In Castro v Rentieria, --- F.3d ----, 2020 WL 4814137 (9th Cir., 2020) the district court denied Carmen Flores Castro’s petition for the return to Mexico of Z.F.M.Z., a ten-year-old child who was Carmen’s paternal half-sister. Bertha Hernandez Renteria, Z.F.M.Z.’s maternal grandmother, who had been raising Z.F.M.Z. in Las Vegas, Nevada since 2017, opposed the petition. The parties’ dispute concerned the precise date on which Bertha either wrongfully removed or wrongfully retained Z.F.M.Z. within the meaning of the Convention, which dictates whether Carmen’s petition was timely filed. The Court concluded that the date of wrongful removal or retention was more than one year prior to the date of Carmen’s petition. It affirmed the district court’s discretionary decision not to order the return of Z.F.M.Z. to Mexico pending custody proceedings, because Z.F.M.Z. was now settled in Las Vegas.
Z.F.M.Z. was born in Las Vegas in 2009, the daughter of Rusia Michel Zamora and Raul Flores Hernandez. Rusia and Raul thereafter moved to Mexico, where they lived separately. Z.F.M.Z. lived primarily with Rusia and Bertha. In 2014, Rusia disappeared under unknown circumstances. Raul was in prison at the time, and Bertha became Z.F.M.Z.’s primary caregiver. Upon Raul’s release in 2016, Bertha and Raul agreed to an informal arrangement pursuant to which Bertha would have custody of Z.F.M.Z. on weekdays, and Raul on weekends. In May of 2017, Raul and Carmen initiated custody proceedings against Bertha in family court in Jalisco, Mexico. The court granted Raul full custody during the pendency of the proceedings. Z.F.M.Z. then resided partly with Raul and partly with Carmen. That arrangement ended when Raul was arrested in Mexico on allegations of drug trafficking by the U.S. Office of Foreign Assets Control. After his arrest, Raul allegedly gave Carmen informal custody of Z.F.M.Z. ubsequent to Raul’s arrest, with custody proceedings ongoing, Bertha obtained provisional custody of Z.F.M.Z. On August 25, Bertha left Mexico with Z.F.M.Z. on a flight from Guadalajara to Las Vegas. On August 30, Carmen reported to the Jalisco court that Bertha had taken Z.F.M.Z. out of Mexico. The Jalisco court issued an order the same day that set the custody hearing for September 8; ordered Bertha to appear along with Z.F.M.Z. at the hearing; acknowledged that Bertha had “left the country with [Z.F.M.Z.]”; set a bond on Bertha’s appearance; and directed personal notice to Bertha “that she may not leave the territory of this court ... or the country, accompanied by the mentioned minor, without leaving a duly authorized representative to take part in this trial.” Neither Bertha nor Z.F.M.Z. appeared at the September 8 hearing. On September 13, the court received a letter from Bertha stating that she would be staying in the United States indefinitely with Z.F.M.Z. On October 2, the court issued an order directing communication to the Mexican Ministry of Foreign Affairs and the U.S. Consulate General in Guadalajara, to inform them “that [Z.F.M.Z.] was illegally taken out of the country against all the judicial orders.” On October 12, the Jalisco court issued a further order stating that Bertha “did not comply with the secure order decreed in the resolution of August 30th, 2017, and left out of the territory with [Z.F.M.Z.].” The order directed the Jalisco District Attorney to notify Bertha of her noncompliance by virtue of “taking [Z.F.M.Z.] out of the country without authorization.” The order additionally directed that the relevant diplomatic offices be informed “about the illegal subtraction of [Z.F.M.Z.] out of the country.” On September 7, 2018, Carmen filed her Hague Convention petition with the district court, requesting Z.F.M.Z.’s return to Mexico.
The magistrate recommended granting Carmen’s petition pursuant to the mandatory return provision of Article 12 of the Convention. The magistrate found that Bertha, had “provisional custody” at the time she removed Z.F.M.Z. from Mexico. The magistrate determined that September 8, 2017, when Bertha failed to appear at the Jalisco court hearing with Z.F.M.Z., “was the earliest unequivocal act when [Carmen] should have known that [Bertha] had wrongfully retained [Z.F.M.Z.].”1 On this basis, the magistrate concluded that the date of wrongful retention was September 8, 2017, and that Carmen’s September 7, 2018 petition was timely filed. Notwithstanding its threshold conclusion the magistrate also found that, “[a]lthough she has only been in Las Vegas for a little over a year, [Z.F.M.Z.] has established significant connections to Las Vegas, as she has developed friends, attends school regularly, and has family that resides in the area.” The magistrate concluded that Z.F.M.Z. was now “settled” with Bertha in Las Vegas.
