Galaviz v Reyes, --- F.4th ----, 2024 WL 982223 (Fifth Circuit, 2024)[Mexico] [Petition granted] [Fundamental Freedoms Article 20 defense and Grave risk of harm not established] [This Opinion was substituted for the October 11, 2023 opinion]

 

In Galaviz v Reyes,  --- F.4th ----, 2024 WL 982223 (Fifth Circuit, 2024) Abigail Galaviz and Luis Reyes had a son and daughter while living in Mexico. The young children remained in that country with Galaviz when their parents separated. In July 2021, Reyes took the children to El Paso, Texas, and refused to return them. Galaviz filed an action in federal district court requesting the return of the children to Mexico under the Hague Convention. Reyes raised affirmative defenses under Articles 20 and 13(b), asserting that returning the children would violate a fundamental right to an education and would expose them to a grave risk of harm or an intolerable situation. The district court ruled in favor of Reyes and denied Galaviz’s request for the return of the children. The Fifth Circuit reversed and remanded.

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. In July 2021, Reyes took the children to El Paso for an appointment with a physician and refused to return them to their mother or Mexico. In October 2021, Galaviz submitted an Application for the Return of her Children to the United States Central Authority under the Hague Convention. In November, Galaviz filed a Verified Petition for the Return of the Children in the Western District of Texas. At the time of the proceedings in district court, there were no formal custody or possession court orders in place governing the parents’ custodial rights. The son was five years old, and the daughter was four years old. The district court held a trial and 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. Reyes raised 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 denied 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 the exceptions upon which he relied by clear and convincing evidence and denied Galaviz’s request for the return of the children to Mexico.

The Fifth Circuit noted that the Article 20 defense allows repatriation to be denied when it ‘would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.’ ” A parent resisting repatriation of a child based on Article 20 has the burden of establishing by clear and convincing evidence that this exception applies. Article 20 is to be “restrictively interpreted and applied.”  

The Court first determined the applicable standard of review. In recent years, the Supreme Court has held in a Hague Convention case that “[m]ixed questions [of law and fact] are not all alike.” The Court has explained that “[i]n short, the standard of review for a mixed question all depends—on whether answering it entails primarily legal or factual work.” In Monasky v. Taglieri the Court held that the location of a child’s “habitual residence” within the meaning of the Hague Convention “depends on the totality of the circumstances specific to the case,” and the district court’s determination of “habitual residence” “is subject to deferential appellate review for clear error.”   It appeared that whether repatriation of a child should be denied because “it ‘would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms’ ” presents a question that is quite different from the location of a child’s “habitual residence.”

The court explained that to be able to refuse to return a child based on Article 20, it will be necessary to show that the fundamental principles of the requested State concerning the subject-matter of the Convention do not permit it; it will not be sufficient to show merely that its return would be incompatible, even manifestly incompatible, with these principles. An inquiry of that nature would be a legal one, once the underlying facts were determined. It concluded that determining whether “the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms” would not permit the return of a child entails primarily legal work. Accordingly, it reviews the district court’s findings of fact regarding Reyes’ invocation of Article 20 for clear error, bearing in mind that the heightened clear-and-convincing-evidence burden applies, and it reviews de novo whether the circumstances permit a United States court to decline to return a child under Article 20.

 

The Court held that Article 20 is to be “restrictively interpreted and applied.” It “is not to be used ... as a vehicle for litigating custody on the merits or for passing judgment on the political system of the country from which the child was removed.” It noted that the district court found that while in Galaviz’s care, the children did not attend preschool or kindergarten due to the school’s requirement that Galaviz attend school with them to help with their special needs. Because Galaviz did not comply with this requirement, the children did not attend school. However, the district court did not find that the children would be entirely deprived of an education if returned to Mexico. The court acknowledged that “the law in Mexico may provide for special education.” 

These findings did not establish an Article 20 exception. The district court focused primarily on Galaviz’s actions or inactions regarding the children’s education, not on laws or policies of the United States that would prohibit the return of the children. By focusing on Galaviz’s actions or inactions, the district court essentially made an impermissible custody decision. It held that Reyes did not present clear and convincing evidence demonstrating that, as a matter of law, the return of the children would utterly shock the conscience or offend all notions of due process.

The Fifth Circuit held that an Article 13(b) defense determination is a mixed question of law and fact. Because it concluded that the district court’s finding that Reyes established an exception under Article 13(b) cannot stand under either de novo or clear error review, it did not resolve which standard of review is required. 

