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Baby Formula

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.

They claimed to be Rosa's "psychological parents" and said that removing her from the only stable home she's known in her short life would be detrimental.

Ever since then, Ponciano has been fighting the foster parents who want to adopt Rosa and the court-appointed guardian ad litem who has been arguing not only that Ponciano is unfit to care for Rosa but that the baby will have a better life if she is raised in the United States. The guardian ad litem will try to convince a judge this month to terminate Ponciano's parental rights and to permanently place Rosa with Christopher and Dawne Gomez.


Rancho el Mezquitillo, in the central Mexican state of Guanajuato, is a place where time moves slowly, little girls skip down the road instead of walk, family is the most important thing and mi casa, su casa is not only a saying, it's a way of life.

Rancho el Mezquitillo can't really be called a town, however; with only 300 people, it has none of the services towns offer -- no police, no fire department and no hospital. It doesn't even have a full-service grocery; the two shops that are there sell only ice cream, popsicles, assorted snacks, soft drinks and beer. But it's a happy place. Almost every family lives in its own small, flat-roofed brick-and-concrete home, tends its own crops and raises its own animals.

On the far edge of the village is a hacienda surrounded by hundreds of acres of farmland. Some of the men, like Ponciano's father, Francisco Lazaro, work in the fields planting onions, potatoes, cabbage and corn or picking peaches, pears and limes from the large orchard.

The local girls like to tell the story of el charro, the wealthy Mexican cowboy who is reputed to have lived at the hacienda long ago; legend has it that if someone sees his ghost, he'll tell him where his fortune is buried. Then there's the tale of the serpent that has coins for eyes; when it appears in the back acres of the farm, you're supposed to touch the serpent and become rich. The only woman in the village who claims to have seen the serpent was apparently so frightened that she turned and ran away.

Most of the men take a bus each day to San Francisco del Rincón, a 67,000-person city ten miles away, where they work in shoe factories. After work they sit outside late into the night drinking Coronas while the kids run along the deserted roads or play stickball. The women work at home, cooking, cleaning and washing clothes all day. Outside every house, ranchero or Tex-Mex music plays while mothers and daughters, sisters and cousins hang clothes out to dry. Huge agave plants dot the landscape. Livestock roam the village freely. Sparring dogs bark throughout the night, and crickets that hide under furniture in the houses keep up their song until sunrise.

On Sunday mornings the entire village rises with the roosters to attend mass. At 7 a.m., with the sky still dark, the neon cross atop the church stands out like a beacon. It's here that baptisms, first communions, quinceañeras, weddings and funerals take place. The church pews are usually so filled -- women on one side, men on the other -- that about a quarter of the people have to stand in back. The building lacks the ornamentation typical of Catholic churches: Simple wooden crosses hang on the sides of the walls, and fake flowers adorn the altar. In the center, a doll-sized replica of the Virgin Mary is encased in glass.

After mass, it's time for most families to return home and prepare menudo -- the traditional Sunday-morning breakfast of tripe served in a salty broth. Later in the day, the young men of Rancho el Mezquitillo play soccer against the nearby town of Santa Rita. On a recent Sunday, the game ended in a tie: 2 to 2.

By American standards, it's a land of want. But to the people who live here, it's a land of plenty.

It's where Ponciano was born and raised. It's where his parents were born and raised. And it's where Ponciano would like to return someday soon with his daughter.  

The Lazaro-Avina home, where six of Ponciano's ten siblings still live, is clean and tidy. The only running water comes from the shower head or a spigot outside. When the well is dry, Ponciano's mother, Maria Guadalupe Avina, heats water on the stove and the family members rinse themselves off by scooping the water out of buckets. The eight of them share one bathroom and three bedrooms, but Francisco plans to add an extra bedroom onto the house if -- and when -- his son returns with Rosa.

Although the Lazaro-Avina house doesn't have drywall or carpet -- the walls, floors and ceilings are made of the same concrete with which the exterior is built -- it has many of the accoutrements of a modern American home: a CD player and speakers, a gas stove, a big refrigerator, a ceiling fan and a television set. Every morning the kids watch old American cartoons dubbed in Spanish: Garfield, Scooby Doo, Pink Panther and Roadrunner. One evening the movie channel runs a series of Arnold Schwarzenegger films.

