Castro v Hernandez Renteria, 2018 WL 7680608 (D. Nevada, 2018)[Mexico] [Report & Recommendation that Petition be granted]

In Castro v Hernandez Renteria, 2018 WL 7680608 (D. Nevada, 2018) the Magistrate Judge recommended that the petition of Carmen Castro Flores’ for the return of the minor child filed on September 7, 2018 be granted.

Petitioner and Z.M.F.Z. were both dual citizens of the United States and Mexico. Respondent was a citizen of Mexico, and she was the maternal grandmother of Z.M.F.Z. Z.M.F.Z. was born in Clark County, Nevada, on November 23, 2009 to Raul Flores Hernandez, her father, and C. Rusia Michel, her mother. Following Z.M.F.Z.’s birth, the family returned to Mexico. Z.M.F.Z.’s primary caregivers were her mother and respondent, until Z.M.F.Z.’s mother disappeared in April of 2014.  Following the disappearance, respondent became Z.M.F.Z.’s primary caregiver, and occasionally Z.M.F.Z. would see petitioner. In 2016, Raul and respondent established an informal custody agreement, permitting respondent custody on weekdays and Raul custody on the weekends. The informal arrangement continued for 10 months. According to respondent’s son, Jose Rufo Corona, Raul provided respondent with financial support to care for Z.M.F.Z. 

Raul and petitioner initiated custody proceedings against respondent before a family judge in the Sixth Judicial Court of the State of Jalisco in May of 2017. The Jalisco family court awarded custody to Raul on May 8, 2017. Following the custody order, Z.M.F.Z. resided with Raul and his wife until he was later arrested. Petitioner testified that following Raul’s arrest, Raul informally gave petitioner custody of Z.M.F.Z. In petitioner’s verified complaint, petitioner attests under the penalty of perjury that Z.M.F.Z. then resided with her beginning in July of 2017. In 2017, Raul was arrested in Mexico in relation to the United States’ Office of Foreign Assets Control’s (“OFAC”) allegations of drug trafficking.  In August of 2017, petitioner first learned that her husband, Oscar Armando Jimenez Hernandez, also appeared on OFAC’s drug trafficking designation list, alongside her father, Raul. However, petitioner testified that her husband was not involved in drug trafficking, or her father’s business. Petitioner also testified that she and her husband had never been arrested, and that there are no pending criminal charges against them. 

During the pendency of the custody proceedings, the Jalisco family court awarded respondent provisional custody rights from August 11, 2017 until August 18, 2017, to allow Z.M.F.Z. to be interviewed by a psychologist. Respondent was ordered to return with Z.M.F.Z. and the psychological report at the hearing scheduled for August 18, 2017. The Jalisco family court ordered respondent not to leave the State of Jalisco or Mexico with Z.F.M.Z during the pendency of the proceedings. On August 30, 2017, petitioner informed the court that respondent had left the country with Z.M.F.Z. Respondent failed to appear with Z.M.F.Z. at the September 8th hearing, but the Jalisco family court proceeded with the hearing and the taking of evidence. The Jalisco family court directed the Mexican Central Authority to begin the process of returning Z.M.F.Z. to Mexico under the Hague Convention. The Jalisco family court received a letter from respondent on September 13, 2017, stating that respondent had initially taken Z.M.F.Z. to the United States for a week, but that the two would now remain in the United States indefinitely. The Jalisco family court issued an official written notice to the Mexican Office of Foreign Relations that respondent had left the country with Z.M.F.Z. and ordered the initiation of Hague Convention proceedings for the return of the child. In this official notice, the court noted that respondent had removed Z.M.F.Z. from the country “notwithstanding the fact that the legal custody of [Z.M.F.Z.] is under legal dispute.” On May 8, 2018, the Jalisco family court revoked respondent’s provisional custody and awarded petitioner custody of Z.M.F.Z.  Petitioner testified that she first learned that Z.M.F.Z. left Mexico for Las Vegas in September of 2017. Based on the provisional custody order, petitioner assumed that Z.M.F.Z. was with respondent, and that it was not until Z.M.F.Z. did not return for the hearing that she knew respondent “had taken her.” Rufo testified that respondent is seeking asylum in the United States because she fears for her life in Mexico. 

