Caballero v. Mena, GONZALEZ-CABALLER
| Decision Date | 30 May 2001 |
| Docket Number | DEFENDANT-APPELLEE,GONZALEZ-CABALLER,PLAINTIFF-APPELLANT,No. 00-15822,00-15822 |
| Citation | 251 F.3d 789 |
| Parties | (9th Cir. 2001) EVELYN, v. RAMON EDUARDO MENA, |
| Court | U.S. Court of Appeals — Ninth Circuit |
Hector M. Figueroa, Hector M. Figueroa and Associates, Tucson, Arizona, for the plaintiff-appellant.
Joseph J. DeFrancesco, Sierra Vista, Arizona, for the defendant-appellee.
Appeal from the United States District Court for the District of Arizona John M. Roll, District Judge, Presiding D.C. No. CV-00-00248-JMR
Before: Thomas G. Nelson, Michael Daly Hawkins, and Richard C. Tallman, Circuit Judges.
Evelyn Gonzalez-Caballero appeals the district court's denial of her petition to return her daughter, Danelsy, to her custody in Panama. The district court found that Gonzalez-Caballero consented to the removal and retention of Danelsy from Panama to Arizona by Danelsy's father, Ramon Mena, an American citizen. Because this decision was based on a correct application of the Hague Convention on the Civil Aspects of International Child Abduction ("the Hague Convention"), incorporated into United States law as the International Child Abduction Remedies Act ("the Act"), 42 U.S.C. §§§§ 11601-11610, our review is limited to determining whether the district court's findings of fact were in clear error. Because they were not, we affirm the denial of Gonzalez-Caballero's petition.
Danelsy Sofia Mena-Gonzalez was born in Panama on March 14, 1997, to Evelyn Gonzalez-Caballero, a Panamanian citizen, and Ramon Mena, an American citizen. Gonzalez-Caballero and Mena were not married at her birth, and have not married since. They met, and briefly lived together while Mena was stationed in Panama. Mena left Panama before Danelsy's birth, and was not named as Danelsy's father on her original birth certificate; but, upon learning of her birth, Mena traveled to Panama where both he and Gonzalez-Caballero acknowledged his paternity and amended Danelsy's birth certificate to list him as her father.
While in Panama, Mena acquired a certificate of"Consular Report of Birth Abroad," which secured Danelsy's United States citizenship, began the process to obtain Danelsy's United States passport, and secured a military identification card so Danelsy could receive military dependency privileges. From her birth through October 1999, Danelsy lived with Gonzalez-Caballero in Panama; during this time, Mena sent clothing and support from the United States.
In late September or early October 1999, Mena and Gonzalez-Caballero conversed about Danelsy over the telephone. According to Mena, Gonzalez-Caballero told him that she was pregnant again, that the father of her unborn child had left her, and that she could no longer adequately care for Danelsy. According to Gonzalez-Caballero, she and Mena discussed plans for Mena, Gonzalez-Caballero, and Danelsy to travel to the United States together.
At the time of this telephone conversation, Mena was just about to sign a contract to work in Honduras. Upon signing the contract, Mena was to receive a $1500 advance for travel expenses. After speaking with Gonzalez-Caballero, Mena signed the contract and used the advance to purchase a roundtrip ticket for himself to Panama and a one-way ticket from Panama to the United States for Danelsy.
Upon his arrival in Panama City in early October 1999, Mena was met by Gonzalez-Caballero and Danelsy, who traveled there by bus from Gonzalez-Caballero's hometown. They stayed together in a hotel, where Mena told Gonzalez-Caballero that he would try to help her legally immigrate to the United States if she made the preliminary arrangements through her sister, who lives in Georgia as a resident alien. According to Mena, they also discussed Danelsy's welfare, concluding that she would have a better life in the United States.
