On July 21, 2010, the appeals court opined that Carlos was to be reunited with Bail immediately.

Now it was the Mosers' turn to challenge the courts. They mounted a successful effort to transfer the case to the Missouri Supreme Court.

Oral arguments commenced in November, and on January 25, 2011, the Supreme Court issued its opinion in case No. 91141, officially titled In re the Adoption of C.M.B.R., a minor. S.M. and M.M. v. E.M.B.R. (Though the court's ruling did not refer to the litigants by name, the parties involved had publicly disclosed their identities long ago.)

"When they met him it was love at first sight," says Bess Lanyon, a friend of Carlos' adoptive parents. "That little boy lives a wonderful life."
"When they met him it was love at first sight," says Bess Lanyon, a friend of Carlos' adoptive parents. "That little boy lives a wonderful life."
Encarnación Bail lost custody of her son while jailed for immigration violations.
John H. Tucker
Encarnación Bail lost custody of her son while jailed for immigration violations.

The high-court judges concurred with the appellate court's finding that Carlos' adoption had not been administered in accordance with state law: As Bail's lawyers had alleged, the birth mother had not received notice of the 2007 transfer-of-custody hearing; neither Bail nor Melinda Moser had undergone a state-mandated assessment of their respective ability to care for the child; nor did the state conduct an investigation to determine whether termination of parental rights was in Carlos' best interests.

The court unanimously reversed the adoption and restored Encarnación Bail's parental rights.

But there was a twist.

By the slimmest of margins, the judges upheld the Mosers' right to a new trial, sending the case back to Jasper County to begin anew.

The four-member majority acknowledged that the legal process leading to the transfer of custody in 2007 was fundamentally flawed in its execution. But the flaws, they ruled, did not negate the validity of the matter at hand: whether Bail was making certain that Carlos' basic needs were being met. There was reason to believe at the time that Carlos was in need of food, shelter, clothing and medical care, the majority found, and that the Mosers were in a position to provide those things. Regardless of the procedural gaffes that marred the case before, during and after October 2007, reassigning custody did not in itself reflect a miscarriage of justice, and the Mosers were entitled to a fair evaluation of the adoption issue, this time in accordance with legal protocol.

The majority also stipulated that Carlos must remain in the Mosers' care until custody is established. And that his mother — her newly restored parental rights notwithstanding — isn't permitted to see him.

Authored by Judge Patricia Breckenridge, the opinion makes note of the new evidence Bail's attorneys submitted but makes it clear that the majority has no intention of overturning any decision that had been reached in accordance with the evidence that had been properly admitted at the time.

Two of the three dissenting judges wrote strongly worded opinions decrying the decision. The court must not ignore the consequences of a mistake made four years prior, they argued. Having been illegally separated from his mother for all that time, Carlos should be returned to her without delay.

"Shutting this Court's eyes to the contrary evidence when deciding whether the judgment results in a manifest injustice does not negate its existence," wrote Judge Laura Denvir Stith.

"Not in 90 more days or 900 more days, but now," Judge Michael Wolff wrote in a second dissent.

In a florid footnote at the very end of the 46-page majority opinion, Judge Breckenridge directly addresses Stith's and Wolff's objections:

"Every member of this Court agrees that this case is a travesty in its egregious procedural errors, its long duration, and its impact on Mother, Adoptive Parents, and, most importantly, Child. The dissenting members of this Court rely significantly on information outside the record to find that Mother has been victimized repeatedly and that her rights have been violated. The dissenting members believe passionately that custody of the Child should be returned to Mother without further proceedings. That result can be reached only by disregarding the law."

Attorneys for both parties predict that the case now turns on the question of whether Encarnación Bail abandoned her child while in jail awaiting disposition of her criminal case.

Under Missouri law, a court may find an infant has been abandoned if a parent has "without good cause, left [a] child without any provision for parental support and without making arrangements to visit or communicate with the child, although able to do so...." Additionally, if a parent is served with an adoption petition involving an infant less than a year old, that parent can be found to have abandoned the baby if he or she "willfully, substantially and continuously neglected to provide him with necessary care and protection" for the 60-day period leading up to the petition's filing. If the Mosers and their attorney can prove Bail neglected Carlos Jamison for the 60 days prior to October 5, 2007 — the duration of which she spent in the St. Clair County Jail — Bail cannot prevent the boy's adoption.

Attorney Joe Hensley believes the Mosers will prevail. He contends that Bail would have had full knowledge of her son's whereabouts when she was served with the adoption petition in October 2007. Yet, he argues, she had made no effort to retain ties to Carlos — not even a letter "or a nominal amount of child support," he says. And why didn't she request a lawyer?

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