Petitioner initiated an application for the return of Z.M.F.Z., under the Hague Convention, on July 4, 2018, with the Jalisco family court judge named as the petitioner. The petition was filed on September 7, 2018. 

Meanwhile, once in Las Vegas, respondent enrolled Z.M.F.Z. in the Ruben P. Diaz Elementary School on August 31, 2017, where Z.M.F.Z. continued to attend. 
The court heard testimony from Dr. Roitman, who the parties stipulated is an expert in child psychiatry. Dr. Roitman opined that Z.M.F.Z. has attained an age where it would be appropriate to consider her wishes to remain in the country. Dr. Roitman testified Z.M.F.Z. is “strongly attached to her grandmother” and that she views respondent as her primary caregiver, like a mother. Z.M.F.Z. has experienced two traumatic injuries caused by the separation of her primary caregivers, her mother who disappeared, and respondent. Dr. Roitman testified that Z.M.F.Z. has no ongoing psychiatric disorder, but exhibits avoidant anxiety resulting from being removed from respondent. Dr. Roitman attributed the cause of these symptoms to the three-month separation between respondent and Z.M.F.Z., when Z.M.F.Z. lived with Raul and then with petitioner in 2017. Dr. Roitman testified that Z.M.F.Z. lives in constant fear that the separation may occur again, and that the fear has manifested into the physical symptoms of stomach pain, nausea, and vomiting. Dr. Roitman further testified that Z.M.F.Z. experiences nightmares when she anticipates visits with petitioner. When asked whether he “believe[s] with a reasonable degree of medical certainty that there is a grave risk that [Z.M.F.Z.] will suffer psychological harm if she’s separated again from her primary caregiver, her grandmother,” Dr. Roitman responded with “yes.” Dr. Roitman continued, stating that the bond between respondent and Z.M.F.Z. must continue and that the bond itself is “more important than the location.” 

The parties did not dispute that Mexico was Z.M.F.Z.’s place of habitual residence until respondent removed Z.M.F.Z. to Las Vegas in August of 2017. Z.M.F.Z.’s habitual residence at the time of retention was Mexico. Respondent did not dispute that petitioner had custody rights and was exercising those rights at the time of wrongful retention. Petitioner and her father, Raul, initiated custody proceedings in May of 2017 against respondent. The court then awarded custody to Raul, who then informally passed on his custody of Z.M.F.Z. to petitioner upon his arrest. Petitioner established by a preponderance of the evidence a claim for return of Z.M.F.Z. to Mexico under the Hague Convention.

Respondent argued these proceedings were initiated more than a year after Z.M.F.Z. was removed from Mexico, and that Z.M.F.Z. is now well-settled in her new environment. Respondent argued that Z.M.F.Z. is of sufficient age and maturity and objects to a return. Finally, respondent argued a return to Mexico exposes Z.M.F.Z. to a grave risk of harm. The court found that respondent had not established a defense to return under the Hague Convention. 

A defense of delay requires a showing by the preponderance of the evidence that a) the petitioner has delayed more than one year in the filing of an application for return and b) that the child has become settled in her new environment. Hague Convention, art. 12, 19 I.L.M. at 1502. The one-year limitation is calculated from the date of the wrongful removal or wrongful retention to the commencement of the proceedings. In cases of wrongful retention, the clock begins to run either from the date the child remains with the abductor or when the acts of the abductor are so unequivocal that the other party knew, or should have known, that the child would not be returned. Based on the evidence presented, the court found that Z.M.F.Z. was well-settled. Although she had only been in Las Vegas for a little over a year, Z.M.F.Z. had established significant connections to Las Vegas, as she had developed friends, attended school regularly, and had family that resides in the area. Though respondent demonstrated by preponderance of the evidence that Z.M.F.Z. was well-settled in her new environment, petitioner’s Hague Convention petition was timely filed. Therefore, the court found that respondent had not established her untimely petition and well-settled defense by a preponderance of the evidence.

