Thursday, April 25, 2019
In Castro v Renteria, 2019 WL 1761546 (D. Nevada, 2019) before the Court was Respondent Bertha Hernandez Renteria’s Objections to the Magistrate Judges First Report and Recommendation (“First R&R”), and “Second Report and Recommendation”. The Court denied the petition for return.
This case concerned a petition to return an eight-year old child to Mexico Z.F.M.Z, presently resided in the United States with Respondent (her grandmother). Petitioner was Z.F.M.Z.’s half-sister. Z.F.M.Z. was born in Las Vegas, Nevada on November 23, 2009, to Rusia Michel Zamora (“Rusia”), her mother, and Raul Flores Hernandez (“Raul”), her father. Rusia and Raul thereafter returned to Mexico with Z.F.M.Z. In Mexico, Z.F.M.Z. lived primarily with Rusia, and part of the time with Raul. In April of 2014, however, Rusia disappeared. After Rusia’s disappearance, Raul and Respondent both cared for Z.F.M.Z. through an informal arrangement. Respondent cared for Z.F.M.Z. on the weekdays, and Raul cared for her on the weekends. Z.F.M.Z. would also spend time with Petitioner. In May of 2017, Raul and Petitioner initiated custody proceedings against Respondent before a judge in the Sixth Judicial District Court of the State of Jalisco, Mexico (“Jalisco court”). Raul received custody over Z.F.M.Z, on May 8, 2017, for the pendency of those custody proceedings. Nevertheless, Z.F.M.Z. resided with Petitioner and her family on the weekends and some weekdays, and other times with Raul. That arrangement ended when Raul was arrested upon allegations of drug trafficking, after which, according to Petitioner’s testimony, Raul informally gave Petitioner custody over Z.F.M.Z. As the custody proceedings continued in the Jalisco court, Respondent received short-term “provisional custody” allowing her to take Z.F.M.Z. to be interviewed by a psychologist. That term of provisional custody was initially set for August 11, 2017, to August 18, 2017, when another custody hearing was to take place. However, after Respondent appeared at the August 18, 2017 hearing without Z.F.M.Z. and without a psychological report, Respondent received an extension of provisional custody to September 8, 2017. Respondent was not allowed to leave the State of Jalisco or Mexico with Z.F.M.Z. during those times.
On August 30, 2017, Petitioner informed the Jalisco court that Respondent had left Mexico with Z.F.M.Z. That same day, the Jalisco court entered an Order prohibiting Respondent from leaving Mexico with Z.F.M.Z., set a hearing for September 8, 2017, and authorized a warrant for Respondent’s arrest. Respondent, however, failed to appear at the September 8, 2017 hearing. The Jalisco court then received a letter on September 13, 2017, from Respondent, stating that she would be staying in the United States indefinitely with Z.F.M.Z. Moreover, as of August 31, 2017, Respondent had enrolled Z.F.M.Z. in a Las Vegas, Nevada elementary school. On July 4, 2018, Petitioner filed an initial application for the return of Z.F.M.Z. with the Jalisco court, naming the Jalisco court judge as the petitioner. That application was returned, however, as needing more information. Petitioner then submitted a complete application to the Mexican Central Authority on August 20, 2018. About three days later, the United States Department of State received that application. On September 7, 2018, Petitioner filed her Complaint with the Court. During a case-management conference on September 26, 2018, the Court imposed a visitation schedule. One day after the Court’s case-management conference, Respondent obtained a guardianship order over Z.F.M.Z. from the Family Division of the Eighth Judicial District Court for Clark County, Nevada.
The Court then held an evidentiary hearing on the merits of this case on November 9, 2018, with Judge Hoffman presiding. Judge Hoffman filed a Report and Recommendation concerning the merits of Petitioner’s Complaint on November 29, 2018. which recommended, among other things, that the Court grant Petitioner’s Complaint pursuant to the Hague Convention, and order Respondent to return Z.F.M.Z to Mexico.
