Baby Formula

Steve Harhai, a family-law attorney and past chair of the family-law section of the Colorado Bar Association who has written several of the state's family-law statutes, says that while it's not common for foster parents to intervene in a dependency-and-neglect case, it's not unheard of, either. "I have represented foster parents on more than one occasion who have gotten involved in cases because they are concerned about a child in their house," he says. "Usually foster parents have more information about a child's needs because they are with her day in, day out. It used to be that they were forbidden to get involved, but that made no sense, so the law changed more than a decade ago."

But Harhai has also seen his share of kids with attachment disorder, the psychology buzzword du jour, and says that since Rosa has been with her fourth set of foster parents for a year now, it would be cruel to return her to her biological father no matter how good a parent he might be or how entitled he might be to have custody of her.

"She is old enough to realize what's happening. She sees her father and is beginning to realize that she's getting yanked out of her home. It could terrify her," he says. "This kid is really at risk for attachment disorder. A kid naturally wants to attach, but when she's yanked out of three or four different homes, the kid starts to think it's not worth it and won't attach anymore. If there is a bond between this girl and her foster parents, it's extremely dangerous to break that. While it's a sad situation for the dad and his family, it's an even sadder situation for the child.

"The inherent conflict between what a child needs and what a parent's rights are is something the courts deal with all of the time, and the people who do this every day agonize over it," Harhai continues. "As unjust as it may be to the father, you can't go back and change [the way the case was handled]. He's in this situation now, and the question is, do you take the risk of disrupting one more attachment? Do you say, 'We'll spin the dice and hope she does well for the sake of the father?'"

He adds that once a child is out of the United States, there is little anyone here can do to ensure her safety and welfare, and that even if the new custodians are willing to provide reports to the court, as the Lazaro-Avinas are, "all the goodwill in the world wouldn't enable the court to exercise control over the child's protection. If the child, God forbid, turns up dead, they'd all blame themselves."

In a review of the case that accompanied her report on Rosa's attachment problems, psychologist Ryder also asserted that Ponciano was still seeing Gonzales and that if he continued to see her and have custody of Rosa, the girl's health could be endangered. (Gonzales admits that she was inhaling paint vapors early in her pregnancy but that she stopped when she learned she was pregnant; according to people who have spent time with Rosa and spoken to her doctors, there doesn't appear to be anything wrong with her development. Gonzales also insists that she has been drug-free for several months, despite urine tests indicating otherwise).

Ryder also states that "there is a strong possibility that they are living together as well as being engaged to be married. Mr. Avina seems to be in denial of the substance-abuse problems Ms. Gonzales has. All of these issues demonstrate that Mr. Avina is unable to place the best interests of [Rosa] over his and Ms. Gonzales' needs."

Ponciano and Gonzales both say that they don't so much as talk to each other over the phone, that they're not engaged and that they've never lived together.

Apparently they were a little closer in February, however. That's when Gonzales got pregnant again; she says Ponciano is the likely father. "They said that since I'm pregnant, we're in a relationship, but you don't have to be in a relationship to have a baby," Gonzales says, adding that they conceived the child during a one-time reunion after she got out of a drug rehabilitation program. If the baby, who is due in November, turns out to be his, Ponciano says he wants custody of that baby, too. His parents say they would welcome that child in their house as well.

But at that same April 25 hearing, guardian ad litem Littman submitted a request to terminate Ponciano's parental rights. In his motion, Littman stated that "the treatment plan has been unsuccessful in rehabilitating either [Ponciano or Gonzales], and neither respondent can provide reasonable parental care for the minor child; the respondents are not fit; the conduct of the respondents is unlikely to change within a reasonable time" and that "less drastic alternatives to termination of the parent-child relationship are not viable or in the best interests of the minor child."