Respondent also argued Z.M.F.Z. had reached sufficient age and maturity, allowing her to object to return. Hague Convention, art. 13, 19 I.L.M. at 1502.  Z.M.F.Z. was called as a witness during the evidentiary hearing and testified to her age of eight, and her objections to returning to Mexico. When asked by respondent’s counsel why she did not want to return to Mexico, Z.M.F.Z. stated that she wished to remain in the Las Vegas because of her school, her friends, and to learn English. Further, Dr. Roitman testified to Z.M.F.Z.’s maturity level, concluding that she exhibited the maturity of at least an eight-year-old child. Based on the evidence, the court did  not find respondent had demonstrated by a preponderance of the evidence that Z.M.F.Z. had “exhibit[ed] an unusual degree of maturity and situational awareness” to accord her wishes “significant weight.” Blackledge, 866 F.3d at 187. While Z.M.F.Z. readily answered respondent’s counsel’s questions, Z.M.F.Z. had difficulty communicating and recalling events when questioned by petitioner’s counsel. Further, when petitioner’s counsel questioned Z.M.F.Z. as to why she changed her mind on participating in visitation, Z.M.F.Z. emotionally expressed concern that respondent would be harmed. Given Z.M.F.Z.’s emotional response, the court was not convinced that Z.M.F.Z.’s views were her own and not a result of influence from respondent. The court found that respondent had not demonstrated a mature-child defense by a preponderance of the evidence.

Respondent argued that returning Z.M.F.Z. to Mexico will expose her to physical or psychological harm. Respondent presented argument of counsel that returning Z.M.F.Z. would expose the child to contact with Raul’s family, who are allegedly “members of one of the largest drug cartels in Mexico.” According to respondent, petitioner’s immediate family members were designated by the United States Government as narcotics traffickers under the Drug Kingpin Act. Lastly, respondent argued that Raul, the alleged leader of the cartel, is still actively seeking custody, and thus exposes Z.M.F.Z. to harm.

The Court explained that a determination of grave risk is a question of fact and law. See Cuellar, 596 F.3d at 505. The grave-risk exception requires the court to consider “whether the child would suffer serious abuse that is a great deal more than minimal.” Gaudin, 415 F.3d at 1035. The grave-risk exception applies “only in extreme cases”. A grave risk of harm exists “when return of the child puts the child in imminent danger prior to the resolution of the custody dispute—e.g., returning the child to a zone of war, famine, or disease” or when there is “serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.” Friedrich, 78 F.3d at 1069 (indicating that sexual abuse of a child would constitute an intolerable situation). Proof of grave risk of harm requires “specific evidence of potential harm” to children. Rydder v. Rydder, 49 F.3d 369 (8th Cir. 1995). Other district courts and circuits have found a grave risk of harm in cases where the harm is a result of separation or disrupting the bond between the abductor and the child. See Rydder, 49 F.3d at 373; Steffen F. v. Severina P., 966 F. Supp. 922, 927-28 (D. Ariz. 1997). The Ninth Circuit, however, has not squarely addressed the issue, but has held that allowing an exception to return based on the trauma inflicted on a young child contravenes the Hague Convention’s rule of return. Asvesta, 580 F.3d at 1020-1021. The court in Asvesta recognized that a grave risk of harm must be more than what is expected when separating the child from a caregiver and passing her to another. 580 F.3d at 1021. Grave risk of harm is where “the child faces a real risk of being hurt, physically or psychologically, as a result of repatriation.” Blondin v. Dubois, 238 F.3d 153, 162 (2d Cir. 2001).

Here, respondent’s expert, Dr. Roitman, testified that Z.M.F.Z. exhibits anxiety and avoidant symptoms that were exacerbated by separation from Z.M.F.Z.’s primary caregiver, respondent. Dr. Roitman testified that the grave risk of psychological harm would only occur if Z.M.F.Z. is separated from respondent. Dr. Roitman cautioned that the bond between respondent and Z.M.F.Z. must continue, even if that meant that the bond was to continue in Mexico. Lastly, petitioner testified that neither her nor her husband have a criminal record and have no ties to the allegations against her father, Raul. Petitioner also did not express any concern that Z.M.F.Z. would be exposed to danger. The Court concluded that Respondent had not established by clear and convincing evidence that Z.M.F.Z. would be subject to a grave risk of serious harm from returning her to Mexico. Respondent only demonstrated that the possible grave risk of harm is attributed to the separation of Z.M.F.Z. from respondent. Given that respondent had not established a grave-risk defense by clear and convincing evidence, the court stated it would recommend that Z.M.F.Z. be returned to Mexico.