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Missouri court rules immigrant's adoption rights terminated illegally

By the CNN Wire Staff
Encarnacion Bail Romero says she did not give permission for her son to be adopted.
Encarnacion Bail Romero says she did not give permission for her son to be adopted.
STORY HIGHLIGHTS
  • Encarnacion Bail Romero was in prison when her son was put up for adoption
  • Missouri's supreme court sends the case back for a retrial
  • The state failed to comply "with the investigation and reporting requirements," the court says
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(CNN) -- The Missouri Supreme Court Tuesday overturned a lower court ruling that terminated the parental rights of a Guatemalan woman whose son, the woman says, was adopted without her consent while she was imprisoned following an immigration sting in 2007.

The court ruled that the state violated its own laws in terminating the parental rights of Encarnacion Bail Romero, but the supreme court sent the case back to the lower court for retrial rather than return the boy to his biological mother.

"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 court's principal opinion.

"The trial court's judgment terminating Mother's parental rights, allowing the adoption to proceed without 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 Adoptive Parents and Mother will have the opportunity to present evidence on all claims in all counts of the petition that pertain to Mother."

Bail Romero was caught up in an immigration sting in May 2007, six months after her son was born. She was not deported, however; instead, she was imprisoned as an illegal immigrant who used a stolen Social Security number to work at a poultry processing plant.

Her brother and sister took care of the boy at first, attorneys in the case said. Eventually they sought help from a clergy couple who offered baby-sitting services. When that couple asked to adopt the boy, Bail Romero said no, her attorney, Omar Riojas, said.

Rebuffed, the couple introduced the boy to Seth and Melinda Moser and eventually put him up for adoption -- something the boy's biological mother said they lacked the legal ability to do. The Mosers soon asked a judge for temporary custody, said their lawyer, Richard Schnake.

Bail Romero -- in prison at the time -- did not contact the Mosers or their attorney or object to them having custody, he said. After a judge granted the Mosers temporary custody, they waited a year -- rather than the six month minimum stipulated by Missouri law -- before asking to adopt the boy, Schnake says.

Bail Romero said she did not fully understand what was going on and certainly did not give her blessing for them to adopt her son.

In October 2008, a judge approved the adoption, ruling that Bail Romero had abandoned her child by not trying to contact the Mosers for a year. Bail Romero said she doesn't speak English and was left with no way to ask for help to plead her side.

In addition to the clergy couple not having the authority to put up her son for adoption, Riojas has argued that Bail Romero was deprived of due process because she had no consular access or access to legal documents in her language. He also says an attorney who represented her at one point did not represent her well.

In July 2010, a court ruled that the adoption was invalid, a ruling appealed by the Mosers, who argue that they are the only parents the boy has really known.

All seven of the court's judges agreed to reverse the termination of Bail Romero's parental rights, although some members thought the now 4-year-old boy -- called Carlitos by his mother and Jamison by the Mosers -- should have been returned to Bail Romero.

Breckenridge addressed those concerns in a footnote to her opinion.

"Every member of this Court agrees that this case is a travesty in its egregious procedural errors, its long duration, and its impact on Mother, Adoptive Parents, and, most importantly, Child," she wrote.

"The dissenting members of this Court rely significantly on information outside the record to find that Mother has been victimized repeatedly and that her rights have been violated. The dissenting members believe passionately that custody of Child should be returned to Mother without further proceedings. That result can be reached only by disregarding the law."

The federal government intends to deport Bail Romero to Guatemala, where her other two children live, but has delayed the proceedings until this case is complete.

CNN's Mariano Castillo contributed to this report

 
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