By Sarah Fenske
By Danny Wicentowski
By Lindsay Toler
By Danny Wicentowski
By Danny Wicentowski
By Jessica Lussenhop
By Lindsay Toler
By Lindsay Toler
Tonight, in a modest brick row house in the sleepy city of Carthage, beyond the Ozark Mountains and the mines of southwest Missouri, past the poultry plants and churches along Interstate 44 and U.S. 71, down the block from the Jasper County courthouse and historic town square, a five-year-old boy is going to bed.
Chances are the boy is unaware of the battery of lawyers debating his future. He's probably oblivious to the national immigration debates he has stirred, the newspaper headlines he has generated, the two school-district employees whose firings are directly linked to his circumstances. He very likely has no idea that the Guatemalan Embassy in Washington, D.C., is in his corner, or that a lone circuit court judge will decide his fate this winter.
To some the boy is known as Carlos Bail; others call him Jamison Moser. The Carlos contingent contends he was unjustly taken from his mother; the Jamison gang argues that she abandoned him.
Encarnación Bail, the boy's birth mother, was arrested during an immigration raid in 2007, when Carlos was seven months old. Rather than summarily deport Bail (pronounced bah-EEL) to her native Guatemala, the U.S. government charged her on five federal criminal counts.
Bail eventually would plead guilty to a single count of aggravated identity theft and serve out her federal prison term in Bruceton Mills, West Virginia. But during the first five months of her incarceration, while she awaited disposition of her case from a Missouri jail cell, her son, a U.S. citizen born out of wedlock, passed through four different Carthage households, winding up in the home of a childless young couple, Seth and Melinda Moser, who fell in love with the dark-haired baby with the big brown eyes. A year later the Circuit Court of Jasper County formally made the Mosers the boy's adoptive parents.
In 2009 Encarnación Bail challenged the adoption in court. An appeals court sided with her, but the Mosers lobbied successfully to transfer the case to the Missouri Supreme Court.
Earlier this year, by a 4-3 margin, Missouri's highest court issued its ruling in [T]he Adoption of C.M.B.R., a minor that was just shy of Solomonic.
On the grounds that the process had been tainted from the very start, the panel voided the Mosers' adoption and sent the case back to square one in Jasper County Circuit Court. Encarnación Bail is again Carlos' mother in the eyes of the law. But the court also ruled that the Mosers are to retain custody of the boy, at least until the circuit court judge reaches a decision. The adoption hearing is scheduled to begin December 6.
From gavel to gavel, the original adoption hearing lasted a little over an hour and a half. Encarnación Bail awaited the verdict in a federal prison 800 miles away.
This time around the little Midwestern town will be the focus of substantially greater attention. Over the past three years, the adoption case has made headlines in the national media and caught the eye of immigration-policy experts nationwide who believe its outcome will affect the estimated 5.5 million children in the U.S. who are living with at least one undocumented parent.
In its ruling, the Missouri Supreme Court neatly — if dividedly — boiled the case down to a single legal issue: Did the boy's birth mother abandon him while she was in jail?
But the real-life scenario that hangs in the balance is anything but tidy: An American citizen, born out of wedlock to undocumented parents, will either be returned to the care of a woman who is almost certain to be deported to her native Guatemala with a son she has not seen in more than four years. Or else the boy will go on living with the middle-class couple that has raised him since infancy and, quite conceivably, never see his mother again.
"What happened to the birth mother was completely illegal," observes Marcia Zug, a professor at the University of South Carolina School of Law, who specializes in family law. "But you can't just pretend certain things never happened."
Adds Zug: "I'm very glad I'm not the judge."
On May 22, 2007, U.S. Immigrations and Customs Enforcement raided a poultry plant in Cassville, about 70 miles southeast of Carthage near the Arkansas border. Among the 136 George's Processing Inc. workers arrested was Encarnación Bail, a Guatemalan native who was employed under a false name and Social Security number. George's would later pay a $450,000 fine. Bail was jailed pending arraignment.
