Flores Castro v. Renteria
| Decision Date | 20 April 2019 |
| Docket Number | Case No.: 2:18-cv-01739-GMN-CWH |
| Parties | Carmen FLORES CASTRO, Petitioner, v. Bertha Hernandez RENTERIA, Respondent. |
| Court | U.S. District Court — District of Nevada |
Vincent Mayo, The Abrams & Mayo Law Firm, Las Vegas, NV, for Petitioner.
Michael David Stein, Clear Counsel Law Group, Henderson, NV, Richard Gordon, Adam Q. Tully, Evan G. Hall, Snell & Wilmer LLP, Eric D. Walther, Kolesar & Leatham, Las Vegas, NV, for Respondent.
Pending before the Court is Respondent Bertha Hernandez Renteria's ("Respondent's") Objection, (ECF No. 55), to the Honorable Magistrate Judge Carl W. Hoffman's November 2, 2018 Report and Recommendation ("First R&R"), (ECF No. 35). Petitioner filed a Response, (ECF No. 57).
Also pending before the Court is Respondent's Objection, (ECF No. 60), to Judge Hoffman's November 29, 2018 R&R ("Second R&R"), (ECF No. 56). Petitioner filed a Response, (ECF No. 69), and Respondent filed a Reply, (ECF No. 77).
This case concerns a petition to return an eight-year old child to Mexico pursuant to the Hague Convention on the Civil Aspects of International Child Abduction ("Hague Convention" or "Convention"), Oct. 25, 1980, 19 I.L.M. 1501, T.I.A.S. No. 11670, S. Treaty Doc. No. 99-11, governed by the International Child Abduction Remedies Act ("ICARA"), 22 U.S.C. § 9001 et seq. (). The child involved here is Z.F.M.Z, and she presently resides in the United States with Respondent (her grandmother). Petitioner is Z.F.M.Z.'s half-sister. (Resp. at 2, ECF No. 69).
Z.F.M.Z. was born in Las Vegas, Nevada on November 23, 2009, to Rusia Michel Zamora ("Rusia"), her mother, and Raul Flores Hernandez ("Raul"), her father. (Id. ). Rusia and Raul thereafter returned to Mexico with Z.F.M.Z. (Trial Tr. 70:7–21, ECF No. 47). In Mexico, Z.F.M.Z. lived primarily with Rusia, and part of the time with Raul. (Id. 117:21–118:23). In April of 2014, however, Rusia disappeared, and the facts in this case do not reveal the cause of that disappearance. (Id. ).
After Rusia's disappearance, Raul and Respondent both cared for Z.F.M.Z. through an informal arrangement. (Id. 121:14–122:17). More specifically, around 2016, Respondent cared for Z.F.M.Z. on the weekdays, and Raul cared for her on the weekends. (Id. ). Z.F.M.Z. would also spend time with Petitioner. (Id. 54:24–55:23).
In May of 2017, Raul and Petitioner initiated custody proceedings against Respondent before a judge in the Sixth Judicial District Court of the State of Jalisco, Mexico ("Jalisco court"). (Second R&R 3:13–14). Raul received custody over Z.F.M.Z, on May 8, 2017, for the pendency of those custody proceedings. (Id. ); (Trial Tr. 72:12–20); (Interlocutory Sentence at 2, Ex. 2 to Petitioner's Resp. (Trial Exhibit 7), ECF No. 69-3). Nevertheless, Z.F.M.Z. resided with Petitioner and her family on the weekends and some weekdays, and other times with Raul. (Trial Tr. 23:20–25, 27:1–4). That arrangement ended when Raul was arrested upon allegations of drug trafficking, after which, according to Petitioner's testimony, Raul informally gave Petitioner custody over Z.F.M.Z. (Id. 72:12–22); (Second R&R 4:3–4).
As the custody proceedings continued in the Jalisco court, Respondent received short-term "provisional custody" allowing her to take Z.F.M.Z. to be interviewed by a psychologist. (Official Communication at 6, Exhibit 11 to Petitioner's Resp. (Trial Exhibit 19), ECF No. 69-12). That term of provisional custody was initially set for August 11, 2017, to August 18, 2017, when another custody hearing was to take place. (Id. ). However, after Respondent appeared at the August 18, 2017 hearing without Z.F.M.Z. and without a psychological report, Respondent received an extension of provisional custody to September 8, 2017. (Id. ). Respondent was not allowed to leave the State of Jalisco or Mexico with Z.F.M.Z. during those times. (Second R&R 4:15–19) (citing Trial Exhibits 12 and 14).1
On August 30, 2017, Petitioner informed the Jalisco court that Respondent had left Mexico with Z.F.M.Z. (Second R&R 4:20–21) (citing Trial Exhibit 14); (Resp. at 6, ECF No. 69) (citing Trial Exhibits 8 and 9). That same day, the Jalisco court entered an Order prohibiting Respondent from leaving Mexico with Z.F.M.Z., set a hearing for September 8, 2017, and authorized a warrant for Respondent's arrest. (Jalisco Court Order at 3, Ex. 8 to Petitioner's Resp. (Trial Exhibit 14), ECF No. 69-9); (Official Communication at 6, Exhibit 11 to Petitioner's Resp. (Trial Exhibit 19), ECF No. 69-12). Respondent, however, failed to appear at the September 8, 2017 hearing. (Second R&R 5:3–5) (citing Trial Ex. 19 at Castro 000139). The Jalisco court then received a letter on September 13, 2017, from Respondent, stating that she would be staying in the United States indefinitely with Z.F.M.Z. (Id. ). Moreover, as of August 31, 2017, Respondent had enrolled Z.F.M.Z. in a Las Vegas, Nevada elementary school. (Trial Tr. 139:15–141:10).