The home doesn't have a telephone, however, so when family members need to make calls, they either go to a store down the street that charges people for the use of its telephone or they travel to Maria Guadalupe's sister's house in San Francisco del Rincón. The nearby city is where Mexico's new president and former Guanajuato governor, Vicente Fox, grew up. But his victory in the July 2 election isn't the subject of nearly as much discussion in Rancho el Mezquitillo as what will happen to Rosa Avina.

Most people in the village have heard about the granddaughter in America; men out riding their bikes stop to ask when she's coming home. Pictures of the little girl and her father hang in a frame on the wall of Ponciano's parents' house along with photographs of Maria Guadalupe's two other granddaughters, who live in Rancho el Mezquitillo. They are both around Rosa's age. When Ponciano's older sister, Paz, visits with her daughter, Diana, who will turn two in December, the Lazaro-Avina kids compete to take care of her. Diana remains the center of attention all afternoon. Maria Luisa, six, and Silvestre, nine, take turns holding her on their laps while they watch cartoons. Later, Silvestre and twelve-year-old Moises play ball with her. Maria Luisa and her cousin Juana, seven, gently take Diana's hand and lead her outside to play. All of the kids adore her; they constantly fuss over her, hug her, straighten her burgundy-red velvet dress and play with her pigtails.

Maria Guadalupe, who is 49, remarks on how nice it would be for Rosa to grow up with Diana. "I have eleven kids, and they never bored me, tired me or gave me any trouble," she says through a translator, "so it would be great to have another one in the house -- one I can pick up and hold."

Two of her other children live in the village with their spouses; three of her sons, including Ponciano, live in the United States. Maria Guadalupe gets teary-eyed when she talks about her third-oldest child. She hasn't seen Ponciano since 1990, when he joined a cousin in Los Angeles in search of higher-paying work. "After he left, there were days where all I would do was cry for him. I was so worried, because he wasn't always working or living at the same place, so we couldn't write to each other," she says. Once Ponciano got settled and found more steady employment, she says, he started calling his aunt's house and sending letters and money more regularly.

"Ponciano was always a hard worker in school," his mother remembers. "His teachers said he was a good student and that he always paid attention in class."

The school in Rancho el Mezquitillo, Escuela de Narciso Mendoza, only goes through grade six. Another town up the road has a middle school, but children aren't required to complete seventh and eighth grades. No one in the Lazaro-Avina family, including Ponciano, has received higher than a sixth-grade education.

Maria Guadalupe explains that Ponciano always used to help around the house -- bringing in wood to burn before they had a gas stove, planting corn and tending to the peach trees. As she says this, she nudges the kids sitting on either side of her and they giggle.

"Ponciano was always really calm. They've all been really calm," Maria Guadalupe says.

And she's not exaggerating; the household is amazingly quiet. Maria Guadalupe never needs to raise her voice at the children; their regard for her is obvious. Maria Luisa and Silvestre rarely leave her side. Sometimes, she says, laughing, she gets so hot with the two of them always clinging to her -- she spends hours in the kitchen making more than a hundred corn tortillas a day -- that she wishes they'd give her some space. The kids tease each other like all brothers and sisters do, but their love for each other is easy to see. The older kids watch out for the younger ones, and all of them share whatever they have; whenever Silvestre or Moises is eating a bag of potato chips -- doused in red-chile sauce, of course -- they always offer some to the others in the room without any prodding from their mother.  

Some of the kids are too young to remember Ponciano; others weren't even born when he left. But the ones who knew him want him to come back -- and they want Rosa to come back, too.

Maria Guadalupe says that she was happy when she learned Ponciano was going to be a father, but that she was also sad, because she thought it meant he'd stay in the United States forever. Now she hopes he'll be able to bring the granddaughter she's never met to Mexico. "I wish he could come back. I want to see him. I want him to be here, and I want my granddaughter here. This is their home."

