In Galaviz, v. Reyes, --- F.4th ----, 2023 WL 6619478 (Fifth Circuit, 2023) Galaviz and Reyes had two children in Mexico together, Andrew and Grace. After Galaviz and Reyes separated, the children remained in Mexico with Galaviz. In July 2021, Reyes took the children to El Paso and refused to return them. Galaviz filed an action in the district court requesting the return of the children to Mexico under the Hague Convention. Reyes raised two affirmative defenses claiming that returning the children would violate their fundamental right to an education and would expose them to a grave risk of harm or an intolerable situation. The district court concluded that Reyes had satisfied his burden and denied Galaviz’s request for return of the children. The Fifth Circuit reversed and remanded with instructions that the court enter an order that the children be returned to Mexico.
Andrew and Grace were four and five years old respectively at the time of the district court proceedings. After Galaviz and Reyes separated, the children remained in Juarez, Mexico under Galaviz’s care. Reyes moved out of the home and relocated to El Paso, Texas. Galaviz and Reyes have no formal custody or possession court orders in place governing each parent’s custodial rights. In July 2021, Reyes took the children to El Paso for an appointment with a physician and declined to return them. In August, Galaviz filed a petition for custody of the children with the Seventh Family Court for Hearings in the Judicial District of Bravos, Chihuahua, Mexico. Galaviz has yet to obtain service on Reyes. In November, Galaviz filed a Verified Petition for the Return of the Children under the Hague Convention and the International Child Abduction Remedies Act (ICARA) in the Western District of Texas, El Paso Division.
The district court held a trial. Reyes conceded that Galaviz met her burden of establishing a prima facie case of wrongful removal by a preponderance of the evidence. The burden then shifted to Reyes, who opposed the return, to establish an exception.1 Reyes raised the exceptions set forth in Articles 20 and 13(b) of the Convention. As to Reyes’s Article 20 defense, the district court concluded that “[Galaviz’s] inability to be present with the children, as required so that they can attend school, effectively denies the children the fundamental right to an education,” and “[t]he denial of an education to two special needs children in their most formative years utterly shocks the conscience of the court.” As to Reyes’s Article 13(b) defense, the court concluded that “[t]he incidents of abuse and neglect collectively and the strong suggestion of sexual abuse constitute a grave risk of physical and psychological harm and an intolerable situation should the children return to Juarez.” The court concluded that Reyes had established these exceptions by clear and convincing evidence2 and denied Galaviz’s request for the return of the children to Mexico.
The district court concluded that Reyes presented evidence demonstrating a history of neglect and abuse by Galaviz for ten reasons: While in Galaviz’s care: “(1) the children’s physical and cognitive abilities declined;” “(2) the children did not attend school although they suffered severe special needs;” “(3) [Grace] received no treatment for her special needs;” “(4) the children remained completely non-verbal;” “(5) the children’s healthcare needs were being neglected as the children were missing vaccines, and had unaddressed auditory, visual, and dental issues;” “(6) the children’s hygiene was being neglected;” (7) “the children’s ability to use the toilet had regressed and the children reverted to using diapers;” (8) “the children had been physically abused;” (9) “there was a strong suggestion the children experienced sexual abuse;” and (10) “Petitioner presented no evidence of a suitable means of childcare while she is at work.” The Fifth Circuit held that the findings pertaining to neglect (findings (1), (2), (3), (4), (5), (6), (7), and (10)) did not satisfy the clear and convincing evidence burden. If there are “equally plausible explanations” for the outcome, a party does not sustain its burden of proving clear and convincing evidence. In the present case, the district court’s findings regarding the children’s healthcare, including the children’s cognitive decline, the fact that they remained non-verbal, or their regression to using diapers may be supported by evidence that would be sufficient in a custody dispute. However, this evidence fell short of meeting Reyes’s clear and convincing burden. Finally, Reyes presented no evidence that unsuitable childcare would expose the children to a grave risk of harm. He merely expressed concern that Galaviz often left the children with her older daughters and they did not take care of the children. This is not clear and convincing evidence of a grave risk of harm.
