By Jack Escobar
This is the story of a five-year-old boy with tousled black hair and a wide, happy face. He lives in Joplin, Missouri, a city of 50,000 people tucked into the southwestern corner of the state. Depending on who you ask, this child’s name is either Jamison Moser or Carlos Bail. Jamison Moser is the adopted son of an adopted mother, Melinda, and her husband, Seth. To Encarnación Bail Romero, his birth mother, he is Carlos Bail, last seen when he was six months old, taken from her after she was arrested for being an illegal immigrant. As ordered by the Missouri Supreme Court, a judge in the Jasper County Circuit Court will now decide, once and for all, what his name is.
Encarnación Bail Romero, a young woman from Guatemala, gave birth to Carlos in 2006. She shares his coffee-colored eyes and olive skin. Carlos was her son for six months, until Encarnación was arrested in an immigration raid on the poultry farm where she worked. ICE took her into custody in May 2007; his first overnight stay with Seth and Melinda Mosher was on October 3rd. Two days later, the Mosers filed a petition to terminate Encarnación’s parental rights and adopt the child as their own. The trial judge granted it.
You might think the judge would have stopped and thought about the case in front of him. A young mother sat in federal custody, separated from her child against her will. She might have been an illegal immigrant, but she was a mother above all else. Instead, he reasoned, “[Encarnación]’s 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. A child cannot be educated in this way, always in hiding or on the run.” So, because Carlos’ mom didn’t come to this country with a passport, the Government stole her child. No sweat. Petition granted.
Unquestionably, what the judge did there was, (as the Missouri Supreme Court could and should have said,) “crazy fucking illegal.” It’s unconstitutional. It’s abhorrent. And If you type “Carlos Bail” into Google, you can find hundreds of voices united against this unimaginable travesty of justice. The judge on remand, under this kind of scrutiny, will almost definitely apply the law to the facts and send Carlos Bail home to Encarnación. The Missouri Supreme Court’s 5-4 majority implied as much, with the dissenting four screaming it from the rooftops. The hundreds of voices will breathe a sigh of relief, and the rule of law will once again paper over another of its life-altering mistakes.
But nobody ever talks about the kid.
Please don’t mistake me for the original idiot who adopted Carlos out in the first place. I’m not. Living in Guatemala is not so endlessly horrible that the adoption court should get a free pass to pretend the Fourteenth Amendment doesn’t exist. And, because the Thirteenth Amendment recognizes that people aren’t property, the Mosers cannot seriously argue that they get to keep the baby on the basis of some insane “adverse possession” theory. The legal rule cannot possibly be that if you hide an abducted baby for long enough, you get to keep it.
Yet, consider the case of Carlina White, named Nedra Nance by her “mother,” Ann Pettaway, the woman who stole her from a hospital and raised her for 23 years. New York Magazine’s portrait of Carlina paints a picture of a girl without a country. “’When someone asks me what my name is,’ she says, ‘I say Netty. I don’t tell them my name is Nejdra, and I don’t tell them Carlina. Netty’s not what the Pettway family gave me or what the White family gave me. It’s what I gave myself.’”
Now, somewhere between birth and 23 years, there was more than likely a time when Carlina could have been taken from Ann Pettaway and given back to the Whites without much impact on her self-identity. The question the judge in Carlos’ case will have to answer is, is five years of age inside of that window?
My problem with the case is that the judge is going to pretend that the law has an answer to the question in the first place. We lawyers say that good judges “apply the law to the facts” with a certain bourgeois pride in our tuition-bought impartiality. Here, the Missouri Supreme Court has instructed the trial judge to reach a decision based on what the legal precedents say, when the legal precedents should say absolutely nothing. It’s no use to look to “what the law says” when the law should shut the fuck up.
Here’s why. Our common law system, as a self-referencing set of axioms, can only lay down rules of general application. It has to, otherwise we wouldn’t need a man in a black dress to examine individual cases in the first place. Since lawyers know that in certain cases—like Carlos’ initial adoption case—having a general rule is stupid and worse than useless, they were presented with a problem. The courts struggled with this quandary for many years without finding a workable solution. But, with deep thought and great perseverance, lawyers eventually found a solution to the philosophical paradox. They invented a stupid, worse than useless general rule that would cover these kinds of squishy cases. We politely refer to it as “the reasonableness test.” It works well until some moron uses it to steal a kid from his undocumented mother.
The tragedy of Carlos began once the law realized it made a grievous error, because then the law tried to fix its error. How did the law try to fix it? It purported to use another one of its pretty-good-until-it-sucks general rules, namely, the Fourteenth Amendment. I’ll give the Government partial credit—it did at least do something about the blatant violation of Encarnación Bail’s human rights. The Missouri Supreme Court had all the best intentions when it “reversed” the lower court, but that “reversal” is the whole problem with our either/or legal system. When you make a mistake, the right solution is not always to go back and blindly do the exact opposite. “We take baby, we give back baby” is not the same as “we didn’t take baby in the first place.”
Like my distinguished forebears, I struggle with this moral question. I don’t get to end this article with a neat point. I merely observe that the law doesn’t give a shit whether our five-year-old subject calls himself Jamison or Carlos or Jamicar. And because judges and lawyers and ICE agents can’t admit that they don’t know everything all the time, the Nettys of the world get screwed.
We would do well to think more like Solomon, and openly admit that we need to split the difference when we don’t know who the child really belongs with.
Full disclosure: the author is a child of adoption.
S.M. v. E.M.B.R. (In re Adoption of C.M.B.R.), 332 S.W.3d 793 (Jan. 25, 2011). Available at http://caselaw.findlaw.com/mo-supreme-court/1554364.html.