Taveras ex rel. L.A.H. v. Morales, --- Fed.Appx. ----, 2015 WL 2263023 (C.A.2 (N.Y.)) (summary order) [Spain] [Now Settled]

  In Taveras ex rel. L.A.H. v. Morales, --- Fed.Appx. ----, 2015 WL 2263023 (C.A.2 (N.Y.)) (summary order)  Petitioner-appellant Inocencia Herrera Taveras appealed from an  order of the district court denying her petition for return of her child, L.A.H., to Spain. Taveras argued that the district court erred in determining that she had filed her petition more than a year after L.A.H. was first wrongfully retained in the United States by her father, respondent-appellee Jose Alonzo Morales. The district court ruled that Taveras's petition was filed more than a year after the wrongful retention of L.A.H. began, that L.A.H. was "now settled" in the United States, and that it was in the best interests of L.A.H. that she be allowed to remain here, and therefore declined to order that L.A.H. be returned to Spain. Taveras did not challenge on appeal the district court's finding that L.A.H. was settled in the United States, or its exercise of its discretion not to return her to Spain. She argued only that the district court erred in determining when L.A.H. was first wrongfully retained, that she filed her petition within a year of the correct date, and that the "now settled" defense was therefore not
available to Morales.


The Court of Appeals pointed out that the significance of that determination was that under the Hague Convention, if Taveras petitioned for the return of L.A.H. within a year after the wrongful retention of L.A.H. began, the district court was mandated to return the child to Spain in the absence of certain narrow affirmative defenses. If the petition was not filed within that period, and if L.A.H. was "now settled" in the United States, the district court had discretion whether to order her return. See Hague Convention art. 12. 

    The Court indicated  that it reviews the district court's interpretation of the Hague Convention de novo, and its factual determinations under a deferential "clearly erroneous" standard, accepting the district court's findings of fact "unless we have a definite and firm conviction that a mistake has been committed." Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir.2013).

    Taveras argued that the district court applied the wrong legal standard in
determining when the wrongful retention began, because it should have required a
"clear and unequivocal" communication by Taveras to Morales that she did not
consent to L.A.H.'s continued stay in the United States as a prerequisite to
finding that Morales's retention of L.A.H. had become wrongful. The Court of Appeals held that it need not decide whether the formulation urged by Taveras was the
correct standard for determining when wrongful retention begins. Assuming arguendo that such a standard applied, the district court determined that it was met here, finding that Taveras had "made her demand [for the return of L.A.H.] sufficiently
clear to [Morales]" by the end of summer 2012, and that Morales's retention of
L.A.H. beyond that period was therefore wrongful. Acknowledging that where "one parent fails to inform the other parent that she does not consent to the child's stay beyond a particular date, it would be difficult to say that retention beyond that date is wrongful," the district court distinguished the situation at bar as "not such a case."

  The Court of Appeals affirmed. It held that the district courts  finding was far from clearly erroneous. The district court based it on: (1) Taveras's testimony that she spoke to Morales "[m]any a time during the months of August and September [2012]," and (2) her "unequivocal[]" testimony,  that she did not consent to L.A.H.'s stay beyond the end of summer 2012. The court also referenced Morales's testimony that, during that same period, Taveras "continued insisting" that he send L.A.H. back to her. It saw no reason to disturb the court's finding in the face of that evidence.