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Wednesday, March 21, 2018

Soto v Contreras, 2018 WL 507802 (5th Cir., 2018) [Mexico] [Grave Risk of Harm] [Petition granted]

In Soto v Contreras, 2018 WL 507802 (5th Cir., 2018) Veronica Lemus Contreras (Lemus), a native and citizen of Mexico residing in the United States, appealed from a judgment which granted the petition of Ontiveros Soto’s (Ontiveros) seeking return of their child, A.O.L., to Mexico.

 Lemus and Ontiveros married in 1995, and had three children. The family resided in Mexico before Lemus came to the United States with two of the three childrenA.O., female, age 15, and A.O.L., male, age 8,to escape alleged abuse by Ontiveros., The couple “mutually decided” in September 2014 to file for divorce in Mexico.   In April 2015, Lemus told Ontiveros she and the children were going to a party in another town, a three-hour trip. Instead, she came to the United States with A.O. and A.O.L. Lemus sought political asylum in the United States. After learning the location of his wife and children, Ontiveros pursued in district court a petition for return of an abducted child (A.O.L.) under the Hague Convention. (the Hague Convention does not apply to children, such as A.O., over 16; at the time of the bench trial, she was past 16 years of age.

          At a bench trial, the parties presented incompatible versions of events leading to Lemus’ departing Mexico. She accused Ontiveros of, inter alia: physically abusing her and their daughter, A.O.; psychologically abusing the entire family; committing acts of violence against extended family members; and committing adultery. Although, with one exception, Ontiveros contested her accusations, he accused Lemus of, inter alia: committing adultery, incurring excessive debts, and assaulting him. Ontiveros testified he and Lemus fought because she was financially irresponsible. He admitted to having one physical altercation early in the marriage, when he gave her “some spankings with the hand”. He claimed Lemus often assaulted him, and denied further physical altercations. Unrebutted was that Ontiveros never physically abused A.O.L. Conversely, Lemus described her relationship with Ontiveros as “slow torture”, stating he beat her almost daily (or at least monthly) during their relationship. She recounted occurrences of alleged abuse: he beat her with a belt in the shower when she was pregnant with A.O.L.; he fought her brother when he confronted Ontiveros; and he assaulted A.O. and Contreras for trying to protect Lemus, throwing A.O. and Lemus onto the ground and into a garden rail. She stated he also psychologically abused her and the children, with A.O.’s wanting to hang herself and A.O.L.’s wetting the bed. She testified the Mexican police and district attorney refused to help her, forcing her to flee to the United States.

          The Fifth Circuit noted that Lemus’ testimony, however, was at times inconsistent. Lemus was also impeached on cross-examination. The daughter removed to the United States, A.O., testified favorably for Lemus, but in a sometimes contradictory fashion. Following the bench trial, the court rendered findings of fact and conclusions of law, ruling A.O.L. was wrongfully removed and Lemus failed, inter alia, to prove, by clear and convincing evidence, grave risk to A.O.L. Ontiveros v. Lemus, No. 3:16–CV–00867–N, slip op. at 7 (N.D. Tex. 18 Oct. 2016). For that grave-risk defense (the only Hague Convention defense raised on appeal), the court found, inter alia:”[Lemus]’s allegations of abuse—that [Ontiveros] physically and psychologically abused her, sometimes in front of their children, and that [Ontiveros] allegedly physically assaulted their daughter on one occasion—are in conflict with [Ontiveros’] testimony. [Ontiveros] testified that he could recall one instance in which he and [Lemus] engaged in a physical fight, but [Ontiveros] denied any other instances of abuse. Because neither side is able to provide objective evidence, [Lemus’] allegations of abuse fail to rise to the level of clear and convincing evidence of a grave risk of harm.” The court also found “[Lemus] did not provide any evidence that [Ontiveros] abused or neglected [A.O.L.]”. Id. And, as for A.O.L.’s testimony, it made the following finding:” The Court finds that [A.O.L.’s] responses as to where he would like to live were equivocal. Though in response to questioning by his mother’s attorney, [A.O.L.] responded that he does not want to return to Mexico, he also responded to his father’s attorneys that he enjoys spending time with his father and that he would prefer to split his time between both of his parents.”

On appeal Lemus raised only the grave-risk defense: the court “is not bound to order the return of the child if the [abductor]” establishes, by clear and convincing evidence, “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”. Hague Convention, art. 13(b). The Fifth Circuit observed that “[F]indings of grave risk are rare”. Delgado v. Osuna, 2015 WL 5095231, at *13 (E.D. Tex. 28 Aug. 2015), aff’d, 837 F.3d 571 (5th Cir. 2016). “The person opposing the child’s return must show that the risk to the child is grave, not merely serious.” Hague International Child Abduction Convention; Text and Legal Analysis, 51 FR 10494–01, 1986 WL 133056 (Mar. 1986). The principles underlying the Hague Convention require the “grave risk must be narrowly construed; otherwise, a broad interpretation would cause the exception to swallow the rule and transform the Convention into an arena for custody disputes”. Tavarez v. Jarrett, 252 F. Supp. 3d 629, 640 (S.D. Tex. 2017) (citing England v. England, 243 F.3d 268, 271 (5th Cir. 2000)). In line with the objectives of the Hague Convention, the abductor must, as noted, prove grave risk by clear and convincing evidence. 22 U.S.C. § 9003(e)(2)(A). This standard “establishes a strong presumption favoring return of a wrongfully removed child”. Danaipour v. McLarey, 286 F.3d 1, 13 (1st Cir. 2002). “Clear and convincing evidence” is that weight of proof which “produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitancy, of the truth of the precise facts” of the case. In re Medrano, 956 F.2d 101, 102 (5th Cir. 1992) (quoting Cruzan by Cruzan v. Dir. Missouri Dep’t of Health, 497 U.S. 261, 285 n.11 (1990)).

The Fifth Circuit affirmed. It noted that for the first of her two claims of legal error, reviewed de novo, Lemus asserted the court improperly imposed a heightened legal standard in ruling that, “[b]ecause neither side [was] able to provide objective evidence, [her] allegations of abuse fail to rise to the level of clear and convincing evidence of a grave risk of harm”. Lemus asserted correctly the Hague Convention does not require objective evidence in proving the grave-risk defense by clear and convincing evidence. 22 U.S.C. § 9003(e)(2)(A). It found that the court did not require such evidence; therefore, it did not impose a heightened legal standard.

Underlying Lemus’ other claim of legal error was the grave-risk defense’s requiring her showing a “grave risk that [A.O.L.’s] return [to Mexico] would expose [him] to physical or psychological harm or otherwise place [him] in an intolerable situation”. Hague Convention, art. 13(b). In that regard, she contended the court imposed a heightened legal standard in finding “[Lemus] did not provide any evidence that [Ontiveros] abused or neglected [A.O.L.]”.  Much like the “objective evidence” statement discussed supra, review of the court’s findings of fact and conclusions of law revealed it did not impose a heightened standard. Again, the court made its statement about no evidence of abuse or neglect of A.O.L. in the context of weighing the evidence, in its findings-of-fact section, in the paragraph following its finding the evidence was “in conflict”. The court never stated abuse to Lemus could not produce the requisite grave risk to A.O.L., but, instead, recited the correct legal standard.

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