1-Hour Arrest

Her hard-rubbed eyes drooping with worry, Mercado says she told the caseworker, "Please don't take our children. We love our children."

In the months since, one of the couple's most onerous problems has been resolved. In late March, a week after the Dallas Observerasked District Attorney Bill Hill about the case, he ordered the criminal charges against both parents dropped. "It has some gray areas to it, but it doesn't rise to the level of a crime," Hill said. He said justice comes from more than isolating facts and interpreting them in a way to make them narrowly fit into a criminal statute.

Still, at press time, child welfare authorities continue to maintain control of the boys, even though a lawyer appointed to represent them says he believes they should go home. In its latest legal filing, the state said it would not consent to releasing the boys until the couple jumps through more hoops, including a lie-detector test they must take at their own expense.

"They ripped out my heart," Mercado says. "Even if we get them back, I don't know how we'll recover from what's been done."

"How could they accuse me of doing something with our own children?" says Fernandez, a lanky 35-year-old who worked as a hospital technician in Peru before embarking on his disastrous start in Texas. "How can they accuse us of being something we're not?"

It wasn't difficult at all.

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When Andrew Chatham first learned of the Mercado-Fernandez case from lawyer Steven Lafuente, who the family hired at the outset, he was certain there must be more to it than a picture of a mother with an infant's lips on her breast. "I wondered what I wasn't getting," he says. "There had to be more."

There was not.

Police and child welfare files contain no criminal histories, no hint that there were other suspicions or evidence of child abuse or neglect. Mercado and Fernandez had not been in the United States long enough to have histories of much of anything. She arrived in August 2001, moved in with her parents in Richardson and took a job cleaning a nearby Wal-Mart in the middle of the night. Johnny arrived about 13 months later and went to work cleaning stores, too, before moving on to a job in a budget steak house.

By the time Chatham became involved in the case, which his partner Bill Stovall took on without a fee, the parents were devastated and penniless. "I think the police department and the DA's office select people to prosecute who have the least ability to defend themselves," says Chatham, who says he took the case on principle. "If these pictures were on their way back to some big home in Highland Park, they would have turned around and left. They were going after easy marks."

Mercado and Fernandez--who were released on bonds of $10,000 and $12,500, respectively--borrowed money from their family to get out of jail and drew comfort from the help and encouragement they received from their church.

Maybell Palacios, Mercado's aunt, says her niece is as dedicated a mother as she has ever seen. "She'd be working seven days a week at nights, and when she'd come home tired she had time for her children. To feed them. Wash them. Do their clothes."

Victor Jaeger, pastor of the Iglesia Adventista del 7 Dia de Richardson, says, "The community has been very supportive of them. They see it as a big misunderstanding." About a third of his Spanish-speaking Seventh Day Adventist congregation in blue-collar East Richardson is Peruvian-born.

The pastor says he was prepared to testify on the couple's behalf and explain what appears to him to have been a cultural misunderstanding. Jaeger, who grew up in Peru, says breast-feeding is culturally important in his native country and considered acceptable to do in public, particularly in the country's jungle regions. "My cousin sent me a picture of her newborn, and it was of the baby being breast-fed," he says. "As someone who has lived here for 20 years, I asked myself, 'Why did she send me that picture?' To her, it was nothing."

To memorialize the act of breast-feeding in a snapshot is as common in Peru as wanting to save a photo of a first step, or a first two-wheeler, or a first baseball game, he says.

Jaeger says Mercado and Fernandez, who both have roots in rural Peru, "sat in my office crying" on several occasions. He has come to the conclusion that they are good parents caught in an awful bind.

Their most pressing problem was the breast-feeding picture, which the indictment characterized as sexual, "to wit; actual lewd exhibition of...a portion of the female breast below the top of the areola, and the said defendant did and then employ, authorize and induce Rodrigo Fernandez, a child younger than 18 years of age, to engage in said sexual conduct and sexual performance." In other words, says Chatham, the act of simulated breast-feeding, captured on film, was being portrayed as a sex act. "They're saying the guy who took the picture is a sicko and wanted a photo of this to satisfy his sexual desire."