In a tiny town just outside Joplin, a landmark adoption case tests the limits of inalienable human rights

In a tiny town just outside Joplin, a landmark adoption case tests the limits of inalienable human rights

John H. Tucker

published: October 20, 2011

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."