The Court explained that under Article 13(b), a court in its discretion need not order a child returned if there is a grave risk that return would expose the child to physical harm or otherwise place the child in an intolerable situation.” “The person opposing the child’s return must show that the risk to the child is grave, not merely serious.” “The grave risk involves not only the magnitude of the potential harm but also the probability that the harm will materialize.” “The alleged harm ‘must be a great deal more than minimal’ and ‘greater than would normally be expected on taking a child away from one parent and passing him to another.’ ” A district court’s factual finding is clearly erroneous “when ‘the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ”  The district court’s conclusion that evidence of neglect established a grave risk of harm under the clear and convincing standard was clearly erroneous. Article 13(b) focuses on the risk of harm posed by the child’s repatriation. is not an invitation to determine whether custody with one parent would be in the best interest of the child. The question is whether there is clear and convincing evidence that return would expose the child to a grave risk of harm, not whether a parent is a worthy custodian. The evidence Reyes presented that Galaviz neglected the children’s medical care was not sufficient to support a finding under the clear-and-convincing burden of proof that returning the children to Mexico would present a grave risk of physical harm. Reyes presented evidence that the children had “rotten molars” when in Galaviz’s care and when brought to the United States. He also presented evidence that, when brought to the United States, the children were behind on their vaccinations, their daughter had hearing loss requiring hearing aids, and their son had an astigmatism requiring eyeglasses. On this record, it was clearly erroneous for the district court to conclude that there was clear and convincing evidence that a grave risk of physical harm arose from the medical care the children would obtain if repatriated to Mexico.  Similarly, it was clearly erroneous to base a grave risk finding on Reyes’s evidence with respect to the allegations of unsuitable childcare, poor hygiene, and lack of educational opportunities. That evidence did not clearly and convincingly demonstrate a grave risk of physical or psychological harm. Reyes presented no evidence that these hygiene issues or the older daughters’ supervision of the children would expose the children to a grave risk or intolerable situation. If a child’s standard of living provided clear and convincing evidence of a grave risk of harm, “parents in more developed countries would have unchecked power to abduct children from countries with a lower standard of living.”

The Fifth Circuit found that the district court also clearly erred in concluding that Galaviz was the cause of the children’s regression. If there are “equally plausible explanations” for the outcome, a party does not sustain its burden of proving clear and convincing evidence. The behavioral regressions by the children could be attributed to the fact they are very young, have special needs, and were separated from their father—an “equally plausible explanation[ ]” that undermined the district court’s finding. The evidence was not clear and convincing that Galaviz was the cause of regression. 

Finally, the district court also clearly erred by concluding Reyes presented clear and convincing evidence that the children’s return to Mexico would pose a grave risk of harm by impeding their development. There was no evidence before the district court that programs, classes, or educational opportunities for autistic children are unavailable in Mexico. Nor was there evidence that returning to Mexico would irreversibly impede the children’s development.  The district court found that Galaviz attempted to enroll her children in a special needs school in Mexico, which required Galaviz to be present during the children’s classes. The district court concluded that Galaviz’s inability to be present at the school effectively denied the children their right to an education.

 The district court clearly erred in concluding the evidence related to physical abuse clearly and convincingly established a grave risk of harm. “Sporadic 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 the clear and convincing burden. Cases concluding that the grave risk exception has been met often involve the use of physical force that is repetitive or severe. The district court in the present case 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 the son reacted to protect his sister 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. None of this evidence rose to the level of clear and convincing evidence of a grave risk of physical or psychological harm if the children are returned to Mexico. There were also 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, caused swelling, bruises, black eyes, a busted lip, and a broken nose. If there are “equally plausible explanations” for the outcome, a party does not sustain its burden of providing clear and convincing evidence.

Galaviz’s former friend testified that she witnessed Galaviz hit the children “[n]ot in their face but in their ... thigh.” She stated that Galaviz hit her son with a foam slipper to reprimand him for climbing a kitchenette. She saw Galaviz slap her adult daughter when the latter was confronted about spanking her young brother. She also testified that Galaviz would hit the children because they would cry. This evidence represents the type of “[s]poradic or isolated incidents of physical discipline” that courts have rejected as establishing an Article 13(b) exception. Without more, the district court clearly erred in concluding this evidence established a grave risk of harm by clear and convincing evidence. 

Lastly, the district court clearly erred in determining that there was clear and convincing evidence of sexual abuse. The district court characterized the evidence as indicating merely a “strong suggestion of sexual abuse.” This “strong suggestion” was based on a finding that Reyes received anonymous text messages stating that the children had been sexually abused with Galaviz’s knowledge, a police report filed by Reyes, and a police report narrative in which a physician expressed their belief that the son could have been sexually abused. The district court, however, did not admit the text messages or the police reports for the truth of the matter asserted therein, and their content was not presented in an otherwise admissible form. The only evidence offered to establish the alleged sexual assault was Reyes’s own testimony. This evidence did not meet the clear and convincing evidence burden. Simply put, the only evidence of sexual abuse is the father’s testimony that he suspected sexual abuse. Accordingly, the district court clearly erred in concluding this was clear and convincing evidence of sexual abuse.