Wednesday, July 18, 2012

Another hot-button adoption case, linking Guatemala and Missouri

Mérida, Yucatán --
Two months ago I reported on the saga of a now almost eight year old Guatemalan girl whose mother says she was snatched off her doorstep in that country in November, 2006. The child ended up in Liberty, Missouri, just outside of Kansas City, and was eventually adopted by Timothy and Jennifer Monahan. The case has generated litigation which is yet to be resolved, raising all sorts of complicated legal, and moral, issues: Guatemalan toddler kidnapping illustrates ancient maxim, "hard cases make bad law." Now there's another one, with equally challenging facts.

The Kansas City Star reports this afternoon that a circuit court judge in Greene County, Missouri (that's Springfield) has stripped a Guatemalan woman of her parental rights, and granted custody of her five year old son to a Carthage, Missouri couple who adopted the boy in 2008, when he was about two.

The facts of the case bring into sharp relief the often ugly collateral consequences of immigration law. Encarnacion Bail Romero, the Guatemalan mother, illegally entered the United States to take a job at a poultry processing plan. In May 2007 the plant was raided by ICE (U.S. Immigration and Customs Enforcement) agents, and Romero was arrested. Her son Carlos, then only seven months, was passed around and eventually placed in foster care. Later in 2007, while she was still in jail, Romero received documents from the court concerning the pending adoption case. She didn't understand them and initially did not respond, because she speaks and reads only Spanish. Soon after the Missouri couple was granted legal custody, and in 2008 the judge approved their adoption petition.

In January 2011 the Missouri Supreme Court narrowly reversed (4-3) the judge's ruling, on procedural grounds. The court said that another hearing should be held, with both sides afforded an opportunity to explain why Carlos would be better off with them. That hearing was held, and today the same judge again ruled in favor of the Missouri couple. According to the Star, one of the judge's findings was that Encarnacion Bail Romero had "abandoned" Carlos.

That characterization is likely to result in a firestorm of contrary opinion, and will probably serve as the springboard for further litigation. Romero's attorney said today that she was stunned by the ruling and "unable to speak." He said an appeal is being considered.

July 19 - A Kansas City Star opinion on the case: For one mother, justice is denied

Legal footnote, for those who want the technical details:

Abandonment is universally defined in American law as a voluntary, wilfull act. One cannot abandon by force of circumstances beyond one's control, or in the absence of a specific intent to abandon. My very quick (and not double-checked) search revealed the following:

Missouri Revised Statutes Section 211.447.4(1)(b), states, in part, that: "[t]he court shall find that a child has been abandoned if, for a period of six months or longer, (b) The parent has, without good cause, left the child without any provision for parental support and without making arrangements to visit or communicate with the child, although able to do so." In re J.M.S., 83 S.W.3d 76, 82 (Mo. App. 2002). Abandonment is defined as either "a voluntary and intentional relinquishment of the custody of the child to another, with the intent to never again claim the rights of a parent or perform the duties of a parent; or ... an intentional withholding from the child, without just cause or excuse, by the parent, of his presence, his care, his love, and his protection, maintenance, and the opportunity for the display of filial affection." In re Watson's Adoption, 195 S.W.2d 331, 336 (Mo. App. 1946); In re P.G.M., 149 S.W.3d 507, 514 (Mo. App. 2004). The key and critical issue is intent, which may be inferred from the parent's conduct, with tight focus on whether that conduct was voluntary or involuntary. In re P.L.O., 131 S.W.3d 782, 789 (Mo. banc 2004).

In this case, Encarnacion Bail Romero couldn't take care of seven month old Carlos because she was sitting in jail. It doesn't get much more involuntary than that.

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