Guatemalan Mother's Plight To Regain Custody Of Son Headed Back To Missouri Supreme Court

Jamison "Carlos" Moser and Encarnación Bail Romero

A Missouri appeals court ruled that a lower court's decision to terminate child custody of an undocumented Guatemalan mother was affirmed.

By H. Nelson Goodson

October 9, 2013

Carthage, Missouri - On Monday, a Missouri appellate court ruled unanimously that a lower court decision to terminate Encarnación Bail Romero, 36, custody of her son now age 6 was justified. The appellate court also in its decision authorized for Seth and Melinda Moser of Carthage to adopt Romero's biological son. The Mosers have been taking care of Carlos, since he was 1-year-old who they renamed Jamison Moser.

The six year legal battle for Romero to regain custody of her child is most likely to end up in the Missouri State Supreme Court once again. The Supreme Court in January 2011 ruled earlier that "it was a travesty of justice" for Romero to lose custody of her child while incarcerated for reentering the country after being deported. The lower court had no legal authority to end parential rights or to allow for the adoption of Carlos by the Mosers, the state Supreme Court ruled. 

The Missouri Supreme Court sent the case back and ordered a new trial of the case by a lower court. The trial took two weeks for a decision, Greene County Juvenile Court Judge David Jones ruled that Jasper County Judge David C. Dally was justified in ending the parential rights of Romero.

The Joplin Globe reported on Tuesday that Romero's lawyers have a 15-day window of opportunity to file an appeal with the Missouri Supreme Court. Bill Fleischaker, one of her lawyers said, that they haven't decided to file an appeal, but having gone through a number of legal challenges, it would be unlikely that they would not take steps to file an appeal with the state Supreme Court.

Romero is currently on a deportation stay until she exhausts all her appeals in her child's custody legal battle, according to the U.S. Immigration and Customs Enforcement. 

Romero was arrested in 2007 at a poultry company for being in country illegally after an immigration raid at her work place. She was sentenced to two years in custody for false documents, reentering the country after being deported and she left Carlos who was 11-months-old with her brother who then turned over her son to his other sister. Romero's sister couldn't keep Carlos and allowed for the Mosers to take care of him.

The Mosers later filed for custody and adoption in a local court. Jasper County Judge Dally found that Romero had neglected to care for Carlos and allowed for the Mosers to adopt him.

Romero while in custody never received any legal papers of the Moser process to adopt her child, until the final stages of the adoption decision. She later found that her parential rights were being terminated and an inmate friend helped her translate English legal documents into Spanish, which she began to challenge Judge Dally's court action to end her parential rights.

An argument by Judge Dally was that she never contacted the court about the adoption case, but the court failed to sent legal documents in Spanish explaining to Romero of the process to take her son away and give him to the Mosers.

A Southern District Court of Appeals in 2008 ruled, that Jasper County Judge David C. Dally didn't have legal authority to end the parental rights of Romero and to give her son Carlos to the Mosers.

In 2011, the Missouri Supreme Court decided that "The trial court plainly erred by entering judgment on the adoption petition and terminating (the) mother's parental rights without complying with the investigation and reporting requirements... The trial court's judgment terminating (the) mother's parental rights, allowing the adoption to proceed without (the) mother's consent to the adoption, and granting of the adoption, although supported by clear, cogent, and convincing evidence on the record, is reversed. The cause is remanded for a new trial in which (the) adoptive parents and (the) mother will have the opportunity to present evidence on all claims in all counts of the petition that pertain to (the) mother," wrote Judge Patricia Breckenridge for the Missouri Supreme Court's decision.

Judge Micheal Wolff who ruled with the seven judges to reverse the lower court adoption decision to end Romero's parental rights wrote, that there was no evidence Romero neglected her child before he was adopted. Wolff agreed that Romero's child should be returned to her immediately.

With the 2011 ruling by the state Supreme Court, Romero will most likely regain custody, if the court decides to take the case.