Bernal v. Gonzalez

• Decision Date: 29 November 2012
• Docket Number: No. MO–12–CV–00091–DC.,MO–12–CV–00091–DC.
• Citation: 923 F.Supp.2d 907
• Parties: Amelia Aguilar BERNAL, Petitioner, v. Gerardo Bahena GONZALEZ, Respondent.
• Court: U.S. District Court — Western District of Texas

923 F.Supp.2d 907

Amelia Aguilar BERNAL, Petitioner,

v.Gerardo Bahena GONZALEZ, Respondent.

No. MO–12–CV–00091–DC.

United States District Court,

W.D. Texas,

Midland/Odessa Division.

Nov. 29, 2012.

Pamela M. Brown, Texas RioGrande Legal Aid, Inc., Weslaco, TX, for Petitioner.

James D. Jepson, McCamey, TX, for Respondent.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

DAVID COUNTS, United States Magistrate Judge.

BEFORE THE COURT is Petitioner Amelia Aguilar Bernal's Verified Petition for Return of Children. (Doc. # 1). This case was referred to the Magistrate Judge for the Midland/Odessa Division on August 27, 2012, by Order of Referral from the United States District Judge pursuant to 28 U.S.C. § 636 and Appendix C of the Local Rules. (Doc. # 5). On October 2, 2012, Petitioner Amelia Aguilar Bernal and Respondent Gerardo Bahena Gonzalez appeared before the Court at a hearing to address Petitioner's Verified Motion for Preliminary Injunction. (Doc. # 3). At the hearing both parties consented to the undersigned U.S. Magistrate Judge for final disposition of this case on the merits. (Docs. # 17 & # 18). Subsequently, the United States District Judge issued an Order on October 9, 2012, reassigning this case to the undersigned. (Doc. # 30).

On October 10, 2012, the Court held a bench trial and heard testimony from Petitioner Bernal, Respondent Gonzalez, and their 16–year–old child, A.B. (male). Following the bench trial, the Court ordered supplemental briefing. (Doc. # 34). Thereafter, the Court ordered further briefing based on an Order for Clarification. (Doc. # 42). After due consideration and upon review of the complaint, testimony, exhibits, briefing, and all arguments made, the Court now enters its Findings of Fact and Conclusions of Law pursuant to Federal Rule of Civil Procedure 52(a).¹

I. Findings of Fact

1. Petitioner Bernal and Respondent Gonzalez are citizens of the Republic of Mexico.

2. Petitioner and Respondent were married in Elk Point, South Dakota, on January 31, 2003.

3. Petitioner and Respondent are the parents of four children: A.B. (male), C.G.B., C.D.B., and A.B. (female). The children were all born in the United States of America and are, thus, United States citizens.

4. A.B. (male) was born in 1996 in California. He is currently sixteen years old and not eligible for return to Mexico under the Hague Convention on the Civil Aspects of International Child Abduction. He is not subject to this suit.

5. C.G.B. and C.D.B. are ten year old twins, born in Iowa in 2002. A.B. (female) is five years old, also born in Iowa, in 2007. C.G.B, C.D.B., and A.B. (female) are eligible for return to Mexico under the Hague Convention on the Civil Aspects of International Child Abduction.

6. In 2008, Petitioner and Respondent moved to Guasaves, Sinaloa, Mexico, from the United States, with their four children. There, Respondent purchased land and built a house. A.B. (male), C.G.B., and C.D.B. attended school in Guasaves, Sinaloa, Mexico. A.B. (female) was at home with Petitioner or family members. Petitioner took care of the children while Respondent worked in the United States.

7. Petitioner and Respondent had marital problems and separated in 2010.

8. On December 16, 2010, Petitioner and Respondent entered into an agreement regarding the care of their four children at the Desarrollo Integral de La Familia (DIF) ² in Guasaves, Sinaloa, Mexico. The agreement was entered into in the presence of a Ministerio Publico.³ The parties agreed in writing that: (1) Respondent would pay $1500.00 Mexican pesos per week for support of A.B. (male), C.G.B., C.D.B., and A.B. (female); and (2) Respondent would have weekend visitation rights. The agreement restricted Respondent's visitation to locations within Sinaloa, Mexico. Respondent and Petitioner signed the agreement and each placed inked thumb prints on the document.

9. The agreement entered into at DIF is valid under the laws of the Republic of Mexico and the State of Sinaloa, Mexico.

10. After signing the agreement, Respondent returned to the United States to work.

11. Respondent complied with the agreement and paid $1500.00 Mexican pesos per week for support of his four children.

12. At some point in March of 2011, Respondent returned to Guasaves, Sinaloa, Mexico, with the intent to retrieve his four children and move them to the United States.

13. On or about March 25, 2011, Respondent picked up A.B. (male), C.G.B., C.D.B., and A.B. (female) from Petitioner for a weekend of visitation as per their written agreement.

