http://stream.publicbroadcasting.net/production/mp3/kcur/local-kcur-938880.mp3
Carthage, MO – This month, the Missouri Supreme Court is expected to make a ruling in an unusual case, which will decide the future of a 4-year old boy. The court's ruling - whatever it is - will break some hearts.
Carlos is the US-born son of a Guatemalan immigrant, who was detained in a raid at poultry processing plant in Southwest Missouri in 2007. While his mother was caught up in the legal system, Carlos was adopted by an American family.
Encarnacion Bail Romero hasn't seen her Carlos since the day of the raid three and a half years ago. He was seven months old at the time.
"I hadn't taken pictures of him before they arrested me," she says. "When I got out of jail, my sister had a photo of him and said, look, here's a picture of your son - he's beautiful."
Bail Romero served two years in prison for identity theft, because she had used a false social security number to get a job. While she was serving time, her son was being taken care of by family members and their friends. An acquaintance knew of a couple, Seth and Melinda Moser, who were interested in adopting, and arranged for Carlos to spend time with them.
The Moser's attorney Rick Schnake says that Carlos flourished under their care, and soon became part of the family.
"They're his mommy and daddy, and he's their little boy," Schnake says. "He speaks English, not Spanish, and he's a typical little four-year old boy."
Meanwhile, Bail Romero was in jail, and she says she had no idea where her son was.
"I kept asking for help because I wanted to know about my son," Bail Romero says, "Where he was, if he was alive, how he was."
Eventually, Bail Romero says she received some paperwork about the adoption, which a fellow prisoner translated for her. She wrote back, saying she didn't want her son adopted.
But Jasper County Circuit Court Judge David C. Dally decided that Carlos would be better off with the Mosers, and terminated her parental rights.
"Bail Romero's lifestyle, that of smuggling herself into the country illegally and committing crimes in this country," he wrote, "is not a lifestyle that can provide stability for a child."
When Bail Romero was released in 2009, the Guatemalan embassy helped her find lawyers to try and reverse the adoption. The case was heard before the Missouri Supreme Court in November. Guatemalan ambassador Francisco Villagran de Leon made a statement after the hearing.
"Children of undocumented immigrants should not be given in adoption just because they are here illegally," Villagran de Leon said.
Immigrant advocates are saying that this is not an isolated case. 5.5 million children in the United States have at least one undocumented parent. And according to data from Immigration and Customs Enforcement, from 1998 to 2007, 108,000 deported parents left children behind.
Michelle Bran of the Women's Refugee Commission says each time she's visited a detention center, she's heard troubling stories from mothers.
Many of them did not know where their children were," Bran says, "how to contact their children, or were concerned that they had hearings or cases in family court that they were unable to attend.
Bran says there's a lack of communication between immigration officials and child welfare workers. And because of that, it can appear that immigrant parents in detention or prison are abandoning their children. And when immigrants face deportation, Bran says the logistics of taking their children with them can be challenging.
"You can't get a passport for your child," Bran says. "You may have difficulty getting documentation, or even making the arrangements for an airplane ticket and meeting at the airport to coordinate the actual travel."
Bran is advocating for a bill currently in Congress, which would require Immigration and Customs Enforcement to better facilitate parents' interaction with their children. It would also require ICE to work better with state child welfare agencies.
ICE officials say they're already making policies more family-friendly - a recent memorandum instructs staff to focus on detaining people with a criminal history, and avoiding parents.
Still, according to a law professor at the University of South Carolina, more and more immigrant parents appear to be losing parental rights to their children. And she says it's not because of ICE.
Marcia Zug specializes in the intersection of family and immigration law.
"So these children will come to the attention of child welfare services and rather than working towards the reunification of the children with their parents," Zug says, "they actually are hoping, and sometimes doing more than hoping that the parents will get deported. And once the parents are deported, it's very easy to terminate the parental rights."
Zug says this is illegal.
"If parents have a constitutional right to the care and custody of their children unless they're unfit, then you need to find that they're unfit before you terminate parental rights."
Zug says that there's been a recent movement in child welfare services towards "children's rights" over "parent's rights." Although Bail Romero's case didn't involve child protective services, a similar idea of what's in the best interest of the child may have guided the decision of the court.
"And a lot of times undocumented immigrant have a lot of strikes against them," Zug says. "They're usually poor, usually uneducated, don't speak English, often not married - all of these things that don't meet the stereotypical definition of a good parent."
At the same time, she says you could say these are actually some of the best parents.
"Because they braved very dangerous conditions, they made major sacrifices that they could come to the United States to give their children a better life," Zug says.
Zug has found about 25 cases of undocumented immigrants' parental rights being terminated, and she says few are appealed like Encarnacion Bail Romero's.
As for Bail Romero, she has a temporary visa to stay in the country until the case is resolved. After that, she'll be deported.
"I know they're going to send me to Guatemala," Bail Romero says. "But I want to go with my son, not by myself."
And of course, Carlos' adoptive family is hoping that he'll spend Christmas here . . . in Missouri.
