Immigration

Being undocumented used as justification for court to take woman’s son away and given to other couple

Being undocumented used as justification for court to take woman’s son away and given to other couple

LatinaLista -- There's no denying that one little four-year-old boy, christened with the name Carlitos, and now enjoying life as Jamison, will be the real loser in a custody battle that underscores how little human rights undocumented immigrants have in this country.

Moser01_color_01-30-2011_SL1JN51S.standalone.prod_affiliate.81.jpgCarlitos was born to Encarnacion Bail Romero from Guatemala. He was only seven months old when she was caught in an immigration raid at the Missouri poultry plant where she used a fake Social Security number to get a job to earn money to provide for Carlitos and her other two children back in Guatemala.

Melinda and Seth Moser with their adopted son, Jamison.
(Photo: Kansas City Star)

Yet, instead of deporting Encarnacion, she was put in jail. She was still in jail when a childless couple, Melinda and Seth Moser, sent Encarnacion a letter saying they wanted to adopt her son and sever her parental rights. The document was in English. Encarnacion only speaks Spanish. No reports have been filed indicating that the Missouri courts system attempted to have a translator for Encarnacion.

Just two days after Encarnacion received the documents, the Mosers were granted custody of Carlitos, whom they renamed Jamison. The trial judge presiding over the case in justifying his decision to give Carlitos to the Mosers, said, ""(Her) lifestyle, that of smuggling herself into a country illegally ... is not a lifestyle that can provide any stability for a child."

The court then went on to say that Encarnacion "abandoned" Carlitos. There was no distinction made that she was in jail and granted very limited, if any, translation services to even know what was happening with her son.

Now, a Missouri Supreme Court has ruled that both families have to start this process over:

"The trial court plainly erred by entering judgment on the adoption petition and terminating mother's parental rights without complying with the investigation and reporting requirements," Judge Patricia Breckenridge wrote in the majority opinion. "The trial court's judgment terminating mother's parental rights, allowing the adoption to proceed without mother's consent to the adoption ... although supported by clear, cogent, and convincing evidence on the record, is reversed."

Three judges went further and said the child should be reunited with his birth mother immediately.

Jamison doesn't speak Spanish. He doesn't know Encarnacion and it's clear that if he were to be removed from the only home he's ever known, it would be extremely traumatic for him.

But the bottom line is the couple who profess to love him, and willfully changed his name from Carlitos to Jameson, knowingly adopted him under false pretenses. Encarnacion was not dead and was not going to die in prison. She was and is not a hardened criminal. In fact, she is out of prison and has been granted a stay until a decision has been made.

Instead of trying to prepare Carlitos for what might happen if the courts rule in Encarnacion's favor, the couple, beyond telling him that he has "another mommy," have repeatedly denied Encarnacion any visitations with Carlitos.

Eventually, Encarnacion will return to Guatemala to rejoin her other children and family. It's a family that Carlitos needs to be a part of because as Encarnacion has told the authorities, "He has my blood."

But more importantly, she never abandoned him -- the U.S. justice system abandoned her.

A sadder footnote to this incident is that according to Marcia Zug, a family law professor from the University of South Carolina who is studying how families can be torn apart when illegal immigrant parents are detained or deported, there are hundreds of cases like Encarnacion's.

Parents who are either detained or deported and their children are privately adopted or placed in state custody and then adopted out when their parents are deported or detained.

While some parents who have been picked up by immigration officials purposely do not reveal they have children, one has to wonder how many do say something, but are either not understood or listened to.

Language differences or citizenship status is never justification for separating a child from their parent.

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