The Cassville raid wasn't Bail's first encounter with immigration enforcement. She had been deported in 2005 but made her way back from Guatemala, leaving two children behind with family members. In 2006 she gave birth to a third child, Carlos, on American soil. (The boy's father, himself an immigrant, was never a factor with regard to the case; Bail says he has been deported.)
Laura Davenport, a bilingual child-development worker employed by the Carthage School District, would later testify that during the first months of Carlos' life, Bail struggled to make ends meet. Davenport came to know Bail through Parents as Teachers, a program funded by the Missouri Department of Elementary and Secondary Education that offers education and support to families with the goal of preparing children for kindergarten entrance.
Davenport would later testify that when she discovered that mother and baby were sleeping on the floor of Bail's apartment, she obtained a crib for Carlos. She would also subsequently report that the infant seemed developmentally delayed and physically weak. Because Bail had not obtained a birth certificate for her son, he was ineligible for government-subsidized infant formula; Davenport testified that she used her own money to buy formula.
By the time of her arrest, Bail had moved in with her brother, who also lived in Carthage. Suddenly finding himself responsible for the full-time care of an infant, Carlos' uncle passed along the baby to his sister, who lived in town as well. Not long after that, Davenport referred the aunt to a young couple she knew, Jennifer and Oswaldo Velazco, who offered to babysit Carlos for free. The Velazcos belonged to a local evangelical Christian church, where they were both ordained as pastors.
(Carlos' peregrinations are traced in various court records; unless specifically noted, all information about the case presented in this story has been drawn from judicial findings, court case files and other public documents, including personal correspondence and transcripts of hearings conducted by the Carthage R-9 School District.)
Encarnación Bail's relatives seemed to appreciate the Velazcos' gesture — so much so that what began as daily sojourns quickly evolved into weeklong sleepovers: Monday through Friday Carlos lived with the Velazcos; on weekends he lived with the Bails. Sometimes he stayed with the Velazcos straight through the weekend.
Four months after Bail's arrest, in September 2007, the Velazcos introduced the baby to a young couple who lived across town. The Velazcos knew Seth and Melinda Moser through the Mosers' in-laws. Unable to conceive a child together, the Mosers had applied with the state to become foster parents.
On October 5, according to subsequent court testimony, Carlos moved in with the Mosers. A brief Encarnación Bail's attorneys submitted to the Missouri Supreme Court states that when her brother-in-law arrived at the Velazcos' to pick up Carlos on or about October 6, "Child was not there and the Velazcos told her sister and brother-in-law that the 'government' and 'marshals' took Child."
Days later Bail's relatives received a letter, reproduced here exactly as it would later be included in a Missouri appeals court opinion.
To Whom It May Concern:
I am writing this letter in regards to [Child]. Who will no longer be in our care or living in our house after 10-7-2007. The couple [Respondents are] pursuing adoption in the case of [Child]. The papers for them to get guardianship of [Child have] already been sent to the family courts of Jasper County by their lawyer. And there is nothing that we can legally do nor can you. The only person that has the chance to do anything is [Mother]. The proper papers have already been sent to [Mother] at the jail. If you wish to know more about this matter you need to be in contact with [Child's Mother]. And we ask that you please no longer contact us in respect to this matter. Because it is out of our hands now.
The Velazco Family
As her infant son made the rounds through Carthage, Encarnación Bail was 90 miles away at the St. Clair County Jail in Osceola, awaiting a plea hearing.
On September 19, 2007, she received a visitor.
Two years later, testimony would reveal that Laura Davenport had requested to see Bail in her professional capacity as a Carthage school district Parents as Teachers staff member and under false pretenses, having told her supervisor only that she was driving to Osceola to bring Bail an application for a birth certificate so that Carlos would be eligible for state-subsidized immunizations and infant formula.
