Missouri Supreme Court Deciding Undocumented Immigrants’ Child Custody Rights

Encarnación Bail Romero

Encarnación Bail Romero

Undocumented Parents’ Child Custody Rights

The Missouri Supreme Court will soon decide whether an undocumented Guatemalan mother will be allowed to keep her 4-year-old son who was taken from her and put in the hands of an adoptive white couple in Missouri. At issue is whether undocumented immigrants have the same legal rights as U.S. citizens when it comes to child custody.

Encarnación Bail Romero was caught up in a 2007 immigration raid at a Missouri poultry processing plant where she worked. Romero left her infant son with family members who later passed the child on to a pastor. It was then arranged that Seth and Melinda Moser would care for the baby. A few months later, Romero learned her son was adopted by them. An appeals court has already ruled that the adoption should be voided. That ruling was appealed by the Mosers to the state Supreme Court where they find themselves today.

The American Civil Liberties Union of Eastern Missouri maintains that Bail Romero was denied proper legal representation. Her attorney was hired by the Mosers to represent her during court proceedings intended to terminate her parental rights and approve the adoption — a clear conflict of interest. Meanwhile, Rick Schnake, the Mosers’ attorney, has indicated that even if the adoption was illegal, Romero abandoned her son. Schnake notes that the child has lived with the Mosers for nearly three years and only speaks English. According to him, he “would be better off” staying with them.

But Bail Romero’s new attorney, Chris Huck, noted, “Best interest also includes the presumption that you preserve the natural parent-child relationship. 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 also doesn’t mention that the Mosers had been previously denied an application to become foster parents, in part because of Mr. Moser’s criminal record and a history of abuse on Mrs. Moser’s side of the family. Bail Romero, meanwhile, was imprisoned under a law that was later found unconstitutional by the Supreme Court.

However, the case is much more complicated than that. The New York Times reported that, “It is unclear how many children share Carlos’s [Bail Romero’s son] predicament. But lawyers and advocates for immigrants say that cases like his are popping up across the country as crackdowns against illegal immigrants thrust local courts into transnational custody battles and leave thousands of children in limbo.” How the Court rules could set a dangerous precedent and essentially render undocumented immigrant parents powerless when it comes to the custody of their U.S. citizen children.

Andrea NillUltimately, the only thing more messed up than changing the Constitution to deny the American-born children of undocumented immigrants citizenship is deporting their parents, snagging the U.S. citizen kids, and giving them to an American couple. “Children of undocumented immigrants should not be given an adoption without their consent, should not be given an adoption just because they are here illegally. That is no grounds for taking a child away from his or her mother,” affirmed the Guatemalan Ambassador Francisco Villagran de Leon.

Andrea Christina Nill

Reposted with permission from The Wonk Room.


  1. Annette says

    Am I being hard-hearted? Maybe so. I care about my country and my own kids and the fact that I can’t pay for their health care and their college education because I’m paying for the children of people who sneak into this country suck the life out of our social services and our public funding systems. And I don’t blame them for doing so. I’d do the same if I was a poor person in another country. But feeling sorry for them doesn’t mean I want to prioritize them over my family and over immigrants who are willing to abide by the rules and come here legally. And it certainly doesn’t mean I want to lose a third of my income to help pay for children of illegal aliens.

    I feel for those who are on the waiting list to immigrate here, especially since those who cheat the system get rewarded with citizenship for their children. I feel for the hard working Americans who pay taxes and pay into Social Security their whole lives, only to realize that now they might be cheated out of what’s owed them by our HOPE and CHANGE president.

    So if you care about kids, and you think I’m being hard-hearted, how about helping me take care of my own kids. I’ve paid taxes my whole life and I’ve worked hard and done everything I’m supposed to do to provide for my family. Yet I look around and see that those who cheat the system and work under the table while sucking off the public are the ones who are doing just fine now. Their housing is free and they get food stamps and welfare and and their kids don’t have to pay for college. The rest of us are struggling to survive as our government bails out the banksters while letting middle class and working Americans lose everything we’ve worked for now that the banks and Wall Street tycoons screwed up the economy.

