Gallegos v. Garcia Soto
| Decision Date | 30 April 2020 |
| Docket Number | 1:20-CV-92-RP |
| Parties | RENE ESQUIVEL GALLEGOS, Petitioner, v. YULISA ITZEL GARCIA SOTO, Respondent. |
| Court | U.S. District Court — Western District of Texas |
Before the Court in this Hague Convention case is Petitioner Rene Esquivel Gallegos's ("Esquivel") Complaint, (Dkt. 5), in which Esquivel seeks the return of his five-year-old child, Y.E.G., to Mexico. On March 6, 2020, the Court held a consolidated injunction and merits hearing at which Esquivel and Respondent Yulisa Itzel Garcia Soto ("Garcia") appeared and presented arguments concerning the propriety of Y.E.G.'s return. (See Minute Entry, Dkt. 23). See also Fed. R. Civ. P. 65(a); John v. State of La. (Bd. of Trustees for State Colleges & Universities), 757 F.2d 698, 704 (5th Cir. 1985)). The Court also ordered the parties to file supplemental briefing on the merits of Garcia's "grave risk" defense and what standard should be used to evaluate it. (Order, Dkt. 26; Resp.'s Br., Dkt. 30; Pet.'s Br., Dkt. 33). After considering those arguments, the record, and the relevant law, the Court grants Esquivel the relief he seeks and orders Y.E.G.'s return to Mexico. However, in light of the COVID-19 pandemic, the Court stays the order pending a finding that Y.E.G could be safely returned, to be determined during or after a status conference with the parties. (See generally Am. Emergency Order, Dkt. 34).
Esquivel alleges that Y.E.G. "was, without [Esquivel's] consent or acquiescence, wrongfully removed from Mexico and brought to the Western District of Texas by Respondent, Yulisa Itzel Garcia Soto [("Garcia")], Y.E.G.'s mother." (Compl., Dkt. 5, at 1). Esquivel is Y.E.G.'s biological father and asserts that he "has exercised custody rights over Y.E.G. since [the child] was born." (Id. at 4). Esquivel and Garcia, who "were in a free union," lived with Y.E.G. in Tuzantla, Michoacán, Mexico, before and after Y.E.G. was born. (Id. at 6). In the early hours of December 14, 2018, "with no warning, Garcia took Y.E.G. and left their habitual residence while Esquivel was sleeping." (Id.). Esquivel, unaware of Garcia and Y.E.G.'s whereabouts, was able to contact Garcia only sporadically to ask her to return, but she refused. (Id. at 6-7). Around February 20, 2019, Esquivel learned that Garcia had entered the United States; his repeated requests for her to return with Y.E.G. were rebuffed. (Id. at 7). Garcia, Y.E.G., and some additional members of Garcia's family currently live in Pflugerville, Texas. (Id.; Pet.'s Br., Dkt. 33, at 3).
On June 4, 2019, "as soon as he could," Esquivel filed a petition for Y.E.G.'s return with the Mexican government. (Compl., Dkt. 5, at 8; Pet.'s Ex. B, Dkt. 5-2). Sometime between then and January 27, 2020, the United States Department of State received the case and referred it to Esquivel's current counsel. (See Mot. TRO, Dkt. 3, at 8). On January 27, 2020, Esquivel filed a motion to proceed in forma pauperis ("IFP"), (Dkt. 1), a motion for a temporary restraining order ("TRO"), (Dkt. 3), and a motion to seal the other motions' associated exhibits, (Dkt. 2). The Court granted the IFP and TRO motions on January 28, 2020. (Order, Dkt. 4). The TRO order prohibited Y.E.G.'s removal from the Austin Division and required Garcia to surrender Y.E.G.'s passport, (Order, Dkt. 4, at 8), though Garcia later clarified that Y.E.G. does not possess a passport.
Esquivel was then able to file his complaint the same day. (Compl., Dkt. 5). The Court set a hearing and a briefing schedule. (Order, Dkt. 4, at 8). Garcia, who was not yet represented by counsel, did not respond in writing to Esquivel's complaint. On February 5, 2020, Esquivel filed a motion for expedited discovery, asking to depose Garcia prior to the hearing and requesting document production. (Dkt. 10). The Court granted it the following day and set a deadline forGarcia to respond, (Order, Dkt. 11), which she did not. On February 13, 2020, Esquivel filed a motion asking that the Court permit him and witnesses in Mexico to appear by phone or videoconference. (Dkt. 13). The Court granted it the following day. (February 14, 2020, Text Order). Throughout these proceedings, Esquivel timely served Garcia with all required documents. (See Dkt. 9, 13).
