AMERICAN FORK — Collected in the extra bedroom of the home he shares with his aunt, Jose Vargas has piled the toys and other items he is gathering for his 2-year-old daughter, Major.
The room is ready for a fresh coat of paint, but Vargas, 24, is dragging his feet. It's another reminder that Vargas doesn't know when or even if he will see the curly haired toddler again.
Vargas is currently tangled in a complex bid to reclaim custody of his daughter, who has been in the care of the Department of Child and Family Services since the girl's mother lost her parental rights a year ago.
While Vargas had steady and supportive involvement in Major's life after she was born and has not been found by DCFS to be an unfit parent — in fact, he has never been evaluated — his paternity was never established on paper, leaving him with little legal foothold when he asked to raise his daughter.
"Growing up, my parents always told me it's all about family, that you have to be there, and it's part of your manhood," Vargas said. "I know that Major deserves the best, and the only way I can make sure of that is if I do it. I want to do it, to do what I have to do.
"I love my daughter. I have to try."
A spokesman for the Utah Attorney General's Office declined to comment about the DCFS case.
Becoming a daddy
Though the couple never married during the three years they were together and had separated before Major's birth in July 2014, Vargas said he was committed to raising his daughter. He was there to support the baby's mother when Major was an infant and, in a situation similar to that of many divorced parents, he began taking her to stay with him on the weekends once she was old enough.
Vargas was amazed at how completely his love for his daughter consumed him.
"I loved taking care of her," he said. "My sisters loved her, my nephews loved her, it was all good. We were a little family."
Vargas doted on his daughter. He bought her dresses and pajamas and toys. He marveled about how similar their dark hair was. It was an instant daddy-daughter connection, he said.
"Everything I did was for her. Everything I'm doing now is for her."
But the baby's mother was struggling.
The woman fell into drugs, drinking and partying, according to Vargas, and before long, DCFS stepped in and took Major.
However, the expectation remained that the woman could get her daughter back through a reunification process. Vargas said he did all he could to help the mother remain positive, bringing her to court and "team meetings" with DCFS.
But the mother became resistant, avoiding Vargas when he came to take her to appointments or simply refusing to come, he said. About six months in, she gave up entirely, surrendering her parental rights to the state.
"I'd look for her, I would literally hunt her down and take her to the meetings," Vargas said. "She had a lot of things to do, she had to get clean and attend certain classes and everything, and I don't know, I guess she just couldn't do it."
With Major's mother no longer legally in the picture, DCFS began seeking to have the girl adopted, despite Vargas' requests to return his daughter to him.
A search of state court records confirm that the woman pleaded guilty to an alcohol related misdemeanor charge filed in September 2014, additional misdemeanor charges in late 2015, and throughout 2016 she was charged in several separate misdemeanor cases with allegations including possession of drugs and drug paraphernalia, assault by a prisoner, assault against a police officer and alcohol-related offenses.
The woman also faced a third-degree felony charge of assault against a prisoner and is currently in the Utah County Jail following an arrest in late September.
'Hole in the law'
Vargas continued his own efforts trying to call the right people, attend the right hearings and fill out the right forms in order to claim a legal right to his daughter.
He was also saving money to hire a lawyer, and in November 2015, just a month before Major's mother lost her parental rights, attorney Caleb Proulx agreed to represent Vargas at a deeply discounted rate.
"Jose's case is a really good example of how difficult it is for unmarried biological fathers to navigate the legal system and establish paternity," Proulx said.
Additionally, he said, the case shows "an added layer of difficulty when a kid has been taken into DCFS custody if a father hasn't already established paternity."
Proulx calls it "a hole in the law," an unanswered question of what to do when one parent loses his or her rights and a child is taken into state custody, all while the other parent is attempting to prove he or she is fit to care for the child and is trying to establish parental rights.
"If you miss those opportunities, in most instances, you've lost them," Proulx said.
In December 2015, Proulx filed paperwork on his client's behalf seeking to establish paternity and be awarded custody. In the meantime, Vargas sought visitation with Major from DCFS.
As legal maneuvering got underway, Vargas was denied.
"They stopped letting me see her," said Vargas, who hasn't been in contact with his daughter for a year now.
Because Vargas' name was never added to Major's birth certificate, he said he had spoken to her mother about going together to the Office of Vital Statistics to fill out a voluntary declaration of paternity. Doing so would secure Vargas' parental rights, he explained, and he would begin paying child support to the mother to help care for Major.
However, the paperwork had to be completed on site with both Vargas and the mother present.
After Major was taken into state custody but before her mother gave up her parental rights, Vargas finally got the woman to go with him to fill out the forms, only to learn she had forgotten her identification.
