Rodriguez v Molina, --- F.4th ----, 2024 WL 1246542 (8th Circuit, 2024) [Honduras] [Petition denied] [Grave risk of harm not established]
In Rodriguez v Molina, --- F.4th ----, 2024 WL 1246542 (8th Circuit, 2024) after Dennys Antonio Reyes Molina (Reyes) wrongfully removed his daughter from Honduras to the United States, the child’s mother, Eny Adamy Mejia Rodriguez (Rodriguez), petitioned for the child’s return under the Hague Convention. Reyes conceded wrongful removal but argued that the child should not be returned because doing so would put her at grave risk of physical harm. The district court found that Reyes had failed to prove any such grave risk by clear and convincing evidence, and ordered that the child be returned to Honduras. The Eighth Circuit affirmed.
Reyes and Rodriguez were citizens of
Honduras. Their daughter was born in July 2016 in Honduras, where she lived
with both parents for the first four months of her life. When her parents
separated, the child continued to live in Honduras with Rodriguez and
Rodriguez’s son from a previous relationship. Reyes took the child from her
home on October 12, 2021. They walked from Honduras to Mexico, where Reyes paid
someone to smuggle them into the United States. Reyes and the child settled in
Des Moines, Iowa. All the while, Rodriguez attempted to secure the child’s
return, eventually filing a petition in federal district court in the Southern
District of Iowa.
Reyes submitted evidence in support of his position that the child should not be returned to Honduras. He testified that Rodriguez had struck the child with a broom when the child was two years old and that she had struck the child’s back with an open hand or fist on multiple occasions beginning when the child was four years old. According to Reyes, Rodriguez repeatedly hit the child with a belt after she had wet the bed, which caused the child to have additional similar incidents. Reyes testified that Rodriguez would not cease using physical punishment, despite his pleas that she do so and that Rodriguez had hit him when he tried to intervene. Reyes submitted eight photos that he had taken in early October 2021. The district court described five of the photos as showing significant bruises on the child’s “back, buttocks, or legs consistent with being struck forcefully and repeatedly by a belt,” while the other photos depicted mere scrapes. Mejia Rodriguez v. Molina, 628 F. Supp. 3d 905, 918 (S.D. Iowa 2022). Reyes’s two sisters testified regarding instances of physical punishment, although their testimony lacked specific detail. One sister testified that “in Honduras, it’s okay to correct a child with a belt.” Reyes also submitted a recording of an angry, expletive-filled voice message from Rodriguez’s ex-boyfriend. Rodriguez admitted that she had once used a belt to discipline the child after the child bullied and repeatedly slapped her brother. Rodriguez testified that she had never struck the child for urinating on herself, that she did not strike Reyes, that Reyes had never spoken with her about physical punishment, and that Reyes’s sisters had had minimal involvement in the child’s life. Rodriguez testified that she had no intention of using physical punishment to correct the child’s behavior in the future, but instead would take away privileges or use time outs. Rodriguez submitted several affidavits to establish that the child would not face a grave risk of harm if returned to Honduras.
The district court found that Rodriguez had physically punished the child for typical childhood behaviors “such as urinating in her bed, arguing with a sibling, or being energetic” and that Rodriguez had “physically abused the child on at least one occasion,” i.e. when she had struck the child with a belt. The court found that the testimony was entitled to some weight, however, because Rodriguez “understands the looming custody battle she faces in Honduras and the likely impact abusive discipline would have on such litigation.” The court relied upon the affidavits in support of Rodriguez’s petition to find that any future abuse by Rodriguez was “possible, but not highly probable.” The court also determined that the child’s injuries—specifically, the bruises depicted in Reyes’s photos—did not indicate that the child “would face a magnitude of physical harm that would allow the Court to lawfully decline to return the child to Honduras.”. The district court ultimately concluded that Reyes had not proved by clear and convincing evidence that the child’s return to Honduras would subject her to a grave risk of harm.
The Eighth Circuit observed that whether the respondent has established “a grave risk
of harm under the Hague Convention is a mixed question of law and fact that it reviews de novo.” It defers to the district court’s credibility and
factual findings, however, unless they are clearly erroneous.. District courts
must engage in “a fact-intensive inquiry” to determine whether the respondent
has proved a grave risk of harm, which requires “careful consideration of
several factors, including the nature and frequency of the abuse [and] the
likelihood of its recurrence.” Appellate courts should usually review with
deference a mixed question that immerses a district court “in case-specific
factual issues—compelling the [court] to marshal and weigh evidence [and] make
credibility judgments.” Monasky v. Taglieri, ––– U.S. ––––, 140 S. Ct. 719, 730,
206 L.Ed.2d 9 (2020) (concluding that the determination of a child’s
habitual residence “should be judged on appeal by a clear-error review standard
deferential to the factfinding court”).
Reyes contended that Rodriguez’s admission that she used a belt to discipline the child and the photos of the bruises inflicted upon the child during that beating, as well as the testimony and affidavits that she frequently hit her child, proved that Rodriguez would continue to use the same methods of discipline against the child upon her return. He also argued that the blows constituted serious abuse. See Vasquez v. Colores, 648 F.3d 648, 650 (8th Cir. 201d) (a grave risk of harm may exist in cases involving “serious abuse or neglect”). The Court found that in its analysis, the district court correctly identified Reyes’s evidentiary burden and conducted its narrow inquiry “of whether the child will face immediate and substantial risk” of harm if she is returned to Honduras “pending final determination of [her] parents’ custody dispute.” Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 377 (8th Cir. 1995). The court did not fully credit Reyes’s evidence, finding that it was only “possible” Rodriguez would continue to use physical punishment. The court relied on Rodriguez’s testimony and her supporting affidavits in finding that it was not “highly probable” that the physical punishment would continue. The Eight Circuit held that the district court’s credibility findings were not clearly erroneous; nor was its assessment of the risk of harm upon the child’s return. The Court noted Rodriguez had “painfully injured her daughter” on at least one occasion by “forcefully and repeatedly” striking the child with a belt. It held that even if the magnitude of the harm on that occasion constituted serious abuse, it could not say that the district court clearly erred in finding that it was not “highly probable” that similar abuse would continue upon the child’s return.
The Court rejected Reyes's argument that the
district court erred by ordering the child’s return in the absence of evidence
of any measures to protect the child’s safety. The district court determined
that returning the child to Honduras would not expose her to a grave risk of
harm, notwithstanding the lack of any protective measures. See Golan v. Saada, 596 U.S. 666, 142 S. Ct. 1880,
1892, 213 L.Ed.2d 203 (2022) (“The question whether there is a grave
risk ... is separate from the question whether there are ameliorative measures
that could mitigate that risk.”); Simcox, 511 F.3d at 608 (“Once the district
court determines that the grave risk threshold is met, only then is the court
vested by the Convention with the discretion to refuse to order return.
It is with this discretion that the court may then craft appropriate
undertakings.”). In light of its determination that no such risk existed, the
district court did not err in ordering the child’s return.
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