[NYTr] Closing Arguments End, Cuban Child's Custody Case Goes to Judge

Thu Sep 20 01:42:26 EDT 2007

CBS4 Miami - Sep 20, 2007
http://cbs4.com/local/local_story_261082122.html

Cuba Custody Case Winds Down With Mudslinging

Judge Will Issue Her Ruling By Week's End

Custody Trial: Judge Reprimands Defense

Ileana Varela
Reporting

(CBS4) MIAMI--The mudslinging continued -- even during closing
arguments -- in an international custody dispute involving a Miami girl
and her father, who wants to take her with him back to Cuba.

As he made his closing arguments, the attorney representing the father,
lashed out at the foster parents who have had the 5-year-old girl in
their care in Miami. Attorney Ira Kurzban also played up on the shaky
testimony that came from the girl's biological mother, Elena Perez, on
Wednesday.

"Then she came back on the witness stand, and said 'no I lied to you
again,'" said Kurzban. "So even though the day before 'I told her I
would never lie again,' she lied again."

Kurzban accused the girl's adoptive parents, Joe and Maria Cubas of
taking the girl months before being granted official custody,
statements that [the] judge was not happy to hear from the attorney.

The father of the girl in question, Rafael Izquierdo, is a Cuban farmer
who did not speak on the phone or write letters to his daughter for
nine months after she moved to the U.S., a clear sign of his
abandonment of the girl, state child welfare attorneys said in closing
arguments Wednesday. Rafael Izquierdo wants to take his daughter back
to Cuba again and denies he abandoned the girl. But he made virtually
no effort to be a parent when the girl left the island nation with her
mother, said attorneys for the Florida Department of Children &
Families and the girl's state-appointed legal guardian.

Kurzban argued Izquierdo did have contact with the girl's mother during
that time, and that it was difficult for him to get permission to leave
Cuba and to come to the U.S. to claim his daughter.

If Circuit Judge Jeri B. Cohen decides Izquierdo did not abandon his
daughter, she must then rule on whether the 5-year-old girl is better
off with him or with her Cuban-American foster parents, who live in the
Miami area and want to keep her.

The case has been compared to the one of Elian Gonzalez, who returned
with his father to Cuba after armed federal agents took him from
relatives in Miami. But unlike that case, the girl's mother wants her
to be with the father and Miami's Cuban-American community has largely
stayed quiet.

The state has taken an unusually active role in this case, which the
judge acknowledges is playing out under the specter of tense U.S.-Cuba
relations.

The girl has been in foster care since her emotionally troubled mother,
Elena Perez, tried to commit suicide almost two years ago. Her
testimony was marked by her lying on the stand, but attorneys for the
state tried to focus on Izquierdo's behavior toward the girl.

"He left her -- like Elena -- out to dry," said John O'Sullivan, the
attorney for the girl's legal guardian.

The judge called that argument the strongest one from the prosecution
side.

She wasn't as swayed by their other arguments.

When O'Sullivan said the father didn't try hard enough to come to the
U.S. and get his daughter after she went into foster care, Cohen
dismissed the point, saying the father is under the impression that she
would be repatriated. Cohen went on to blame DCF for not making more
effort to contact the father in Cuba.

"They're usually falling all over themselves calling fathers," she
said. "The difference in this case is that the father lived in Cuba."

Cohen referred several times to a previous custody case, where a
parent's recent presence in the child's life successfully challenged
the abandonment claim.

"I read that and I said, 'Congratulations, he's here now,"' Cohen said,
indicating to Izquierdo, who has visited with his daughter dozens of
times since his arrival in the U.S.

During the defense's closing argument, attorney Ira Kurzban said his
client was courageous coming to the United States from Cuba when the
countries have not had diplomatic relations for decades.

"For this man to come, I think you don't appreciate what a heroic act
this is," Kurzban said.

He disputed a claim that Izquierdo did not make efforts to communicate
with his daughter. Kurzban referred to testimony by the girl's half
brother who said the girl spoke to her father at least once a month via
telephone.

The day closed with a debate over some of the time the girl spent in
foster care. After a few months, it became clear the girl was not going
to be repatriated or returned to her mother, but her father did not
immediately apply for a humanitarian visa or passport, Cohen said.

"I am bothered by that period," Cohen said. "I don't know whether
that's neglect under the statute."

Kurzban said the girl's father had hired a lawyer, who argued on his
behalf for custody of the child. But prosecuting attorneys said the
girl was emotionally damaged when her father failed to come to the
United States and take her out of foster care.

The judge said she would make a decision by Friday or early next week.