Border Battle

A child is torn

In legal jargon she is called Baby Girl, Alien No. A21324657. The day after she was born to a Mexican mother in a Tijuana hospital, she was carried away by an American couple. Adopted, say the couple; kidnaped, says the mother. In the six years since then, a bitter, tangled legal battle has been fought over the custody of the bright and friendly child, piling up proceedings in seven U.S. courts alone and calling for Solomonic choices between two families, two nationalities, two cultures.

The mother is Angela Macias-Rosales, 34, who, with her common-law husband, runs a small restaurant near Tijuana. She has been dramatized in the Mexican press as "Madre sufrida sin hija" (long-suffering mother without daughter). The Americans are Mark Johns, 42, and his wife Eileen, 39, who in 1975 traveled to Tijuana from their home in Fremont, Calif., to adopt a baby. Whether a transaction occurred and how legitimate it may have been remain murky. What is known is that the Johnses crossed back over the border with the child, whom they named Cynthia. A Mexican judge, acting on Macias-Rosales' complaint, issued a warrant for Mark Johns on a kidnaping charge.

In the U.S., justice moved slowly.

Cindy had celebrated her third birthday before immigration authorities finally ruled that there had been no legal adoption and she should be deported. Johns, a medical laboratory consultant who has sometimes posed as a doctor, quickly moved his family to Florida. Soon thereafter, lawyers for Macias-Rosales found them, and a flurry of activity ensued in state and federal courts, resulting in a deadlock. In early 1980 the Immigration and Naturalization Service again ordered deportation and got Cindy, kicking and screaming, as far as Miami International Airport before a federal judge intervened.

Five months later, the U.S. Court of Appeals for the Fifth Circuit invalidated all prior INS proceedings. The reason: while the feuding parents had attorneys, no one represented Cindy, which the court found to be a denial of due process.

A judge picked Miami Attorney Theodore Klein, 41, to be Cindy's guardian, instructing him to determine which outcome would be in the child's best interest and to press for it with the INS and in the courts.

It was a tough assignment. A psychological evaluation of Macias-Rosales indicated that she would be a good parent, but other consultants recommended that the Johnses keep Cindy because a strong bond had formed between them. Some also noted another barrier to life in Mexico: Cindy speaks no Spanish. After a year, Klein concluded that the child should be reared by the Johnses, mainly because of educational opportunities in this country. Klein's critics accused him of cultural bias and insisted that U.S. courts had no business ruling on the fate of a child who was in this country illegally. Some complained that the Johnses were being rewarded for having flouted the law long enough to strengthen their emotional-bond argument.

Now it appears that the legal wrangle may have been an empty exercise.

In September, as both sides prepared for a further INS hearing, Macias-Rosales flew to Miami and went to visit Cindy, who had been living for more than 18 months in a "neutral" foster home in Fort Lauderdale. Says Macias-Rosales' attorney, Elizabeth Baker of Miami: "It was a very emotional reunion. Cindy read to her and showed off her dolls." Later they went for a walk. And never returned. Subsequently, Attorney Baker confirmed that Cindy was in a "nice quiet place" in Mexico with her mother and a younger brother and sister. The Johnses and their attorney are outraged.

Says Klein, with more detachment: "It is an irony that it ended with a kidnap, the same way it started."

Then again this may not be the end.

Klein has filed kidnap charges with the Fort Lauderdale police, and last week a federal judge ordered a hearing on contempt charges against Macias-Rosales.

But, of course, Cindy may be beyond the reach of U.S. courts. Mark Johns once vowed: "I will never let Cindy out of my sight. If they send her to Mexico, I'll take Eileen and go and move in right next door, I guarantee you." They just may have to do that.

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