No one knows what Rosa Avina wished for on February 19 when she blew out the five candles on her birthday cake. But her biological and foster parents each had their own wishes for her.
Ever since Rosa was a baby, her identity has been in limbo: Is she an Avina or a Gomez?
Upon her birth in 1999, Rosa became a ward of the state. Because of a drug habit, Rosa's biological mother, Priscilla Gonzales, had already had a son taken from her, and the Denver Department of Human Services wasn't about to let her take her new baby home. (The child's name has been changed for this story.) Nor was the department going to let the baby's father, Ponciano Lazaro-Avina, have her. The Mexican immigrant was sharing a small apartment with five roommates, and social workers wanted him to find a more suitable living arrangement for his daughter, provide proof of steady employment and apply for legal residency. While Ponciano worked on those things, he told his social worker that he either wanted to return to his native Mexico with Rosa once he obtained custody of her, or send Rosa there to live with his parents while he remained in Colorado and sent money home for her care.
But when the social worker began looking into those possibilities, Rosa's fourth and final set of foster parents, Christopher and Dawne Gomez, argued that they were the baby's "psychological parents" and that it would be cruel to remove Rosa from the only stable home she'd ever known. The Gomezes were named as third parties, or intervenors, in the case, beginning a protracted parental tug-of-war that continues to this day ("Baby Formula," September 7, 2000).
In an unusual ruling more than three years ago, Denver District Juvenile Court Judge Dana Wakefield decided not to terminate Ponciano's or Priscilla's parental rights, but to grant permanent parental responsibility to the Gomezes. That meant that the Gomezes would have decision-making authority over Rosa, but they couldn't adopt her -- or give her their last name -- and Ponciano and Priscilla were granted visitation rights ("International Relations," November 16, 2000).
That arrangement hasn't pleased either side. The Gomezes want the little girl to have a permanent family, and two years after the judge issued his decision, they began asking the Avinas to give up their parental rights. The Gomezes did not return calls from Westword, but in a November 21, 2002, letter to the Avinas, they wrote, "We are asking you for your permission to allow us to adopt Rosa. We feel that our adopting Rosa will be in her best interests. It will give her a sense of stability and show her how much we really care about her. Adoption will allow us to add our last name to Rosa's so that she does not have to struggle with why she has a last name that is different from ours; this will become extremely important when she enters school.
"If you give us your consent, we will be willing to allow you to visit Rosa. We know that it is important to you for Rosa to know her biological family, and we want to maintain that relationship."
But Ponciano and Priscilla -- who have since married and had two more children together -- had no intention of giving up their parental rights. So the Gomezes started filing motions with the court, claiming that because the Avinas haven't been paying child support, their parental rights should be terminated. However, the Gomezes now live in Weld County, and the case is no longer being handled in Denver District Juvenile Court. Unable to afford an attorney of their own, the Avinas were appointed Jack Davis, the lawyer representing Albert Galvan in a similar case.
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Davis explains that even though the Avinas were never ordered to pay child support, the Gomezes can argue that by not doing so of their own accord, they abandoned Rosa. (Ponciano, however, is still paying off past foster-care bills). "If you don't have contact with your child for a year, or if you don't provide reasonable support for your child for a year, you can be considered to have abandoned your child," Davis says. "By arguing abandonment, that gets the Gomezes in the door and allows the judge to look at the case from a best-interest standard again."
Priscilla, who claims she's been drug-free for the past few years and has regained custody of her son, now eleven, says Rosa belongs with her and Ponciano. "Yeah, they've had her for a long time, but I didn't put her there, and I sure as hell didn't want her there," Priscilla says. "There's a hole in my heart that will never be filled until she comes home. She's a Gonzales-Avina."
But Rosa doesn't seem to know who she is. During a recent visit with her biological parents, Rosa was confused about her relationship to them. "Ponciano told her that he's her dad, and she ran up to me and asked, 'Are you my real mommy or is Dawne my real mommy?' She had tears in her eyes," says Priscilla, who gently dismissed the topic and changed the subject. "She calls me 'Priscilla' and Ponciano 'Papi.'"
When all parties meet in Weld County court on March 17 for a termination-of-parental-rights hearing regarding the Avinas, a judge will decide who Rosa's real mommy and daddy are. But even then, Rosa's fate may not be sealed. "If we lose," Priscilla says, "we'll appeal."