MIAMI -- After the little Cuban girl now caught in a custody battle was placed with her Cuban-American guardians, her behavior reflected the tumult she endured during her first three years of life.
She curled in a ball and cried. She tried to go home with a new woman she met. She threatened to cut another girl's "mouth out" with a knife.
Nineteen months later, the state Department of Children and Families will return to Miami-Dade Circuit Court today to make the argument that the girl, now 5, should remain with Joe and Maria Cubas, the temporary custodians who provided the child her first sense of stability.
That's even though a judge last month declared her biological father fit to raise her on the island. The girl's abusive mother lost custody of the girl and an older half-brother after attempting suicide in Miami in December 2005.
DCF contends that tearing the girl from the Cubases and the 13-year-old boy the couple has since adopted would endanger her emotional health by destroying her already damaged ability to form healthy attachments. "She would never recover," DCF lawyer Rebecca Kapusta told the judge in an earlier hearing.
The argument is unusual and likely doomed, legal experts say, because a fit parent's right to raise his child almost always trumps the child's right to remain with caregivers with whom he or she has bonded. In fact, DCF policy is to reunite abused, abandoned or neglected children with an eligible parent or closest relative whenever possible.
Echoing sentiments expressed by the judge, Michael Dale, a professor who specializes in children's law at Nova Southeastern University, said DCF's case against the father, which already has cost more than $250,000, has been guided by the nearly half-century of tense relations between Miami's exile community and their communist homeland.
"It's nuts," Dale said. "If this child were from any other country, or this happened in any other part of the state, she would be back home already. DCF should be spending all that money on the kids I represent who rot in foster care."
During a three-week trial in which she ruled the father fit, Judge Jeri B. Cohen assailed the agency for making little effort to find Rafael Izquierdo, a farmer in rural central Cuba, after his daughter was removed from her unstable mother, and allowing the bond between the girl and the Cubases to grow.
And though Cohen insists she has yet to make up her mind on who will raise the girl, she has taken steps to smooth the child's transfer from the Cubases to Izquierdo. Two weeks ago, the judge reversed the child's living arrangements, ordering her to live with her father on weekdays, and the Cubases on weekends.
With Izquierdo's permission, the girl moved to the United States with her mother, her half-brother and her mother's new husband in March 2005. Nine months later, the state took the children into custody after their mother, Elena Perez, ditched by her husband and overwhelmed by her new life in a foreign land, slashed her wrists with a knife.
Failing to comply with DCF's reunification plan, Perez eventually lost custody of both children, who were being cared for by the Cubases. Adding another political dimension to the case, Cubas, a real-estate developer and former baseball agent, is revered by many exiles for helping some of Cuba's best players join professional teams in the United States.
The couple was not a part of the fitness phase of the trial, in which DCF and lawyers for the Guardian Ad Litem program, which represents the girl's interests, argued that Izquierdo had abandoned and neglected his daughter. They contend he failed to protect her from her mother's beatings, failed to keep in touch with her after she moved to the United States and waited months to apply for a visa to reclaim her after she was taken from her mother.
But the Cubases' lawyer, Alan Mishael, argues that Cohen must leave the girl with the Cubases under a state law requiring judges to place children with a fit parent unless the placement would "endanger" the child's safety, or physical, mental or emotional health.
"If the child is just an appendage of the parent, you can grab her like a football and run to the finish line," Mishael said. "But if you treat her like a human being, you have to focus on whether what you're doing is going to harm her."
Izquierdo's lawyer, Ira Kurzban, counters that the endangerment case against Izquierdo is unconstitutional and should be dismissed. The law was never meant, he said, to be used against fit parents who have passed a home study, as Izquierdo has.
"What if the child got attached to her nanny? Would they be making the same argument?" Kurzban said. "From day one, this has all been about politics."