After dropping off the application with jail personnel, Davenport met with Bail. Corrections officials recorded the conversation, which took place in Spanish. An English-language transcript that was later prepared for Carthage school officials and obtained by Riverfront Times reveals that at no point during the hourlong dialogue did Davenport tell Bail anything about a birth certificate.
Instead the school-district employee focused almost entirely on persuading Bail to give up Carlos for adoption.Click here for a link to the transcript from the St. Clair County Jail.
"The reality is if you take this child to Guatemala he's not going to have a life, no future," Davenport told Bail. "He may or may not have food. He will not get an education, and he will grow up to be a man that doesn't know how to make a living."
"But, what I think, if they do deport me, I want to take my child with me," Bail responded.
"But this is a pretty story that you are thinking so you don't have to [go] back alone," Davenport said. "You're not thinking about the well-being of your son. You're only thinking about yourself."
As the hour wore on, Davenport continued to make her case for adoption, but Bail stood her ground. She explained that she'd been calling her sister every week as the two women attempted to obtain a passport for Carlos so that he could stay with family members in Guatemala until she'd served her sentence and been deported. She asked Davenport to bring her photos of Carlos, explaining, "I feel sad because I haven't seen him." And she asked Davenport to come for another visit and bring Carlos along so she could hug her son.
"The idea of adoption is not something bad," Davenport persisted. "It's something beautiful. What you are saying by giving him up for adoption is that you know he will be in better hands and he will grow up with better opportunities. One day he will find you and say, 'Thank you mom for giving me these opportunities.' Because you can't give them to him."
On October 10, 2007, three weeks after Davenport's lobbying trip, Bail signed a plea agreement admitting guilt to a single count of aggravated identity theft in exchange for a two-year prison term.
On October 16, still in jail awaiting sentencing, Bail was served with notice (written in English) that Seth and Melinda Moser had petitioned to adopt her son.
Two days later a Jasper County judge held what is known as a transfer-of-custody hearing. (Records of that hearing are under seal, but subsequent court opinions contain references to the proceeding, as well as some specifics.) Bail did not attend; she had not been alerted to the hearing, nor had she retained an attorney. Carlos did have a representative in court that day: a court-appointed guardian ad litem whose legally mandated duty was to safeguard the baby's interests. The guardian ad litem, who'd been appointed only a few days earlier, told the judge that Carlos' was "an emergency situation in that nobody had the ability to care for [him]."
The judge awarded custody to the Mosers.
Court documents indicate that Bail might not have been made aware of the whereabouts and custodial status of her son. On June 13, 2008, appearing in federal court in Springfield for her formal sentencing, Bail told the judge: "[M]y child is in the custody of the government at this time."
That fall Circuit Judge David Dally presided over a hearing to decide custody once and for all.
Laura Davenport and Melinda Moser each took the stand at the October 7, 2008, court proceeding. Both testified that at the time he was placed in the Mosers' care, Carlos Bail was underweight, developmentally delayed and not current on his immunizations.
In delivering his verdict, Judge Dally expressed little sympathy for the boy's birth mother. "[Her] lifestyle, that of smuggling herself into a country illegally and committing crimes in this country, is not a lifestyle that can provide any stability for a child," he stated. "A child cannot be educated in this way, always in hiding or on the run." He predicted that Bail "would be unable to provide adequate food, clothing or shelter to [Carlos] in her physical custody in the future."
With that, Dally terminated Bail's parental rights and approved the Mosers' application for adoption.
The hearing lasted 106 minutes. The following weekend Carlos Jamison Moser celebrated his second birthday with his new parents.
On road maps of the state of Missouri, the town of Carthage registers as a dot fifteen miles northeast of Joplin. But if there were a map that charted the annals of the U.S. Civil War, Carthage would be denoted by a star.
