State Supreme Court to Decide Custody Rights of Undocumented Immigrant

The Missouri Supreme Court will soon decide the fate of Carlos Romero, a three year old child adopted while his mother was in jail on immigration charges. The court is being asked to decide whether the mother's parental rights were properly terminated and awarded to an adoptive couple.

Encarnación Bail Romero came to the United States illegally in 2005 from Guatemala, giving birth to Carlos nearly a year later. Shortly after Carlos' birth, Romero used false identification cards and a fake Social Security number to obtain employment at a Barry County Missouri poultry processing plant. In May of 2007, Romero was one of 136 undocumented immigrants arrested in a raid on the plant led by federal immigration officials.

Several of those arrested in the raid were released when authorities learned that they had younger children. According to The New York Times, Romero was not eligible to be released, despite having a six-month old son, because law enforcement officials determined she had used fraudulent identification to obtain her employment.

These charges meant that Romero was facing a two year prison sentence and immediate deportation upon her release. Ironically, the United States Supreme Court subsequently rejected the use of identity theft charges in immigration cases, stating that the person must know the information belongs to someone else in order to be charged with that crime.

After his mother's arrest, Carlos was sent to live with two of his aunts. The New York Times report notes that the women already had children of their own, very little money and no legal status. Despite their efforts, the women quickly became overwhelmed trying to support another child. When a local woman mentioned that a couple was interested in adopting Carlos, the aunts agreed to participate in the process.

Ms. Romero, who cannot speak or read English, refused to sign the adoption petition and asked that Carlos be placed in foster care until she was released from jail. The judge in the case, however, determined that Romero abandoned her son and awarded custody of Carlos to the adoptive couple in October of 2008. Romero disagreed saying she did not choose to leave her son, did not leave him with strangers, and tried her best to stay in communication with her sister asking how Carlos was doing.

In his initial decision Judge David. C. Dally noted the adoptive couple could better provide for Carlos and that Romero offered little for the child in the way of stability and lifestyle. Judge Dally also noted Romero's impending deportation upon completion of her sentence as a reason for awarding child custody to the adoptive parents.

Deportation Suspended

While Romero was scheduled to be deported at the completion of her sentence, that order was suspended in February of 2009 allowing her to stay in the country while appealing the court's decision. The case has worked its way up to the Missouri Supreme Court where the justices are being asked to decide Romero's parental rights and, according to The Missourian, whether imprisonment is the same as abandonment.

Best Interests Standard

Attorneys in the case say that the Supreme Court's decision will likely hinge on the best interests standard. Missouri courts have noted that a two-step analysis must be performed when considering whether termination of parental rights is appropriate. First, the court must decide if there are statutory grounds for termination that are supported by clear, cogent and convincing evidence. Next, the court must decide whether the termination would be in the child's best interests.

Missouri courts have also noted that when considering an involuntary termination of parental rights, the statute must be strictly construed in the parent's favor and in favor of preserving the natural parent-child relationship. Further, U.S. Supreme Court cases have held that the right to raise children is one of the oldest fundamental interests recognized by the courts.

Working With an Attorney

Child custody matters are among the most emotional and difficult issues for families. These cases can be complex and there is a lot at stake. If you have questions surrounding child custody and child support or any other family law questions, it is important to contact an experienced family law attorney.