Judge rejects settlement in Hispanic mother case

June 8, 2005
A settlement which would have ended a closely watched dispute over custody of a young Hispanic girl was rejected by a judge who maintained it did not adequately protect the child.
The announcement of an agreement as court convened Tuesday made it appear the long, often emotional case was finally reaching its conclusion after seven days of testimony before Circuit Court Judge Clara Byrd.
But the judge rejected the settlement no less than three times when it was presented by the six attorneys involved in the case on the grounds it did not contain enough safeguards to adequately protect 11-year-old Linda Cano.
Cano was removed from her home last year by Juvenile Court Judge Barry Tatum after the child leveled allegations of neglect and abuse.
She was placed in the temporary custody of a local couple, Warren and Emily Patterson, who have been trying to permanently adopt her. The hearing before Byrd is an appeal of the juvenile court decision filed on behalf of Cano's mother, Felipe Berrera.
The case drew international attention when it was revealed Berrera was one of two known immigrant mothers ordered by Juvenile Court Judge Barry Tatum to learn English as a condition to regaining custody of their children.
With the Pattersons and Berrera looking on, attorneys presented Byrd with an agreement which called for the child's father, Antonio Cano, to assume physical custody of her in July. Under terms of the agreement, both the child's biological mother and the Pattersons would be allowed to seek visitation with the youngster.
But Byrd refused to accept the agreement because it did not contain provisions for Cano to be "monitored" by the court and sharply shot down efforts by Berrera's attorneys to have the hearing resume after her rejection.
Byrd's decision drew stinging criticism from one of Berrera's three attorneys, who vowed to seek an "extraordinary appeal" of the ruling.
"I've never heard anything like it in my life," said attorney Jerry Gonzalez, who asked Byrd for permission to file an appeal only to be denied.
In one appearance before the judge, Byrd told attorneys she would approve the agreement "under one condition, that the court has two reviews, one in six months and one in a year."
Berrera's attorneys objected, saying not allowing the suit to be dismissed for up to a year left their client open to the possibility of additional legal action.
But Byrd remained admanant, flatly rejecting the proposed settlement each of the two additional times it was presented.
"I'm not going to agree to dismiss this without a mechanism where we can review it and make sure everything is OK," Byrd said from the bench. "I can't approve this order without a safety mechanism in place … without a safety mechanism that I at least have a review. If you can't agree to that, then there's no agreement."
Byrd said she hoped to give Cano a "transitioning" period to get accustomed to life with her father, which the judge indicated has been a rarity in the child's life.
From the bench Byrd said while Cano appeared to "love" her father when the child was privately questioned in the judge's chambers, "I've still got to make sure this is in the best interest of this child."
"Right now she has never lived with her dad to her memory and I want to make sure this transition works out," she said.
Byrd also expressed concerns Cano – who was born in Mexico and is not a U.S. citizen – could have been removed from the court's jurisdiction under the proposed settlement agreement.
After the judge's third rejection of the agreement Cano's legal attempt tried unsuccessfully to persuade the judge to resume the hearing, saying state law requires such cases to be handled as a priority by judges.
When Byrd refused that request Cano's attorneys – including a representative of a nationally recognized civil rights organization – asked for permission to file an immediate appeal challenging her decision only to be overruled by the judge again.
"I'm denying your appeal and I'll see you all back here in October," Byrd said just before adjourning court.
The judge ordered parties involved in the dispute to return to court Oct. 9 though it remained unclear if the hearing would resume of if she would simply "review" Cano's progress as she indicated from the bench.
Afterward, Gonzalez said Byrd's decision was "an abuse" of her authority and vowed to seek immediate relief from a higher court.
However, the attorney conceded seeking an "extraordinary appeal" could be a time-consuming effort that would prolong the case even further.
"It seems like this court is a little oasis where I don't know what kind of law applies," Gonzalez said. "I believe the judge is just making it up as she goes along. This has become a court of inquisition."
Testimony in the hearing so far has shown Cano told educators at Southside Elementary – where Emily Patterson is a teacher – she was struck by a relative with whom she was living, leaving a bruise on her leg and leading to her removal from the home.
Berrera and other relatives all took the witness stand to deny the abuse and neglect allegations.
Though her father was absent at the start of the proceedings, Byrd had local attorney Adam Parish appointed to represent him after being told he did not wish to relinquish his parental rights.
In his stint on the stand, Cano testified he hoped to visit his daughter and did not understand why she was taken from her mother.
Senior Staff Writer Brooks Franklin can be reached at 444-3952 ext. 14 or by e-mail at brooks.franklin@lebanondemocrat.com.