Vargas never got another chance before the woman's parental rights were terminated.
"That's the sad thing about this case. He knew he needed to establish paternity, which, without the help of a lawyer, can be really difficult," Proulx said. "They went down there and made that effort but were turned away."
Proulx also maintains that DCFS never evaluated whether Vargas is fit to be a parent. He acknowledges Vargas isn't perfect — he faced some alcohol-related charges a few years ago — but says neither are many parents. If the review was done, Proulx believes the state would have no grounds to keep Major from her father.
"He was really involved in the case, but he just wasn't a party in the case because he had never established paternity," Proulx said. "He would show up to hearings, he drove the mother to visits, but as far as the court was concerned, he didn't have any kind of legal claim because he didn't initially establish paternity."
For the past year, representatives from DCFS have argued that Vargas simply took too long attempting to establish paternity, Proulx says. He counters that, regardless of when it is ultimately decided on paper that Vargas is Major's father, his involvement in her life since birth entitles him to constitutional protection as a parent.
To further complicate the case, Proulx and Vargas have faced several challenging legal hurdles and complex questions about the law.
For one, Proulx argued that the judge who initially considered the case, 4th District Juvenile Judge Suchada Bazzelle, had already made up her mind without fairly considering Vargas' petition.
Proulx ultimately filed a motion to have Bazzelle disqualified from the case, arguing that the judge had made statements that were biased or appeared to be biased, court documents state. A judge agreed and the case was reassigned last month to Juvenile Judge Douglas Nielsen.
"That's the other kind of tragedy of it," Proulx said. "Since we got involved and established paternity, we've basically waited an entire year to have a judge in the case actually look at the facts and look at: Is Jose fit? Is he a fit parent? Could he be a fit parent? What was his involvement? And is it in Major's best interest to go back to him?"
Having a new judge on the case has renewed Proulx's confidence that Vargas can win.
"We think that, if we can survive to the point where the juvenile court is saying, 'OK, let's look at the evidence, what kind of relationship did Jose have with his daughter?' we have a really good shot of visitation and potentially even full custody," Proulx said. "I think if we can get to the point where the judge is actually looking at the evidence, we have as good of a shot as anybody."
There are still deep legal and procedural questions surrounding the case as well, Proulx said.
The attorney may get a chance later this month to argue one of those issues before the Utah State Court of Appeals, the question of whether Bazzelle had the ability to grant Vargas legal paternity, which she attempted to do, before she turned around and ordered him to relinquish those rights.
Meanwhile, Proulx says various parts of Utah law — the Utah Adoption Act, the Juvenile Court Act and the Utah Paternity Act — conflict with one another in some areas and leave gaps regarding fathers' rights in others.
"The courts themselves are struggling with laws that don't really match up and leave a lot of questions unanswered," the attorney said.
Pacing a waiting area outside Nielsen's juvenile courtroom last month, Vargas said he still feels uncomfortable in court.
"It doesn't get easier," he said.
The hearing for the day accomplished little, as Nielsen, who is still familiarizing himself with the complicated dispute, asked for additional briefing on the case. Vargas left the hearing crestfallen, telling his attorney, "I really thought I was going to get visitation."
For now, Proulx is seeking to have visitation with Major restored while she remains in DCFS care. After that, he will seek full custody for Vargas.
Proulx believes DCFS is attempting to "price (Vargas) out of justice," dragging the case out until Vargas can no longer afford an attorney.
In order to keep going, Proulx extended Vargas credit for his services a while back, a bill he knows may never be paid in full. Still, he is willing to give the hopeful father a chance.
"A lot of people in his circumstance don't get this far just because they don't have the money for it," Proulx said. "I was determined that, if we lost, it's not going to be because of that."
A GoFundMe campaign has been established seeking support for Vargas' legal fees. It has raised just over $2,000, with a high goal set of $25,000.
In the meantime, Vargas is doing all he can to make sure he is ready to be a positive example and a supportive father to Major should they be reunited.
Vargas had been preparing to go back to college when he first learned he was going to be a father, but he put those plans on hold in order to take a full-time construction job to save money for the baby.12 comments on this story
Now, as he works to get Major back, he is employed and has completed his first semester at Utah Valley University where he hopes to get into a nursing program. He is proud to have earned a 3.4 GPA, but he wants to do even better in the spring. During school breaks he makes additional money working construction.
"To be a dad, you pretty much know that you have to be successful in life, you have to be financially stable. If you're not, have to work toward it," he said.
Even following the latest setback in the case, Vargas says he is doing what he can to stay hopeful, and he still believes he will see his daughter again.
"We're just trying to keep our heads up," he said. "I have my daughter's room ready, so when she's ready to come back, I'm ready."