Quintero v. Barba, Civil Case No. 5:19-148
| Decision Date | 27 March 2019 |
| Docket Number | Civil Case No. 5:19-148 |
| Parties | DAVID PINTO QUINTERO, Petitioner, v. ALEJANDRA MARIA DE LOERA BARBA, Respondent. |
| Court | U.S. District Court — Western District of Texas |
When this child custody fight crossed the United States-Mexican border, it become a federal case. David Pinto Quintero seeks the return of his four children under the Hague Convention on the Civil Aspects of International Child Obduction, Oct. 25, 1980, T.I.A.S. No. 11,670 [hereinafter Conv.], reprinted in 51 Fed. Reg. 10,494 (Mar. 26, 1986), and its implementing legislation, the International Child Abduction Remedies Act, 22 U.S.C. §§ 9001-9011 (ICARA). Those laws obligate this Court to "return a wrongfully-removed child to his country of habitual residence." Sealed Appellant v. Sealed Appellee, 394 F.3d 338, 342-43 (5th Cir. 2004). A child is wrongfully removed if the respondent took the child outside her home country in contravention of the petitioner's custody rights, as determined by the home country. See id. at 343. So the question is not whether the removal violated custody rights an American judge might award in the first instance, but only whether it violated custody rights a foreign judge already awarded.
To be sure, as the children's mother Alejandra Maria de Loera Barba points out, the Court may still decline to return the children if it finds they "object[] to being returned and ha[ve] attained an age and degree of maturity at which it is appropriate to take account of [their] views," or if the Court finds "a grave risk that [their] return would expose [them] to physical or psychological harm or otherwise place [them] in an intolerable situation." Conv. art. 13(b). But since the Court does not do so, and because Quintero proves his children habitually resided in Mexico before de Loera spirited them to the United States, the Court will grant Pinto's petition.
A few months after getting married in Mexico City, Pinto and de Loera moved to Colorado so Pinto could pursue post-graduate education. See Pet'r's Ex. 6. While in Colorado, de Loera bore two children, M.A.P.D.L.-1 (now thirteen years old) and A.M.P.D.L. (now ten). See Pet'r's Ex. 9. Six years later, the family moved to Guadalajara, Mexico, where they had Z.D.P.D.L. (now eight). Id. After fifteen months in Guadalajara, the family moved back to Mexico City. The couple had their fourth child, M.A.P.D.L.-2 (now seven) a year later. Id.
For the next four years, the family lived alongside Pinto's parents and other relatives in Mexico City. Though Pinto and de Loera briefly considered relocating to the Pintos' house in Florida—even using its address to apply for credit cards and to obtain a driver's license, see Resp't's Exs. 2, 17, and exploring potential schools for their children, see Resp't's Ex. 3—they ultimately decided not to move, partly due to their children's relationship with their grandparents, who saw the children multiple times each week and paid for their education.
In October 2015, Pinto and de Loera separated. At the time, they informally agreed to share custody: Pinto would take the kids to school three days a week and would further spend every other weekend with them.
But six months later, Pinto filed for divorce. After retaining counsel, consenting to jurisdiction, and agreeing the family would be based in Mexico City, see Pet'r's Ex. 1 at 3, Pinto and de Loera entered into a provisional decree giving primary custody to de Loera, awarding visitation rights to Pinto, and prohibiting either parent from removing the children from Mexico City without the other's permission. See id.
A year into that provisional decree, de Loera decamped with the children to live eleven hours away in Nuevo Vallarta. See id. at 19-20. So Pinto went to court to defend his parental rights. When de Loera responded with allegations of abuse, the Mexican judge interviewed each child in camera to test her claims. But none corroborated de Loera's account, instead describing their father as "nice, good, [and] caring," noting "they [we]re happy to see him and they would love to stay and sleep at his home," and adding "that they love him very much and that they do want to see him." Id. at 24. In part based on these representations, in November 2017 the Mexican trial court ordered de Loera to return the children to Mexico City. See id. But de Loera refused to comply, and continued to frustrate Pinto's attempts to visit his children in Nuevo Vallarta. See Pet'r's Ex. 2 at 38; Pet'r's Ex. 16. Both Pinto and de Loera appealed.
