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Innocent family photos of youngsters at bath time prompted child-welfare investigators to take the children from their parents and nearly landed the mother and father in jail, reports the Dallas Observer.

According to the weekly, the trouble all started for Jacqueline Mercado, 33, and her boyfriend Johnny Fernandez when she dropped four rolls of film off at an Eckerd Drugs one-hour photo lab last fall.


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Jacqueline Mercado (Photo: Dallas Observer)

The rolls of film captured images of happier times for the family – the couple’s reunion after Fernandez successfully emigrated from Lima, Peru, and the birthday celebration for their 1-year-old son, Rodrigo.

Fernandez took several photos of Rodrigo and his 4-year-old brother Pablizio playing in a neighborhood park and “playing around” at bath time. Mercado is in several of the shots unclothed from the waist up, holding her arm modestly across her bare chest. The Peruvian immigrant told the paper it is common in her native country for mothers to bathe with their kids.

One photograph showed the infant Rodrigo suckling Mercado’s left breast.

Mercado explained the photograph was meant to memorialize that stage of their baby’s development that Fernandez had missed while he was still in Peru.

“We wanted to see if he would take it, and he did,” Mercado explained through an interpreter. “Johnny never saw the child breast-feeding, so this was for memories. For us.”

Preserving the memory of a child’s breast-feeding is as common in Peru as that of the baby’s first step, the couple’s pastor told the paper.

But the innocence of it all was lost on the photo lab technician who alerted authorities, who in turn determined the pictures amounted to a felony case of child pornography.

“We thought they contained sexuality,” Sgt. Danny Martin, a Richardson, Texas, police spokesman told the Observer, explaining why two Richardson police detectives began pursuing a criminal case. “If you saw the photos, you’d know what I mean.”

Although police and child welfare files contain no criminal histories, no hint that there were other suspicions or evidence of child abuse or neglect, a grand jury subsequently indicted Mercado and Fernandez in January for “sexual performance of a child,” a second-degree felony punishable by up to 20 years in prison.

Days later, a caseworker with the Dallas County Child Protective Services Unit of the Texas Department of Protective and Regulatory Services took custody of the children and recommended to a family judge that they be placed in a foster home. According to the Observer, the caseworker’s notes state that a supervisor, acting on the content of the photos alone, decided that “the children needed to be removed from their mother’s care.”

“I think the police department and the DA’s office select people to prosecute who have the least ability to defend themselves,” said attorney Andrew Chatham, who told the Observer 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.”

In February, Chatham drafted a legal motion seeking dismissal of the indictments, using The Lucca Madonna as his star exhibit.

“The material at issue falls squarely within the ambit of the First Amendment’s protection,” Chatham wrote in his brief. “The portrayal of the suckling child is found in countless numbers of artwork. Whether the medium is canvas, marble or Kodak film is irrelevant for the purposes of First Amendment protection.”

Following the motion and an inquiry by the Observer, the Dallas district attorney dropped the charges against the couple.

“It has some gray areas to it, but it doesn’t rise to the level of a crime,” District Attorney Bill Hill told the paper.

But the children remain wards of the state.

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.”

“We fought so hard to come to this country,” she continued. “For this to happen is unbelievable.”

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