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…

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.

Until September of 2010, the State of Florida banned lesbian, gay, and bisexual parents from adopting their children. To be precise, Florida law prohibited an otherwise eligible person from adopting if that person was a “homosexual.”  Interestingly, Florida law allowed lesbian, gay, bisexual, and transgender (LGBT) parents to foster children; in fact many LGBT parents were encouraged to foster multiple children, but they were barred from ever legally acknowledging their parent-child relationship.  This blatant contratiction in state law led to an appellate court overturning the ban on LGBT adoption. In re Gill, 45 So. 3d 79 (Fla. 3d DCA 2010) confirmed the lower court’s finding that there was no rational basis for the ban.

In re Gill was decided almost 15 years after our highest court found that an anti-LGBT law lacked rational basis: Romer v. Evans, 517 U.S. 620 (1996).  Colorado voters had approved a referendum that prevented any town, city, or county in the state from enacting any kind of law that would protect against discrimination on the basis of sexual orientation.  Kennedy wrote the decision for the Supreme Court, finding that a state law does not pass rational basis if it is driven by animus towards a specific class of people.

These decisions are shaping the future of state adoption and non-discrimination law.  While some legislatures are finding the courage and rationality to enact laws that prohibit discrimination in adoption, employment, and housing, other legislatures are simply finding ways to hide their overt animus against the LGBT community.  Utah prohibits adoptions by someone cohabiting outside of a marriage.  Utah does not have marriage equality – no one in a same-sex relationship is allowed to adopt in Utah. Arkansas had a similar ban until early this year, when the Arkansas Supreme Court overturned the law to allow a grandmother to adopt her grandson (Ark. Dep’t of Human Servs. v. Cole, 2011 Ark. 145 (2011)).

As courts continue to overturn more overtly constructed laws, legislatures look to more subtle ways to enact discrimination.  The 2011 Arizona legislature passed a “marital preference” law forcing caseworkers to prefer “a married man and woman” over any identically qualified single potential parent.  While obviously preventing any same-sex couple from adopting in the state, the law also works against all single potential parents, LGBT-identified or not.

There are two victims of this shift towards covert animus: the foster children who linger in care without ever finding a permanent home and the children of LGBT parents who are prohibited from having a legal relationship with their mothers and fathers.  Virginia recently declined to update its adoption and foster care code to prohibit discrimination on many bases, including sexual orientation, gender identity, and marital status.  Virginia has the second lowest rate of public-agency adoption in the country and has the highest rate of youth aging out of care.

The 2012 legislative session will only see an increase in these underhanded, anti-family, anti-equality tactics.  Advocates, like the Family Equality Council, will continue to work against these discriminatory measures, but conservative politicians will look to more creative means by which to prevent the legal formation of LGBT families.  A federal standard is necessary, and that standard can be found in the Every Child Deserves a Family Act (ECDF, HR 1681 and S 1770).  ECDF amends the conditions tied to Title VII Social Security funds to prohibit discrimination in foster and adoptive care on the basis of sexual orientation, gender identity, and marital status.  More importantly, ECDF reflects the “best interest” standards put forth by every major child welfare organization.

Family law and foster and adoptive care are normally left to state administration.  But when state legislatures continually refuse to put children first, letting youth linger in foster care while politicians allow their individual biases to dictate their policy, the federal government must step in on behalf of our children.

While no other state has enacted reform legislation, the New York State legislature is currently considering legislation entitled the Domestic Violence Survivors Justice Act that will permit judges to sentence victims of domestic violence who were convicted of crimes related to their abuse to shorter prison terms, and in some cases, to community-based programs instead of incarceration.  The legislation will also allow those currently incarcerated to apply for re-sentencing under the newly proposed guidelines.

The New York Bill takes the California statute one step further, because not only does it permit those incarcerated to petition for re-sentencing, but it also ensures that judges will take into consideration the impact of domestic violence when issuing sentences to those convicted of crimes.

In short, those eligible for the reduced sentencing would have to show that:

1. At the time of the crime, the victim of domestic violence was subjected to substantial physical, sexual or psychological abuse by a spouse, partner or relative,
2. The abuse was a “significant contributing factor” to the crime, and
3. The standard sentence would be “unduly harsh.”

The proposed legislation also takes into account situations in which a victim of domestic violence engaged in a crime with his or her abuser, under the threat of abuse, such as acting as a lookout in a burglary.  Thus, the legislation is designed to encompass a wide range of situations in which a victim of domestic violence can be convicted of a crime, but where he or she was largely coerced as a result of the abuse.

The rationale behind the Bill has four components.  First, women survivors of domestic violence who are incarcerated rarely have prior criminal records, are frequently coerced into the crime by their abuser and have extremely low recidivism rates.  Second, reduced sentences and community-based alternatives provide such victims a chance to reconnect with their children and families, and rebuild their lives more quickly.  Third, the legislation recognizes that self-defense and battered-women-syndrome are sometimes insufficient to ensure a just outcome.  Finally, on a more conceptual level, the Bill legitimizes the debilitating and consuming impact that domestic violence has on individuals.

To respond to the foreseeable criticism that the Bill will lead to a rash of murders by victims of domestic violence against their abusers, it is important to note that the legislation does not apply to first degree or aggravated murder. Moreover, while second degree murder (i.e.; an intentional killing or a killing that occurs during the commission of a crime) can qualify for the reduced sentencing, the Bill does not provide automatic relief the instant a person claims “abuse!” Rather, a judge has to conclude that the person was subjected to “substantial” abuse, and that such abuse was a “significant contributing factor” to the crime. The exact boundaries of these factors have yet to be litigated, but the wording “substantial” and “significant” emphasize that to be afforded relief, the abuse suffered by a victim and the impact such abuse had must be quite severe.

