Hispanic mother case unsettled

APRIL 19, 2005
A brief but dramatic showdown over a controversial court order requiring a Hispanic mother to learn English or risk losing custody of her child ended with the volatile issue unsettled and her attorneys harshly critical of the judge at the center of the furor.
Wilson County Juvenile Court Judge Barry Tatum on Monday deferred a decision on whether the woman's parental rights should be terminated until after an appeal of his earlier ruling on temporary custody in the case is heard in Circuit Court.
Tatum's decision means the legal team for mother Felipe Berrera – including two area attorneys, a lawyer from a nationally recognized civil rights organization and a legal advisor of the Mexican consulate – will appear before Circuit Judge Clara Byrd on Friday seeking a trial date on the temporary custody issue. The attorneys will ask Byrd for a hearing on their request to set aside Tatum's earlier ruling temporarily denying the mother custody of the child.
Though exceptionally short, the hearing in the crowded courtroom provided several new revelations about the emotionally charged case, chief among them that an unidentified couple is seeking permanent custody of the child.
The hearing also disclosed the 11-year-old was removed from the home after allegations of abuse surfaced, according to a statement read in court by attorney Amanda Crowell, who is representing the couple which has had temporary custody of the child for just over a year and apparently now hopes to gain permanent custody.
In the statement, Crowell said the 11-year-old alleged her mother "hit her and pulled her ears" during one of the few periods the child lived with her mom.
"Except for that time period she had no real recollection of her mother," Crowell said, adding the court order issued by Tatum in the case called for "a review today to see if the mother has learned enough English."
Crowell also read the court order in its entirety, stating it "gave six months" to Berrera to "learn enough English to be able to communicate with her child."
The court order also stated a "language barrier" made "counseling" difficult for the mother and included the phrase "assimilate into American culture" – the same phrase Tatum used when asked by The Lebanon Democrat about a separate court order issued in the case of a Spanish-speaking mother and her U.S.-born 2-year-old in January.
After that report surfaced, attorney Jerry Gonzalez confirmed he was representing a client under an identical court order, though Berrera was not publicly identified until Monday's hearing.
Short, slightly stocky and casually dressed, she sat with a man believed to be her husband and a legal advisor from the Mexican consulate as the hearing unfolded, at times crossing her arms across her chest, her eyes appearing to follow the proceedings closely.
What had promised to be a bitter legal battle appeared ready to begin in earnest when one of Berrera's attorneys, Yancy Belcher, told the court some of the statements made by Crowell weren't backed up by sworn testimony.
"Our client wasn't allowed to take the stand," Belcher said, adding he believed the order meant his client was expected to take a "test" – a word with which Tatum quickly took issue.
"Do you read the word 'test' in there anywhere?" the judge interrupted to ask Belcher.
"That line of questioning is what she was supposed to expect," the attorney replied.
But the emotions quickly subsided when Tatum directly addressed one of the stickiest issues of the legal fight, a motion that he recuse himself from the case.
"Because there is an appeal pending before the circuit court at this time, to make any decision on a motion to recuse would be premature and possibly moot depending on the Wilson County Circuit Court," the judge said. "I will take that motion up at the appropriate time."
With that Tatum adjourned the hearing and told attorneys he would decide the issue of whether Berrera's parental rights should be terminated after the temporary custody appeal is heard in circuit court.
The judge's move did little to appease the mother's attorneys, who have already been highly vocal in their criticism of Tatum's court orders.
"He's backpedaling," said Gonzalez, who has repeatedly vowed to battle such language-based court orders from Tatum. "He's the judge and he can backpedal if he wants to, all we want is a trial."
Gonzalez and Belcher also said they felt Monday's hearing was one-sided.
"He wasn't going to let any of us speak," Gonzalez said. "What you heard was based on the testimony of an 11-year-old who probably wants to stay in a middle-class, white suburbanite family."
"You're only hearing one side of the story," Belcher added to the small army of media on hand for the hearing, which included such internationally broadcast news outlets as the Spanish-speaking Univision network and CNN Espanol.
Gonzalez – active in a number of area civil rights cases – even maintained the legal skirmish took on something of a personal tone with Tatum, whose orders brought a small but vocal group of protesters to the doors of the Criminal Justice Center for Monday's hearing
"Obviously he didn't let me speak. He wasn't about to let me speak. There was a clear message on his face," Gonzalez said. "If he's going to take it personally then he should recuse himself."
The mother's legal team – including Rhonda Brownstein of the Birmingham-based Southern Poverty Law Center, one of the nation's leading civil rights organizations – said they will continue to explore options for their client while preparing to move the legal fight to circuit court.
Gonzalez said the attorneys might consider asking a higher court to order Tatum "to set a trial date for this matter or recuse himself or both."
"That's something all the attorneys will just have to get together to discuss," Gonzalez said, adding such a motion could be filed by the end of the week.
Brownstein termed the court order "shocking" and said she feared it was at least partially based on Berrera's "national origin."
Though the SPLC tracks civil rights violations nationwide, she said Tatum is the only judge the organization has encountered who issues court orders requiring Hispanic immigrants to learn English in child custody cases.
"We could not find any other courts that base custody or parental rights decisions on ability or inability to speak English," Brownstein said. "If it exists anywhere else, it certainly hasn't been reported."
Despite the international publicity and ensuing outcry the case has created, little remains known about the 11-year-old at the center of Monday's hearing.
The attorney appointed to represent her interests, David Kennedy, made only a brief statement in court.
"Your honor, right now my client is doing very well in school," Kennedy told Tatum.
The identities of those involved in the other known case in which a Hispanic mother was ordered to learn English or else risk losing custody of her child remain unknown due to the confidentiality of juvenile court proceedings. In that case, Tatum also told the mother to "use birth control" if she hoped to maintain custody of her American-born 2-year-old. In a later interview the judge acknowledged the order was possibly unconstitutional and largely unenforceable, but said he imposed it – along with the language restriction – in order to ensure the child's future and to "emphasize the choices" available to the mother.
Protesters from the American Civil Liberties Union and the Tennessee Immigrant and Refugee Rights Coalition staged a rally at the conclusion of the hearing, marked by roughly a half-dozen sign-waving demonstrators.
"It shouldn't matter what language anyone speaks – that's the public policy of this state," the ACLU's Melody Fowler-Green told the crowd. "It's unconstitutional and it's bad policy. This is a very dangerous precedent for everybody in the state of Tennessee."
Senior Staff Writer Brooks Franklin can be reached at 444-3952 ext. 14 or by e-mail at brooks.franklin@lebanondemocrat.com.