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Thursday, August 15, 2013

Aranda v Serna, 2013 WL 665064 (M.D.Tenn.) [Mexico] [Well Settled ][Age and Maturity] [Petition Denied]

In Aranda v Serna, 2013 WL 665064 (M.D.Tenn.) Petitioner Nora Lizeth Saavedra Aranda filed a Petition against Respondent Rosendo Elizondo Serna for the return of the parties' two children to her in Mexico. The parties were married in Mexico on August 5, 1999. They moved from Mexico to Franklin, Tennessee, on December 31, 1999. They had two minor children together, J.E. and A.E. J.E. was born December 6, 2000, while A.E. was born January 31, 2002. Both children were born in Franklin, Tennessee, and both were U.S. citizens. In May 2003, Ms. Saavedra and the children moved from Franklin, Tennessee to Mexico. Mr. Elizondo remained living in Franklin. The parties were divorced in Mexico on or about January 31, 2007. The parties stipulated to the Mexican Divorce Decree, which gave Petitioner complete physical custody of the minor children, and gave Respondent weekend visitation as long as he resided in Mexico.The Decree provides that the children were to live with Ms. Saavedra in Nuevo Leon, Mexico. Itrequired Mr. Elizondo to return the children to Ms. Saavedra in Neuvo Leon at the conclusion of each of his visits, and provided that Mr. Elizondo was entitled to have the children visit him for a month during summer vacation, after which he was to return them to Ms. Saavedra in Neuvo Leon. On May 21, 2010, Ms. Saavedra signed a document permitting Ms. Anna Maria Garcia to travel with the children to their father's house in the United States for their month-long summer vacation. Ms. Saavedra was exercising rights of custody under the parties' Divorce Decree at the time they came to the United States to visit Mr. Elizondo in May 2010. At the time, the children's country of habitual residence was Mexico. Under the Divorce Decree, Mr. Elizondo had the right to have the children visit for "a month long summer vacation." Thus, the children should have been returned to Ms. Saavedra in June 2010. The parties apparently agreed at some point that the children would be returned by the end of the summer of 2010. That did not occur, apparently in part because they had started school in Franklin and had begun studying English, and in part because A.E. had begun exhibiting unusual behavior. Petitioner consented only to the children's visiting with Mr. Elizondo until the end of July 2010. The parties, subsequently agreed that the children would reside with Mr. Elizondo until December 2010. In December 2010, Ms. Saavedra asked Mr. Elizondo to send the children back.. Mr. Elizondo, however, told her that he would not be returning the minor children to Mexico. The Petition was filed March 29, 2012.

The Magistrate found that while A.E. and J.E. were visiting Respondent during the summer of 2010, Respondent learned that A.E. had been sexually abused in Mexico. Respondent told Petitioner that he was going to keep the children "here longer in order to do studies on [A.E.] because we wanted to know why she was banging her head against the wall and why she was biting the carpet." In 2009, A.E. was abducted or kidnapped by a man named Marcelino. At the time, A.E. was in the custody of her mother in Mexico. Marcelino was criminally charged, and A.E. testified against him. He was given probation for the abduction and attempted rape of A.E. Petitioner, however, did not admit that A.E. was sexually assaulted; Petitioner thought only that A.E. was the victim of an attempted sexual assault. The record was unclear as to whether Petitioner informed Respondent of the incident, and if so, when she informed him and what she told him about it. Both children testified at the trial. They were sworn appropriately, and both testified through an interpreter. They testified in chambers by agreement of the parties, with only the attorneys, the interpreter, the Court, and a Court Reporter, present. No objections were raised to the competency of either child to testify.

At the time of the trial, A.E. was 10 years old. A.E. was in the 4th Grade at Johnson Elementary School in Franklin. She testified with regard to the sexual assault.;" A. When my mom and I were in Mexico and I was playing with my little girlfriend, and then a man came over. He called me over, and then he threw money on the ground. And then I thought it was for me so I went toward it. And then the man just started grabbing me. And so, you know, my girlfriend was there with me, and-and then so she went with her mother. But then that man grabbed me by the eyes, and I couldn't see anything, then-so we went over to his house, and then he took out the keys, and then he pulled down my pants. And he also pulled down my under pants. Q. Did anything else happen? A. I don't remember."