That's what Ponciano wants as well. His attorney, Clara Romero, whom he hired in July because he didn't think his court-appointed attorney was working hard enough for him, recently filed a motion in Denver District Juvenile Court asking that Rosa be placed in her grandparents' home in Rancho el Mezquitillo. Romero says that since Ponciano's fitness as a parent will be up for discussion later this month, he might have a better chance this way. "No one's arguing that the grandparents are unfit," she says.


Ponciano had heard about the American dream.

It's what lured him to Los Angeles ten years ago. But he quickly learned that the dream doesn't come true for everyone. "To make the kind of money I heard about, I would have to work day and night," he says through a translator.

A series of restaurant jobs failed to pay off -- wages weren't keeping up with the rent in California -- and selling crafts on the side didn't supplement his income enough to enable him to send money to his family. So in 1993 Ponciano moved to Denver, where one of his brothers had previously lived (that brother and another still live in California).

Here he found a steady, decent-paying job; for the last three years he's worked for Emerald Isle Landscape, where he is now a foreman supervising between three and six employees, depending on the job. Rory Lamberton, Ponciano's supervisor, says he is a model employee who shows up to work on time every day. "He's really reliable, and he's a really hard worker," Lamberton says. "He's quiet and has a good attitude. He's just a good guy."

In addition to finding good work in Denver, however, Ponciano also found trouble. In 1994 he was arrested for trespassing; in 1996 he was arrested for solicitation of prostitution and for driving without insurance; in 1997 he was arrested for drinking in public; in 1998 he got a DUI; and in 1999 he got a second DUI. In all of these cases, Ponciano pleaded guilty, and in all of them, except for the two DUIs, he either paid fines or served time. At an October hearing, he will ask a judge to let him withdraw his guilty pleas on the DUI charges.

Ponciano met Priscilla Gonzales, who was born and raised in Pueblo, shortly after he arrived in Denver. They lived in the same apartment building near Sheridan Boulevard and Sixth Avenue. Ponciano says they had talked about getting married and starting a family in the future, but the young couple didn't plan on having a baby so soon.

Nevertheless, he says, "I felt I was always in acceptance of my responsibilities as a father. I had been around newborns before, and I'd experienced that joy."

He and Gonzales say they broke up last summer because their caseworker advised them that Ponciano would have a better chance of getting Rosa back if they weren't seeing each other.

"I don't want her in foster care," Gonzales says. "I have no problem with Ponciano having my daughter. I'd rather him have my daughter, because I don't have a chance of getting her."

Ponciano agrees. "I don't want the family that has her now to raise her. I believe my baby will be better off in Mexico because she'll be with my mother all the time. My brothers and sisters in Mexico live happy; that's the way life for her should be: happy. Over there, life is very calm. Here life moves very fast. I see young girls here who grow up too quickly," he says from his apartment in Aurora.  

Ponciano's second-floor unit is an oasis in the run-down apartment complex off East Colfax Avenue. Children run barefoot and unsupervised up and down the stairs. Some tenants leave their doors open, and a glimpse inside reveals dirty dishes left on countertops and clothes strewn across the floor. The odor of rotting food wafts out onto the terrace.

But Ponciano's sparsely furnished apartment is clean. Like his parents' house in Mexico, everything has its place. Toys are lined up neatly against the wall; baby lotion rests on the kitchen counter; in the room where Rosa sleeps when she visits are more toys, diapers, a changing table and a crib. Pictures of Rosa hang on his walls and fill his photo albums.

When he looks at pictures of his daughter, Ponciano loses his shyness, and his face lights up as he explains what is happening in each photo. In one, Rosa is wearing a frilly white-lace baptism gown; in another, her godparents (friends of Ponciano's) are holding her; in still another, Ponciano is feeding her from a bottle. In the pictures, Rosa has big cheeks, a shock of dark hair and big brown eyes. She looks a lot like her cousin Diana.


It was probably those big brown eyes that captured the hearts of Christopher and Dawne Gomez as well. A middle-class couple who until recently lived in a neatly groomed two-bedroom home at the end of a cul-de-sac in Montbello, the Gomezes are first-time foster parents with no children of their own.

