by Constantino Diaz-Duran
16 November 2010
Jailed for using fake documents in Missouri, a Guatemalan mother entrusted her son to her sister—and he was taken away and adopted by strangers. Encarnación Romero tells her harrowing story to Constantino Diaz-Duran.
Before Encarnación Romero left for work on May 22, 2007, she kissed her 6-month-old son goodbye. It was a day like any other, and she thought she would see him again after her long shift at a poultry processing plant in Barry County, Missouri. Instead, she found herself in jail that night, and she has not seen her boy since.
“I haven’t been able to see Carlitos at all,” says Encarnación. “I haven’t seen him, and I so wish they would let me see my boy, because, imagine, it’s been so long. For a long time I knew nothing about him, when I was in jail, and now I still haven’t seen the boy. And all I can do is pray and ask God to please let Carlitos be with me soon. I ask God to please let me see him soon.”
A citizen of Guatemala, Encarnación entered the U.S. illegally and used fake documents to secure her job at the poultry processing plant. She was arrested during a raid by Immigration and Customs Enforcement and was sentenced to two years in jail followed by deportation. The jail time was for federal identity theft; she used a false Social Security number when she applied for employment, a charge that would no longer be applicable today because the U.S. Supreme Court unanimously rejected its use in immigration cases in May 2009.
Encarnación, who like many legal and illegal immigrants lived with her extended family, asked her siblings to take care of her son. Eventually, one of Encarnación’s sisters became his primary caretaker, but she had three children of her own, including a baby Carlitos’ age, and a full-time job. Overwhelmed, the sister looked for someone to help her care for the baby. As a result of that decision, however, Encarnación’s parental rights were terminated and the baby was adopted by a couple the family had never met.
An acquaintance of Encarnación’s sister had taken Carlitos to the home of the minister of a local Hispanic church. The minister and his wife then got in touch with Seth and Melinda Moser, a young couple who wanted to adopt a baby. By this time, says Encarnación, she lost track of who had her baby, and she began to worry about how she would get him back. “As Carlitos’ mother,” she says, “I just felt so sad. I have to repeat it, because as a mother, you need your children to be near you, so you can look after them.”
Unable to speak English and without access to proper representation, Encarnación agonized during her two-year sentence, wondering who had her child and if she would ever be able to see him again. She has now been out of jail for nearly two more years, and while she at least knows where Carlitos is, she still has not been able to see him or hold him in her arms. “I spent two years in jail, in anguish because I couldn’t reach out to him,” she says. “And now, well, it’s the same, I still can’t see him. But God willing—this is my hope—God willing, Carlitos will soon be with me again.”
“All I can say is that the adoptive parents are not the true parents of my boy. I am his true mother and I, as his mother, have the right to raise my child, and have him with me.”
Encarnación’s parental rights were terminated by a Missouri court, on the grounds that she abandoned the child. This, according to her, is false, because she didn’t choose to leave the child, and she didn’t leave him with strangers. She was arrested, and she left the child with her siblings. “I always communicated with my sister,” she says. “I always asked her how my baby was doing.” She becomes excited when she talks about hearing his voice on the phone once. “I heard him say ‘Mama,’ and I asked my sister who was talking, and she told me it was Carlitos, it was my boy!” After a pause she adds, “But that was the only time I heard his voice.”
After her release from prison, Encarnación sought the help of the Guatemalan Embassy. They got her in touch with attorneys Christopher Huck and Omar Riojas, who agreed to take her case pro bono. Through them, Encarnación was able to track down Carlitos. Her attorneys are now seeking to have the adoption reversed and her parental rights reinstated. They won a major battle in July, when the adoption was overturned by the Missouri Court of Appeals in Springfield. Last week, the case was argued in front of the Missouri Supreme Court.
The Mosers, Carlitos’ adoptive parents, argue that they did everything according to the law and that Encarnación did abandon her child. “She did the opposite of what you might expect someone to do who’s trying to stay in touch with her child,” says attorney Joseph Henley, who represents the Mosers. “She went by different aliases, and therefore all the correspondence that the court sent her, and that I sent her, even that her attorney sent her, all came back refused.”
Huck, however, says Henley’s assertion is a misrepresentation. He explains that while Encarnación did seek employment under an assumed name, the record shows that she told immigration officials her real name during her first interrogation, within two hours of being arrested. She was apparently booked under the false name, but Huck contends that it was neither Encarnación’s choice nor her fault.
Huck also points out that the lawyer mentioned by Hensley was hired by the Mosers themselves. This lawyer represented Encarnación at the adoption proceedings while she sat in jail, and according to Huck, presented a possible conflict of interest.
While Hensley says Encarnación’s immigration status didn’t play a role in the termination of her parental rights, he places much emphasis on the fact that she was in the United States illegally and that she was convicted of a felony that directly related to her immigration status. He also alleges that she had already been deported once before, in 2005.
The Mosers’ court briefs also note that Encarnación has two older children living in Guatemala, a 14-year-old boy and an 8-year-old girl. She says she left them in the care of another sister in order to come to the United States to seek work and a means to support them.
Huck and Riojas are fully invested in representing Encarnación and defending her parental rights. They have spent thousands of hours working on the case. “We calculated,” says Riojas, “and we’ve spent, at least in attorney time, upward of $500,000 to litigate her case.” It is perhaps no surprise, then, that Huck sounds almost personally offended when he hears accusations of Encarnación being a bad mother, or a criminal.
“This family should never have been separated,” says Huck, and he is adamant that crossing the border illegally should not be grounds for a parent to lose the right to raise his or her children. “There’s lots of case law that says that parental rights are some of the oldest fundamental rights that exist under the U.S. Constitution. And you don’t have to be a U.S. citizen for those rights to apply to you.”
Huck says the Mosers and their attorneys have made much of Encarnación’s criminal conviction for identity theft while simultaneously downplaying Seth Moser’s own criminal record. The brief filed by Encarnación and her attorneys at the Missouri Supreme Court includes a long list of Seth Moser’s run-ins with the law. Among other items, the brief points out that “he was incarcerated for ‘almost a year’ for a felony criminal conviction related to possession of stolen property worth over $15,000.” Moser was also arrested for grand theft auto after “a high speed, multi-state police pursuit through Missouri, Kansas, and Oklahoma,” according to the brief. This chase “resulted in a car accident, from which [Moser] fled from the scene” before being apprehended and charged in all three states.
Since her release from prison, Encarnación has been allowed to remain in the U.S. under a special humanitarian visa, which will be valid until her case is settled. She says she realizes that she’ll probably have to go back to Guatemala at some point, but she cannot bear the thought of leaving without her son.
“It’s so hard,” she says, her voice breaking. “This is so hard, what has happened to me. So much time, not being able to see Carlitos. I still feel so sad, but I feel hope. I don’t lose faith. I have faith in my God, and I trust that He will help me and very soon Carlitos will be with me. And all I can say is that the adoptive parents are not the true parents of my boy. I am his true mother and I, as his mother, have the right to raise my child, and have him with me.”
Constantino Diaz-Duran has written for the New York Post, the Washington Blade, and the Orange County Register. He lives in Manhattan and is an avid Yankees fan. You’ll find him on Twitter as @cddNY.