The Joplin Globe, Joplin, MO

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October 8, 2013

Appeals court decision upholds child’s adoption by local couple

The Missouri Court of Appeals has upheld a trial court decision that terminated the parental rights of a Guatemalan woman and authorized the adoption of her biological child by a Carthage couple who have raised the youngster since he was a year old.

In a unanimous, 81-page decision handed down Monday, the court found in favor of the adoptive parents, Seth and Melinda Moser, and rejected arguments made on behalf of the biological mother, Encarnacion Romero. In the appeal, Romero challenged a July 2012 decision that found the natural mother, who earlier had been arrested on immigration violations, had forfeited her rights because she had abandoned and neglected the child.

Joplin lawyer Joe Hensley, attorney for the Mosers, said the decision should help the couple “breathe a little better and see a sliver of light at the end of the tunnel.”

Hensley said he hopes the ruling, which he called “very strong, detailed and definitive,” would mark the end of court battles that have gone on for six years and attracted national and international attention.

“But, we’re not in control; they have the right to appeal to the Supreme Court,” Hensley said.

Bill Fleischaker, of Joplin, who is among several attorneys volunteering in the case on behalf of the natural mother, said he is “very disappointed” in the appeals court decision.

He said attorneys representing Romero have a 15-day window to decide whether to appeal the ruling to the Missouri Supreme Court.

“I don’t think a decision has been made on whether we’ll seek to have it transferred to the Supreme Court,” he said. “But given the distance we’ve come, it would be unlikely that we would not take steps to get further review at a higher level.”

The decision handed down Monday marks the second time the adoption has been before the Missouri Court of Appeals. If it is appealed, it will mark the case’s second time before the state’s Supreme Court. The Guatemalan ambassador to the U.S. attended earlier Supreme Court arguments.

Hensley said he was especially pleased by the appeals court ruling since the same court, and same three-member panel of judges, had earlier ruled against the Mosers.

The earlier appeals court decision ruled that an adoption approved by Jasper County Circuit Court should be reversed, and the child should be returned to the biological mother. That ruling was appealed to the Missouri Supreme Court, which reversed the decision and ordered a new trial.

That case was heard by Greene County Juvenile Court Judge David Jones in a two-week trial. In a 62-page ruling, the court terminated the biological mother’s parental rights on the grounds of “abandonment, neglect and parental unfitness.”

Hensley at the time said the ruling negated arguments on behalf of the mother contending that she lost custody because she was an immigrant in the country illegally.

The child was 11 months old when the mother was arrested in May 2007 in an immigration raid while she was working at a Barry County poultry processing plant. She left her child with her brother, who turned him over to a sister, who then left the baby with a Carthage couple who agreed to the adoption by the Mosers.

The mother’s parental rights were terminated after the court agreed with arguments that the child had been abandoned because the mother made no attempt to maintain contact with or provide for the boy during the two years she was incarcerated, even though she had the means to do so.

Though much of the argument focused on the time when the mother was in jail, the court also found that she left the child in the hospital after giving birth, that she failed to keep doctor appointments or obtain baby formula or other help available for the child, and that she made no arrangements to ensure that the infant would be cared for in case she was arrested. The court found that the biological mother was an unfit parent and that a change in custody would not be in the best interests of the child.

Age of child

THE COURT RULING OBSERVED that the child, 11 months old when initial adoption proceedings were filed, soon will be 7 years old.

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