In a December 14, 1999, motion to the court, the Gomezes' attorney, Kama McConaughy, argued that the couple should be named as intervenors in the case so that they can participate in Rosa's permanency-planning hearings -- the court proceedings in which placement options for children are discussed. State law allows foster parents who have cared for a child for more than three months to intervene in a dependency-and-neglect case.

"The minor child has been integrated into the home of the Intervenors, has become emotionally bonded to the Intervenors, and relies upon them for not only the necessities of life but basic nurturing fundamental to the best interest of so young a child," McConaughy wrote. "Dawne Gomez left her employment to take care of the minor child on a full-time basis. The Intervenors provide a stable, loving and nurturing home for the infant minor child."

Although they wouldn't comment for this story, public records and court documents show that Christopher and Dawne Gomez are 29 and 30 years old, respectively. They had been living with Rosa in their Montbello home until selling it for $163,500 two weeks ago. Perhaps the Gomezes want to live in a bigger house or a better neighborhood in which to raise Rosa in the event that they get to adopt her someday.

The two-parent household is something of a rarity in Montbello, where almost half of the children are born to unwed mothers, according to numbers compiled by the Piton Foundation, a private education foundation in Denver. The majority of residents in Montbello own their own homes, and while the crime rate isn't low -- there were 25.6 burglaries per 1,000 households in 1998 and five violent crimes for every thousand people that year in the 18,630-person neighborhood -- they are below the Denver metro average.

A couple of blocks away from their old home is Oakland Elementary School, an expansive brick building where only 39 percent of fourth-graders scored in the proficient or advanced level in reading on last year's Colorado Student Assessment Program test. Of course, parents in Denver can now send their children to almost any school in the system -- if they take them there -- in order to give them a chance for a better education.

Court documents also show that the Gomezes and their attorney, as well as David Littman, who was appointed by the court to represent Rosa's interests, all argue that Mexico would not be an appropriate place to raise Rosa.

"[Rosa's] grandfather only earns $210 per month and the rest of the family 'income' is generated from hand-outs from relatives living in the United States," McConaughy says in a court motion. "Avina is requesting that the court place [Rosa] in a family who lives on less than the 1998 GDP per capita of Mexico, $8,300. The [foster parents] assert that it is unimaginable how it could serve the best interests of the child to send her to a family that receives the vast majority of their apparently below-poverty-level income from voluntary hand-outs which could stop at any time.  

"Further," she continues, "[Rosa] would be living in a three-bedroom house, which currently only has five beds for eight people, and has only one bathroom. It is hard to believe that [the Denver Department of Human Services] would place her in a similar environment in Denver. [Rosa] currently has her own bed in her own bedroom. She is being raised by a stay-at-home mom and a working father and enjoys a very comfortable, sanitary middle-class lifestyle."

Littman added that any attempt to place Rosa with her grandparents in Mexico "overlooks the benefits to [Rosa] of remaining in her current placement and the drawbacks of being sent to Mexico. [Rosa] was born in a country with higher educational standards and greater educational opportunities."

In March, a home study on Ponciano's family was completed by the Mexican Consulate and filed with the court. (A Mexican home study is a brief document that lists the names of all of the family members who live in the home, the type of appliances they have and the family's monthly income.) The Lazaro-Avinas' monthly household income is equivalent to $505, according to the report; it also says that the Lazaro-Avinas are all healthy.

Ponciano's attorney, Clara Romero, is convinced that the lack of progress in the nineteen-month-old case is the result of cultural bias and incompetence on the part of the Denver Department of Human Services and Littman. Although she handles mostly juvenile cases and frequently serves as a guardian ad litem herself in Adams County, Romero took Ponciano's case because she felt that since he's quiet and doesn't speak English, his voice wasn't being heard. So she became his voice -- and a very loud one, at that.

