Sunday, July 29, 2012
Etienne v. Zuniga, Not Reported in F.Supp.2d, 2010 WL 4918791 (W.D.Wash.) [Mexico][Well-Settled in New Environment]
In Etienne v. Zuniga, Not Reported in F.Supp.2d, 2010 WL 4918791 (W.D.Wash.) Raphael Noel Etienne ("Etienne") filed a petition seeking the return of his two minor children to Mexico. On June 2, 2010, the Court issued findings of fact and conclusions of law and denied the petition for return with respect to E.N. based on her objections to return. The Court found that there was substantial evidence that B.N. was well-settled in the United States. However, the Court reserved judgment on the well-settled issue and other defenses, with respect to B.N., finding it would benefit from the report of a child psychologist, or similar professional, based on his or her interview with B.N. with respect to his life in Mexico, his relationship with his parents, and his life in the United States.
The parties agreed to have Joanne Solchany, PhD, ARNP, a professional who specialized in working with children, interview B.N. and submit her report to the Court. In the Court's June 2, 2010, order containing its findings of fact and conclusions of law, the Court reserved ruling on whether Respondent Beatriz Villarreal Zuniga ("Villarreal") had proven by a preponderance of the evidence that B.N. was well-settled in the United States as defined in Article 12 of the Convention. The Court observed that because the Court concluded that Etienne did not file his petition within one year of the wrongful retention of the children Villarreal was entitled to demonstrate that B.N. should not be returned because they are now settled in their new environment. See Convention, art. 12. The Court now concluded that B.N. was well-settled in the United States . It noted that Courts analyzing this defense have weighed several factors in determining whether a child is "settled" for purposes of this defense. In re B. DEL C.S.B., 559 F.3d 999, 1009 (9th Cir.2009); In re Koc, 181 F.Supp.2d 136 (S.D.N.Y.2001); In re Robinson, 983 F.Supp. at 1346; Zuker, 2 F.Supp.2d at 141. In In re B. DEL C.S.B., the Ninth Circuit adopted a list of six factors it considered relevant to a court's determination of whether a child is now settled in a new environment: (1) the child's age; (2) the stability and duration of the child's residence in the new environment; (3) whether the child attends school or day care consistently; (4) whether the child has friends and relatives in the new area; (5) the child's participation in community or extracurricular school activities, such as team sports, youth groups, or school clubs; and (6) the respondent's employment and financial stability. In addition to these six factors, the Ninth Circuit decided that, in some cases, a court should consider the immigration status of the child and the respondent. However, the Ninth Circuit in In re B. DEL C.S.B. concluded, as a matter of first impression, that lack of lawful immigration status is not determinative of whether a child is "settled" for purposes of Article 12 of the Convention and such status is relevant only where an "immediate, concrete threat of deportation" exists. "Although all of these factors, when applicable, may be considered in the 'settled' analysis, ordinarily the most important is the length and stability of the child's residence in the new environment."
When Villarreal and the children arrived in Washington in July of 2008, they lived with Villarreal's uncle, Filiberto Zuniga ("Filiberto"). Villarreal and Filiberto had disagreements while she and her children were living with him. On the evening of Thanksgiving day in 2008, Villarreal and the children came back to Filiberto's home and the family would not open the door for them. Villarreal and the children spent that night in a hotel. The next day, they moved into a house. Approximately two weeks later, Villarreal and her children moved into an apartment in Tacoma, Washington. Approximately six months later, Villarreal and her children moved into the apartment in Lakewood, Washington, where they now resided. B.N. was currently in the second grade at a public elementary school in Lakewood, Washington. He was doing well academically in school and had many friends. He enjoyed school, playing with his friends that lived near his apartment, and playing video games. B.N. also very much enjoyed going to church and was active with the church's children's group.
Villarreal had held several part-time jobs since she and the children have lived in Washington. She is not currently receiving any public assistance from Washington, with the exception of medical coupons. She currently earned money by selling jewelry at a swap meet. Villarreal had a petition for asylum pending with the United States Department of Homeland Security and applied for employment authorization from U.S. Citizenship and Immigration Services that, at the time of trial, was still pending approval. At the time of trial, Villarreal had received an offer of employment with an insurance company pending the approval of her application for work authorization.
The Court concluded that the factors weighed in favor of concluding that B.N. was well-settled as defined by Article 12 of the Convention and that Villarreal had shown substantial evidence of B.N.'s significant connections to the United States. Specifically, the Court found that while B.N. was not of an age where his objection to removal was on its own, insufficient to prevent removal, he was of an age and maturity level where he was able to explain his choices and requests and able to make connections to the community in which he lived that the age factor weighed in favor of finding him well-settled. Next, the Court found that while Villarreal and her children have had multiple residences since coming to the United States, the fact that they lived at their current residence for almost two years constituted a stable environment such that this factor weighed in favor of finding B.N. well-settled. Third, B.N. attended the same school and actively participated in the same church for almost two years, both of which weighed in favor of finding him well-settled. Although B.N., and Villarreal, described their relationship with their relatives in the area as somewhat tumultuous, B.N. had a significant amount of friends surrounding his residence as well as friends at his school and church. The fact that B.N. had been able to adapt to the new environment and make friends easily weighed in favor of finding him well-settled. Next, B.N.'s participation in swimming and very active participation in his church's youth group weighed in favor of finding him well settled. Finally, Villarreal's employment and financial stability had been somewhat of an issue, although the children had never gone without basic necessities and she had never received public assistance. Dr. Solchany reported that at the time she interviewed B.N., Villarreal had recently started a job working in a chiropractic clinic. Based on Villarreal's history of employment and financial situation, the Court concluded that this factor was neutral. In addition, the Court concluded that Villarreal's immigration status was not determinative or even relevant, as such status is only relevant if an "immediate, concrete threat of deportation" exists, which has not been shown. In re B. DEL C.S.B., 559 F.3d at 1009. Therefore, the Court concluded that the factors laid out by the Ninth Circuit, when taken as a whole, weighed in favor of concluding that B.N. was well-settled in his new environment.
B.N.'s perspective on his relationships with his parents also weighed in favor of concluding that he is well-settled in the United States as he considered his living situation with his mother his home and he viewed Mexico as a place he would go to visit his father.
The Court concluded that B.N. was "well-settled" in the United States as defined by Article 12 of the Convention. Etienne's petition, with respect to B.N., was denied based on his being "well-settled" in the United States.