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Thursday, February 27, 2014

Vasquez v Vasquez, 2013 WL 7045041 (N.D.Tex.)[Mexico] [Consent] [Grave Risk of Harm] [Petition Denied]

In Vasquez v Vasquez, 2013 WL 7045041 (N.D.Tex.) On April 11, 2013 Petitioner Ana Carolina Vazquez filed a Petition for return of  M.V., a child born of  the non marital union of Petitioner and Respondent to Mexico, where M.V.
had been residing for seventeen consecutive months. The Court granted the petition.

Petitioner was a Mexican citizen who was brought to the United States at the age
of eight and remained in the United States from that time forward without proper
documentation. Petitioner primarily lived in Texas during her residence in the United States. In 2004, Petitioner and Respondent, a United States citizen, met and began a romantic relationship. The two never married. They lived together with Respondent's son from a previous relationship, M.G.V, at Respondent's parents' house and at a separate apartment.   M.V. was born in 2007 in the United States. M.V. was  a United States citizen. She lived with Petitioner, Respondent, and Respondent's son from her birth until she was two years old.  In January 2010, Petitioner was arrested at J.C. Penney for theft. M.V. was with Petitioner when Petitioner was arrested. At the time of the arrest, Petitioner called Respondent to alert him to the fact that she had been arrested and that he needed to pick up M.V. at the store. After some time had passed and Respondent had not arrived, one of the police officers at the store called
Respondent and told Respondent to come to the store. Respondent testified that he
had to pick up his mother prior to picking up M.V. and that the drive to the store was long. The police officers would not wait any longer, took Petitioner with them, and left M.V. with a store employee. Upon Respondent's and his mother's arrival at the store, they found M.V. with the store employee with a soiled diaper. After Petitioner's arrest, the immigration authorities discovered that Petitioner was unlawfully residing in the United States. Petitioner consequently remained detained with immigrations services from the date of her arrest until her removal to Mexico on April 26, 2010. Petitioner was removed to Mexico and immediately traveled to Linares, Nuevo Leon, Mexico to live with her grandmother, Rebeca Alanis, at Ms. Alanis' house. Petitioner lived at Ms. Alanis' house in Linares from that date through the present. During Petitioner's detention and in the two months immediately thereafter, M.V. lived with Respondent. 

In July 2010, M.V. traveled from the United States to Linares, Mexico to stay with Petitioner and Ms. Alanis. Respondent's mother, Ramona Vasquez, took M.V. from the Dallas, Texas area to Mexico. Ramona testified that she had a letter from Respondent and a separate letter written by her, the latter of which was notarized by Ramona's sister-in-law Norma Rodriguez. Apparently, when a minor is traveling across the border without a parent, the minor must have a notarized letter signed by the parent permitting the child to cross the border and outlining where the child would stay and with whom the child would stay.  Petitioner admitted that she and Respondent had not decided M.V.'s length of stay. Petitioner testified that the plan at that time was for M.V. to be in Mexico, then go to the United States, then go back to Mexico, etc. The parties did agree that M.V. would remain in Linares with her mother and maternal great-grandmother until October 2010. Although M.V. was going back to the United States in October, Petitioner enrolled her in the first year of a three-year kindergarten program at the school in Linares where Petitioner was working as an English teacher.

  In October 2010, Respondent went to Mexico with his friend, Lorenzo Dillon.
Respondent and Lorenzo met up with Petitioner and M.V. in Reynosa, a city near the
Mexican-United States border. The purpose of the trip was for Respondent to pick
up M.V. and take her to Texas for a few months. M.V. remained in Texas from October 2010 through January 2011.   On January 11, 2011, M.V., accompanied by Ramona Vasquez, traveled from the United States to Linares, Mexico. Ramona dropped M.V. off at the border with Petitioner's cousin, who then delivered M.V. to her mother's care.   M.V. remained in her mother's care in Linares, Mexico from January 2011 until Respondent's alleged wrongful removal of her in June 2012, approximately seventeen months.

         In August 2011, Respondent and his son took a trip to Linares, Mexico to
Petitioner's and Ms. Alanis' home. On the second-to-last day of his visit,
Respondent told Petitioner that he was taking M.V. with him back to the United
States. Petitioner testified that she was unaware of Respondent's plan and
immediately objected. Petitioner testified that the parties  came to an agreement that Petitioner that M.V. would permanently remain in Mexico. Respondent admitted that he and Petitioner "were trying to come to an agreement."Respondent also admitted that he ultimately allowed M.V. to remain in Mexico. However, Respondent testified that he felt that he had no choice since M.V. was enrolled in pre-school in Mexico. The next day, Respondent and his son returned to the United States without M.V.

        On December 7, 2011, Respondent and one of his cousins discussed via e-mail
M.V.'s return to the United States. Respondent admits that he talked to his cousin
about "tricking" Petitioner by pretending to want to be a family again and taking
M.V. back to Texas for a short period of time. On December 24, 2011, Respondent and his son took another trip to Linares, Mexico to celebrate the Christmas holiday.  On Christmas 2011 morning Respondent  packed M.V.'s items and then he, his son, and M.V. took a taxi to the bus station and then boarded a bus for the United States.
Petitioner testified that she woke up around 10:30am and was surprised to see that
Respondent, his son, and M.V. were gone. She testified that she was "in shock."  After the police confirmed that they had stopped Respondent, Petitioner's uncle drove her to the location where Respondent, his son, and M.V. were being held. At that time, Petitioner and Respondent spoke with the police. The parties argued, disputing whether M.V. was allowed to go to the United States and whether Petitioner had consented to it. Petitioner alleged that she had not consented to it and asked Respondent why, if she had consented, did he fail to disclose M.V.'s departure and prevent Petitioner from saying goodbye to M.V. The police told the parties that the police could not resolve the conflict, so Respondent and Petitioner had to come to an agreement between themselves regarding M.V. or they would both go to jail. Respondent testified that Petitioner was willing to go to jail, but he was not, so he had no choice but to allow Petitioner to take M.V. In contrast, Petitioner testified that, after their discussion, Respondent admitted that he "did wrong" and that Petitioner should keep M.V. Ultimately, Respondent agreed to leave M.V. in Mexico. He and his son took a second bus back to the United States.