On July 5, 1861, as Missouri governor Claiborne Jackson — a secessionist sympathizer who also happened to be the head of the state's militia — was retreating south from Jefferson City toward Confederate territory, a group of German volunteers from St. Louis cut him off at Carthage and engaged him in a daylong gunfight. Neither side admitted defeat, but owing to exploits such as this, St. Louis' ragtag contingent of German volunteers would later be credited with saving Missouri for the Union.
Though it was burned to the ground during the war, Carthage was rebuilt in the space of three years and became known far and wide for the elegant Victorian houses commissioned by lead and zinc mining tycoons based in Joplin. In 1895 Jasper County's majestic courthouse, which featured locally quarried limestone, was erected smack in the middle of the town square. A Romanesque wonder, the edifice now does double duty as a repository for Carthage's historic artifacts, including Civil War memorabilia, massive bronzed cannons and a wrought-iron elevator operated by a silver-haired man named Larry who has a habit of whistling and jingling the keys in his pocket.
But there's a less genteel side to Carthage these days, as well. In the neighborhoods north and east of the courthouse, out of sight of the old-money establishment, residents are darker-skinned and speak a foreign language. Since 2000, the city's Latino community has nearly doubled in size, to the point where Hispanics now comprise 25 percent of Carthage's population. Most are from Guatemala; many hail from the same village. A large number entered the U.S. without authorization and now toil in the region's many factories and poultry plants.
The cultural divide is impossible to overlook, but no one here knows how best to address it.
"The topics of many city meetings are about how to integrate the two communities," says John Hacker, managing editor of the town's daily newspaper, the Carthage Press. "But there are people on the Anglo side who inevitably say that a lot of the Hispanics are illegals who need to learn English — and that's when the conversation just stops."
Though most townspeople will tell you the two communities coexist peacefully, some aren't so sure.
"It's as bad as the civil-rights movement, if not worse," opines one resident, who asks that his name not be published. "Blacks got more respect and dignity than the Spanish do here. And these immigrants are such good people. They just have no knowledge of Western civilization. And the white people treat them like fucking garbage."
Then there are those who see it the other way around — a contingent that isn't limited to Anglos. "Our people are very unfair," contends Francisco Bonilla, leader of the flock at the Iglesia Cristiana Hispanoamericana, the evangelical church where the Velazcos are members. "They take advantage of the whites. I point the finger at them because they're wrong to be here illegally. They're wrong to abuse their kids. They're wrong to drink alcohol and drive without a license."
Bonilla says that while he does not forbid undocumented immigrants to worship with his congregation, "I don't welcome them. We're not about friendship."
Seth and Melinda Moser acknowledge Carthage's ethnic tensions. Though they declined to be interviewed for this story, their attorney, Joe Hensley, says the couple sought to adopt a Latino baby, because they perceived that need in Carthage.
"Melinda and Seth are wonderful parents," affirms a friend, Bess Lanyon. "They're deeply loving people, which explains why they came to adopt Carlos in the first place."
There was another factor in play: Melinda Moser is an adoptee herself.
"She has always been so thankful for the loving home her parents gave her," says Lanyon, daughter of the pastor who heads the church the Mosers attend. "And she talked about extending that love and making a home for someone else."
On your own computer monitor, you can pull up an image of Jamison Moser, clad in a gray sweatshirt, sporting a spiky mop of thick black hair and his birth mother's big dark eyes, smiling out toward some unspecified source of amusement or affection.
He seems happy.
Melinda Moser's brother created this website, "In the Interest of Jamison," to solicit donations to cover legal expenses and provide their perspective on an adoption case the family's supporters contend has been distorted by the media.
After Judge Dally approved the Mosers' adoption petition, Encarnación Bail complained to prison officials in West Virginia, who contacted the Guatemalan Embassy in Washington.
"They called the embassy to let us know about a Guatemalan woman who seemed to be desperate about a situation," recounts Ambassador Francisco Villagrán de León, who would subsequently meet with Bail on at least two occasions and champion her cause.