The district court rejected the magistrate’s recommendation regarding the timeliness of Carmen’s petition, and ultimately denied the petition. Reviewing the facts de novo, the court found that Bertha “had no right to take Z.F.M.Z. to the United States,” and that this matter was therefore “one of wrongful removal” rather than wrongful retention. The court concluded that wrongful removal occurred on August 30, 2017, and that Carmen’s September 7, 2018 petition was therefore filed more than one year after the operative date. The court then declined to exercise its discretion to nevertheless order return. The court highlighted the magistrate’s uncontested findings on the now-settled defense, including that Z.F.M.Z. had made “significant improvement in English,” achieved “several school awards,” made “three best-friends” in her new environment, and has family in the United States that “supports her academic and recreational interests.” The court found that Bertha did not attempt to conceal Z.F.M.Z. after her entry into the United States, but rather informed the Jalisco court of Z.F.M.Z.’s relocation to Las Vegas shortly after her arrival. The court also found that Carmen was capable of litigating custody issues here in the United States, whereas Bertha would likely be unable to litigate custody in Mexico due to her outstanding arrest warrant for abducting Z.F.M.Z. The court concluded that “[o]n balance,” the facts favored preserving Z.F.M.Z.’s stability in her current environment.
The Ninth Circuit pointed out that as relevant here, if the other parent or guardian fails to petition for return within one year, and “it is demonstrated that the child is now settled in its new environment,” the judicial authority is not required to order return.
The Court indicated in a footnote that it used the term “guardian” as shorthand for “a person, an institution or any other body” that “jointly or alone” has “rights of custody” within the meaning of the Convention. Hague Conv. Art. 3(a). It adopted the conclusion of the House of Lords in In re H that a court in the child’s country of habitual residence may be such a guardian where custody proceedings are pending before it. In re H (A Minor) (Abduction: Rights of Custody), [2000] 2 A.C. 291, 1999 WL 1319095 (appeal taken from Eng.); see Fawcett v. McRoberts, 326 F.3d 491, 500 (4th Cir. 2003) (adopting same, noting that “judicial ‘opinions of our sister signatories’ to the Convention are ‘entitled to considerable weight.)
The one-year period is triggered by the “date of the wrongful removal or retention” of the child. A removal or retention of a child is “wrongful” if it is “in breach of the rights of custody” attributed to any guardian “under the law of the State in which the child was habitually resident.” Hague Conv. Art. 3(a). According to the U.S. State Department: Generally speaking, “wrongful removal” refers to the taking of a child from the person who was actually exercising custody of the child. “Wrongful retention” refers to the act of keeping the child without the consent of the person who was actually exercising custody. The archetype of this conduct is the refusal by the noncustodial parent to return a child at the end of an authorized visitation period. Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed. Reg. 10,494, 10,503 (Mar. 26, 1986).
The district court concluded that Bertha wrongfully removed Z.F.M.Z. from Mexico no later than August 30, 2017. Carmen argued that Bertha’s removal of Z.F.M.Z. was not wrongful at all, and that Bertha’s retention of Z.F.M.Z. outside of Mexico did not become wrongful until at least September 8, 2017, when Bertha failed to appear with Z.F.M.Z. at the custody hearing.
The Court noted that Bertha alleged that she and Z.F.M.Z. boarded a flight from Guadalajara to Las Vegas on August 25, 2017. The record contained copies of the August 25 boarding passes for Bertha and Z.F.M.Z. In light of this evidence, it concluded that the district court’s finding was clearly erroneous. Bertha removed Z.F.M.Z. from Mexico on August 25, 2017. For a removal to be “wrongful,” the Convention requires that the removal be in breach of the “rights of custody” of any guardian. The Convention in turn defines “rights of custody” to include “the right to determine the child’s place of residence.” Art. 5(a). Prior to this appeal, there had been no dispute that both Carmen and the Jalisco court had such “rights of custody” at the time that Bertha removed Z.F.M.Z. from Mexico. There remained no dispute that at least the Jalisco court had the relevant “rights of custody.” It found that Bertha’s removal of Z.F.M.Z. was “in breach” of either Carmen’s or the Jalisco court’s rights of custody under Mexican law. Hague Conv. Art. 3(a). It gave great weight to the Jalisco’s court’s own rulings concerning the wrongfulness of the removal in this case and concluded that the child. Jalisco court’s decisions issued in October 2017 made clear that the removal was in breach of the relevant rights of custody. Accepting those factual findings made by the district court which it had not found to be clearly erroneous, and reviewing de novo the application of the Convention to those facts, it concluded that Bertha wrongfully removed Z.F.M.Z. from Mexico on August 25, 2017.
It then noted that Carmen’s petition was filed with the district court on September 7, 2018. Her petition was therefore filed more than one year after “the date of the wrongful removal or retention.” Hague Conv. Art. 12; 22 U.S.C. § 9003(f)(3). Accordingly, the district court had discretion to decline to order the return of Z.F.M.Z. to Mexico if Bertha proved by a preponderance of the evidence that Z.F.M.Z. was now “settled” in Las Vegas. Hague Conv. Art. 12; 22 U.S.C. § 9003(e)(2)(B); In re B. Del C.S.B., 559 F.3d at 1009. Carmen did not appeal the district court’s findings that Z.F.M.Z. was “settled,” nor did Carmen argue that the district court abused its discretion in declining to order return. Thus, it held that the district court’s decision was proper, and affirmed the district court’s denial of Carmen’s petition for the return of Z.F.M.Z. to Mexico pending custody proceedings.
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