  The district court found that the evidence and credible witness testimony demonstrated by a preponderance of the evidence that M.V.'s habitual residence at the time of her removal in June 2012 was Mexico, that Respondent breached Petitioner's custodial rights by removing M.V. from Mexico, and that Petitioner was actually exercising her custodial rights at the time of M.V.'s removal. Accordingly, the Court concluded that Petitioner  met her prima facie burden under Article 3 of the
Hague Convention and under the ICARA for a claim of wrongful removal and

Respondent's first affirmative defense alleged that Petitioner consented to
Respondent's removal of M.V. from Mexico in June 2012.  Respondent raised a theory that Petitioner agreed to permit Respondent to take M.V. to Mexico with him if Respondent would buy Petitioner a car and give her cash. In support of this theory, Respondent presented his testimony and the testimony of his son. Both stated that the purpose of their June 2012 trip to Reynosa, Mexico was to take M.V. back to the United
States in exchange for giving Petitioner a car and cash. Respondent stated that
the car was for M.V. (even though M.V. could not yet drive and the car would be
used by Petitioner), because M.V. asked for it and Respondent would not say "no"
to M.V. The Court stated that if the plan was to swap M.V. for the car, why would Respondent buy a car in Mexico for M.V. in exchange for taking M.V. to the United States where she would not have access to the car?  The evidence showed that
Respondent stated at various times that he had bought a car in Mexico, that he had
partially paid for a car in Mexico, or that they were just going to look at cars
in Mexico. There was no car. Neither Respondent nor his son presented credible testimony, given that their stories differed from each other, their stories differed from their own prior deposition testimony, and given that their stories just did not make any sense. Respondent's evidence was insufficient to show that Petitioner consented to Respondent taking M.V. to the United States in June 2012. The credible evidence presented at trial demonstrated that Petitioner did not consent to M.V.'s removal to the United States in June of 2012.

       Respondent testified that Petitioner had stated since her departure from the
United States that she wanted to return to the United States. The evidence and testimony presented primarily demonstrated Petitioner's desire or consideration of return to the United States, but only through lawful means and prior to M.V.'s removal. The Court rejected the respondents argument that Petitioner's alleged desire to return to the United States equated with a post-removal acquiescence of M.V.'s removal there.

Respondent  raised the "grave risk" defense under Article 13b of the Hague
Convention" "[A] grave risk or intolerable situation exists where return of the child would send the child to a 'zone of war, famine, or disease,' or in cases of serious abuse or neglect." Vazquez v. Estrada, 3:10-CV-2519-BF, 2011 WL 196164, at *5 (N.D.Tex. Jan.19, 2011) (citing Silverman v. Silverman, 338 F.3d 886, 900 (8th Cir.2003), and Friedrich, 78 F.3d at 1069). "A grave risk of harm can be established when return of the child to the country of habitual residence puts the child in 'immediate danger
prior to resolution' of the underlying custody dispute." Gallardo, 2013 WL
3803905, at *13. Respondent raised three reasons why he believed returning M.V. to Mexico would result in grave risk to her. First, Respondent put forth testimony from
himself and his mother Ramona Vasquez alleging that, when Petitioner was arrested
in January 2010, M.V. was left at J.C. Penney with a store employee and her diaper
was very soiled. The court held that evidence of the incident of Petitioner's arrest did not constitute clear and convincing evidence of grave risk to M.V. if she is returned to Mexico. First, the incident does not involve the sort of "serious abuse or neglect" as contemplated by the Hague Convention. Second, although M.V.'s being left
with a store employee was indeed a product of Petitioner's arrest, the police
officers made the decision to leave M.V. with the store employee and Respondent
himself admitted that he did not go directly to the store upon learning that he
needed to pick up M.V. There were thus contributing factors to M.V.'s being left
with a stranger and having a dirty diaper. Third, Respondent did not provide
evidence of alleged neglect other than this single incident. The Court  rejected Respondent's theory of grave risk due to abuse and neglect.    Next, Respondent alleged that Mexico was a dangerous country and M.V.'s return there would put her at grave risk. The sole evidence presented at trial in support was Respondent's own testimony that there have been shootings in Linares, Mexico, where Petitioner lived. On cross examination, Respondent admitted that he had only read or heard of the shootings and was unaware of the circumstances surrounding the shootings. This
evidence fell far short of the standard for proving grave risk to M.V. in Mexico.
Silverman v. Silverman, 338 F.3d 886, 901 (8th Cir.2003)    Respondent argued that M.V. would be put at grave risk in Mexico because Petitioner could not  afford electricity and food. Respondent's evidence of grave risk in this respect was minimal and, in any event, was negated by Petitioner's credible explanations.

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