"It was very, very distressing to learn about a case like this," adds Villagrán de León, who stepped down from his post in July after heading Guatemala's delegation to the U.S. for three years. "It just seemed like an incredible injustice, and that's why we thought we had to extend support and offer the best legal protection we could."
The embassy mustered a crew of U.S.-based immigration lawyers to pitch in during Bail's appeal. Attorneys from Seattle and Miami offered to represent her pro bono, while lawyers from St. Louis and Chicago pledged additional support.
Around that time, on April 23, 2009, the New York Times published a 1,200-word article about Bail's case. The piece, written by correspondent Ginger Thompson, was published in the paper's "National" section. Shortly before the article appeared, Linda Davenport wrote a letter to the superintendent of Carthage's school district complaining that Thompson's questions contained "implied accusations and threats" and were "bordering on harassment." Davenport's supervisor, Lynda Homa, testified at a school-board hearing months later that "we would not even be here — I don't believe — at this time if the New York Times reporter had not come to Carthage. Because when the New York Times reporter came to Carthage, this is when all of this took place."
And in St. Louis this past November, the Post-Dispatch editorial board didn't mince words: "Missouri Supreme Court must reunite child with immigrant mother," blared a headline in the state's largest daily newspaper.
Bail's legal team gathered a pile of evidence to support their claim that the adoption proceeding was a sham. In laying out their argument to the appeals court's three-judge panel, Bail's attorneys cited fourteen instances in which the adoption process failed to comply with Missouri statutes.
In overturning the adoption, the Missouri Court of Appeals for the Southern District focused on only one of the Bail team's contentions: that under Missouri law, Jennifer and Oswaldo Velazco had no authority to "place" Baby Carlos in the Mosers' custody — or, for that matter, anyone else's.
"Mother raises fourteen points on appeal, including a claim of error that the trial court granted the adoption without the statutorily-mandated placement requirements governing private adoption, pursuant to section 453.014 [of the Missouri Revised Statutes]," wrote the court. "This argument is dispositive of the entire appeal and we address Mother's other points only as assistance in discussing the first point."
In other words, the adoption process had gone off the rails before it had even begun.
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.)
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?
"She could have — literally, the very next day after receiving the petition — filed an objection to the Mosers having the child," says Hensley. "Instead she waited an entire year and did nothing at all. It's crazy."
Bail's legal team sounds equally confident of victory. Seattle-based Omar Riojas, a commercial-litigation specialist tapped by Super Lawyers magazine as a "rising star," says he and his cohorts look forward to watching Bail tell her story in person, to a judge. "The evidence shows she did not abandon her child," Riojas maintains.
Refashioned from an old Salvation Army storefront space, the Iglesia Cristiana Hispanoamericana is one of 37 Christian houses of worship in Carthage. Pastor Francisco Bonilla's flock is almost exclusively Latino and includes Jennifer and Oswaldo Velazco, the couple who brought Carlos into the lives of Seth and Melinda Moser.
Bonilla himself takes a dim view of Encarnación Bail. "She's not a good mom," opines the pastor, who has followed the saga from the outset. "In my opinion Encarnación is using the boy [in order to acquire her immigration] papers. She's not looking out for Carlos, but for a favor from the U.S."
Perhaps not surprisingly, attorney Joe Hensley agrees. But most immigration experts say this so-called anchor baby premise is a myth borne of misinformation. A U.S. citizen whose parents are foreign nationals must be at least 21 years old in order to sponsor them for citizenship, they point out. If the courts return Carlos to Encarnación Bail, the experts predict, she'll almost certainly be deported to Guatemala and take her son with her.
And that might well be the Moser camp's greatest fear.
"Why should he be sent with a stranger to a foreign country?" asks the Mosers' friend Bess Lanyon. "I can't even think about the possibility of what a move to Guatemala would do to that little boy. This is home. There's security here. For a parent to want to do emotional damage to a child by having them move — that's not my definition of love, which is self-sacrificing."
