Missouri Supreme Court hears illegal immigrant child custody case

Tuesday, November 9, 2010 | 8:38 p.m. CST

JEFFERSON CITY — The Guatemalan ambassador to the U.S. appeared Tuesday in the state Supreme Court to support an illegal immigrant mother's appeal for custody of her child, who was adopted while she was in jail.

The issue before the Supreme Court is whether or not the child of a convicted illegal immigrant in the U.S. can be adopted while the parent is imprisoned. Effectively, the court must rule on the child custody rights.

The boy, Carlos Romero, was just 7 months old when his mother, Encarnacion Romero, was caught in a May 2007 immigration raid at a southwest Missouri poultry plant.

At the time of the raid, the boy's family asked a clergy family to care for the child. The clergy family then contacted another couple who sought to adopt the child.

In October 2007 — the same month Romero pleaded guilty to aggravated identity theft — that family filed papers to proceed with adoption. The legal documents were written in English, though the mother is fluent only in Spanish. The court transferred custody to the couple two days later.

The adoptive parents hired the only lawyer in Joplin who spoke Spanish to represent Romero in an October 2008 circuit court hearing about the terminated parental rights and adoption. Romero lost the case after the court found that Romero had abandoned the child.

Romero appealed the decision, sending it to the state Supreme Court. In Tuesday's arguments for the appealed case, Romero's new attorney, Chris Huck, said imprisonment is not the equivalent of abandonment, so the adoption never should have taken place.

During Tuesday's hearing, the two families seeking custody of Romero sat at opposite sides of the courtroom. Romero, the mother who spent two years removed from her son, sat up front with her lawyer. The adoptive parents who raised her child listened to the arguments from the back of the courtroom.

"She (Romero) lost her parental rights without her knowledge and without her consent," said Francisco Villagrán de León, the Guatemalan ambassador to the U.S., at a session with reporters after the court session. "Children of undocumented immigrants should not be given an adoption without their consent."

Rick Schnake, attorney for the adoptive parents, said the court must first consider the welfare of the child and allow him to stay with the adoptive parents.

"I don't have an ambassador to introduce to you today," Schnake told the court. "What I have, back on the next to the last row, are the two people who have been this child's parents for the last three years."

Huck said there is an important precedent, however, that has already been set by previous Missouri courts.

"Best interest also includes the presumption that you preserve the natural parent-child relationship," Huck said. "If you're gonna break that bond, if you're gonna sever that tie and if you're gonna take away that fundamental right, then you have to do it in compliance with the statutory procedures."

Schnake said the couple "substantially complied" with the adoption procedure, which is all the statute requires. The overarching interest is for the child, Schnake told the justices.

"But not to the exclusion of the law," Justice Richard Teitelman replied.

Villagran de León and Huck said this case is not unique — there are problems nationwide with the adoption of illegal foreigners' children.

Schnake said he fears the child's well-being is being overlooked in an effort to prove a point.

"I'm not sure the case is all about the child from their standpoint," Schnake said. "I think it's as much about changing U.S. immigration policy as anything."

Carlos Romero is still in custody of the adoptive parents. The court did not make a decision Tuesday.

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