    You want to know why the Republicans just took over the House? This is exactly why! Because people like me are being screwed by our President and our Democratic Party, and liberals are still busy trying to give illegal aliens amnesty instead of helping the people who are paying for all of this mess. After voting for CHANGE, many of us are realizing we’ve elected a president who is willing to cheat people out of their retirement in order to pay for people who can access Social Security without ever paying into the system. We’ve worked our whole lives, only to realize that we’ve gotten suckered by politicians who want to give illegal aliens amnesty in order to buy votes for their next election.

    You care about kids? Fine, help me send my own kids to college. Better yet, help me keep my home and pay for health care and food and school supplies for my kids. I’m being taxed to death, and I’m fed up with being forced to take care of everyone else. Is that hard-hearted? Maybe so. Maybe liberals should start thinking about taking care of the backbone of America, those of us who have paid taxes our whole lives and who are now watching all of our work go down the drain as our government and the banks cheat us out of everything we’ve worked for our entire lives.

    Think about that when you start planning for the 2012 elections. Because it’ll be even worse than it was this year if liberals keep trying to take care of everyone except the people who have kept this system afloat for all these years.

    • Annette says

      PS- I feel for the starving children in Latin American countries whose parents have NOT snuck across the border to be in this country. Shouldn’t we care as much for them as for the people who broke the law to come here? What about those people who choose to abide by the law and immigrate legally? Should they have to compete for jobs with people who are illegal aliens? Should Americans who have been here for generations have to pay for children of people who fly or drive here to have babies, then return to their country of origin to raise their Instant American Citizen who can then access free college funding in the future?

      Sure, give this woman her kid back and screw the people who came to his rescue and took him into their home and made him a part of their family. Then the next time illegal aliens are deported, American families won’t be so eager to help out the kids they left behind and refuse to send for. But how about we deny his citizenship and send him back to wherever she came from and don’t let her use her child as a reason to jump to the head of the immigration line, OK? Because if she just wants her kid, fine. But if he’s her ticket to American citizenship and that’s why she didn’t bother to take him home with her when she was deported, than that’s a terrible reason to take him away from the family that loved him enough to adopt him and provide for him.

  2. Jody says

    The child was not “dumped” here. She did not “abandon him”, she was arrested against her will. It is also fallacious argument to conflate the issue of illegal immigration with that of parental rights. The US Supreme Court in the Troxel decision of 2000 made it very clear that “parental rights” are “fundamental” rights and the state must meet a very high standard in overturning or denying those rights.

    The Fourteenth Amendment Due Process Clause has a substantive component that “provides heightened protection against government interference with certain fundamental rights and liberty interests,”… concluded that strict scrutiny is the appropriate standard of review to apply to infringements of fundamental rights.

    Because she was here illegally does not nullify her rights as a parent, nor does her being arrested equate to abandonment.

    Parental rights are innate, and not based upon whether the parent is a citizen of the country in question.

    The tone of Annete’s comment sounds like she is willing to separate a parent from its child as a form of punishment or an example. Her opening paragraph also makes claims that reflect ignorance and the facts. It also ignores the moral aspects of this case. When American citizens are arrested they do not lose parental rights, and the laws are designed to make it difficult for parental rights to be abrogated without a clear showing of abandonment.

    I have to wonder how good people can become so hard-hearted and lose their sense of humanity. We are humans first, parents second, and a citizen of a country a distant third.

  3. Joe Maizlish says

    Our arms are being twisted alright, but the twisting is being done mostly by the system which sponsors and profits from the economic-political system to which U.S. interests have contributed and continue to contribute — the system which keeps millions in this hemisphere in conditions so dire that some of them “jump the line” (
    Annette’s term) of those waiting for legal admission to the U.S. and come and stay without authorization to the land to which some of their homeland’s material and labor resources have been taken for little remuneration.