While that case was pending, de Loera brought a separate action against Pinto and his parents that accused them of domestic and "economic" violence. Pet'r's Ex. 4 at 5. So a second judge interviewed the children in camera to assess these new allegations. And he found their testimony wholly noncredible: it was based solely on what "their mother told them," id. at 71, and the youngest child admitted de Loera coached her testimony. See Pet'r's Ex. 5 at 5. The judge rejected all of de Loera's claims. See Pet'r's Ex. 4 at 71.
On May 21, 2018, a three-judge panel reversed the November 2017 child custody order. Concluding de Loera caused the children "serious psycho-emotional harm," the Mexican appellate court awarded Pinto primary custody, limited de Loera to visitation rights, and threatened de Loera with arrest if she did not return the children to Mexico City within twenty days after their school term ended. Pet'r's Ex. 1 at 38-40. The appellate court further required de Loera to allow Pinto to visit and communicate with his children, and prohibited either parent from removing the children from Mexico without the other's consent. Id. Despite de Loera's repeated—and unsuccessful—collateral attacks, that order became final. See Pet'r's Ex. 15; Pet'r's Ex. 79 at 5 ().
The next week, armed with the Mexican appellate court's final order, Pinto traveled to Nuevo Vallarta to visit his children. But he couldn't find them. School administrators reported they had been missing all week, and the house where they lived had been abandoned. See Pet'r's Exs. 23-25.
Pinto searched for his children to no avail, even after seeking help from Mexican authorities. Successive calls and emails to de Loera and her family went unreturned; he repeatedly attempted to email the children directly, yet only occasionally obtained a response. See Pet'r's Exs. 25-52. But on January 30, 2019—eight months after the Mexican appellate court order—Pinto's cousin thought he spotted de Loera picking up the children at a San Antonio Montessori school. Subsequent investigation confirmed de Loera secreted the children to San Antonio, where they lived in a house held by a corporation controlled by her mother. See Pet'r's Ex. 8.
That investigation led to this petition. On February 19, 2019, considering the "substantial risk that upon being notified of this proceeding, [de Loera] may remove the Children from the Court's Jurisdiction," Chief Judge Garcia granted Pinto's ex parte application for a temporary restraining order (TRO) and for a writ of execution to take physical custody of the children. Order Granting TRO & Writ of Execution at 2, ECF No. 7. The next day—510 days since he last saw them—Pinto was reunited with his four children.
One day after that, de Loera's parents sued in Texas state court "to modify the parent-child relationship" and to obtain relief specifically foreclosed by the TRO. After waiting four days to serve Pinto, the grandparents persuaded the state court to set an emergency hearing before this Court had a chance to decide Pinto's petition. So this Court stayed those proceedings. See Order Granting Pet'r's Emergency Mot., ECF No. 39.
The Court also denied de Loera's successive requests to appoint an attorney or a guardian ad litem for the children. See, e.g., Order, ECF No. 36. For one, children do not generally participate in Hague Convention proceedings, and this case lacks the exceptional circumstances where a guardian ad litem would assist the court, particularly given this case's expedited posture—a posture further accelerated by de Loera's refusal to extend the TRO. See Chafin v. Chafin, 568 U.S. 165, 179 (2013) (); cf. Sanchez v. R.G.L., 761 F.3d 495, 507-08 (5th Cir. 2014). And the Court denied de Loera's request for the Court to individually interview each child in camera to consider whether equity compelled modifying the TRO, though the Court agreed tointerview the thirteen-year-old in camera to ascertain the applicability of the Hague Convention's mature-child-objection exception.
The Court then held a four-day hearing on the petition. This opinion follows.
Because this case arises under the Hague Convention, the Court has subject matter jurisdiction under both 28 U.S.C. § 1331 and the ICARA, which gives district courts original jurisdiction over actions arising under the Hague Convention. See 42 U.S.C. § 9003(a). Venue is proper in the Western District of Texas since the children were in San Antonio when Pinto filed the petition. See id. at (b).
Though Hague Convention cases may present challenging facts, the legal inquiry is straightforward. The focus is not whether the foreign court's judgment was right, but only whether its order was infringed. To show wrongful removal of a child protected by the Hague Convention, a petitioner must prove...
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