For instance, after caseworker Killen apparently changed her mind and recommended that Rosa be placed with the Gomezes permanently, Romero sent a letter to Jude Liguori, Killen's supervisor and a child-protection administrator with the department. In the July 11 note, she writes, "In reviewing the file and discussing the case with the case worker, Pat Killen, it is blaringly apparent that Ms. Killen's inability to speak Spanish and her lack of experience and knowledge of the Mexican culture has crippled the progress of this case...Ms. Killen has not spoken with the grandparents and does not know the first thing about the beauty, morality and strong family values of colonial central Mexico...Ms. Killen is not pursuing the grandparent placement because the current foster family wants to adopt [Rosa]. The foster family's wishes are not justification for blowing off a relative placement and denying [Rosa] the love and companionship of her large biological family."

Romero says that when she talked to Killen shortly after taking the case from Ponciano's court-appointed attorney, Vivian Burgos, Killen told her, "If Mexico is so great, why is he here?"

"That's the attitude we're dealing with," Romero says, adding that she recently took Rosa to the Mexican Consulate to receive a Mexican birth certificate. Rosa now has dual citizenship.

Jesús Gutierrez, a consular officer at the Mexican Consulate in Denver who is familiar with Ponciano's case, says he sees three or four cases like Ponciano's each year, in which foster parents try to adopt a child born to a Mexican immigrant. The consulate's job, he says, is to protect the rights of Mexican immigrants and to act as an intermediary between the local department of human services and the equivalent agency in Mexico; the consulate provides the American department with information about relatives in Mexico and conducts a home study that shows the family's income, educational background and criminal record, if there is one.

He says judges often place children with their biological relatives in disputes such as these.

"When it comes to making decisions about life standards, money is not everything. It's about family for us. It's not about whether the child will get to go to Harvard. In Mexico they don't have the same standards. Family is the most important thing. With different cultures, it's impossible to compare," Gutierrez says. "But it is important that the family has a proper house and that the child's basic needs are met. If the family is willing to take care of the child, it is very important."


But standard of living isn't the only issue the Gomezes are raising in their attempt to keep Rosa.

At an April 25 hearing in the case, the Gomezes introduced a report written by child psychologist Gloria Ryder, whom they hired to analyze Rosa's reaction to the visitations with her natural parents. In it Ryder writes, "[Rosa's] parenting time with her biological father, Mr. Ponciano Avina and biological mother, Ms. Priscilla Gonzales, needs to be discontinued immediately. [Rosa] experiences symptoms of anxiety, sleep disturbance, abandonment feelings and disruption each time she has parenting time with Mr. Avina and Ms. Gonzales. Mr. and Mrs. Gomez, [Rosa's] foster parents, report that sometimes when Mr. Raul Escalante, from the Department of Human Services, picks [Rosa] up from their home, she will cry and/or become somewhat agitated. After [Rosa] is returned from her parenting time with Mr. Avina and Ms. Gonzales, she becomes emotionally distressed, cries and exhibits psychological trauma.  

"According to Mr. and Mrs. Gomez, after [Rosa] has parenting time with her biological parents, she must go through a process which appears to be relief that she is back with them, anger at them for letting her go, will not sleep through the night and wants to sleep in their bed almost 'glued' to them during the night. It appears that [Rosa] seeks to have her security needs met. Additionally, it appears that [Rosa's] abandonment issues are triggered each time she has visitation with her biological parents...Given [Rosa's] history of three foster care placements in her young life of just being over one year old, it is very important to pay attention to the severity of symptoms that persist."

Ryder wrote her report without ever observing Ponciano with Rosa; she states in her report that she tried to meet with him but that he declined. Ryder told Westword that she could not talk about the case since it involves a juvenile.

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."


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.

The reports also reveal Ponciano's feelings of helplessness in regard to the system. At the January 11, 2000, visitation, case aide Raul Escalante writes, "Pickup was made on time. [Rosa] was not ready for transport, she was still asleep. Foster mom told me to tell Ponciano to change her. Transported [Rosa] to client's home. Dad was ready to receive her. Home clean, a few dishes in the sink. Dad a tad upset about how slow things were moving, he feels that nothing is being done and that foster parents are in the lead."

