Hernandez v. Garcia Pena

• Citation: 820 F.3d 782
• Decision Date: 28 April 2016
• Docket Number: No. 15–30993.,15–30993.
• Parties: Franklin Pleites HERNANDEZ, Plaintiff–Appellant v. Reina Leticia GARCIA PENA, Defendant–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

820 F.3d 782

Franklin Pleites HERNANDEZ, Plaintiff–Appellant

v.Reina Leticia GARCIA PENA, Defendant–Appellee.

No. 15–30993.

United States Court of Appeals, Fifth Circuit.

April 28, 2016.

Christopher Kent Ralston (argued), Jeremy Thomas Grabill, Lindsay J. Calhoun, Arthur R. Kraatz, Katherine Wells, Esq., Phelps Dunbar, L.L.P., New Orleans, LA, for Plaintiff–Appellant.

Kelly Brechtel Becker, Esq., Kathryn Zainey Gonski, Mirais Moorman Holden, Liskow & Lewis, P.L.C., Jose R. Cot, Esq., Hurley & Cot, A.P.L.C., Raymond Timothy Waid, Trial Attorney (argued), New Orleans, LA, for Defendant–Appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before CLEMENT and HAYNES, Circuit Judges, and GARCIA MARMOLEJO, District Judge.^*

MARINA GARCIA MARMOLEJO

, District Judge:

Six-year-old D.A.P.G. was abducted from his home in Honduras and brought illegally into the United States by his mother Defendant–Appellee Reina Leticia Garcia Peña. Plaintiff–Appellant Franklin Pleites Hernandez filed a petition under the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670 (the Convention), seeking the return of his only child. The Convention provides as a general rule that when a court receives a return petition within one year of a child's wrongful removal, the court “shall order the return of the child forthwith.” Art. 12. Hernandez, however, filed his return petition two months outside of the one-year period, allowing the district court to consider the Convention's defense that the child is well-settled in his new environment and therefore should not be returned. The district court denied Hernandez's petition, concluding that D.A.P.G. was well-settled in his current community even though Garcia Peña's removal of D.A.P.G. from Honduras was wrongful.

This case presents an issue of first impression in this Circuit: the interpretation and application of the Convention's “well-settled” defense. For the reasons that follow we conclude that the district court erred in its application of this defense. Accordingly, we VACATE the district court's order and RENDER judgment in Hernandez's favor.

I.

Franklin Pleites Hernandez and Reina Leticia Garcia Peña, both Honduran citizens, are the parents of D.A.P.G. D.A.P.G. was born in Honduras on September 17, 2009, and grew up in the town of San Antonio, Copán, where both of his grandmothers and 27–45 other extended family members also reside. In 2012, Hernandez and Garcia Peña married, but their relationship deteriorated in the following years and they eventually stopped living together. Hernandez and Garcia Peña never divorced or sought a formal custody agreement, and Hernandez continued to see D.A.P.G. regularly. Then, without Hernandez's knowledge, Garcia Peña left San Antonio, Copán, with D.A.P.G. on May 20, 2014, and hired individuals to smuggle herself and D.A.P.G. into the United States.¹

Garcia Peña and D.A.P.G. entered the United States illegally through Texas and were arrested by immigration authorities. They were subsequently placed in removal proceedings and released into the United States with instructions to report at a later date. Upon their release into the United States, Garcia Peña and D.A.P.G. resided in Nashville for five months and then moved in October 2014 to New Orleans, Louisiana, where they currently live.

In New Orleans, Garcia Peña and D.A.P.G. live with Garcia Peña's boyfriend, also a Honduran citizen, and D.A.P.G.'s four-month-old half-sister, who was born in May 2015. D.A.P.G. is in kindergarten,² and Garcia Peña works in the housekeeping department of a hotel. Garcia Peña and D.A.P.G. also attend church regularly. Aside from these connections, however, D.A.P.G. has no family in New Orleans, and both Garcia Peña and D.A.P.G. are involved in active removal proceedings before the New Orleans Immigration Court.

Meanwhile, as Garcia Peña and D.A.P.G. began new lives in New Orleans, Hernandez remained in Honduras searching for his son. In June 2014, Hernandez contacted Honduran authorities, who in turn contacted the United States Department of State to seek D.A.P.G.'s return pursuant to the Convention. The Department of State did not locate D.A.P.G. and Garcia Peña in New Orleans until May 2015. After locating D.A.P.G., Hernandez filed a petition under the Convention in the United States District Court for the Eastern District of Louisiana on August 4, 2015, asserting that Garcia Peña wrongfully removed D.A.P.G. from Honduras and seeking D.A.P.G.'s prompt return.

