MIAMI – A judge criticized state child welfare officials Monday for saying a Cuban girl at the heart of an international custody battle would be irreparably damaged by being taken from her foster parents and returned to her father, because she'd formed a bond with them.
Cuban farmer Rafael Izquierdo is fighting his daughter's wealthy foster parents for custody of the 4-year-old. He allowed the girl's mother to take her to the U.S., but the woman later allegedly attempted suicide and allowed the state to take custody of the child.
Rebecca Kapusta, an attorney for Florida's Department of Children & Families, argued the girl should be allowed to remain with former baseball agent Joe Cubas and his wife, and that the Cuban-American couple be allowed to begin adoption proceedings.
"Our experts have told the father to remove this young girl at this young age would result in permanent injury and she would never recover," Kapusta told Miami-Dade Circuit Judge Jeri B. Cohen.
Cohen responded, "What you're trying to do is say that if a father wants to remove his child from placement ... that if a father does that or a mother, that constitutes prospective abuse? I have never seen anything like this in all of my years of doing dependency."
Cohen dismissed that charge against Izquierdo, 32. But she allowed the trial to go forward Tuesday on allegations that Izquierdo failed to protect his daughter by allowing her to come to the U.S. and that he abandoned her once she was here -- warning state officials that after providing reams of evidence their case was flimsy.
"They are so locked into something that as state employees, they can't see the forest for the trees," Cohen said.
Even if Izquierdo can prove he's a fit father, he still has to show it's in the girl's best interest to return with him to Cuba.
He says he wants to bring his daughter back to his family home in the central village of Cabaiguan, where he lives with his parents, wife and their 7-year-old daughter.
The DCF maintains that he abandoned the girl by allowing her to come to the U.S., didn't provide child support and didn't send birthday or holiday cards.
Izquierdo's attorney, Ira Kurzban, said he let his former girlfriend, Elena Perez, take their daughter to the U.S. because he wanted the girl to have a better life, and that he could not have predicted that Perez would have a breakdown.
Kurzban said it would have been impossible for Izquierdo to send child support given the high exchange rate -- Izquierdo had the equivalent of $400 in the bank -- and the difficulty in getting money out of Cuba.
The department also says Izquierdo didn't immediately come to claim her after her mother was hospitalized, but the judge pointed out that it took months for the U.S. to issue Izquierdo a visa, and that she even had to intervene.
The judge also told Kapusta, "We know that there were extenuating circumstances because of what goes on between Cuba and the United States. I know that and you know that."
She read from a letter Izquierdo wrote Perez shortly after he found out the girl was taken from her custody, where he thanked her for sending photos and videos of his daughter and said he was moved by one in which she held a balloon reading "I love you Dad."
In it, Izquierdo also wrote, "You know that I did not want her to leave, but I gave way because it was to be with you, but if that isn't so, I am here to take care of her."
Izquierdo's attorney accused DCF of setting up his client by demanding he appear in person -- thus ensuring the young girl would spend months with her foster family and become bonded to them.
The custody fight has been much less sensational than the international battle over Elian, the Cuban boy who was 5 when he was found at sea after his mother drowned during an attempt to reach the U.S. in 1999. He ultimately was returned to Cuba with his father after U.S. agents seized the boy from a Miami home at gunpoint.
But the ghost of the Elian case hung over the courtroom Monday. The judge who initially put the girl in foster care had been an attorney for Elian's Miami family and Cubas was among community leaders who visited the boy and brought him gifts.
Perez won the visa lottery to come to the U.S. with her son and daughter in 2004. In transcripts from earlier hearings Cohen read in court Monday, Perez said that her husband abandoned her after she arrived in the U.S. and she couldn't find enough help from relatives and agencies.
Perez has told authorities she wants her daughter returned to Izquierdo, but she had allowed the Cubases to adopt the girl's half brother.
Cubas said the girl, who calls him "Papi," shouldn't be separated from her brother and doesn't want to go back to Cuba. Both sides have been keeping the girl's name a secret.
Cubas, 46, has represented the New York Mets' Orlando "El Duque" Hernandez and several other defecting Cuban ball players. Cubas became a controversial character in the late 1990s for his alleged role in helping them leave the island. In 2005, his sports agent certification was suspended following accusations by one defector that Cubas took his immigration documents and refused to return them. He has denied the allegations.