In re B. Del C.S.B.

• Decision Date: 18 March 2009
• Docket Number: No. 08-55067.,08-55067.
• Parties: In re B. DEL C.S.B., (minor), Ivan Nemecio Salmeron Mendoza, Petitioner-Appellee, v. Geremias Brito Miranda, Respondent-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

559 F.3d 999

In re B. DEL C.S.B., (minor),

Ivan Nemecio Salmeron Mendoza, Petitioner-Appellee, v. Geremias Brito Miranda, Respondent-Appellant.

No. 08-55067.

United States Court of Appeals, Ninth Circuit.

Argued August 7, 2008.

Submitted September 22, 2008.

Filed March 18, 2009.

Mark T. Cramer and Elisa L. Miller, Kirkland & Ellis LLP, for the respondent-appellant.

Lori R.E. Ploeger, Maureen P. Alger, and Christopher B. Durbin, Cooley Godward Kronish LLP, for the petitioner-appellee.

Appeal from the United States District Court for the Central District of California, Cormac J. Carney, District Judge, Presiding. D.C. No. CV-07-00290-CJC.

Before: STEPHEN REINHARDT, ROGER J. MINER,^* and MARSHA S. BERZON, Circuit Judges.

OPINION

REINHARDT, Circuit Judge:

It is never an easy nor a joyous task to resolve a dispute between parents that may determine the custody of their child; nor is the outcome ever fully satisfactory. Frequently, both sides offer appealing, indeed compelling, arguments. Yet, both cannot prevail. Hague Convention cases are surely no exception to that rule. Nevertheless, we must decide here whether a child of Mexican origin, whose mother wrongfully retained her in the United States, should be allowed to stay in her current home while custody proceedings are conducted in the United States, or whether she should be returned to Mexico while the proceedings are conducted there.

To decide this issue, we must consider a question of first impression in our circuit: whether a court may find that a child is not "settled" for the purposes of Article 12 of the Hague Convention for the reason that she does not have lawful immigration status. We must also decide whether, in this case, the mother "concealed" the child's whereabouts, so that the father is entitled to equitable tolling of the one-year filing period set forth in Article 12. On both questions, we conclude that the answer is no.

I. Overview of the Hague Convention on the Civil Aspects of International Child Abduction ("Hague Convention")

The Hague Convention, to which both the United States and Mexico are parties,¹ was enacted "to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence ...." Hague Convention, preamble. "[T]he Convention's drafters were concerned primarily with securing international cooperation regarding the return of children wrongfully taken by a parent from one country to another, often in the hope of obtaining a more favorable custody decision in the second country." Gonzalez v. Gutierrez, 311 F.3d 942, 944 (9th Cir.2002); see also Hague Convention art. 3 (explaining when the removal or retention of a child is "wrongful").The Convention seeks generally to accomplish its aim by preventing an abducting parent from benefitting from his actions by requiring that a wrongfully removed child be returned to the country of its habitual residence for custody proceedings. See Hague Convention art. 12. The Convention explicitly does not purport to resolve the merits of any underlying custody disputes. See Hague Convention art. 19; see also Gonzalez, 311 F.3d at 945. Rather, "[t]he Convention's focus is . . . whether a child should be returned to a country for custody proceedings and not what the outcome of those proceedings should be." Holder v. Holder, 392 F.3d 1009, 1013 (9th Cir.2004).

Despite the Convention's "desire to guarantee the re-establishment of the status quo disturbed by the actions of the abductor," its drafters recognized the need for several important exceptions to the general rule of return. Elisa Perez-Vera, Explanatory Report ¶ 18, 3 Hague Conference on Private International Law, Acts and Documents of the Fourteenth Session, Child Abduction 426 (1982)[hereinafter "Perez-Vera Report"].² One such exception is the affirmative defense provided in Article 12: If the abducting parent can show that the petition for return was filed more than a year after the wrongful removal or retention occurred, and "that the child is now settled in its new environment," the abducting parent can overcome the presumption in favor of return. Hague Convention art. 12³; see also 42 U.S.C. § 11603(e)(2)(B); Duarte, 526 F.3d at 569. The rationale behind Article 12's "now settled" defense is that when ("a child has become settled and adjusted in [his new environment, a] forced return might only serve to cause him or her further distress and accentuate the harm caused by the wrongful relocation."). Beaumont & McEleavy, The Hague Convention on International Child Abduction 203 (1999); see also Perez-Vera Report ¶ 107 (explaining that "it is clear that after a child has become settled in its new environment, its return should take place only after an examination of the merits of the custody rights exercised over it. . . .").