    Others victimized by the system are those in the U.S. who lose their employment or endure reduction of real wages without proper support, retraining, and assistance, and are cast loose in a declining and increasingly unequal domestic economy. Such dislocations are more the result of the breakneck globalization (again to the profit of a few) and corporate control of the political system than they are the result of the entry of and competition from immigrants (though despite denials by supporters of immigration, there are effects in some areas of work).

    But even in those areas, the immigrants themselves are not the appropriate targets for criticism or anger given the desperation that motivates them; nor is it fair to slander them with the mostly imaginary claim that their purpose in migrating is to obtain public benefits (which they actually earn by their generally low-paid and unprotected work here).

    On family separation: Deportation does not necessarily mean separation of the parents and children, since the child(ren) is/are likely to be permitted entry to the land of origin of their deported parents, though I imagine it would be difficult for a single parent being deported to have a child accompany them. Of course a parent will be reluctant to take their child back to the poverty in which they hoped at least their child, if not they themselves, would find refuge. But law enforcement itself does not require deported parents to leave their children in the U.S.

    Instead of leaving the situation to develop as it has, or jumping to create a complex system of differentiating among who gets and who does not get birthright citizenship, let’s create a solution based on correct identification of the causes and all the harms involved. That means a strengthened safety net and income/job protection here in the U.S. for the rights and needs of all residents/citizens and workers, strong international labor standards, less drainage of the hemisphere to the short-term profit of elites (wherever they are), and generally changes in the system which enable people — wherever they are — to enjoy well-being and develop themselves as the valuable resources we all can be.

    Joe Maizlish
    Los Angeles

  4. Annette says

    This woman abandoned her son. Just because our antiquated, archaic birthright citizenship law says that her baby is an instant citizen doesn’t mean that she should dump him here. At this point, reestablishing her parental relationship could be her ticket back to this country, which would allow her to jump ahead of other potential immigrants that have been waiting to come here and that just might have better values and wouldn’t desert their kids.

    It’s a hard situation, but illegal aliens are twisting our arms behind our back by coming here, having kids, and then crying about how our system is “tearing their families apart.” The real problem is their decision to break the law to come here and dump their kids on the American taxpayers. This woman will probably get her kid back and use his US citizenship to her own advantage. Meanwhile, the parents who stepped in to help and who have loved their son for three years will likely lose him to someone who deserted him here. And this child is not the only instance of the abuse of our generosity. Millions of illegal aliens are deliberately having children here so they can access American taxpayer funded social services. The more people who abuse the system this way, the more pressure there is to give them amnesty to “keep their families together.”

    The solution is NOT to give illegal aliens amnesty, it’s to change the Fourteenth Amendment so that babies of illegal aliens are not “instant citizens” who can therefore access all the US social service programs that US taxpayers fund, including welfare, foster care, Section 8 housing subsidies, and Social Security. (Even if their parents never paid a dime into the Social Security system, children of illegal aliens can receive SS benefits just because the parents managed to have the birth in our country.) As long as we have a policy that allows birthright citizenship, we have an enticement for women to come here either legally or illegally to give birth. Birthright citizenship is just another way foreigners can jump ahead of the immigration line because all those babies and kids are automatically a priority over potential adult workers who could come here and actually help our country instead of just cost us money. And each one of those “instant citizens” can sponsor the immigration of all of their family members, helping them jump ahead of other potential immigrants on the waiting list. Birthright citizenship and amnesty for illegal immigration is just not fair to those immigrants who abided by the laws, nor is it fair to those who are still waiting to come here.

    Whatever happens in this court case, we should be actively working to change the archaic Fourteenth Amendment that was written to ensure the the children of slaves are US citizens. It was never meant to encourage massive abuse of our immigration policy by those can now fly into this country and claim citizenship for a child born here while they’re on vacation, or even while they’re illegally working in our country. Citizenship should be based on the parent’s citizenship, not on their sneaky, illegal actions.

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