On February 21, 2020, the Court held a hearing meant to be the consolidated injunction/merits hearing. (See Minute Entry, Dkt. 16). Garcia appeared in court without counsel. The Court explained the nature of the proceedings and rescheduled the hearing to allow her time to find counsel. Mexican consulate staff were also present. At the hearing, Esquivel requested daily phone conversations with Y.E.G. Garcia did not oppose the request and maintained not only that she had never stopped Esquivel from speaking with Y.E.G., but that she had recordings of them speaking.
On March 3, 2020, the Court held the reset hearing. (See Minute Entry, Dkt. 20). Garcia appeared, accompanied by counsel, who said that he was not ready to proceed. He also said that Garcia removed Y.E.G. because of "threats, duress, and fear of the father." Esquivel's counsel told the Court that he deposed Garcia on March 2, 2020. The Court granted Garcia's counsel's motion to appear pro hac vice and reset the hearing. (Order, Dkt. 22).
At the March 6, 2020, hearing, Garcia appeared in person; Esquivel and his childhood friend and Y.E.G's godfather appeared by telephone. (Minute Entry, Dkt. 23). Difficulties with the connection rendered testimony halting. All three witnesses appeared through interpreters.
Garcia contested Esquivel's version of events through testimony and argument. Through counsel, she questioned Esquivel and testified herself about her allegations that he sexually assaulted her repeatedly over the course of a year, that he and his family members controlled her movements and ability to leave the house and/or neighborhood, that Esquivel attempted to dissuade Y.E.G.from listening to her, that Esquivel kept Y.E.G. from making friends with other children, that Esquivel gave Y.E.G. beer to drink, that he threatened to "drag her back" after she left Tuzantla, and that his mother directly threatened her safety and her custody of Y.E.G. as he stood by. Esquivel denied each allegation.
At the hearing, the parties also clarified the precise order of events leading up to the commencement of these proceedings. Garcia and Y.E.G. entered the United States on or about February 22, 2019, according to Garcia's testimony and documentation she provided. Esquivel filed his first motion in this case on January 27, 2020. (Dkt. 1).
The Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89 (the "Hague Convention") governs civil proceedings filed in signatory countries for the recovery of abducted children. The United States and Mexico are signatories to the Convention. The International Child Abduction Remedies Act, 22 U.S.C. §§ 9001-9011 ("ICARA"), implements the Hague Convention in American law. The Hague Convention and ICARA empower courts to order the return of children removed from their country of habitual residence, not to determine the merits of an underlying custody dispute. 22 U.S.C. § 9001(b)(4); England v. England, 234 F.3d 268, 271 (5th Cir. 2000). Instead, a court's inquiry is limited to determining whether or not the child has been wrongfully removed from their country of "habitual residence." Berezowsky v. Ojeda, 765 F.3d 456, 465 (5th Cir. 2014) (citing 42 U.S.C. § 11601(b)(4); Ruiz v. Tenorio, 392 F.3d 1247, 1250 (11th Cir. 2004)). If the removal and subsequent retention were wrongful, the Hague Convention requires that a court order the return of the retained child.
The retention of a child is wrongful if the petitioner proves by a preponderance of the evidence that: (1) the child was retained somewhere other than the child's habitual residence; (2) the retention was in breach of the petitioner's rights of custody under the laws of the country of habitualresidence; and (3) the petitioner was exercising those rights at the time of retention. Hague Convention arts. 3, 12. Recently, the Supreme Court clarified that "the determination of habitual residence does not turn on the existence of an actual agreement" between the parents. Monasky v. Taglieri, 140 S. Ct. 719, 726 (2020). The Court held that the "bottom line" is that "[t]here are no categorical requirements for establishing a child's habitual residence—least of all an actual-agreement requirement for infants" Id. at 728. This approach complements existing Fifth Circuit precedent, which "balances the interests of the child, who is the ultimate focus of the Convention, and the intentions of [the child's] parents, who usually effect the removal or retention giving rise to a Convention petition." Larbie v. Larbie, 690 F.3d 295, 310 (5th Cir. 2012). This analysis "begins with the parents' shared intent or settled purpose regarding their child's residence" and gives greater weight to the parents' intentions when the child is young. Id. In cases involving young children, like this one, the threshold question is "whether both parents intended for the child to abandon the [habitual residence] left behind." Id. at 310-11.
The Hague Convention also provides that if the child's removal or retention is deemed wrongful and "the date of the commencement of the proceedings" before the court where the child is located is "less than one year" from the date of the removal or retention, the court "shall order the return of the child forthwith." Hague Convention art. 12. Even if it has been longer than one year, the court "shall also order the return of the child[ ], unless it is demonstrated that the child is now settled in its new environment." Id. "ICARA requires the abducting parent to establish by a preponderance of the evidence that Article 12's exception to return applies." Lozano v. Montoya...
To continue reading
Request your trial