[Honduras][Petition granted] [Grave risk of harm not established]
In Mejia Rodriguez v. Molina, --- F.Supp.3d ----, 2022 WL 4597455 ( S.D. Iowa, 2022) minor Child was born in Honduras to Eny Adamy Mejia Rodriguez and Dennys Antonio Reyes Molina. She lived with both parents for the first months of her life until they separated. Afterwards, she lived with Petitioner full-time while Respondent and Respondent’s family remained involved in her life. Minor Child lived with Petitioner from their separation until Respondent brought her to the United States. Court heard testimony from several people explaining how Petitioner struck Minor Child as punishment for misbehavior. The period of abuse started when the Minor Child was two and continued until she was removed from Honduras at the age of five. Respondent testified that Petitioner used physical violence to punish Minor Child for her behavior. She used a broom to strike the child for being energetic at the age of two. She repeatedly utilized either her fist or the palm of her hand to hit the Minor Child on the back as punishment, which started at the age of four. On another occasion, she repeatedly hit the Minor Child with a belt, leaving significant bruises, after she urinated in her bed. This caused the child to be so scared that she urinated in the bed again. Respondent’s sister, Luz Marina Reyes Molina, testified to Petitioner’s history of striking the minor child as well. She stated Petitioner once hit the child in her home when Petitioner and the child visited. Specifically, Petitioner punched the child in the back for being disrespectful. She recalled Minor Child would visit her house and tell her something like “mom hit me” during the visits. Respondent’s other sister, Lillian Maritza Reyes Molina, also witnessed Petitioner strike the child during a visit. She observed an instance of Petitioner hitting the Minor Child as punishment for her behavior. Petitioner kicked her other child, the child’s older brother, during the same visit. Beyond this incident, she stated there were two other instances where Petitioner was intoxicated and struck the child, although the timeframe of these incidents was unclear.
The parties did not dispute that Petitioner established a prima facie case of improper removal under the Convention. The court found that Respondent had not established the applicability of a grave risk exception by clear and convincing evidence. The Petition for Return was granted. The Court held that Grave risk constitutes an affirmative defense when there will likely be “serious abuse or neglect” upon return. The key inquiry is “the gravity of risk” facing the child. This analysis focuses on “the probability of harm, but also the magnitude of the harm if the probability materializes. ”A court must cite “specific evidence of potential harm” to a child as part of the inquiry. There are several factors to consider when examining the grave risk of serious abuse or neglect in the context of physical abuse. The first consideration is if a parent abused their children. The second factor is a parent’s ability to manage their anger. The third factor is spousal abuse. The Court found the record did not show by clear and convincing evidence that Minor Child would face a similarly grave risk of serious harm upon return to Honduras. The Court held the evidence was insufficient to grant Respondent the relief he sought.