The Mosers undoubtedly share that sentiment. The couple declined to be interviewed for this story, but in August of last year, Seth Moser told the Joplin Globe that if Bail were to be awarded custody of Carlos, the boy would be "faced with going to a country where he's never been, doesn't speak the language and doesn't know a soul. That would be traumatic even for an adult."
When she visited Encarnación Bail in jail, Laura Davenport told Bail that if she brought up her son in Guatemala, he'd grow up to be a factory worker.
"That lifestyle in Guatemala is not romantic," Davenport declared. "It's nothing."
"Adoption is not social engineering," counters Adam Pertman, executive director of the Evan B. Donaldson Adoption Institute in Newton, Massachusetts, and author of Adoption Nation: How the Adoption Revolution Is Transforming America. "From what I can tell, the judge in this case thought the child was better off in middle-class America than a less-fortunate country. If that's the case, there are lots of kids we can take from homes in economically disadvantaged neighborhoods and place in wealthier ones."
Yet some child-development specialists paint a troubling picture along the same lines Seth Moser sketched for Joplin's daily paper.
"There will be a lot of anxiety of the child, which might manifest into problem behavior," predicts Lise Fox, a professor in the University of South Florida's Department of Child and Family Studies. "I'm pretty sure the child will experience grief."
Fox and Pertman do agree that if Bail regains custody of Carlos, the Mosers should be permitted to continue playing a role in his life.
Julie Rosicky is the executive director of the U.S. branch of International Social Service, a network that provides support for children and families that have become geographically separated for any number of reasons. Rosicky readily acknowledges the fear that can accompany international transitions, but she argues that there are mechanisms in place to conquer it. "We've gone global in so many ways — just look at the Internet, or what we stock in our grocery stores," she notes. "In the consumer context, we've accepted there are ways to get anything, anywhere, but we have yet to accept the fact that our families are diverse, too."
Rosicky adds that Carlos' case is a unique one. But she predicts that whatever might transpire in the courtroom, the boy will eventually adjust.
"There is no win-win situation, and there is going to be heartbreak, hurt and trauma no matter what," Rosicky says. "But children are resilient and can adapt. It's the parents who have the issues."
Professor Marcia Zug of the University of South Carolina School of Law has been tracking cases in which a child in the U.S. has been separated from a parent who's deemed an illegal immigrant. Citing a few dozen specific instances over the past decade, she says that for every documented case, numerous others fly under the radar; because juvenile court records typically are sealed, it's impossible to assemble a complete tally. But Zug believes the number is somewhere in the hundreds and continues to climb.
"I think it's a trend," Zug says. "It's been increasing over the last five years — much more under Obama than Bush."
Scholars and advocates say immigrant families are broken up in this country for a number of reasons, the most common of which appears to be the tendency of some judges to confuse immigrant rights with parental rights, the latter being one of the most fundamental rights guaranteed by the U.S. Constitution, regardless of citizenship or nation of origin.
Undocumented immigrants might be dispatched to detention centers without being permitted to arrange for childcare. They're typically poor, terrified, unable to speak English and unaware what rights they have. Some aren't alerted to custody hearings that have been scheduled in family court. Others don't learn that their parental rights have been terminated until after the fact.
"It's very clear that these cases do arise regularly," says Nina Rabin, director of the Bacon Immigration Law and Policy Program at the University of Arizona. In May Rabin published a report titled "Disappearing Parents," in which she recommends that detention centers establish programs to educate immigrants about their parental rights.
Owing to such trends, many legal scholars are closely following the Bail case. "It's really an indicator showing the degree to which immigrant parents are able to exercise their rights under the law," says Emily Butera, a member of the Women's Refugee Commission, an advocacy group headquartered in New York City.
