By Susan Redden
CARTHAGE, Mo. — Her voice and her heart breaking, Melinda Moser said last week that she can’t imagine being able to find the words she’ll need if she and her husband lose an adoption battle that has drawn national attention.
“How do you tell a child they may have to go away with someone they don’t even know?” she asked. “We’ve tried to explain he has two mommies. He says, ‘OK, but you’ll come get me when I call, right Mommy?’”
Last week, Seth Moser, 32, and his wife, Melinda Moser, 31, of, Carthage, filed motions in Jasper County Circuit Court asking to be declared guardians of Carlos Jamison — the Mosers just call him Jamison — a Guatemalan child they thought they had legally adopted nearly two years ago.
They want to be sure they can keep the youngster during a court battle in which the biological mother, jailed for immigration violations when the child was just months old, argues that she should regain custody.
The natural mother, Encarnacion M. Bail Romero, was jailed after her arrest at a Barry County poultry processing plant in May 2007, when the child was seven months old.
Romero would have been deported immediately, but the Bush administration at the time was requiring illegal immigrants to first serve jail time in the United States for immigration-related crimes for which they were convicted.
According to court records, Romero was arrested and deported the first time from the United States in 2006, then entered the United States again in May 2007. She allegedly used the identity and Social Security number of another woman to get a job at the poultry plant, where she was arrested in 2007.
Romero pleaded guilty to aggravated identity theft, but also had been charged with re-entering the country as a removed alien, false presentation as a U.S. citizen, false statement of citizenship to gain benefits or employment and misuse of a Social Security account number, according to court records. She served two years for crimes related to immigration violations, but was not deported.
Instead, she is being allowed to stay in the country to try to regain custody, but once that is resolved, she faces deportation, according to Joe Hensley, an attorney for the Mosers.
Jamison will be the loser if the biological mother wins, the Mosers argued last week.
“He’s faced with going to a country where he’s never been, doesn’t speak the language and doesn’t know a soul. That would be traumatic even for an adult,” said Seth Moser.
The Mosers have had custody of Jamison, who will be four in October, since October 2007; the adoption was approved by the court a year later.
But the Missouri Court of Appeals in a ruling last month reversed that adoption decision, finding the lower Jasper County court lacked the authority to transfer custody of the child to the Mosers, lacked authority to consider the Mosers’ adoption petition and lacked authority to terminate the biological mother’s parental rights.
The case became the focus of a story in the New York Times after a law firm and groups including Hispanic advocacy organizations took up the cause of the mother, alleging she lost the child because of her status as an illegal alien.
Attempts to contact the birth mother and e-mail and telephone efforts last week to get an interview with her attorneys were unsuccessful, but the appeals court ruling that reversed the adoption decision found the mother was given no notice for the transfer of custody hearing and was not appointed counsel until two months after custody had been transferred to the Mosers.
The Mosers dispute the appellate court’s findings, however.
They say Jasper County Circuit Court Judge David Dally terminated Romero’s parental rights because the biological mother allegedly made no attempt to maintain contact with or provide for the child during the two years she was in jail.
The biological father has never sought custody or challenged any court rulings.
Abandonment was cited in motions to terminate the biological mother’s parental rights, said Hensley, who maintains offices in Carthage and Joplin.
“You can file under several provisions, but we chose abandonment, because you prove it under a simple time frame,” he said.
According to Hensley, under Missouri law, a child is considered abandoned if parents make no attempt to maintain their rights in 60 days, if the child is younger than a year old, and a year if the child is older.
“An incarcerated parent can do that in several ways, by sending the child a letter once in a while or some money or trying to see them. We never got a request from her to see him until July 31,” Hensley said.
The case also was central to a series of events that resulted in the dismissal of Lynda Homa, a longtime teacher in the Carthage schools and supervisor in the Parents as Teachers program, and Laura Davenport, a parent educator.
The two women were dismissed after school officials learned that Davenport had gone to an Osceola jail where Romero was being held. Homa and Davenport both have said the reason for the visit was to get the mother to sign papers needed so the child could get state services, but a jail recording shows Davenport tried — unsuccessfully — to get the mother to agree to the child’s adoption.
Homa continues to challenge her dismissal, although it has so far been upheld by the courts.
That visit happened before the Mosers became involved, Melinda said, and when the child was being cared for by Jennifer and Oswaldo Velazco, a Carthage minister and his wife. Davenport, according to hearing documents, had arranged for the Velazcos to care for the child, who was then being shifted among relatives of the biological mother.
“He was staying with the Velazcos and we didn’t know anything about him at that point,” Melinda explained.
She said they learned of Jamison from family members who were friends with the Velazcos.
“They felt like he needed more permanent care and they contacted my brother and his wife, because they had talked about us wanting to adopt,” Melinda said.
