The Miami Herald
Sat, August 11, 2007

DCF lays out case against Cuban father

BY CAROL MARBIN MILLER

Details of the state's case against a father seeking to take his daughter back to Cuba emerged for the first time Friday in a Miami courtroom, where the fate of the 4-year-old in the middle of an international custody dispute will be decided.

Blue-eyed, redheaded and precocious, the little girl came to Miami with her pre-teen half brother in 2005 after their mother won the right to emigrate. By that December, the children had been sheltered by the Department of Children & Families when the mother tried to commit suicide.

The children have been living with foster parents, a wealthy Cuban-American family in Coral Gables, for more than a year. The foster parents are fighting to maintain custody of a little girl they say has become a part of their family. She calls her foster father papi. He calls her mi amor (my love).

In a petition filed in Miami's juvenile court -- the details of which were disclosed in a court hearing Friday morning -- DCF is arguing that the girl's birth father, a farmer in Cuba, failed to protect her by not devising a ''safety plan'' to protect the little girl in the United States if her mother became incapacitated or ill.

DCF attorneys say in the petition that the father essentially abandoned his daughter by not sending her money, birthday cards, presents or letters after she left the island. Under Florida law, a father may be declared unfit if he abandons his child.

The DCF petition also says the little girl would be harmed if forced to leave her older brother, now 12, who protected and cared for her when their mother was neglectful. A lawyer for the girl's foster parents, who have adopted her brother, is asking Circuit Judge Jeri B. Cohen to allow the sibling to participate in the court case.

DCF lawyers have said the biological father, a malanga and plantain farmer from Cabaiguan in central Cuba, should be stripped of custody because he failed to take responsibility for his child.

''The department did not create the situation with this child,'' said Jason Dimitris, DCF's chief of staff and the state's chief litigator in the case. ``The father created the situation, and the department had to respond.''

FATHER'S LAWYER

In court Friday, Ira Kurzban, a prominent immigration attorney who represents the birth father, described the course of the case as "Alice in Wonderland.''

Kurzban dismissed the state's claim that his client should have financially supported his daughter as unrealistic: ''I have never heard of a case where a person sends money from Cuba to Florida,'' he said.

Felix Masud-Piloto, a Cuba scholar who is director of DePaul University's Center for Latino Research in Chicago, told The Miami Herald that it would be nearly impossible for the father to have sent money.

''No one sends money from Cuba to Miami. That's insane,'' he said ``And you have a hell of a problem trying to get money from here to Cuba. Any money transaction involving Cuba is problematic.''

Kurzban took his biggest shot at the state's claim that the father would cause ''permanent psychological damage'' by separating his daughter from her half-brother. He said the allegation that the girl's right to be with her half-brother trumps her father's right to raise her is unprecedented.

''Now they have added a totally new theory of dependency,'' Kurzban told the judge.

''I've wondered about that,'' replied Cohen, who in an earlier hearing called the state's case ``light''.

EXPERT OPINIONS

Some experts in child-welfare law say they, too, fear the state's case against the birth father could blaze new legal ground if accepted.

Paul DeMuro, the former commissioner for Children & Youth in Pennsylvania, and a 35-year child-welfare administrator and consultant, said the claim the state is making on behalf of the girl's brother is extraordinary: "I've never heard of anything like that.''

Richard Gelles, dean of the University of Pennsylvania's School of Social Work and a 40-year veteran of child welfare who has written 25 books and consulted for Florida child-welfare administrators, told The Miami Herald in a phone interview that the state's position does not square with long-standing state and federal child-welfare law. He predicted the judge would be reversed on appeal if she decides in favor of the state.

''They are trumping up a perfectly absurd mechanism to trample on [the father's] rights,'' he said. ``It's a deliberate attempt to ignore what would normally be parental rights.''