On July 4, 2018, Petitioner filed an initial application for the return of Z.F.M.Z. with the Jalisco court, naming the Jalisco court judge as the petitioner. (Second R&R 5:19–21); (Compl. at 6, ¶ 29, ECF No. 1). That application was returned, however, as needing more information. (Compl. at 6, ¶¶ 29–30). Petitioner then submitted a complete application to the Mexican Central Authority on August 20, 2018. (Id. ). About three days later, the United States Department of State received that application. (Id. ).
On September 7, 2018, Petitioner filed her Complaint with the Court, (ECF No. 1), seeking the return of Z.F.M.Z. to Mexico pursuant to the Hague Convention. Roughly eight days later, upon Petitioner's emergency request, the Court imposed a temporary restriction on Respondent from leaving the Court's jurisdiction with Z.F.M.Z. (Order 1:22–25, 3:7–4:4, ECF No. 4). On September 21, 2018, the Court extended that restriction for the remainder of the case. (Mins. Proceedings, ECF No. 7).
During a case-management conference on September 26, 2018, the Court imposed a visitation schedule, which declared that, "[p]ending the conclusion of this case," Petitioner could exercise visitation with Z.F.M.Z. "every weekend from 9:00 a.m. on Saturdays to 5:00 p.m. on Sundays." (Scheduling Order 2:22–3:3, ECF No. 13); (Mins. Proceedings, ECF No. 12). That same day, the Court filed an Emergency Order, (ECF No. 11), referring this case to the Pro Bono Program in order for Respondent to obtain counsel.
One day after the Court's case-management conference, Respondent obtained a guardianship order over Z.F.M.Z. from the Family Division of the Eighth Judicial District Court for Clark County, Nevada. (First R&R 7–10, ECF No. 35) ( that Respondent obtained a temporary guardianship order on September 27, 2018). Petitioner soon after filed a motion to vacate that guardianship order. (Mot. Sanctions at 5, ECF No. 14); (Mot. Sanctions at 8–9, ECF No. 26).
On October 18, 2018, Richard C. Gordon, Adam Q. Tully, and Evan G. Hall, with the law firm of Snell & Wilmer, L.L.P., appeared as Respondent's pro bono counsel. (Notices of Appearance, ECF Nos. 20–22). The Court then held an evidentiary hearing on the merits of this case on November 9, 2018, with Judge Hoffman presiding. (Mins. Proceedings, ECF No. 46). Judge Hoffman filed a Report and Recommendation concerning the merits of Petitioner's Complaint on November 29, 2018. (Second R&R, ECF No. 56), which recommended, among other things, that the Court grant Petitioner's Complaint pursuant to the Hague Convention, and order Respondent to return Z.F.M.Z to Mexico. (Id. 22:17–25). Respondent thereafter filed a timely Objection to that Report and Recommendation. (Obj., ECF No. 60). On April 16, 2019, the Court held a hearing for oral argument to address that Objection and an earlier Objection to a separate Report and Recommendation. (Mins. Proceedings, ECF No. 81).
A party may file specific written objections to the findings and recommendations of a United States Magistrate Judge made pursuant to Local Rule IB 1–4. 28 U.S.C. § 636(b)(1)(B) ; D. Nev. Local R. IB 3-2. Upon the filing of such objections, the Court must make a de novo determination of those portions of the Report to which objections are made. Id. The Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge. 28 U.S.C. § 636(b)(1) ; D. Nev. Local R. IB 3-2(b).
Judge Hoffman's First R&R addressed the validity of Respondent's guardianship order over Z.F.M.Z. (First R&R 4:18–19, ECF No. 35). Judge Hoffman recommended vacating the guardianship order for two reasons: (1) the guardianship order conflicts with the prohibition on deciding the merits of custody rights over a child during on-going judicial proceedings under the Hague Convention; and (2) Respondent used the guardianship order to subvert the Court's visitation schedule for Z.F.M.Z. (Id. 4:18–5:2). In recommending that the Court vacate Respondent's guardianship order, Judge Hoffman relied on Article 16 of the Hague Convention. (Id. 3:8–18, 4:18–25). Article 16 provides that, "until it has been determined that the child is not to be returned under this Convention," the administrative authorities of the State to which the child has been removed or retained "shall not decide on the merits of rights of custody." Hague Convention, art. 16, 19 I.L.M. at 1503.
Respondent objects to Judge Hoffman's First R&R on the limited ground that it improperly conflates Respondent's guardianship rights with custody rights. (Obj. 3:1–19, ECF No. 55). That is, according to Respondent, the guardianship order does not conflict with Article 16...
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Proceedings Under the Hague Child Abduction Convention: 2018-2019
...33. Flores Castro v. Renteria, No. 218CV01739GMNCWH, 2018 WL 8299943 (D. Nev. Nov. 2, 2018), report and recommendation adopted , 382 F. Supp. 3d 1123 (D. Nev. 2019) (noting that the court had previously vacated an order by a Nevada family court awarding guardianship to the paternal grandpar......