Monroy v. Araujo De Mendoza
| Decision Date | 20 September 2019 |
| Docket Number | No. 3:19-cv-1656-B,3:19-cv-1656-B |
| Parties | HIMMER RONALDO MENDOZA MONROY, Petitioner, v. DEYSI LISSETH ARAUJO DE MENDOZA, Respondent. |
| Court | U.S. District Court — Northern District of Texas |
Petitioner Himmer Ronaldo Mendoza Monroy filed a Verified Petition for Return of Child to El Salvador pursuant to Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction. See Dkt. No. 1. United States District Judge Jane J. Boyle referred this petition to the undersigned United States magistrate judge for evidentiary hearing and the submission of proposed findings of fact and recommendations under 28 U.S.C. § 636(b). See Dkt. No. 20. With the benefit of the evidentiary hearing held on September 13, 2019, see Dkt. Nos. 25 (hearing transcript) & 26 (admitted hearing exhibits), the undersigned enters these findings of fact and conclusions of law and recommends that the Court grant the petition.1
On July 11, 2019, Petitioner filed his Verified Petition for Return of Child [Dkt. No. 1]. The petition asserts that E.L., a three-year-old child of Petitioner and Respondent Deysi Lisseth Araujo de Mendoza, was wrongfully removed and retained by Respondent in violation of the Hague Convention on the Civil Aspects of International Child Abduction Oct. 25, 1980, 1343 U.N.T.S. 89 (the "Hague Convention"), and its implementing legislation, the International Child Abduction Remedies Act (ICARA), 22 U.S.C. §§ 9001-11. See Dkt. No. 1 ¶¶ 1-2.
Petitioner states that the child, E.L., lived in El Salvador up until August 2018, when Respondent and E.L. traveled to the United States with a vacation permit from a family court in El Salvador. See id. ¶¶ 13-17. Petitioner objected to the travel authorization and now attaches a number of Salvadoran judicial documents that show his opposition. See Pet'r's Ex.1. But the Salvadoran government overruled his objections, and Respondent left El Salvador with E.L. and entered the United States on August 11, 2018. See Dkt. No. 1 ¶¶ 17-18. And on August 25, 2018 - the day that the travel authorization expired - Respondent informed Petitioner that she never intended to return to El Salvador. See id. ¶ 19. To Petitioner's knowledge, E.L. hasremained with Respondent in Texas since then. See id. ¶¶ 11, 19. Petitioner filed this suit approximately ten-and-a-half months later. See generally Dkt. No. 1.
Respondent then filed her Original Answer. See Dkt. No. 8. Respondent entered a general denial and asserted three affirmative defenses, which, if proven, could bar return of E.L. to El Salvador: (1) proceedings were commenced more than one year after wrongful removal and the child is now settled; (2) there is a grave risk of harm if the child is returned; and (3) fundamental principles of El Salvador bar return of the child. See id. at 1-3. Respondent later amended her answer to include only affirmative defense (2), see Dkt. No. 14 at 2, although she relies on both affirmative defenses (2) and (3) in her pre-hearing brief, see Dkt. No. 15 at 7.
The Court held a show cause hearing on July 26, 2019. See Dkt. No. 13. At the hearing, E.L. appeared, along with counsel for Petitioner and Respondent. See id. Neither party denied the Court's jurisdiction. And Respondent's counsel surrendered passports for Respondent and E.L. See id.
Petitioner asserts that he has proven a prima facie case for wrongful removal under the Hague Convention. See Dkt. No. 1 ¶¶ 25-34.
First, Petitioner asserts that E.L.'s habitual residence is El Salvador and that Respondent removed or retained E.L. outside of El Salvador. See id. ¶¶ 28-31. Both parties agree that E.L. was born in the United States in May 2016, where he stayed for about one-and-a-half months. See Dkt. No. 18 at 1; Dkt. No. 15 at 5; Dkt. No. 1 ¶ 13; Dkt. No. 25 (evidentiary hearing tr.) 14:19-22, 39:12-14. And they agree that E.L.returned to El Salvador after birth, see Dkt. No. 18 at 1; Dkt. No. 15 at 5, although Respondent testified that, prior to August 2018, Respondent and E.L. took trips to the United States that accounted for six to eight months of E.L.'s life, see Dkt. No. 25 at 42:21-43:4.
And Petitioner offers evidence demonstrating that, on August 8, 2018, in El Salvador, Respondent received temporary travel permission to bring E.L. to the United States from August 11, 2018, until August 25, 2018. See Pet'r's Ex. 1 at 35. Petitioner opposed the travel authorization in Salvadoran court. See id. Now, Respondent and E.L. remain in the United States in violation of the authorization. See Dkt. No. 18 at 3; Dkt No. 1, Ex. C at 2.
