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Baby Formula

Take one Mexican father, one drug-addicted mother and a pair of foster parents. Take away one baby.

Ponciano Lazaro-Avina is a shy 26-year-old with a soft smile and an even softer voice. He works six days a week mowing grass, trimming hedges and planting flowers so that other people's lawns will look nice. In the winter he shovels walks, blows snow and rakes away the soggy leaves that autumn left behind. He doesn't dislike the work and he doesn't like it. He just does it, because hard manual labor is a way to get by when you don't speak English and you have a singular purpose for which to work.

Ponciano's purpose is his nineteen-month-old daughter, who has been living in foster homes since she was born.

When Ponciano took his then-girlfriend Priscilla Gonzales to Denver Health Medical Center on February 19, 1999, he expected to bring home their baby in a few days. He ended up going home alone.

Caseworkers at the Denver Department of Human Services already knew Gonzales, who is now 22; she had a history of inhaling paint fumes, according to court documents. In March 1998, her five-year-old son was taken away from her after a social worker at the boy's school reported to DDHS that the boy had arrived at school smelling of paint. Priscilla went to the hospital, where her son had been taken for observation, and admitted that she had inhaled paint that morning. The boy was then taken out of her custody and has been in foster care ever since.

So there was no way the DDHS was going to let her keep this baby. When department workers learned in August 1998 that Gonzales, whom they had been monitoring because of her drug problem, was pregnant again, they ordered a dependency-and-neglect petition to be filed on the unborn baby. Gonzales's caseworker, Pat Killen, arrived at the hospital six hours after the baby was born and reportedly told the new mother, "Congratulations. I put a police hold on your daughter." Neither of the parents nor their family would be allowed to take little Rosa. (Because she is a juvenile, the baby's name has been changed for this story.)

Gonzales says she wanted to keep Rosa, and her family offered to help, but she knew she would most likely never get her baby girl back.

Where Ponciano is from, though, family is everything, which is why it never occurred to him to do anything but fight for his daughter.

He appeared in court on February 25, 1999, at the recommendation of a caseworker, but at first he had no idea what was going on. When the judge saw him there without an attorney, he asked Ponciano if he could afford a lawyer. Ponciano answered no, so the judge appointed one for him. Custody was granted to the Denver Department of Human Services, however, and Rosa was soon placed in foster care.

The DDHS eventually determined that Ponciano was not a viable custodian; he was living in a two-bedroom apartment with five male friends, and social workers didn't think it was a good environment for a newborn baby. In April, Denver District Juvenile Court pronounced Rosa dependent and neglected. Two months later, Ponciano was assigned a treatment plan outlining what he needed to do to get his baby back: find an apartment of his own and provide proof of steady employment to show that he could afford child support (the DDHS is required to make an effort to recoup the money it spends on foster care from the natural parents). His caseworker also recommended that he apply for legal residency.

By December, Ponciano had gotten his own place and produced pay stubs, but he still hadn't made child-support payments or applied for residency. Since he works more than forty hours a week and has no family members here to help watch over Rosa during the day, and because the department told him he wouldn't be allowed to split the rent with roommates (he pays $525 a month for his Aurora apartment), he told his caseworker that he wanted either to move back to Mexico with Rosa so that his large family could help him take care of her, or send her to Mexico while he stayed here and sent money home.

Caseworker Killen agreed to look into placing the baby in Mexico and noted in a December 1, 1999, progress report that the apartment Ponciano had moved into on November 10 was appropriate for him and Rosa. "When this worker saw it on November 16, 1999, it was clean and Mr. Avina had secured a baby bed."

She also mentioned that Ponciano had arrived at most of his biweekly visits with Rosa on time and that "he is always very appropriate with [Rosa]. On the visits that this worker has supervised, this worker has found that he cherishes every minute with his daughter and would stay forever if allowed to do so."

Killen went on to recommend that Rosa be returned to Ponciano within six months.

But something threw a kink into those plans. Rosa's fourth set of foster parents, Christopher and Dawne Gomez, who took her into their home in September 1999, hired an attorney. On December 14, 1999, they requested to be named as third parties, or intervenors, in the case and to be granted sole parental responsibilities.

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