14. On or about March 25, 2011, Respondent took A.B. (male), C.G.B., C.D.B., and A.B. (female) to the United States. Petitioner never consented to the initial removal of her four children to the United States and never subsequently acquiesced to the removal of the children.

15. On or about March 26, 2011, Petitioner first learned, from her sister, that Respondent was taking A.B. (male), C.G.B., C.D.B., and A.B. (female) to the United States for relocation. Respondent telephoned Petitioner's sister and informed her that he would not be returning the children to Petitioner, but that he was taking them to the United States instead.

16. Petitioner diligently pursued the location and return of her children. On or about March 28, 2011, Petitioner reported Respondent's taking of the children to the Ministerio Publico in Guasaves, Sinaloa, Mexico. The Ministerio Publico referred Petitioner to the United States Consulate located in Hermosillo, Sonora, Mexico.

17. Approximately two weeks after making a report to the Ministerio Publico, Respondent traveled to the United States Consulate in Hermosillo, Sonora, Mexico. There, Petitioner learned of the Hague Convention on the Civil Aspects of International Child Abduction. The United States Consulate referred Petitioner to the Secretario de Relaciones Exteriores (“Foreign Relations Secretary”). Petitioner traveled to Culican, Sinaloa, Mexico, to meet with the Mexican Foreign Relations Secretary where they assisted Petitioner in her Application for Return of Children. On July 12, 2011, Petitioner signed an Application for Return of Children.

18. The Application for Return of Children was received by the Mexican Foreign Relations Secretary's Office on August 2, 2011. On or about August 16, 2011, the Mexican Foreign Relations Secretary's Office forwarded Petitioner's Application for Return of Children to the U.S. Department of State.

19. Upon leaving Mexico, Petitioner first took A.B. (male), C.G.B., C.D.B., and A.B. (female) for a brief stay in San Diego, California. From California, they moved to Nebraska.

20. From information provided to her by her aunt, Petitioner learned A.B. (male), C.G.B., C.D.B., and A.B. (female) were in Nebraska soon after their arrival there.

21. Petitioner spoke by telephone with Respondent and Petitioner's niece, who resided in Nebraska, after A.B. (male), C.G.B., C.D.B., and A.B. (female) were moved to Nebraska. Petitioner might or might not have been permitted to speak with her children by telephone while they were living in Nebraska.⁴

22. Petitioner requested that Respondent return the children to Mexico and he refused.

23. Respondent moved A.B. (male), C.G.B., C.D.B., and A.B. (female) from Nebraska to Crane, Texas.

24. Petitioner first learned that Respondent moved A.B. (male), C.G.B., C.D.B., and A.B. (female) from Nebraska to Crane, Texas, via a telephone conversation with her niece after relocation occurred.

25. Petitioner might or might not have spoken with her children for the first time since removal from Guasaves, Mexico, by telephone, after they were relocated to Crane, Texas.⁵

26. Respondent filed for divorce in a Texas court on May 2, 2012. A default judgment was entered by the Texas court on July 26, 2012. Respondent was awarded sole managing custody.

27. Petitioner filed suit in the Western District of Texas, Midland/Odessa Division, for Return of Children on August 27, 2012.

28. C.G.B., C.D.B., and A.B. (female) are located in Crane, Texas, in Crane County, a city within the jurisdiction of the Western District of Texas, Midland/Odessa Division. See28 U.S.C. § 124(d)(7).

29. There were no objections to Petitioner's motion for judicial notice. Thus, the Court took judicial notice of the following as permitted by Article 14 of the Convention: (1) the Civil Code of the State of Sinaloa, Mexico; (2) the Code of Civil Procedure of the State of Sinaloa, Mexico; (3) the Federal Civil Code of Mexico; (4) the Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”); (5) the International Child Abduction Remedies Act (“ICARA”); (6) the Hague Conventionon the Civil Aspects of International Child Abduction, Text and Legal Analysis; (7) the status of the United States of America and Mexico as signatories to the Hague Convention on the Civil Aspects of International Child Abduction.

30. In accordance with Article 17 of the Convention, the decision of the Texas court to award Respondent sole managing custody over the children is not grounds for refusing to return the children under the Convention.

31. The Republic of Mexico was the country of habitual residence for A.B. (male), C.G.B., C.D.B., and A.B. (female) prior to their removal on or about March 25, 2011.

32. In accordance with Article 3 of the Convention and the International Child Custody Abduction Remedies Act, Petitioner proved by a preponderance of the evidence that C.G.B., C.D.B., and A.B. (female) were wrongfully removed from their country of habitual residence. Petitioner had rights of custody under the laws of the State in which the children were habitual residents immediately before removal and was exercising those rights before removal. Respondent's removal of C.G.B., C.D.B., and A.B. (female) breached Petitioner's rights of custody.

33. In accordance with Article 13 of the Convention and the International Child Custody Abduction Remedies Act, Respondent failed to establish by...