The Bill is currently supported by 90 organizations, and will likely be voted on come the spring of 2012.  For more information visit the Domestic Violence Survivors Justice Act website.  Passage of this Bill will be a significant step toward recognizing the impact of domestic violence, and providing justice to victims of domestic violence.  Hopefully New York will choose to serve as a model of reform for the rest of our country.

The author wishes to thank Allison Schwartz for the correction.

Sports Illustrated’s article provides a quick overview of the laws that are currently being discussed in connection with the school administrators involved with the Sandusky scandal.  Among them are the generally understood, thanks to Law & Order, concepts of perjury and obstruction of justice.  The most significant, however, is the Child Protective Services Law.  Pennsylvania’s Code § 3490.4 requires teachers and school administrators at public institutions to report child abuse, either to a superior or the authorities (depending on the reporter’s position).  While an argument might be made that Penn State and its employees were not meant to fall under the law’s ambit because of the nature of a university and its agents, it doesn’t seem to be a matter of dispute that the reporting requirements extended to Joe Paterno and other members of Penn State’s faculty and staff.  What does seem to be under scrutiny is whether Joe Paterno’s position as head coach required him to report the incident to authorities or allowed him merely to report it to the athletic director and whether Paterno’s report was complete enough to satisfy the law’s requirements.  After learning of Sandusky’s behavior, Paterno reported it to Tim Curley, Penn State’s athletic director.  It is speculated that this report was both incomplete and designed to downplay the seriousness of Sandusky’s acts.

So, was it sufficient to report the incident to Curley?  Currently, the question seems to be whether or not Paterno was considered a person “in charge” or whether Curley, as athletic director, could be considered Paterno’s superior and therefore “in charge.”  If the former is true, Paterno’s obligation was to report the incident to the authorities, but if the latter is true, Paterno satisfied his legal obligations.  Section 3490.13 states that

Required reporters…shall immediately notify the person in charge of the institution, school, facility or agency or the person in charge’s designee of suspected abuse. The person in charge, or the designee, shall be responsible and have the obligation to make a report of the suspected child abuse to [the appropriate authorities] immediately. 

Reading the language of the statute, it seems that there are three arguments for charging Paterno.  Nowhere in the statute does it say that the duty is to simply report allegations to a superior.  Instead, the statute clearly requires the report to go directly to the person in charge (or his agent).  Paterno is obviously not the person in charge of the institution.  President Graham Spanier, who has also been fired in the wake of the scandal, seems to fit the bill.  Is it sufficient to knock down the proverbial dominoes by requiring each person with knowledge or suspicion to report it to his or her superior so that it eventually reaches the person in charge.  Practicality and reality say yes.  Joe Paterno, however, had to know who was “in charge” and that it wasn’t Curley.  Surely Paterno would have been capable of reporting the incident directly to Spanier.

The next, perhaps more persuasive argument is that Paterno constitutes the person in charge or, in the alternative, the president’s designee.  As the head coach of the football team, it may be argued that Paterno was the person in charge of that particular entity and therefore “the person in charge of the…agency [the football team].”  In that case, Mike McQueary was correct in reporting to Paterno, but Paterno violated his duty by not reporting it to the authorities.  If, however, it is too much of a stretch to consider the football team its own entity (I will admit that I am underinformed about how Penn State organizes its athletics or what NCAA rules require), then it seems logical that Paterno could be considered a designee.  Depending on how the role of head coach is defined or performed at Penn State, it’s possible that Paterno could be considered someone who was designated, either by the president, the board of trustees, or the institution.  All of this is regardless of the statutory provision making it clear that there is nothing to prevent anyone who has knowledge or suspicion from reporting an incident directly to the authorities.

However, the inquiry into the nature of Curley and Paterno’s roles and relationship to one another for the purposes of reporting is ultimately irrelevant.  The last and probably most persuasive is an argument based upon § 3490.12.  That provision reads that, “In addition to other reports they make, required reporters shall report suspected child abuse to [the appropriate authorities].”  If it is indeed the case that Paterno is considered a required reporter—and it certainly seems that this, at least, is not up for debate—then he was under an obligation to report directly to the authorities, regardless of any other reports he may have made.  Therefore, regardless of whether Paterno, Curley, or someone else is considered the person in charge, Paterno should have reported the abuse as soon as he had reason to believe it occurred.

In closing, and on a different note, I would like to lament the media and public’s habit of forgiving transgressions because someone is talented, well-liked, or entertaining (See Kadence A. Otto, Report, Criminal Athletes: An Analysis of Charges, Reduced Charges and Sentences, 19 J. Legal Aspects Of Sport 67 (2009) and Gregory Schiller, Are Athletes Above the Law? From a Two-Minute Minor to a Twenty-Year Sentence: Regina v. Marty McSorley, 10 Sports Law. J. 241 (2003)). Athletes and actors spend less time in jail than the average citizen for the same crime and the media often summarily tries cases involving high profile parties, providing little to no insight about how the law actually works.  While this case does seem a little different in terms of the media’s willingness to learn both the facts AND the law, the results so far don’t seem to have changed.  Penn State’s athletic director, Curley, and vice president for business and finance, Gary Shultz, are both being charged with perjury, while Paterno, the famous, beloved, and incredibly talented coach, has yet to face legal consequences.  Paterno’s position and influence were certainly no less, and perhaps even greater, than that of both Curley and Schultz.  Surely his actions, or lack thereof, make him just as chargeable?

For the opposing view that Joe Paterno is likely not in any legal trouble, see NY Daily News’ article, “Penn State AD Tim Curley, VP Gary Schultz charged with perjury, step down after Jerry Sandusky sex abuse scandal and cover-up” quoting Cardozo Law professor, Marci Hamilton.