Monthly Archives: February 2012

The Battle Over a Five-Year Old

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A bitter custody battle is underway in Carthage, Missouri, where the Guatemalan biological mother of five-year-old Jamison is fighting to get her child back after he was given up for adoption, without her consent, at seven-months-old.  His legal parents, Melinda and Seth Moser, adopted Jamison after a trial judge ruled that Jamison’s mother had abandoned the child when she was sent to federal prison for illegally entering this country.

Jamison’s mother is now challenging the adoption and the Mosers are facing the reality that they might lose their adopted son, who has lived with them for the last five years.

Who Is Jamison’s Biological Mother?

Encarnacion Bail Romero, a native of Guatemala, entered the United States in 2006 when she was pregnant with Jamison (whom she named Carlos).  Following Jamison’s birth on October 17th, Romero and her son moved into a friend’s apartment, where they slept on the floor because there were not enough beds for everyone.  At the time, Romero did not have a job, so she and Jamison moved into a family member’s one-bedroom apartment.

According to a Missouri parent educator who knew Romero, Jamison had slow muscle development, which resulted from lack of attention, poor nutrition, and lack of exercise.  The educator was also concerned with Romero’s parenting skills because she did not obtain a birth certificate for Jamison and she was not feeding him properly.

Immigration Raid and Romero’s Incarceration

Less than seven months after Jamison was born, U.S. Immigration and Customs Enforcement (“ICE”) conducted a raid at a Missouri poultry processing plant, where Romero was working at the time.  ICE officials arrested Romero, and she was later sent to federal prison 900 miles away from where Jamison was living.

In September of 2007, the Missouri parent educator visited Romero and asked if Romero would agree to Jamison’s adoption.  Romero refused to give consent.

Romero pleaded guilty to identity theft for stealing the identity and Social Security Number of a woman to get a job at the poultry plant.  She was sentenced to two years of incarceration, and was ordered to be deported following her release from prison.

The Missouri Trial Court Rules in Favor of Jamison’s Adoption to the Mosers

Judge David Dally ruled that Romero’s incarceration amounted to abandonment because she failed to maintain regular visits or contact with her son.  The judge also held that smuggling Jamison into this country illegally was not a lifestyle that would provide stability for a child.  Moreover, Judge Dally noted that Romero “appeared to put forth no effort to locate [Jamison] and, in fact, should have known where [Jamison] was.”  The judge also maintained that, pursuant to local Missouri law, Romero did not need to give consent for Jamison’s adoption because she had abandoned her child.

As a result, Judge Dally terminated Romero’s parental rights under the best interests of the child standard and then, in October of 2007, the Mosers were given legal custody of Jamison.

Missouri Supreme Court, En Banc, Overturns Judge Dally’s Decision

The Missouri Supreme Court has overruled Judge Dally, and the Court called his decision “a travesty of justice.”  Specifically, the Court reversed because Judge Dally did not comply with the Missouri investigation and reporting requirements.  These laws would have required that the trial court examine the fitness of the biological mother, the child’s condition before and after he was placed into adoption, the fitness of the adoptive parents, and the filing of written reports to assist the court in determining what the best interests of the child were at the time.

The new trial is set to begin on February 28 in Missouri, with a different judge presiding.  Rather than being deported immediately, Romero has been allowed to stay in this country so she can attend the trial and fight to get her son back, though she is banned from seeing him.

In anticipation of the upcoming trial, Romero’s attorneys are arguing that, regardless of what people think of illegal immigration, coming to this country illegally is not a valid reason to terminate someone’s parental rights.  Her attorneys also noted that Judge Dally failed to take notice that Seth Moser, the adoptive father, had a serious criminal history of drug use as a teenager.  Nor did the judge consider that Melinda Moser was still communicating with her brother, despite the fact that he sexually abused Melinda when they were children.

As the number of illegal immigrants coming into this country is growing, and the number of these immigrants being detained in the country’s 18 federal detention centers are increasing. In fact, human rights groups say that Jamison’s story is not unique.  Rather, thousands of children are being taken from their biological parents in similar situations.  In the latest survey from the Applied Research Center, Jamison is just one out of 5,100 children in this country who were adopted or sent into foster care because their parents were detained or deported.

Stay tuned…

Ninth Circuit Rejects California’s Prop 8

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On February 7, 2012, the Ninth U.S. Circuit Court of Appeals in Perry v. Brown (formerly Perry v. Schwarzenegger) voted down California’s Proposition 8 (“Prop 8″), holding that the constitutional ban against same-sex marriage unconstitutionally discriminated against gays and lesbians.  The Court held that Prop 8 denied gays and lesbians the fundamental right to civil marriage, which is a violation of the 14th Amendment.

A Brief Legal History of Prop 8:

In 2008, the California Supreme Court in In Re Marriage Cases ruled that same-sex marriages were legal in California.  Just a few months following the California Court’s decision, Prop 8 was put to the voters in the November 2008 elections in a referendum. 52 percent of California residents (approximately 7 million people) voted in favor of Prop 8, which amended the California Constitution to ban gay marriage in the state.

In 2010, U.S. district court judge Vaughn Walker overturned Prop 8 in the well-known case of Perry v. Schwartzenegger.  The court held that Prop 8 violated both the Equal Protection and Due Process Clauses of the 14th Amendment.  Pending a decision by the Ninth Circuit Court of Appeals, Judge Walker issued an injunction against enforcing Prop 8.

Ninth Circuit Decision:

In a 2-1 decision, the Ninth Circuit Court of Appeals affirmed Judge Walker’s decision, which held that Prop 8′s ban on gay marriage was unconstitutional.  The Court held that Prop 8 “serves no purpose, and has no effect, other than to lessen the status and dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.”

The dissent noted that states can legitimately prohibit sexual relationships, particularly because “gays and lesbians are not a suspect or quasi-suspect class” and thus are entitled to rational review.  He further stated that marriage between a man and a woman “is the optimal partnership for raising children.”

Future Appeals:

Proponents of Prop 8, who wish to appeal the Ninth Circuit’s three-panel decision, can either appeal to the full Ninth Circuit en banc, or they can appeal directly to the U.S. Supreme Court.  Until these appeals are finished, gay marriages in the state are still banned.