Delgado v. Osuna

• Decision Date: 19 September 2016
• Docket Number: No. 15–41312,15–41312
• Citation: 837 F.3d 571
• Parties: Rodrigo Luis Delgado, Plaintiff–Appellant v. Mariana Cecilia Luis Osuna, Defendant–Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

837 F.3d 571

Rodrigo Luis Delgado, Plaintiff–Appellant

v.Mariana Cecilia Luis Osuna, Defendant–Appellee

No. 15–41312

United States Court of Appeals, Fifth Circuit.

September 19, 2016

Thomas Ray Jackson, Adrian Garcia, Lindsay Anne Hedrick, Jones Day, Dallas, TX, for Plaintiff–Appellant.

Lara Elizabeth Bracamonte, Hannah Clare Stroud, Philips & Epperson, L.P., McKinney, TX, Jimmy Lynn Verner, Jr., Verner Brumley McCurley Mueller Parker, P.C., Dallas, TX, for Defendant–Appellee.

Before WIENER, CLEMENT, and COSTA, Circuit Judges.

EDITH BROWN CLEMENT

, Circuit Judge:

In this Hague Convention case, Petitioner–Appellant Dr. Rodrigo Luis Delgado (“Dr. Delgado”) appeals the district court's¹ denial of his petition for return of his children. For the following reasons, we AFFIRM.

I.

On May 22, 2015, Dr. Delgado filed a verified petition under the Hague Convention on the Civil Aspects of International Child Abduction (the “Convention”) for return of abducted children, seeking the return of his seven-year-old and four-year-old sons (“J.A.L.O.” and “D.A.L.O.,” respectively, and referred to collectively herein as the “children”) to Venezuela. The district court ordered the Respondent–Appellee, Mariana Cecilia Luis Osuna (“Osuna”), to show cause why the children should not be returned to Venezuela and why the relief requested by Dr. Delgado should not be granted. The district court conducted a show cause hearing and bench trial on the merits. The following findings of fact from the proceeding are relevant to this appeal.

Dr. Delgado is a dual citizen of Spain and Venezuela and is the biological father of the children in this case. Osuna is also a citizen of Venezuela and is the biological mother of the children in this case. Dr. Delgado and Osuna married in 2002. Dr. Delgado and Osuna have an apartment in Maracay, Venezuela, where they lived together from 2008 until May 2014. During this time, Dr. Delgado practiced urology, and Osuna was a stay-at-home mother.

J.A.L.O. was born in Maracay, Venezuela on July 17, 2008 and is a dual citizen of Spain and Venezuela. J.A.L.O. lived in Venezuela from his birth until May 2014, when he moved with his mother to Frisco, Texas. He has been enrolled in school in the Frisco Independent School District (“Frisco ISD”) since approximately June 2014.

D.A.L.O. was born in Caracas, Venezuela on September 9, 2011 and is a dual citizen of Spain and Venezuela. He lived in Venezuela from his birth until May 2014, when he moved with his mother to Frisco.

Prior to traveling to the United States in May 2014, Dr. Delgado and Osuna frequently discussed the civil unrest and danger occurring in Venezuela, and they discussed relocating their family to another country. The possible new countries of residence included the United States, Spain, Panama, and Ecuador, among others. The discussions were motivated by fear for their family, especially the children, after the family was robbed in 2013 in a Venezuelan hotel room while they slept. Additionally, Osuna testified that her family, specifically her uncle and father, had been involved in a military coup to overthrow the Venezuelan government. As a result, she and other members of her family had been threatened by the government, and she believed that her children had also been threatened. Specifically, Osuna testified that she believed her children were threatened on March 4, 2014, when she was asked to pass a message to her uncle and father to “stop messing with the government.” At the conclusion of the conversation, the men who threatened her said, “Okay, you have a beautiful blondies [children], then take care.”²

The family had previously planned to travel to the United States on May 14, 2014 so that Dr. Delgado could attend the annual Congress of Urology and the children could visit amusement parks. The family obtained six-month tourist visas for the visit. Originally, the family purchased four round-trip tickets arriving in Miami on May 14, 2014 and departing Miami to return to Venezuela on May 26, 2014. Following the March threat to Osuna, one-way tickets were also purchased (sometime between March and May 2014) for Osuna and both children to travel to Osuna's sister's home in Frisco, for an undetermined period of time.

