Baby Formula

According to the Colorado Children's Code, a body of state laws governing juvenile matters, Littman's recommendation is drastic. In fact, it constitutes the most drastic thing that can be done in a custody case, especially since the purpose of the children's code is "to preserve and strengthen family ties whenever possible."

Laja Thompson, the assistant city attorney whose role is to carry out the state mandate of reunification with parents whenever possible, has argued in a court document that the foster parents should never have become a party to the case and that the human services department got involved only because it had been monitoring Priscilla Gonzales due to her past drug abuse. "As a result," Thompson wrote, "[Rosa] was adjudicated dependent and neglected as to Mr. Avina through no fault of his own. The primary purpose of Mr. Avina's treatment plan was to ensure his capability to rear his daughter...He has since been cooperative with the [human services department] in providing information and has secured appropriate housing for himself and his daughter.

"The only remaining issue is his immigration status which the [human services department] stands firm in its position that Mr. Avina's immigration status has no bearing on his ability to parent his child. Should his immigration status ever become an issue, home studies are in progress in Mexico that would ensure that the child would be safe and well cared for in Mexico by either him or his family."

A few months ago, Ponciano did apply for legal residency, but he hasn't heard back. But since he wants to return to Mexico, his legal status may not even be an issue anymore.

Thompson, who is no longer working on the case and did not return calls from Westword, concluded her motion with the following plea: "The [human services department] concedes that the minor child has been well cared for by the Intervenor. However, their role at this time is solely as foster parents. As foster parents their job is to provide temporary care to this child. This court is obligated to rule out the respondent father (as well as mother) prior to even considering the motion by the Intervenor." (Thompson's successor, Diana Cook, said she can't comment on cases pending in juvenile court. The oversight of the case has since been reassigned to yet another assistant city attorney.)

Caseworker Killen and supervisor Liguori wouldn't talk about the specifics of Rosa's case, but Liguori did agree to address some of the department's general policies. "We always take a look at the best interest of the child," she says. "Our primary goal is to get children back with their parents, but if the parents aren't a viable option, we look at available kin who can take care of the child. When that's not possible, we look outside the family. We have a pretty high success rate of returning kids, if not to their birth parents, then to relatives."

All of this looks good for Ponciano, but he and his lawyer maintain that the foster parents, the human services department and the guardian ad litem have been unfairly working against him.

Littman wouldn't speak with Westword, but attorney Romero says that Littman has never even talked to Ponciano or observed him with Rosa. This despite a Colorado Supreme Court directive that guardians ad litem "conduct an independent investigation in a timely manner, which shall include, at a minimum: Personally meeting with and observing the child, ward, or impaired adult at home or in placement...interviewing with the consent of counsel, respondent parents; interviewing other people involved in the child's, ward's, or impaired adult's life; and when appropriate, visiting the home from which the child, ward, or impaired adult was removed."

Further, Ponciano claims that Littman told his first attorney, Vivian Burgos, that if he would just relinquish his parental rights and let the Gomezes adopt Rosa, the human services department would let him have the baby that's on the way.

At the July 6 permanency-planning hearing, the foster parents' attorney asked the court to discontinue Ponciano's visitation time with Rosa, citing Ryder's report and asserting that her biological parents are "unable to provide appropriate care for the minor child, even during supervised parenting time. For instance, on June 13, 2000, Ponciano Avina fed the minor child a spoon full of Jello and a sucker for dinner. She frequently comes home famished and exhausted. She has also been returned to the Intervenors with her dress on backwards, wearing diapers that were several sizes too small and obviously very uncomfortable for her."

The visitation reports written by the case aides supervising Rosa's visits with Ponciano, however, consistently show that he took good care of his daughter. It was often noted in the reports that he washed his hands before picking up the baby, that he inserted safety plugs in electrical outlets, that he was attuned to her needs, that he asked for help if he didn't know how to do something properly, such as bathe Rosa, that he was "nurturing and gentle," and that the baby always seemed very happy to see him.