The Convention does not provide a definition of the term "settled." However, the U.S. State Department has declared that "nothing less than substantial evidence of the child's significant connections to the new country is intended to suffice to meet the respondent's burden of proof." Public Notice 957, Text & Legal Analysis of Hague International Child Abduction Convention, 51 Fed.Reg. 10494, 10509 (U.S. State Dep't Mar. 26, 1986).

II. Background

Ivan Nemecio Salmeron Mendoza ("Salmeron") and Geremias Brito Miranda ("Brito") are the unmarried parents of eleven-year-old Brianna. Both parents are Mexican citizens; neither has legal status in the United States.⁴ Brito was born in Mexico and was brought by her mother ("Grandmother Brito") to the United States in 1981, when she was one or two years old. She has lived the majority of her life in Southern California, where she has a large extended family.⁵ Salmeron lived in the United States between 1988 and 1996.

Salmeron and Brito met and began dating in Santa Ana, California in 1994. Salmeron was twenty-four years old at the time, and Brito was fourteen. In 1995, the couple moved to Oregon. While living in Oregon, Salmeron was arrested on three separate occasions, including once for driving under the influence, once following a domestic dispute with Brito while she was pregnant with Brianna, and once, in 1996, for drug trafficking. The last arrest led to his deportation to Mexico. In the fall of 1996, Salmeron re-entered the United States without documentation and reunited with Brito. In December 1996, the couple decided to return to Mexico and live with Salmeron's mother ("Grandmother Salmeron") in Acapulco rather than appear at court proceedings related to Salmeron's arrests. Brito was about six months pregnant with Brianna at the time.

On April 17, 1997, Brianna was born in Acapulco, Mexico. The new parents struggled for the next four years to provide for their daughter. They lived at Grandmother Salmeron's home in Acapulco. Salmeron worked long hours; Brito and Grandmother Salmeron stayed home and cared for Brianna.

Both Brito and Salmeron describe their relationship during this time as abusive. Brito claims that Salmeron often came home drunk and beat her, and that Brianna saw and heard this happening. She also claims that he was unfaithful to her, and that she had to bail him out of jail on several occasions because of weapons and drug-related incidents.⁶ Salmeron also described mistreatment. He submitted a copy of a local court document recounting Brito's physical and verbal abuse, including an incident in which Brito allegedly attacked him with a knife.

In February 2001, Brito decided to move back to the United States. She and Brianna traveled into California illegally by way of the Tijuana border crossing and moved into Grandmother Brito's home in Garden Grove, California. At the time, Salmeron was under the impression that the couple would reunite either in the United States or Mexico. Brito, by contrast, testified that she intended her relocation back to the United States to be permanent, and that she considered her relationship with Salmeron to be over upon her departure from Mexico. Brito did not, however, discuss these sentiments with Salmeron. Both parties testified that they were regularly in contact by telephone and mail after Brito's move, and that Brianna and Salmeron spoke often.

In June 2001, Brito and Salmeron decided that Brianna should return to her father in Mexico. Brito could not yet register Brianna for school because she was only four years old, a year below the minimum age requirement. In addition, Brito had just lost her job and could not afford to care for Brianna. Thus, on June 15, Grandmother Salmeron accompanied Brianna back to Acapulco, where Salmeron enrolled her in a private summer school program and arranged for her to start school that fall. Again, the three were regularly in contact by telephone and mail while Brianna completed a year of preschool.

In August 2001, while Brianna was living with her father, Brito began a romantic relationship with Aiden Aguilar, who subsequently became her fiancé. In December of that year, the two moved into their current Huntington Beach apartment together. Salmeron was made aware of Brito's new address within two months of her move, as evidenced by the DHL packing slip that was affixed to a package he sent to her on February 26, 2002.⁷

As Brianna's school year came to an end, Brito and Salmeron agreed that Brianna would travel back to California to stay with her mother. In June 2002, Brianna returned to the United States and moved into Brito's new apartment. Salmeron's understanding was that this was a temporary arrangement, as he had already registered Brianna for the 2002-2003 school year in Mexico. However, Brito claims that Brianna was being sent to her permanently to await Salmeron's arrival in the United States, and that she never had any intention of returning the child to Acapulco.

That August, Brianna mentioned in a telephone conversation...