Also after the March 2014 threat, Osuna withdrew J.A.L.O. from school in Venezuela, and with Dr. Delgado's knowledge and approval, she sent J.A.L.O.'s paperwork to the school in Frisco to prepare for his enrollment upon their arrival. The family packed as many belongings as they could fit inside eight suitcases (two per person), which was the maximum allowed by the airline before it charged a fee. Osuna brought all of her and her children's important documents, including birth certificates, medical records, school records, and her marriage license. Osuna and Dr. Delgado also went to Osuna's mother's house to pick out jewelry to bring to the United States. She recalled telling her husband that they were looking “just like Jews ... trying to run out from Germany. We are taking all the jewels and all the gold that we can collect and put inside to go out from Venezuela.” Dr. Delgado also established a bank account in Frisco prior to the trip and deposited money into it.

On May 14, 2014, the family traveled to Miami, Florida. During this trip, Osuna and Dr. Delgado met with Maritza Cifuentes (“Cifuentes”), who assisted Osuna and the children with preparing their applications for political asylum in the United States. During the meeting, Dr. Delgado learned that in order to practice urology in the United States, he would have to undergo an additional fourteen years of medical school and/or training. Accordingly, Dr. Delgado decided not to pursue asylum in the United States. On May 25, 2014, Osuna and the children flew to Texas. Dr. Delgado returned to Venezuela one day later. He did not return to the United States until the hearing before the district court.

Dr. Delgado testified that he intended for Osuna and the children to return to Venezuela sometime after the expiration of the six-month visas, but he had no specific time frame in mind. Osuna testified that she did not intend to ever return to Venezuela but that she discussed reuniting the family with Dr. Delgado in Spain if he was able to find a job there. Dr. Delgado testified that he was aware of the asylum applications but that he did not consent to or intend for Osuna and the children to live in the United States without him permanently.

Dr. Delgado testified that the family left behind ninety percent of their personal belongings in Venezuela. They did not sell their apartment and only took the clothing and other items that they could fit in the suitcases allowed by the airline. Dr. Delgado did not attempt to sell his medical practice. He did, however, later sell one of the family's two cars in Venezuela to pay some outstanding loans and send money to Osuna and the children in the United States.

Throughout the spring and summer of 2014, Osuna and the children resided in Frisco, and J.A.L.O. enrolled in school there. On July 9, 2014, Dr. Delgado signed a power of attorney giving Osuna the authority to make decisions regarding medical, educational, and other care for the children while in the United States. Both parties agreed that the power of attorney did not affect either parties' custody rights. Yet, the parties' testimony diverged concerning the reason for executing the power of attorney. Dr. Delgado testified that the power of attorney was intended to give Osuna the authority to make medical, educational, and other care-related decisions for the children while they were in the United States. Osuna testified that the power of attorney was executed so that she could pursue the asylum applications for the children.

In the fall of 2014, Dr. Delgado packed and sent, through a family member, some winter clothes to Osuna and the children. Osuna testified that even as late as October 2014, Dr. Delgado was aware of the asylum applications and continued to support her in pursuing asylum. Dr. Delgado provided approximately $500 a month to Osuna and the children until December 2014, when he ceased making these payments. Dr. Delgado testified that he requested that Osuna and the children return home in September 2014 because the political situation in Venezuela was improving. She refused. Dr. Delgado testified that his relationship with his wife had deteriorated, and he filed for divorce in January 2015.

* * *

At the conclusion of the hearing, the district court orally denied Dr. Delgado's petition. Later, the district court issued a written opinion finding that Dr. Delgado “failed to meet his burden to establish by a preponderance of the evidence that the habitual residence of the children was Venezuela, and, thus, failed to demonstrate that the children were wrongfully removed and/or retained in the United States.” Additionally, the district court held that even if it erred in its determination that Dr. Delgado failed to establish Venezuela as the children's habitual residence, “this error is harmless as the Court finds the consent exception to return applies here.” The district court entered judgment dismissing the petition with prejudice. Dr. Delgado appealed.

II.

“Resolving disputes under the Convention implicates multiple standards of review.” Larbie v. Larbie , 690 F.3d 295, 306 (5th Cir. 2012)

. “[T]his court reviews factual findings for clear error and conclusions of law de novo .” Id. “A factual finding survives review so long as it is plausible in the light of the record as a whole.” Id. (internal quotation marks omitted). A district court's determination of a child's “habitual residence” is a mixed question of law and fact subject to de novo review. Id. “The mixed standard of review means that the court accept[s] the district court's historical or narrative facts unless they are clearly erroneous, but exercis [es] plenary review of the court's choice of and interpretation of legal precepts and...