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Denver District Juvenile Court Judge Dana Wakefield surprised everyone and baffled some last week when he ruled on the 21-month-old Ponciano Lazaro-Avina case.
Ponciano, a Mexican immigrant, had been fighting to have his daughter returned to him and his family ever since she became a warden of the state shortly after her birth in February of 1999.
After being in three foster homes, Rosa (not her real name) was placed with Christopher and Dawne Gomez in September 1999. The young couple, who now live in Broomfield, had hoped to eventually adopt the baby. The guardian ad litem, who was appointed by the court to represent the baby's best interests, had argued since April that the child would fare best with the foster parents; he asked Judge Wakefield to terminate the parental rights of Ponciano and the baby's biological mother, Priscilla Gonzales, so that the Gomezes could adopt Rosa ("Baby Formula," September 7).
Instead, Judge Wakefield granted permanent parental responsibility of Rosa to the Gomezes but did not terminate Ponciano's or Priscilla's parental rights, meaning the Gomezes won't be able to adopt Rosa but will be, for all practical purposes, her parents. The judge also ordered that Ponciano and Priscilla be allowed to have limited visitation time with their daughter, as long as it doesn't disrupt the Gomez family; the Gomezes must supervise the visits until Rosa is older.
When Rosa was born, Ponciano thought he would be taking her home from the hospital. The Denver Department of Human Services had a different idea, however: Caseworkers had previously taken away a son from Priscilla because she had a drug problem. Ponciano fought to regain custody of Rosa, but he was living in an apartment with five friends at the time, and DDHS caseworker Pat Killen didn't think that was an appropriate living arrangement for an infant. Ponciano was told that if he wanted his daughter back, he needed to find a place of his own and provide proof of a steady job.
Ponciano did everything that was asked of him, and in December 1999, Killen recommended that Rosa be returned to her father within six months. The Gomezes hired an attorney at that point to try to keep custody of Rosa. Ponciano then decided that asking to have the child placed with his parents, who live in rural central Mexico, would give him a better chance of getting his daughter back in his family; perhaps the court would look more favorably upon a stable family with multiple siblings who could share the responsibilities of child-rearing than upon a single man who worked six days a week and lived alone, he reasoned.
But a few months later, Killen changed her mind and recommended that Rosa remain with the Gomezes. She testified that although she felt Ponciano was a good father, she was concerned that he was still involved with Priscilla and that Priscilla's drug problem would endanger Rosa's health. Ponciano was so upset with the way his case had been handled that he filed a complaint with Mayor Wellington Webb's office in August, asking for an investigation of Killen's conduct and that of case aide Raul Escalante. According to DDHS deputy manager Donna Good, that investigation is ongoing.
At about the same time, Ponciano requested that a Spanish-speaking caseworker handle his case, so Gina Gonzales, another DDHS employee, took over. At that point, the department's recommendation changed from placement with the foster parents to placement with the grandparents in Mexico. When questioned about the department's second change of heart during the October court hearings, Gonzales admitted she hadn't read the whole case file because it was long and because it was out of her possession while the investigation into Killen and Escalante was under way. Yet she had decided to recommend placing Rosa with Ponciano's family anyway. Because of that, Judge Wakefield disregarded all of her testimony, something he's done only once before in more than twenty years on the bench. Her obvious bias, he said during his ruling, tainted everything else she said so much that he "just couldn't believe it."
"I don't know whether it was a personal agenda or one hoisted upon her by the department," he said. "I am appalled that in a case of this magnitude and of this complexity, any professional -- no matter how long the case file -- would draw a conclusion without having read the file."
He added that it was "absolutely mind-boggling" that DDHS would deprive a caseworker of a file on such a hotly contested case or that Gonzales wouldn't have demanded it back. He was left to conclude, he said, that the reason Gonzales failed to read the whole case was because she'd already made up her mind.
Ponciano, who had originally intended to return to Mexico with Rosa, further angered the judge when he stated that he would rather remain in the United States and send money to his family to help care for Rosa if he won custody. "He can come here, make money and send it home to Mexico in an envelope, but he can't be so cavalier as to come here, make babies with American women and send them home to Mexico," the judge said.
Last month, Ponciano paid for his parents to take a bus here from the state of Guanajuato, and the Mexican Consulate in Denver helped secure temporary visas for them. Once here, they testified in court about their home life and their desire to care for Rosa, whom they met for the first time during their visit. But Judge Wakefield said he couldn't justify sending Rosa out of the country with virtual strangers simply because she is related to them. "Why would we send this child to Mexico solely in the name of biology? We can maintain closer biological ties by keeping her here," he said, adding that the risk of breaking Rosa's attachment to her foster parents -- the only two people who have cared for her consistently for more than a year now -- weighed equally in his decision.
Now that Rosa will remain in Colorado, she will be able to see both of her biological parents as well as a newborn sister. Priscilla Gonzales gave birth to another daughter last month. Although DNA tests have not yet confirmed paternity, Priscilla has said she's certain Ponciano is the father. Priscilla passed her recent drug tests and was allowed to take the child home; intensive in-home services are being provided by DDHS to help her care for her baby. By staying here, Rosa may also be able to get to know her half-brother, who has been in foster care since March 1998.
Following the judge's ruling, members of the Gomez family, who were present, burst into tears of joy.
The ruling, however, came as a shock to Ponciano's attorney, Clara Romero, who had seemed confident that her client would prevail. "I'm more confused than disappointed," she said. "This is not a permanent resolution. It puts the child in limbo because the parents still have legal rights...The case could stay open forever."
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