlos, was 7 months old at the time.

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Bail Romero went to jail and a few months later Carlos was transferred to the custody of Melinda and Seth Moser of Carthage, Mo., who later officially adopted the boy and raised him as their own.

But after Bail Romero got out of prison in 2009, she said she took up a long battle to get her son back, even though she hasn't seen the boy in more than four years.

"I'm the mother of Carlitos and I need for him to be with me soon," Bail Romero said in a previous ABC News interview.

The Missouri couple, who call the boy Jamison, said he is their son and they're the only parents the child has known since he was a baby.

"I could not love him more, had he come out of me physically," Melinda Moser told a Missouri television station. "I can only imagine the trauma that he would go through in feeling like people that did love him have betrayed him, you know?"

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Both sides will make their case before Judge David Jones who will determine Bail Romero's parental rights and potentially oversee an adoption proceeding in a trial that is expected to last through Friday.

Bail Romero was charged by the federal government with aggravated identity theft, to which she pleaded guilty in October 2007. She was sentenced to two years in prison and ordered to be deported when released. Her deportation order has been put on hold pending the outcome of the custody trial.

After a Missouri circuit court judge terminated Bail Romero's parental rights in 2008, the case was kicked up 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.

Missouri Circuit Court Judge David Dally, who originally terminated the parental rights, wrote in his 2008 judgment, "Illegally smuggling herself into the country is not a lifestyle that can provide any stability for the child."

"Obviously, I thought the judgment was fair when I issued the judgment, yes," he told ABC News previously. The attorneys for Bail Romero and the Mosers also declined to comment about the trial for this story.

Attorney Richard Schnake, who represented the Mosers in Missouri Supreme Court, said Bail 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 supports Schnake's claims: "After her arrest and incarceration, the evidence at trial showed no involvement by Mother in Child's life...From October 3, 2007, when they took custody to the date of trial, the Adoptive Parents have provided all care for Child. No one, including Mother or her family, has contacted them to inquire about Child or offered assistance with Child, even though Mother had their name and address from the time she was served with the petition on October 16, 2007."

The opinion states that the adoptive parents sent two letters to Bail Romero in jail, one of which was refused.

Bail Romero has said that she attempted to get her son back after she got out of prison in 2009 but "nobody could help me because I don't speak English."

Michelle Brane, director of Detention and Asylum at the Women's Refugee Commission, says that Romero made several attempts to contact her son while she was in prison.

"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.