She said they contacted an attorney to discuss their options and decided to move forward with visiting the child at the Velazco home, and later taking the child home for brief visits. After he “did well” during an overnight visit, the Velazcos and the Mosers discussed making the arrangement permanent.
Melinda also said the arrangement was supported by the Velazcos, who had started keeping the child full time in June, just weeks after Romero’s arrest. The child had been cared for, initially, by relatives of the mother, who also had children and jobs.
The Mosers went to court to get legal custody of the child in October 2007 and then moved to terminate the biological mother’s rights, and to adopt, a year later.
Hensley said there were difficulties in notifying the mother because of the different names she allegedly used. He said letters he sent to the jail, and letters sent by the court and an attorney named to represent her, were returned as refused.
After an adoption hearing held Oct. 7, 2008, the Jasper County court ruled the mother had abandoned the child when she went to prison without making provisions for his care. The court also stated the mother had not attempted to communicate with the child from the time she was arrested.
Hensley also contends the biological mother, who is in her early 30s, severed her ties with the child by allegedly using a false name different than the child’s — Angelica Alverado — while in jail.
“That also was a problem in following all the procedures; it’s difficult doing the required reports on someone who’s trying to be someone else,” he said.
But the appeals court cites two letters, one dated Oct. 29, 2007, and another dated Sept. 16, 2008, indicating the mother did not want the child adopted. One was sent to the court, and the other to Hensley.
Hensley said the earlier letter never was a part of the evidence and the second he entered in to evidence to show the mother could have written anytime, if she chose to.
There also was a letter sent to an attorney for the mother who was hired by the Mosers in which the biological mother says she wants to be “reunited with him (the child) soon” and asks the attorney to arrange to send the child to live with her sister in Guatemala.
Hensley said that attorney, Aldo Dominguez, was hired by the Mosers to represent the mother “because we wanted to take the extra step” of making sure the biological mother had representation in court by an attorney who spoke Spanish before going forward with the adoption.
“We also waited an extra six months to proceed, so he could get on board, talk to the mother and get up to speed,” he said. “At the hearing, he (Dominguez) contested the adoption and made some of the same arguments as the appeals court.”
Another attorney appointed as guardian ad litem for the child by the court concluded the adoption was in the best interest of the child, Hensley said, and Dally, after hearing from Dominguez, the guardian ad litem and others, and reviewing the case, determined the mother could not offer any proof that she could get a job in Guatemala, or had a home there or any way to care for the child.
Dally also wrote that the biological mother’s lifestyle, “that of smuggling herself into a country illegally and committing crimes in this country, is not a lifestyle that can provide any stability for a child. A child cannot be educated in this way, always in hiding or on the run.”
The appeals court, however, noted there was nothing in the record indicating the mother knew how to contact the child once he was placed with the Mosers. That information was on the documents filed but “it was clear from the testimony at trial that the mother did not speak English,” said the appeals court.
The appeals court said that and other errors “resulted in manifest injustice to the mother.”
The Mosers say Jamison, who will be 4 in October, is now a happy, health boy. But, they say he was developmentally delayed, and could not crawl or hold up his head when they began to care for him. Melinda said he also had eczema that bled in spots.
Melinda said Jamison has had seizures brought on by fever and has been taken to the emergency room for treatment.
“One time we had to call an ambulance,” she said. “We had a neurological study done and he doesn’t have a seizure disorder. The doctor said it could be caused by lack of nutrition when he was a baby.”
The Mosers paid for Jamison’s medical care out of pocket until the child could be placed on Seth’s insurance after adoption. Seth is a supervisor for a Joplin-based manufacturer and Melinda is a hairdresser who has cut her work schedule to three days a week so she can be home with Jamison. Her mother provides child care while she’s at work, she said.
The Mosers say they worry Jamison would not get medical treatment in Guatemala. And they say they have no confidence the mother would provide continuous care if she did get custody, claiming she has two other children in Guatemala who she acknowledges in court testimony she did not raise.
They also say Romero has not been to Guatemala for at least four years and there is no evidence she has a home or job there.
Meanwhile, the couple wait for a decision on their petition to keep custody of Jamison while appeals go on. They are asking the Missouri Court of Appeals to rehear the case and, if they are not successful there, to transfer the case to the Missouri Supreme Court.
They also say they’ll take the appeals as far as necessary, and removing Jamison from their home would be harmful to him.
“It would not be in his best interests. He has stability now,” Seth said.
— May 22, 2007: Immigration and Customs Enforcement agents raid a poultry plant in Barry County, Mo., where the mother and more than 100 other undocumented immigrants were taken into custody.
— Oct. 18, 2007: Transfer of custody hearing.
— Oct. 7, 2008: Adoption hearing held.