Marcia Zug says Bail is fortunate to have found competent legal representation — a rarity in this type of case, and a fact that bodes well for Bail. Of the five other adoption-separation cases she has tracked that were appealed to a higher court, Zug reports, three resulted in reversal. Ironically, she says, Bail was lucky to be arrested with a federal crime, which gave her time to find a lawyer.
Zug has her own opinion about the Carthage case.
"I think there was actually some baby-snatching going on," she conjectures. That said, she blames the court, not the parties involved. "I think they honestly believed they were doing what was in the best interest of the child," Zug says. "It's a delicate point: growing up in rural Guatemala versus growing up in middle-class suburban America."
Perched on a chair in the small home she shares with her family in Carthage, Encarnación Bail resembles one of the Spanish dolls displayed on the bookshelf: her tiny frame held stiffly upright. Bail's thick black hair reaches past her shoulders; wavy bangs frame a round face punctuated by large dark eyes, one of which has welled over with a single teardrop.
Bail knows that her son lives in Carthage, but she doesn't know where, nor does she know the identity of the Mosers. "I see a little kid across the way and wonder," she says, then wipes away the tear.
When she is asked whether she wants to stay in America or return to Guatemala after the resolution of the upcoming adoption hearing, Omar Riojas, her Seattle-based lawyer who's listening in on speakerphone, cuts in to veto the question before she can reply.
An hour later Bail sits in a pew at St. Ann's Roman Catholic Church, a little nephew nuzzled on one side of her and a niece on the other, reciting the Responsorial Psalm in Spanish:
Señor, you are just and the judgments you make are right. Show me mercy when you judge me.
Whatever might transpire in the months to come, Bail has already endured a lifetime's worth of judgment since coming to Carthage. Francisco Bonilla questions why she left her other two children behind in Guatemala. When Linda Davenport visited her in jail four autumns ago, she bluntly asked Bail whether she'd had her tubes tied.
"Don't make another mistake with this child," Davenport implored.
"I have asked for forgiveness because I have made a lot of mistakes," Bail told Davenport moments later. "Right now I'm focusing on the future of my children, and I want to see them get ahead. God has put into me good thoughts. God never abandons his children."
Davenport herself paid a price for her unauthorized jailhouse visit: She was fired by the school board for improper conduct. The board would subsequently sack Davenport's supervisor, Lynda Homa, as well. Homa appealed her firing and lost.
Davenport declined to comment for this story, other than to say she had the boy's best interests at heart. "I answer to a much higher power," she wrote in a letter to Carthage School District superintendent Blaine Henningsen in April 2009, after Henningsen learned of her visit to Bail's jail cell. "I was advocating for a child; that is my job description and I am proud of what I have done in my 8 years of service to [the program] and those I have helped."
Jennifer and Oswaldo Velazco declined to be interviewed by Riverfront Times, as did Circuit Judge David Dally.
Though most Carthage residents who are familiar with the case say they've moved on, some remain intrigued by the conundrum it poses.
"I can see both sides of the story, and there's really no right answer," says Wendi Douglass, executive director of the Carthage Convention and Visitor's Bureau.
The Mosers continue to pray that the little boy they've raised since infancy will not be taken from them.
"How do you tell a child they may have to go away with someone they don't even know?" Melinda Moser mused to the Joplin Globe last August. "We've tried to explain he has two mommies. He says, 'OK, but you'll come and get me when I call, right, Mommy?'"
In his dissenting opinion in the case, Missouri Supreme Court Judge Michael Wolff, who has since stepped down from the bench and now works as a professor at the Saint Louis University School of Law, predicted that no form of closure can possibly resolve this particular conflict.
"The torturous path to the decision in this case — as is said of the road to hell — may be paved with good intentions," Wolff wrote. "But good intentions are not enough to justify what has happened in this case, now in its fourth year. The courts of this state, including this court, and our treasured adversarial system of justice have failed this child, and his birth mother, and have ensured that, whatever the ultimate outcome, hearts will be broken."