The Miami Herald
Wed, Oct. 3, 2007

New twist in Cuban girl's custody battle

By TERE FIGUERAS NEGRETE AND CAROL MARBIN MILLER

The international custody dispute over a 5-year-old girl unexpectedly returned to court Tuesday for an emergency hearing to grapple with the latest bombshell: The girl's foster parents testified she told them she was instructed to say into a camera that she wants to return to Cuba.

The girl, her caretakers said, was told to make the comments by her birth father and stepmother while one of the dad's lawyers videotaped her.

As accusations and denials flew, Miami-Dade Circuit Judge Jeri B. Cohen questioned therapists, the girl's foster parents and her birth father.

At the heart of the judge's concerns: statements the girl reportedly made to foster parents Joe and Maria Cubas following a troubling session between the girl and one of her therapists Monday.

According to Joe Cubas, the girl said her father, Rafael Izquierdo, and his common-law wife told her to say that she wanted to return to Cuba, while attorney Magda Montiel Davis taped the exchange. The girl, Cubas said, told him and his wife she had ``made a mistake.''

Davis, who has fended off previous accusations that she fabricated evidence in the case, angrily denied the latest claim, saying she had never taped the girl. Izquierdo also denied the incident ever happened.

''I can't get to the truth of what happened here,'' said the judge, who has presided over the frequently hostile proceedings. ``I could sit here all day.''

Tuesday's emergency hearing was requested by Joe and Maria Cubas and the Guardian Ad Litem program, which represents the girl's interests.

The couple said the girl made the statements the morning after her session with Miguel Firpi, one of two therapists on the case.

Firpi testified Tuesday that the girl seemed withdrawn and fearful when he broached the subject of Cuba.

''What I saw in that child was fear,'' said Firpi, who said the girl turned away from their game of Candy Land and began 'repeating very quietly, in a tiny pipsqueak voice, `I don't want to go back to Cuba.' ''

Firpi said he pressed the girl to talk more about her fears, but she clammed up. He passed on his concerns to Joe and Maria Cubas. Joe Cubas said the girl opened up on the way to school Tuesday morning, telling him in Spanish that she had made a mistake.

According to Cubas, the girl said Izquierdo and wife Yanara Alvarez told her to say into a camera that she wanted to return to Cuba with them.

''I asked her, if Yanara and Mr. Izquierdo told you to say that, who was filming?'' Cubas said at the hearing. ``She said it was Magda.''

Davis, sitting next to Izquierdo, laughed in disbelief when her name was mentioned, at one point exclaiming ``Jesus Christ.''

Davis told the judge her only interaction with the child was occasionally serving as chauffeur for the visitations. ''Frankly, I'm getting fed up with these accusations,'' Davis told Cohen.

Izquierdo said he has videotaped the girl only during activities such as swimming in the pool and dancing with her stepmother and the couple's 7-year-old daughter.

''I try to make her happy, and for her to live her moments with us,'' he said.

The 20-minute videos are turned over to the judge, said Davis, who added she purchases the disposable video cameras herself at CVS.

Last week, Cohen ruled in favor of Izquierdo, finding him a fit father. The weeks long trial was sidelined for several days after the girl's birth mother, Elena Perez, accused Izquierdo and Davis of fabricating letters and of urging her to lie on the witness stand, claims they both denied.

On Tuesday, Cohen remained circumspect about the girl's reported statements, saying, ``I'm not accusing anyone of anything.''

Tempers flared nevertheless, with Davis' husband and fellow attorney, Ira Kurzban, leaping up to defend her, Cohen ordering attorneys on both sides to pipe down and a frustrated Joe Cubas yelling at Kurzban to let him continue addressing the judge uninterrupted.

The girl has been in the custody of the Cubas family since April 2005, several months after her birth mother, Perez, attempted suicide.

Joe and Maria Cubas have adopted the girl's 13-year-old half-brother, and say the two children should not be separated. Izquierdo wants to take the girl back to his hometown of Cabaiguán in central Cuba.

The state's Department of Children & Families, which unsuccessfully sought to have Izquierdo declared unfit, will now argue that removing the girl from the Cubas household constitutes ''endangerment.'' The second phase of the custody dispute is scheduled to begin later this month.

In the meantime, Cohen instructed Izquierdo at length to deal with his daughter's ''emotional roller coaster'' with compassion.

The girl's therapists testified last week that the child appeared to be in denial about the prospect of returning to Cuba with her father, saying the girl was living in a ``protective fantasy.''

Tuesday, the judge asked that the girl sit down with Julio Vigil, the other court-appointed therapist, to discuss in concrete terms potentially returning to the island, although Cohen asked that all parties involved refrain from using what she dubbed the ''c-word'' -- Cuba.

''This issue is not if she's going to Cuba, the issue is whether she's going with her father,'' said Cohen. ``I'm not asking a 5-year-old to make an ideological value judgment on Cuba.''