Based on these circumstances, Petitioner argues that El Salvador is E.L.'s habitual residence and that Respondent removed E.L. from El Salvador. See Dkt. No. 1 ¶ 28.
Second, Petitioner contends that Respondent's retention of E.L. in the United States violates Petitioner's rights of custody under Salvadoran law. See id. ¶ 29. To establish his custodial rights, Petitioner offers portions of the Salvadoran Family Code. See Pet'r's Ex. 2. Article 207 of the Code states, in English, that "[t]he exercise of the parental authority corresponds to the father and mother jointly." Pet'r's Ex. 2 at 4. And Petitioner points out that his parental rights were never revoked; Petitioner and Respondent lack a final custody order; and Petitioner had open visitation rights with E.L. when Respondent and E.L. left for the United States. See Dkt. No. 18 at 6. Petitioner also cites Article 44 of El Salvador's Law of Integral Protection of Childhoodand Adolescence, which provides both parents a right to restrict a child from leaving the country. See Pet'r's Ex. 2 at 1. This law, Petitioner asserts, is a custodial right. See Dkt. No. 25 at 97:1-13. And, by removing E.L. from the United States, Petitioner contends, Respondent has deprived Petitioner of this custodial right. See id. at 97:16-21. In light of Salvadoran law, Petitioner argues that Respondent's retention of E.L. violated Petitioner's custodial rights. See Dkt. No. 1 ¶ 29.
Third, Petitioner asserts that he was actually exercising his custodial rights when Respondent removed E.L. from El Salvador. See id. ¶ 30. Petitioner states that, until E.L. left for the United States in August 2018, Petitioner visited E.L. at least weekly and financially assisted Respondent in caring for E.L. See Dkt. No. 18 at 7. Corroborating Petitioner's financial contributions, Respondent testified that Petitioner paid her child support for two months - until she left for the United States with E.L. See Dkt. No. 25 at 66:7-8. And Petitioner legally opposed Respondent's travel authorization in Salvadoran court. See Pet'r's Ex. 1 at 35. Through these actions, Petitioner contends that he actually exercised his custodial rights when Respondent took E.L. to the United States. See Dkt. No. 1 ¶ 30.
In response to Petitioner's contentions regarding wrongful removal, Respondent does not appear to dispute Petitioner's prima facie case. Rather, she focuses solely on the existence of affirmative defenses. See Dkt. No. 15 at 7-9. Respondent raises two affirmative defenses: (1) There is grave risk of physical or psychological harm to the child if returned; and (2) fundamental principles relating to protection of human rights and fundamental freedoms in El Salvador do not permit the return of the child. See id.at 7.
In raising the grave-risk defense, Respondent alleges that Petitioner's history of domestic violence poses a grave risk of danger to E.L. if he returns to El Salvador. See id. at 8. First, Respondent asserts that she has suffered family violence and mental abuse at the hands of Petitioner. See Dkt. No. 14 at 2. This allegation is corroborated by the transcript of a Salvadoran family court proceeding, in which the court found that Petitioner "practiced psychological violence over [Respondent]" on June 12, 2018. Pet'r's Ex. 4 at 10. As a result, the court issued a protective order in favor of Respondent, which maintained Petitioner's rights of visitation with E.L. See id. at 11. Further, the family court issued a letter related to the protective order, which stated that the Respondent had "decided to separate from her husband, given that the situation represents a risk for the emotional health and integrity development of the child." Id. at 6.
Respondent also alleges that Petitioner would "hit, punch, and push Respondent" and "tie Respondent's hands and feet up so that she could not move or leave the house for extended periods of time." Dkt. No. 15 at 5. Respondent's exhibits do not provide additional evidence corroborating these allegations. But, at the evidentiary hearing, Respondent testified to other instances of alleged physical abuse: she testified that Petitioner gave her a black eye, locked her in the house without her phone, and waited about a week - until the bruise on her eye had healed - to return the phone. See Dkt. No. 25 at 44:8-45:2. Further, she testified that the physical abuse occurred "all the time," with Petitioner becoming angry when he disagreed with howRespondent completed a task or when E.L. spilled something. Id. at 45:12-14. Respondent explained that she tried to report the physical abuse to a Salvadoran authority but that "they wouldn't accept anything if [she] didn't have any proof." Id. at 77:17-78:2.
To support this explanation, Respondent offered testimony from her mother, Elva Turcios, who testified that Salvadoran police never take women's physical abuse claims seriously. See id. at 87:19-22. Ms. Turcios further testified to other domestic violence cases in her family in which the aggressors did not face any consequences for their violence. See id. at 88:20-89:2. Likewise, Respondent's aunt, Reyna Rubio, testified to the Salvadoran police's lack of response in her other niece's domestic violence case. See id. at 91:3-10.
...
To continue reading
Request your trial