The Joplin Globe, Joplin, MO

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July 27, 2012

Judge cited neglect, not immigrant status, in adoption ruling

A Guatemalan woman whose fight to keep her biological child resulted in a high-profile court battle left that child in the hospital soon after he was born and did not return for him until she was contacted by state social service workers.

That and similar episodes formed a pattern of neglect and prompted a Greene County juvenile court judge to terminate the parental rights of the mother, according to the judge’s ruling.

Many of the woman’s supporters claimed her parental rights were being severed because she was an illegal immigrant.

The case attracted the attention of the national media and advocacy groups that support women and immigrants. Guatemala’s ambassador to the United States testified on the mother’s behalf when the case came before the Missouri Supreme Court in 2011.

It was that kind of attention — and claims that the mother lost her child because of her immigrant status — that prompted Joe Hensley to release the judge’s 62-page ruling. Hensley represented adoptive parents Seth and Melinda Moser of Carthage.

The court decision handed down July 18 cleared the way for the Mosers’ adoption of the child after terminating the parental rights of Encarnacion Bail Romero.

“People need to understand the judge took away her parental rights because she neglected the child, and not because she was an illegal immigrant,” Hensley said.

Two days old

Records submitted for the trial showed Romero left the child in the hospital two days after he was born. She returned for the child after being contacted by social workers.

The child was 7 months old when the biological mother was arrested on May 22, 2007, at a poultry plant near Monett during an Immigration and Customs Enforcement raid.

The judge said incarceration itself “is not grounds for termination, but the court may consider that the mother continued to engage in criminal (activity) following the birth of her child, which exposed her to the risk of arrest, incarceration and deportation. Court may also consider what advance arraignments, if any, mother made for her child in case (she) was arrested and what steps mother took following her arrest, including whether she attempted to stay in communication with her child and provide support to him, however minimal, while she was incarcerated.”

The child, now 5 and named Carlos Jamison, has lived with the Mosers for more than four years. The court found it would be in the child’s best interests to allow adoption by the Mosers. Termination of the mother’s rights also was recommended by a guardian appointed by the court for the child, by juvenile authorities involved in the case and in an investigation by the state Children’s Division.

The court also ruled that separating the child from parents he has known since he was an infant “would have a lifetime negative affect.”

Appeal planned

The child was not left at the hospital “for any substantial period of time,” Bill Fleischaker said. “And, she never intended to leave him there.”

Fleischaker, a Joplin attorney helping to represent Romero, said after the ruling that the decision by the Greene County judge was based on a number of factors that were the result of language barriers and cultural differences, which are factors related to Romero’s status as an undocumented immigrant.

“Things like her reluctance to speak out or seek help from authorities were among things he relied on in the judgment,” he said. “We wanted the hearing open; I wish it had been, so the public could have heard all the evidence. I think their conclusion would have been different.”

Fleischaker said Romero’s representatives are planning to appeal the decision.

Hensley said he argued for a closed hearing, but believes an open hearing would have favored his clients.

“I’d like nothing more than for the public to see what happened. When her family took the stand, a lot of times they had to take the Fifth (Amendment to avoid self-incrimination.) The things they did testify about were 180 degrees from what really happened.”

For example, he said Romero’s family members talked about caring for the child on the weekend “when we knew he wasn’t there, and we had pictures.”

‘Chronic neglect’

Circuit Judge David Jones said that Romero’s decision to leave the newborn in the hospital was the start of a pattern of “chronic neglect” by the mother. He concluded she seldom sought services for Carlos, such as infant formula and immunizations, even though that help was available and was being accessed by other immigrants, including Romero’s relatives who also were living in Carthage.

His ruling emphasized that Romero, who had been arrested and deported before, made no arrangements for her son in case she was jailed, and rarely asked about him after that.

Much of that time during that period, Romero believed Carlos was being cared for by her sister Maria, Fleischaker said, adding “and she talked to her frequently.”

Hensley said transcripts of Romero’s telephone calls while she was incarcerated show that she knew, as early as July 10, 2007, that her family was no longer caring for the child.

“She knew where he was, she had the phone number; she never called,” he said. “And when she did talk to her sister, she didn’t talk about him, she talked about her criminal case and getting a Social Security number so she could work when she got out.”

When she was arrested in 2007, Romero was living with a brother in Carthage. She called her sister and asked her to pick up Carlos at the baby sitter. The child spent the night with the sister, her husband and their two children. The sister then took him to a brother’s home, but he soon brought the child back.

The ruling also noted efforts by Laura Davenport, a bilingual Parents as Teachers educator with the Carthage School District, to help the infant. Davenport, who had seen Carlos earlier, located him when providing services at the sister’s house. Concerned about what she perceived as nutrition and developmental problems, Davenport brought formula for him. She also offered to contact Jennifer and Oswaldo Velazco, a couple who helped provide child care after another mother had been jailed. By early July, the couple were caring for Carlos full time.

The Valezcos learned of the Mosers, who were going through training to become licensed foster parents in the hopes of eventually adopting. In late September, the Mosers began visiting with the child. In early October, they began caring for him full time and filed papers aimed at adoption.

During that time, according to testimony and records cited by the court, Romero rarely asked about the child in telephone calls from jail. That was not the case when Davenport visited her in jail in September, according to transcripts of the meeting. Then, the PAT educator urged Romero to agree to the child’s adoption, but Romero refused, saying she would not give him up.

Hensley said the full transcript of the conversation showed Romero talking to Davenport about wanting to get a passport for her child.

“She wanted to send him to Guatemala so she could stay here and work,” he said. “But there are parts where Laura tries to tell her how he is doing, and she changes the subject.”


The ruling also notes a few attempts — deemed “minimal” by the court — to check on the child after adoption petitions were filed in October 2007.

During the remainder of her incarceration at Osceola and then in federal prison, ending Feb. 15, 2009, Romero did not try to contact the child or provide for his support, according to the ruling. She did mail several notes to him starting in July 2010 and sent $100 in $20 increments in 2011.

The court record also showed that she received nearly $10,000 in child tax credits for the child.

Fleischaker said the credits were a result of a miscommunication between Romero and a tax preparer, adding “she filed an amended return.”

The court also concluded Romero would be “unfit” as a mother because she has two other children, ages 8 and 14, in Guatemala that she has not seen in seven years.

“She made it clear she has no desire to return to Guatemala to visit them, much less return there permanently to be a mother to them,” the judge wrote.

If Romero had gone to Guatemala to visit, she would not be able to return to the U.S. legally to seek custody of Carlos, Fleischaker said.

“Either way, she’s seen as an unfit mother, whether she goes to Guatemala to see her children there or stays to fight for Carlos,” the attorney said.

Full text

The full text of the 62-page ruling is on a website — — that includes background on the case and a link to an email address for Carlos Jamison’s adoptive parents, Seth and Melinda Moser. It also allows those who wish to send a donation to help offset the Mosers’ legal bills.


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