Next, the evidence related to physical abuse does not establish a grave risk of harm under a clear and convincing burden. The Second Circuit has stated that “[s]poradic or isolated incidents of physical discipline directed at the child, or some limited incidents aimed at persons other than the child, even if witnessed by the child, have not been found to constitute a grave risk” under a clear and convincing burden. Cases concluding that the grave risk exception has been met often involve physical abuse that is repetitive and severe. The district court found that the children had been physically abused based on the children’s behavior and on the testimony of Galaviz’s former friend. The court found that the children cowered and protected their heads when bathing, that Andrew reacted to protect Grace when she spilled her beverage, and that he covered her mouth to quiet her when she cried. Reyes testified that he never saw Galaviz hit the children, but that he observed her yell at them. Reyes stated that he would attempt to conduct video conferences between Galaviz and the children, but that they would become very upset and cry and throw the phone at him. There were other plausible explanations for the children’s behavior. Reyes’s sister acknowledged that it was possible the children did not want to be bathed by someone they didn’t know. The children could have behaved fearfully because of prior actions by Reyes—Galaviz testified that Reyes had punched her, tried to strangle her, and caused swelling, bruises, black eyes, a busted lip, and a broken nose. Galaviz’s former friend testified that she witnessed Galaviz physically abuse the children. She stated that Galaviz hit Andrew with a foam slipper to reprimand him for climbing a kitchenette. She saw Galaviz slap her adult daughter when she confronted her about spanking Andrew. She also testified that Galaviz would hit the children because they would cry. This is not the kind of repetitive and severe abuse seen in cases like Simcox v. Simcox, 511 F.3d 594, 608 (6th Cir. 2007) This case was more similar to Altamiranda Vale. The evidence, therefore, did not satisfy an Article 13(b) defense. Neither the evidence of the children’s behavior nor the former friend’s testimony about the alleged abuse meet the clear and convincing burden.
Lastly, there was no clear and convincing evidence establishing sexual abuse. The district court determined that there was a “strong suggestion of sexual abuse” which constituted a grave risk of harm or an intolerable situation. This “strong suggestion” was based on the findings that Reyes received anonymous text messages stating that Grace and Andrew had been sexually abused with Galaviz’s knowledge, a police report filed by Reyes, a physical examination in which a physician expressed his or her belief that Andrew “could have been sexually abused,” and a police report filed by the physician. This evidence did not meet the clear and convincing evidence burden. In Danaipour v. McLarey, the First Circuit determined that there was a clear and substantial claim of abuse because of evidence including, vaginal redness on one child after her return from visits with her father, the child’s statements to a psychologist that her father had caused the redness, statements by the child that her father had hurt her “pee-pee,” and that she had exhibited symptoms of abuse. Similarly, in Ortiz v. Martinez, the mother had described how she had seen the father molesting the child in the shower, how she had overheard the child tell her father not to touch her anymore, and that the child had exhibited behavior consistent with having suffered sexual abuse. This evidence was sufficient to establish the grave risk exception. By contrast, in Kufner v. Kufner, the First Circuit concluded that the respondent did not establish the grave risk exception despite evidence that the father took four graphic photographs of his children and the children began exhibiting physical symptoms such as bed-wetting, nervous eye twitching, sleeplessness, and nighttime crying and screaming after a vacation with the father.57 In the present case, the physician stated that Andrew could have been sexually abused. The Texas Department of Family and Protection Services initiated an investigation but closed it with no findings. The El Paso Police Department also closed its investigation. The district court acknowledged that the text messages could “be from just about anyone with bad intentions.” This court had previously concluded that information from an unknown source is not sufficient to establish a grave risk of harm. The district court erred in concluding that Reyes established an Article 13(b) defense.
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