By Susan Redden
Globe Staff Writer
CARTHAGE, Mo. —
An adoption that figured into the dismissal of two Carthage teachers has been overturned by the Missouri Court of Appeals.
A decision handed down Wednesday reverses Jasper County Circuit Court rulings that allowed a Guatemalan child’s adoption and terminated the parental rights of the mother who had been jailed on immigration charges.
Barring an appeal by the adoptive parents, the ruling would clear the way for the child, now 3 years old, to be returned to the mother, according to Joplin attorney Bill Fleischaker, who had a role in the appeal.
Calls to Joe Hensley, an attorney for the adoptive parents, were not returned.
The state appeals court ruled, among other things, that proceedings that led to the child’s adoption did not follow the law because the child was placed with the adoptive parents by a party that did not have authority to do so, and that the mother was given no notice of a hearing at which the child’s custody was transferred.
Two fired
Carthage School District officials a year ago fired Laura Davenport, with the Carthage Parents as Teachers Program, and Lynda Homa, then director of the program after Davenport had gone to an Osceola, Mo., jail and discussed adoption with the child’s mother. Homa was fired for “immoral conduct” for allowing the visit and her dismissal later was upheld by the school board. The longtime teacher said she thought the reason for Davenport’s visit was to take papers for the mother to sign to ensure the child could get government services.
According to events detailed in the appeal, the Guatemalan woman was arrested in May 2007, then in October 2007 pleaded guilty to aggravated identity theft and was to be deported after serving a two-year jail sentence.
Her infant child was staying with relatives, then was placed with another relative who was unable to care for the child full time. That relative sought baby-sitting services through Davenport, and was referred to a couple who were clergy of a Hispanic church in Carthage, which took over primary care of the child. Davenport visited the mother in jail in September 2007 to ask about adoption, which the mother refused. Yet, late in September, the family caring for the child contacted the now-adoptive parents about the child and started granting them visitation. The child began living with the adoptive family in October, and the parents filed to adopt the child and terminate the mother’s parental rights.
At the hearing, the attorney appointed to represent the child recommended transfer of custody “as an emergency situation” and custody of the child was granted.
Prior to the adoption hearing a year later, an attorney paid for by the prospective parents was hired to represent the mother. At the hearing, no evidence was presented in her behalf except for a letter saying she wanted to be reunited with the child and asking the child be sent to live with her family in Guatemala. Court files contained two more letters from the mother saying she did not want the child adopted.
Courts
The circuit court found the mother had “abandoned” the child when she went to prison without making provisions for care of the child. The court also noted the mother’s “lifestyle of smuggling herself into a country illegally and committing crimes in this country is not a lifestyle that can provide any stability for a child.”
The appeals court cited seven areas in which it found “serious failures to follow statutory requirements,” ruling “the trial court lacked the statutory authority to transfer custody of the child, to consider the respondents’ adoption petition, and to terminate the mother’s parental rights.”
The court called a parent’s rights to raise children “a fundamental liberty” and rejected adoptive parents’ arguments “that any party can place any child for adoption so long as the court finds that it is in the best interests of the child.”
The decision also cited a ruling from the Nebraska Supreme Court stating “whether living in Guatemala or the United States is more conformable for the children is not determinative of the children’s best interests ... the best interest of the child standard does not require simply that a determination be made that one environment or set of circumstances is superior to another.”
The appeal was filed by Seattle, Wash., attorneys who have been active in cases involving the adoption of the children of immigrants. In addition to attorneys for adoptive parents, the Jasper County juvenile office and the child, the case included attorneys’ filings by the Guatemalan consulate and the Immigrant Child Advocacy Project.
A brief also was filed by attorneys for the Mexican American Legal Defense and Education Fund, who on Thursday praised the ruling.
“We filed a brief in part because we found it disturbing the trial court judge seemed to have considered the mother’s immigration status a factor in determining parental rights,” said Ricardo Meza, Midwest regional counsel for MALDEF.
Appeal
Lynda Homa challenged her dismissal in a lawsuit filed in Jasper County Circuit Court. The count found in favor of the school district, and the ruling is now being appealed to the Missouri Court of Appeals.
