Family disputes adoption

Monday, September 25th 2000, 12:00 am
By: News On 6

BELEN, N.M. – A 6-year-old girl brought to the United States for medical care is at the center of an international custody battle.

The Guatemalan parents of Michell Marion Johana Tobar Perez say they did not allow a Valencia County family to adopt her.

Michell was born in Pajapita, Guatemala, without a lower left leg and with webbed fingers on her right hand. She was brought to the United States for medical care in 1995.

During 10 months of treatment, she lived with Don and Rita Naylor near Belen. She was sent back to Guatemala but returned more than two years ago for additional treatment.

Last year, the Naylors adopted her.

Her birth parents are fighting the adoption.

"I had a lot of trust, and never did I think I would lose my daughter," Michell's birth mother, Doris Magali Perez, told the Albuquerque Journal and KLUZ-TV.

"It was a shock for us to find out she had been adopted," Ms. Perez said. "All I want is justice. I have faith that I can take my girl to Guatemala."

The Guatemalan government has backed Michell's birth parents and insists she be returned.

Ms. Perez has been in New Mexico since July, and says she has seen her daughter only three times in the past two years.

Attorney Jane Rocha de Gandara, who represents Ms. Perez and Michell's father, Juan Francisco Tobar Silverio, said international law was not followed.

The Naylors' attorney, John J. Romero Jr., disagrees.

"My clients followed the rules of civil procedure of the state of New Mexico, and attempted to contact them [the Guatemalan parents]," Mr. Romero said.

One of the notices about the adoption was published during November 1999 in El Hispano News, which does not circulate in Guatemala.

Mr. Romero said Michell is getting medical treatment she wouldn't get in Guatemala, and his clients are paying for it. He said his clients would have no comment "until we've had our day in court."

The U.S. Immigration and Naturalization Service has rejected an attempt by the Naylors to naturalize Michell, claiming international rules on adoptions were skirted. The agency says Michell was here on temporary visas, not permanent residence.

"In this case, the [Guatemalan] parents had not terminated parental rights," said Charles Kirk, head of the INS office in Albuquerque.

The birth parents have filed a motion in state District Court to rescind the adoption.

Earlier this month, a consular official and others testified on behalf of the Guatemalan parents at a hearing in Los Lunas. A second closed hearing is scheduled for Tuesday.

The adoption was reached by default judgment, meaning the birth parents could not be reached or did not respond.

Thirteenth Judicial District Judge John W. Pope signed the adoption decree Dec. 23, 1999.

The child's birth mother contends the girl's family was never contacted until U.S. Embassy officials in Guatemala told her about the adoption in March.

"Evidence was presented to me which I thought was sufficient to grant an adoption, and it was unopposed," Judge Pope said.

No attorneys or representatives for the Guatemalan family appeared in court in the December 1999 hearing, Judge Pope said.

John Ulmen, an honorary consul for Guatemala, says a permanent guardianship document signed by the parents allowed the Naylors to act as foster parents only while Michell received treatment.

"We want the child returned to her family and her country," Mr. Ulmen said.