On March 30, 2000, Escalante notes, "Visit starts on time. [Rosa] grew a big smile when dad answered the door. Dad took her in his arms and took her in. [Rosa] is walking a bit more. Once again I told dad to praise her when she does. Dad appears to feel threatened by foster parents. Dad calls lawyer. Lawyer tells dad that a psychologist is going to be visiting and evaluating him. Client doesn't see why?? Client asks why is it that the foster parents are the only ones being listened to and he is not being heard??"


Despite the visitation reports that show Ponciano's attentiveness during visits, Juvenile Court Judge Dana Wakefield agreed on July 6 to reduce the father's visitation time from three days a week to once a week. Ponciano says he lived for every Tuesday, Thursday and Saturday that he would get to see his daughter. But he says even those visits were few and far between. He and Romero have reported eighteen days in May, June and early July that Ponciano's visits were canceled by the foster parents.

"They would say that the baby was sick or that they were taking her on a trip. And Raul [Escalante] would cancel, too, saying his car broke down or that his wife was sick," Ponciano says. "They used to ask me to sign permission to let them take her on trips, like to Colorado Springs, but now they just take her."

Lately, the animosity between the two sides has resulted in personal grudges being battled in court. The foster parents reportedly denied manipulating the visitations during the July 6 hearing, which was continued until September 20 at Romero's request; she told the judge that since she had just taken the case, she needed more time to familiarize herself with it. In a recent motion to reinstate Ponciano's parenting time, Romero writes, "The Intervenors' disobedience and defiance of this Court's parenting time order is contemptuous and meant solely to sabotage the reunification goal. Furthermore, the Intervenors' acts are so intrusive and such an obstruction to justice that the child's long term interests are in jeopardy. On that basis, the Respondent moves the court to either return [Rosa] to her father or move her to another foster home so that the reunification work can continue, unobstructed by a desperate, selfish, childless couple who have proven that they will go to any extreme, including perjury, to disrupt [Rosa's] bond with her father. If [Rosa] is showing behavior deviation, perhaps it is because by interfering with her parenting time, the Intervenors are disturbing her only constant and loving attachment. Maybe she is even feeling abandoned."  

Romero is arguing that the foster parents' alleged tampering with Ponciano's visits is a serious offense. She points to a state kidnapping statute that states: "Any person, including a natural or foster parent, who, knowing that he or she has no privilege to do so or heedless in that regard, takes or entices any child under the age of eighteen years from the custody of his or her parents, guardian, or lawful custodian, commits a class 5 felony."

Ponciano is now turning to Mayor Wellington Webb's office and to the manager of the human services department for help; he filed a complaint on August 20 and requested that they review the Gomezes' foster-care license and investigate their alleged interference with his visitation time. He also requested that they look into the conduct of caseworker Pat Killen and case aide Raul Escalante.

After Westword requested interviews with the foster parents, their attorney filed a motion asking the judge to restrict any parties involved in the case from speaking to the press. At the August 24 hearing on that and other motions, Judge Wakefield said it's not his job to restrain anyone from talking to the media. He also issued a stern admonition to McConaughy and Romero for the vitriolic tone in their recent motions and said that the already circus-like atmosphere of the case has only been enhanced in recent weeks as Romero and McConaughy have continued to file frivolous motions; Romero, for example, requested that Rosa be immediately removed from the Gomez home even though there is no evidence that she is in any danger there, and McConaughy asked that Romero, a private attorney, be removed from the case.

His job, Wakefield said, is not to waste time ruling on groundless motions, but to decide the fate of Rosa Avina, which he will begin to do at a three-day hearing scheduled to start on September 20. If Wakefield finds guardian ad litem Littman's arguments persuasive enough to terminate Ponciano's parental rights, the father is prepared to appeal (as are the Gomezes, if the case goes the other way).

While he waits, Ponciano still gets up every morning and puts in a hard day's work, trying to make it through the week until Thursday evening, his one chance to see his little girl. "I want her to live like God intended us to live: happy," Ponciano says. "I want her to live happy in Mexico."


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