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Thursday, May 1, 2014

Ortiz v. Martinez, 2014 WL 1409446 (N.D.Ill.) [Mexico] [Grave Risk of Harm]

In Ortiz v. Martinez, 2014 WL 1409446 (N.D.Ill.)  the district court denied the motion of Petitioner Julio Cesar Ortiz ("Ortiz") for a New Trial pursuant to Fed.R.Civ.P. 59, after his petition for the return of his minor children  was denied.  Ortiz brought a petition for the return of his two minor children, L.O. and A.O.,  who both resided in the United States with their mother Zulima Juarez Martinez ("Juarez") Respondent mother raised a defense  under article 13 of the Convention, claiming that the children faced grave risk of harm because Ortiz  had previously sexually abused his five-year-old daughter.  Additionally, Juarez claimed the children desired to remain in the United States with her instead of being returned to Mexico with their father.   The  Court found that while Ortiz demonstrated by a preponderance of the evidence that L.O. 
and A.O. were wrongfully removed to the United States by Juarez, the children were in grave  risk of harm if they returned to their native county, Mexico, and that the child L.O. had attained an age and maturity at which it is appropriate to take into account of his child's views, that he desired to remain with his mother in the United States as an independent factor for denial.

The Court observed that a motion for new trial may be granted at the court's discretion "for any reason for which a  rehearing has heretofore been granted in a suit in equity in federal court.” Because the court has discretion to grant a Motion for a New Trial, "a  district court need not write a comprehensive opinion explaining why it denied a motion for a new trial;  indeed, the judge need not give an explanation of any kind."   Dunn v. Truck World, Inc., 929 F.2d 311, 313 (7th Cir.1991).

In this case, the Petitioner claimed that a new trial was warranted for two
reasons:  (1) because the evidence that L.O. and A.O. were at a grave risk of danger because  Ortiz sexually abused A.O was insufficient under a clear and convincing standard and (2) because the Court considered the wishes of the child sua ponte as outlined in Article 13(2)(d) of the Convention. The Court rejected both arguments.

The court noted that determining whether the child faces a grave risk of harm requires a fact based inquiry. Petitioner challenged the sufficiency of the evidence,  arguing that the Respondent failed to offer documentary or physical evidence of sexual abuse.  The court held that one does not have to  provide documentary or physical evidence of sexual abuse when there is testimony that is corroborated by multiple witnesses.   See Sylvester v. SOS Children's Villages Illinois, Inc., 453 F.3d 900, 903 (7th Cir.2006). The Court heard testimony from all the witnesses, including Dr. Machabanski, and credited  the testimony of Juarez, which was corroborated by A.O., who was a bright child. During the court's interview with A.O., she stated that her father had done something bad "for not to tell mommy.   It was a secret."   When asked what  was bad, she replied with words and gestures that he put his finger in her vaginal area while she  was showering with him on more than one occasion.  During the court's interview with Juarez, she stated that she noticed recurrent rashes on A.O.'s vaginal area shortly after she was born, so she took her to see a doctor who prescribed medication for diaper rash.  However, the rashes reappeared in the summer of 2010.   Additionally, when A.O. was about three years old, Juarez walked in on Ortiz when he was bathing his daughter.  Juarez remembers that A.O. and  Ortiz were both naked, and that A.O. was standing against the shower wall and Ortiz was kneeling in front of her with his right hand between her legs without soap or a towel.    About a week after that, Juarez overheard  A.O. telling her father not to touch her in her private parts anymore.  This Court indicated that as the fact finder,  the Court properly weighed the evidence and credibility of the witnesses and found that the children would face a grave risk of harm if ordered to return to Mexico.   Petitioner failed to present any new facts or law  to change the Court's holding.

The Petitioner claimed that the Court erred when it raised the ‘”wishes of the child” exception sua sponte, and  that the burden was on the Respondent to raise such an exception. However, Petitioner ignored the language of the Convention, which specifically grants the court discretionary authority to avoid return based on the child's preference.   This Court did not err by exercising its discretionary authority.

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