On the merits of the petition, Judge Hoffman concluded that Petitioner “established by a preponderance of the evidence a claim for return of [Z.F.M.Z.] to Mexico under the Hague Convention.”. Specifically, Judge Hoffman found that “petitioner had custody rights and was exercising those rights at the time respondent absconded from the Mexican court’s jurisdiction and wrongfully retained [Z.F.M.Z.].” The basis for this finding was Respondent’s concession that Mexico was Z.F.M.Z.’s habitual residence, and Petitioner had been exercising custody rights in Mexico at the time of the wrongful act. see Hague Convention, Art. 3, 19 I.L.M at 1501; Mozes v. Mozes, 239 F.3d 1067, 1070 (9th Cir. 2001) (explaining that an act is “wrongful” under the Hague Convention when the petitioner’s rights “were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.”).
Respondent’s first objection to the Second R&R concerns the conclusion that this case is based on Respondent’s “wrongful retention” of Z.F.M.Z. in the United States, rather than “wrongful removal” of Z.F.M.Z. from Mexico. The focus of Respondent’s objection to classifying this case as one of wrongful retention lies with that classification’s practical effect on Respondent’s timeliness defense pursuant to the Hague Convention. Typically, wrongful removal refers to the respondent unilaterally taking the child out of their habitual residence in violation of the petitioner’s rights and without the petitioner’s permission. Cf. Lozano v. Montoya Alvarez, 572 U.S. 1, 9 (2014). By contrast, wrongful retention most often refers to the respondent keeping the child out of their habitual residence beyond the time authorized by the petitioner. Silverman v. Silverman, 338 F.3d 886, 897 (8th Cir. 2003); cf. Mozes, 239 F.3d at 1070–71, 1084–85. Determining whether a case is based on wrongful removal rather than retention not only decides the wrongful conduct at issue, but it also dictates the timeliness of a petition pursuant to the Hague Convention. A petition filed less than one year from wrongful removal or retention generally requires return of the child to her country of habitual residence. See Hague Convention, art. 1, I.L.M. at 1501; see also Abbott v. Abbott, 560 U.S. 1, 7, 8, 20 (2010). Conversely, a petition filed more than one year after wrongful conduct is subject to a “well-settled” defense under Article 12 of the Hague Convention—a defense that permits courts to depart from the general mandate of “order[ing] the return of the child.” Lozano v. Montoya Alvarez, 572 U.S. 1, 19 (2014) (Alito, J., concurring); see Hague Convention, art. 12, 19 I.L.M at 1502.
Judge Hoffman’s Second R&R considered this case as one of wrongful retention because Respondent held “provisional custody” on August 11, 2017, until September 8, 2017; and Respondent “wrongfully retained” Z.F.M.Z. in the United States when Respondent failed to appear at the Jalisco court’s custody hearing on September 8, 2017. [R]espondent’s failure to appear at the court-ordered hearing on September 8, 2017, was the earliest unequivocal act when petitioner should have known that respondent had wrongfully retained [Z.F.M.Z.].”). The Second R&R alternatively noted that Respondent’s intent to remain in the United States became “unequivocally clear” when the Jalisco court received a letter from Respondent on September 13, 2017, declaring her intention to remain in Las Vegas with Z.F.M.Z. The commencement date for the one-year period under Article 12, according to the Second R&R, thus began on September 8, 2017, or, at the latest, on September 13, 2017. Based on those dates, the petition was timely filed. However, upon de novo review of the facts in this case, the Court found that this matter was one of wrongful removal. Though Respondent failed to appear at the Jalisco court’s hearing on September 8, 2017, and subsequently notified the Jalisco court on September 13, 2017, that she would not be returning to Mexico with Z.F.M.Z., Respondent had no right to take Z.F.M.Z. to the United States. On August 30, 2017, Petitioner notified the Jalisco court that Respondent had wrongfully left Mexico with Z.F.M.Z. The Jalisco court then entered an order that same day imposing travel restrictions on Respondent, preventing her from leaving Mexico with Z.F.M.Z. during the pendency of custody proceedings. As Petitioner stated in her verified petition, “Petitioner never acquiesced or consented to the relocation of Z.F.M.Z. in the United States.” Moreover, Respondent’s provisional custody over Z.F.M.Z. between August 11 and September 8, 2017, only allowed Respondent to obtain a psychological report of Z.F.M.Z., with no facts showing a corresponding right to leave Mexico to seek that report. Respondent’s relocation of Z.F.M.Z. in the United States—without permission from Petitioner nor the Jalisco court, and in violation of Petitioner’s existing rights—therefore constituted wrongful removal as of August 30, 2017.
