The appellate court declined to transfer guardianship of girl with FAS to her foster parents, but also declined to order that she be immediately placed in the custody of her biological father.

There was a dispute in this case about whether the child in question, Zayda, actually had FAS. A pediatrician testified that Zayda did have FAS, while a pediatric geneticist concluded that she had neither FAS, FAE, nor ARND. The latter physician testified that if there were evidence that the mother consumed alcohol during pregnancy, that might alter her diagnosis. The trial court had already concluded that the mother did drink during the pregnancy. The child had an IQ of 100; both experts agreed that that did not rule out a diagnosis of FAS. The trial court downplayed the importance of the disagreement about whether the child had FAS/FAE, since both experts agreed that Zayda needed continuing therapy sessions.

Zayda was first diagnosed with FAS in January 2000, when she was less than two. A court "ordered early intervention therapies, developmental classes, and occupational and speech therapy." She was later was "kicked out" of two day care centers for behaving badly, but her ability to extract and use learned information had improved.

The biological father had attended some of the child's therapy sessions, and understood and was attempting to help her deal with her problems.

"[He] used games, puzzles, and toys to teach her to remain focused on tasks. He also calmed Zayda when she became disoriented, frustrated, anxious, and afraid."