Gonzalez-Caballero's account of the events at the hotel is somewhat confused. At various times, Gonzalez-Caballero has claimed that she agreed to allow Mena to take Danelsy to the United States for two weeks until she could get the proper paperwork to join her daughter; at other times, she claims an agreement with Mena under which she allowed him to remove and retain Danelsy provided he help her immigrate to the United States, at which time she would reassume custody. It is undisputed that Gonzalez Caballero gave Mena all of Danelsy's legal documents -- her birth certificates, the Consular Report, her United States passport, and her military identification card.
The next day, Gonzalez-Caballero accompanied Mena and Danelsy to Panamanian government offices to obtain the paperwork required for Danelsy's exit from Panama. Gonzalez-Caballero then saw Mena and Danelsy off at the Panama City airport, as they departed for the United States.
According to Gonzalez-Caballero, she became worried the day after Mena and Danelsy left when Mena did not call upon his arrival in the United States, as he had promised. Concerned, Gonzalez-Caballero consulted Panamanian child custody authorities and the police. A few days later, upon returning home from Panama City, Gonzalez-Caballero also contacted her local police department for advice. When Gonzalez-Caballero and Mena spoke telephonically a few days later, Mena reiterated his willingness to help Gonzalez-Caballero immigrate to the United States, but also told her that she needed to arrange her immigration through her sister.
Gonzalez-Caballero testified that the next day she went to the Panama City police, the United States Judge Advocate General Corps liaison, and the Institute for Children. Gonzalez-Caballero said that she learned she was pregnant on October 14.1 Around November 19, Gonzalez-Caballero went to the office of the Panamanian President, Panamanian radio stations, and the Children's Commission seeking assistance in recovering Danelsy. The office of the President gave Gonzalez-Caballero permission to travel to the United States and provided her with an airline ticket.
Gonzalez-Caballero arrived at a Houston, Texas airport on March 9, 2000. Upon her arrival, I.N.S. contacted Mena and told him that, as Gonzalez-Caballero was without money or domestic travel tickets, she would be returned to Panama unless he provided funds for her further travel. 2 Mena immediately arranged for Gonzalez-Caballero to fly to his brother's home in San Antonio, Texas, where she stayed for about a week.
Mena then arranged for Gonzalez-Caballero to travel by bus from San Antonio to Tucson, Arizona, where she was met by another of Mena's brothers, who took her to his home.3 When Mena met Gonzalez-Caballero later that day, she told him she wanted to take Danelsy and, if she could stay in the United States, he could visit her. Mena told Gonzalez-Caballero that Danelsy was doing well in her new home and refused to allow her to take Danelsy back to Panama.
On April 6, 2000, Gonzalez-Caballero filed a Petition for Return of Child in the district court pursuant to the Hague Convention and under the Act. The district court held an evidentiary hearing and issued a brief, preliminary order denying Gonzalez-Caballero's petition. About four weeks later, the district court issued a longer, more detailed order reaching the same result. Gonzalez-Caballero timely appealed both the denial of her petition and the district court's refusal to amend its order. We have jurisdiction under 28 U.S.C.§§ 1291.
The district court's conclusions of law are reviewed de novo. Cigna Prop. and Cas. Ins. Co. v. Polaris Pictures Corp., 159 F.3d 412, 418 (9th Cir. 1998). Conclusions of international law are also reviewed de novo. Shalit v. Coppe, 182 F.3d 1124, 1127 (9th Cir. 1999). A district court's findings of fact are reviewed under the clearly erroneous standard. Fed. R. Civ. P. 52(a); Diamond v. City of Taft , 215 F.3d 1052, 1055 (9th Cir. 2000). An appellate court must accept the lower court's findings of fact unless the appellate court is left with the definite and firm conviction that a mistake has been committed. United States v. Beard, 161 F.3d 1190, 1194 (9th Cir. 1998).
Article 3 of the Hague Convention states, in pertinent part:
The removal or the retention of a child is to be considered wrongful where --
a. it is a breach of rights of custody attributed to a person . . . under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b. at the time of the removal or retention those rights were actually exercised . . . or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph a above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that...
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