Because the Court found that this case arose from Respondent’s wrongful removal of Z.F.M.Z. as of August 30, 2017, the petition for return of Z.F.M.Z. to Mexico was not timely filed with the Court within one year of the wrongful act that forms the basis of this case.; see, e.g., Muhlenkamp v. Blizzard, 521 F. Supp. 2d 1140, 1152 (E.D. Wash. 2007) (“The petition must be filed with the court of record, not the Central Authority, to file within the one-year limitation.”).
In the Second R&R, Judge Hoffman found that Respondent proved, by a preponderance of the evidence, that Z.F.M.Z. was “well-settled” in the United States pursuant to Article 12 of the Hague Convention. Judge Hoffman based that finding on a thorough analysis of testimony from Z.F.M.Z., Z.F.M.Z.’s cousin, and Z.F.M.Z.’s teacher in Las Vegas. (Id. 15:14–16:2). No party objected to Judge Hoffman’s finding that Z.F.M.Z. is presently “well settled” in the United States. The Court could accept Judge Hoffman’s findings on this issue without further examination. Because Z.F.M.Z. was well-settled in the United States, the Hague Convention did not mandate the return of Z.F.M.Z. to Mexico for custody proceedings. See Hague Convention, art. 12, 19 I.L.M at 1502.
Nevertheless, Petitioner argued that even if Z.F.M.Z. was well-settled, the Court could still order her return to Mexico based on equitable considerations surrounding Respondent’s wrongful acts. In re B. Del C.S.B., 559 F.3d 999, 1016 (9th Cir. 2009); Margain v. Ruiz-Bours, 592 F. App’x 619, 621 (9th Cir. 2015); Lozano, 572 U.S. at 20, 23. However, the facts surrounding this case did not warrant such discretionary action. In deciding whether to order the return of Z.F.M.Z. to Mexico although she was well-settled in the United States, the Court’s analysis began with whether Respondent concealed Z.F.M.Z.’s whereabouts after the wrongful removal. Judge Hoffman’s factual findings on the “well-settled” issue, alongside evidence presented during the evidentiary hearing, guided the Court’s discretionary decision to not order the return of Z.F.M.Z to Mexico. Specifically, Judge Hoffman highlighted testimony from Z.F.M.Z.’s teacher in Las Vegas, which revealed Z.F.M.Z.’s significant improvement in English, her participation in school activities, and several school awards that she achieved. Testimony from the evidentiary hearing also revealed how Z.F.M.Z. made “three best-friends” in her new environment, and that Z.F.M.Z had family in the United States that supported her academic and recreational interests. Judge Hoffman thus concluded that Z.F.M.Z. “has established significant connections to Las Vegas.” Additionally, the record did not reveal an effort to conceal Z.F.M.Z. after her entry into the United States. Similar to In re B. Del C.S.B., 559 F.3d 999, 1016 (9th Cir. 2009), concealment was not a factor here, and thus did not favor returning Z.F.M.Z. to Mexico now that she was well-settled in the United States. Last, unlike in Fernandez, the party from whom the child was wrongfully taken (here, Petitioner) can litigate custody issues in the United States. Compare Fernandez, 909 F.3d at 365. By contrast, Respondent provided evidence that, because she removed Z.F.M.Z. from Mexico amid custody proceedings in the Jalisco court, Respondent had an outstanding warrant for her arrest in Mexico. Respondent therefore would likely be severely limited in litigating custody in Mexico, if capable of litigating at all. Further, Petitioner presented testimony from an expert in child psychology, revealing an opinion that Z.F.M.Z. “lives in constant fear” of separation from Respondent. Accordingly, the Court would not order discretionarily return Z.F.M.Z. to Mexico. See In re Robinson, 983 F. Supp. 1339, 1346 (D. Colo. 1997) (“[T]he Convention has essentially decided that, once settled in the new environment, to again uproot the children would be harmful. In that sense the ultimate best interests of the children are served by denying the petition.”). The Court denied the petition under the Hague Convention.