II.

The district court scheduled an expedited bench trial, but the trial was delayed over a month by various continuances, including a continuance granted based on Garcia Peña's inaccurate belief that divorce and custody proceedings were pending in Honduras. The day before the bench trial, the district court held an emergency discovery status conference and ordered Garcia Peña to produce all notices she had received from the immigration court. On the morning of the bench trial, September 18, 2015, Garcia Peña produced two notices to appear for removal hearings, addressed to Garcia Peña and D.A.P.G. respectively. Both notices advised that the hearings were scheduled for July 20, 2015, and that failure to attend could result in an order of removal.

Both parties were represented by counsel at the bench trial. Garcia Peña stipulated that D.A.P.G. was wrongfully removed under the Convention, but argued that D.A.P.G. was well-settled in New Orleans and that return to Honduras would pose a grave risk of harm to D.A.P.G. The district court heard testimony from Hernandez, Hernandez's mother, Garcia Peña, Garcia Peña's boyfriend, a Honduran official, and community members in New Orleans. The court also conducted an in camera interview with D.A.P.G. and received exhibits into evidence. The bulk of Garcia Peña's witnesses' testimony focused on characterizing D.A.P.G. as a happy, well-adjusted, and friendly six-year-old who during the past nine months in New Orleans had formed new relationships at church, at school, and at home with his four-month-old half-sister and his mother's boyfriend.

Among the exhibits introduced were the notices to appear for removal proceedings before the New Orleans Immigration Court, addressed to Garcia Peña and D.A.P.G. Garcia Peña testified that although she received the notices, she intentionally did not attend the immigration court hearings because she feared she would be deported. In closing arguments, Hernandez's counsel represented to the district court that he believed D.A.P.G. and Garcia Peña had been ordered deported based on calls to the immigration court's status hotline that morning; however, no evidence of deportation orders was actually introduced.

On September 25, 2015, the district court issued its findings of fact and conclusions of law. The district court concluded that the testimony at trial established by a preponderance of the evidence that D.A.P.G. is well-settled in the United States. The court then denied Hernandez's return petition without addressing the grave risk of harm defense. With regard to the well-settled defense, the district court concluded that D.A.P.G.'s immigration status did not outweigh his “age, stability of new residence, school attendance, friendships in the new area, participation in the community and respondent's employment and financial stability.” Specifically, the district court categorized Garcia Peña's and D.A.P.G.'s immigration status as generally “questionable,” instead of focusing more concretely on their involvement in active removal proceedings.

Hernandez immediately filed a motion for a new trial pursuant to Federal Rule of Civil Procedure 59

to present new evidence that Garcia Peña and D.A.P.G. had been ordered deported from the United States. The district court denied the motion on the grounds that the new evidence would not change the outcome of the case.

On appeal Hernandez challenges the district court's determination that D.A.P.G. is well-settled in New Orleans and its denial of the Rule 59

motion.³

III.

The Hague Convention on the Civil Aspects of International Child Abduction was adopted by its signatories, which include the United States and Honduras, to address “the problem of international child abductions during domestic disputes.” Abbott v. Abbott, 560 U.S. 1, 8, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010)

. The terms of the Convention were implemented by Congress through the International Child Abduction Remedies Act (ICARA), 22 U.S.C. §§ 9001 –11.

The Convention's two express objectives are: (1) “to secure the prompt return of children wrongfully removed to or retained in any Contracting State” and (2) “to ensure that rights of custody and access under the law of one Contracting State are effectively respected.” Art. 1. The return remedy is the central operating feature of the Convention and provides that a wrongfully removed child must be returned to his or her country of habitual residence unless certain defenses⁴ apply. Lozano v. Montoya Alvarez, –––U.S. ––––, 134 S.Ct. 1224, 1228–29, 188 L.Ed.2d 200 (2014)

. Notably, the return remedy does not address the merits of any underlying custody dispute but instead only determines where any custody decision should be made. Sanchez v. R.G.L., 761 F.3d 495, 503 (5th Cir.2014) ; see also 22 U.S.C. § 9001(b)(4). As the Supreme Court has explained, the return remedy “is based on the principle that the best interests of the child are well served when decisions regarding custody rights are made in the country of habitual residence.” Abbott, 560 U.S. at 20, 130 S.Ct. 1983. This principle works to “restore the pre-abduction status quo and deter parents from crossing borders in search of a more sympathetic court.” England v. England, 234 F.3d 268, 271 (5th Cir.2000) (quoting Friedrich v. Friedrich, 78 F.3d 1060, 1064 (6th Cir.1996) ).

But, while the Convention is designed to discourage child abduction, it “does not pursue...