At the time of the trial, A.E. was seeing Claudia Avioa-Lopez, a Counselor and Clinical Social Worker, once a week. She was also taking medication to "keep [her] calm." J. E., who was 11 years old (almost 12) at the time of the trial also testified. She was in the 6th Grade at Freedom Intermediate School. She had been there two years. J.E. helped A.E. get up in the morning and helps ger her ready for school. .Angelina cooked breakfast and her father took her to school every morning He also picked her up every afternoon. She said that neither Respondent nor his attorney told her what to say while testifying. She stated that she would rather stay with her father than go to Mexico with her mother, because "[i]t's better here." She testified. At the time of the trial, J.E. was seeing a therapist. Mr. Elizondo refused to send his children back to Mexico because of "the problem" that his daughter had. If nothing had happened to his daughter, he would have sent the children back. Respondent also presented the testimony of five witnesses, four of whom were teachers of the children in Franklin, who all testified that J.E. was severely disturbed. Ms. Williams had never encountered a student as disturbed as A.E. .J. E., however, was sweet and shy, diligent in her work and a well rounded individual who was good with other children and adults. Claudia Avioa Lopez, a "Master's Clinical Social Worker," testified at the trial. According to Ms. Lopez, A.E. had evidence of trauma and was having hallucinations, would scream and cry, saying things like "he's there, he's going to get me, he's there." .A.E. "would get upset a lot because she remembered and she reported that she had been sexually abused, and she would talk about it and start crying." Ms. Lopez had been seeing A.E. for over 2 years, and A.E. had made significant process. She had about 86 sessions with A.E..

The court found that Petitioner established a prima facie case for the return of the children. It observed that Article 12 generally provides that where a child has been wrongfully retained and, at the date of the commencement of the proceedings before the judicial authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful retention, the authority concerned shall order the return of the child forthwith. Importantly, Article 12 also provides: The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

Respondent's first argument was that the affirmative defense set forth in Article 12 (one year/now settled) has been shown by a preponderance of the evidence. By her own testimony, Ms. Saavedra knew in December 2010 that Mr. Elizondo would not return the children to Mexico. The Petition in this case was not filed until March 19, 2012, more than a year later. Petitioner admitted she "has not met the strict requirements of the one-year rule...." but argued that she was "not sitting on her rights" and that the one year period was subject to equitable tolling.

While the Sixth Circuit has not spoken to whether the one year period was subject to equitable tolling, the Court adopted the reasoning set forth in Lozano v. Alverez, 697 F.3d 41 (2nd Cir.2012) which set forth three reasons why equitable tolling is not applicable. The Sixth Circuit had not adopted a test for whether children are "now settled" for Article 12 purposes. Thus, the Court looked to the factors set forth in the frequently cited case of In re Koc, 181 F.Supp.2d 136, 152 (E.D.N.Y.2001). In Koc, the Court listed the following factors for consideration: (1) The age of the child; (2) The stability of the child's residence in the new environment; (3) Whether the child attends church regularly; (4) The stability of the [Respondent's] employment; and (5) Whether the child has friends and relatives in the area.

The court found that A.E. and J.E. had made numerous friends in Franklin, had strong bonds with their teachers, and had made significant progress in their educations. Both spoke English and both attend church every Sunday with their father. They have lived in the same residence for more than two years. Mr. Elizondo worked two jobs for 5 years and his employment was stable. He was a model employee according to his boss. Petitioner argued that the children were not settled in part because of Mr. Elizondo's immigration status. The Lozano Court, considering whether the child in that case was settled, discussed the fact that neither the mother nor the child were legally residing in the United States. With respect to the final factor, Judge Karas rejected Lozano's argument that the child could not be settled (as a matter of law) so long as she lacked lawful immigration status. Instead, he stressed that "there is nothing to suggest that, at this moment, or in the near future, the immigration status of the child and Respondent is likely to upset the stability of the child's life here in New York." The Court agrees with this reasoning and, therefore, discounted the immigration status of Mr. Elizondo. The Court concluded by a preponderance of the evidence that Petitioner delayed more than one year since the wrongful retention and that both children were now settled in their new environment. The children's return to Mexico would be disruptive with likely harmful effects. Respondent, therefore, prevailed upon this affirmative defense.

Respondent had also raised the "mature child's objection" set forth in Article 13. Petitioner admitted that, even when J.E. was living with her, she was more mature than most girls her age. Mr. Elizondo agreed with this assessment. J. E.'s maturity was further shown by her concern for A. E., and her "taking care" of A.E. J.E. was 11 years old, almost 12, at the time of the trial. The Court had the opportunity to observe J.E. closely while she was testifying, and concluded that she has attained an age and degree of maturity at which it is appropriate to take account of her views. With regard A. E., who was 10 years old at the time of the trial, the Court had the opportunity to observe her closely during her testimony. She calmly explained the incident that had occurred in Mexico. She has made significant progress in her behavior and in her school subjects since she came to Franklin in 2010.

Additionally, as Ms. Lopez testified, at approximately the end of 2011, A.E. approached her stating that she wanted to tell her father the story of what had had happened to her. This very significant fact evinced A. E.'s maturity. Her maturity was further shown by her work on Ms. Surbaugh's "summer notebook" project. The Court concluded, by a preponderance of the evidence, that both children were of an appropriate age and degree of maturity that their views should be considered. Both children testified that they would rather stay in the United States with their father than go back to Mexico with their mother. Both children also testified that their father had not told them how they should testify. Thus, Respondent had proven the "mature child's objection." The Court directed that the Petition be dismissed.

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