Saldivar v. Rodela

• Decision Date: 22 June 2012
• Docket Number: No. EP–12–CV–00076–DCG.,EP–12–CV–00076–DCG.
• Citation: 879 F.Supp.2d 610
• Parties: Sonia Eladia Acosta SALDIVAR, Petitioner, v. Rick RODELA, Respondent.
• Court: U.S. District Court — Western District of Texas

879 F.Supp.2d 610

Sonia Eladia Acosta SALDIVAR, Petitioner,

v.Rick RODELA, Respondent.

No. EP–12–CV–00076–DCG.

United States District Court,

W.D. Texas,

El Paso Division.

June 22, 2012.

Pamela M. Brown, Texas Riogrande Legal Aid, Inc., Weslaco, TX, for Petitioner.

James Darrell Lucas, Attorney at Law, Marlene Gonzalez, Law Office Of Marlene Gonzalez, PLLC, El Paso, TX, for Respondent.

MEMORANDUM OPINION AND ORDER

DAVID C. GUADERRAMA, District Judge.

On this day, the Court considered Petitioner Sonia Eladia Acosta Saldivar's (“Acosta”) “Verified Complaint/Petition for Return of Child to Petitioner” [ECF No. 1], filed on March 5, 2012, in the above-captioned cause. Therein, she claims that Respondent Erick Rodela (“Rodela”) is wrongfully retaining the parties' minor son, D.I.R.A., in the United States, in violation of the Hague Convention on the Civil Aspects of International Child Abduction, 25 Oct. 1980, T.I.A.S. No. 11,670, 19 I.L.M. 1501 (“Hague Convention” or “Convention”), implemented in the United States by the International Child Abduction Remedies Act, 42 U.S.C. §§ 11601–11610 (“ICARA”). As relief, she seeks immediate return of D.I.R.A. to Mexico. On June 8, 2012, the Court held a bench trial, at which each party appeared in person and by counsel. After due consideration and for the reasons that follow, the Court is of the opinion that Acosta's request for the return of the child should be granted.

I. JURISDICTION AND VENUE

The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331, as this matter arises under the Convention and ICARA, the implementing legislation. Pursuant to ICARA, state and federal district courts have concurrent original jurisdiction over actions arising under the Convention.42 U.S.C. § 11603(a). A Hague petitioner, however, is “free to choose between state or federal court.” Yang v. Tsui, 416 F.3d 199, 203 (3rd Cir.2005). Venue is proper because this Court “is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed,” which was El Paso County, Texas, within the jurisdiction of the United States District Court for the Western District of Texas, El Paso Division. See42 U.S.C. § 11603(b).

II. FINDINGS OF FACT AND CONCLUSIONS OF LAW

Having carefully considered the pleadings on file, the evidence on the record, the arguments of counsel, and the applicable law, the Court makes the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a).

A. Findings of Fact¹

1. D.I.R.A. is the only child of Acosta and Rodela. Acosta is a Mexican citizen and holds a United States permanent resident card. She has lived most of her life in Ciudad Juarez,² Chihuahua, Mexico. Rodela, who is an American citizen, grew up in Juarez, at least until he was twelve years old; he now lives in El Paso, Texas.

2. In June 2002, Acosta and Rodela got married. In August of that year, they were married by a church.

3. Prior to their marriage, they lived in Juarez, but moved to the United States when they got married by the church. Following their marriage, they lived in El Paso for a few months and then moved back to Juarez around March 2003.

4. In June 2004, D.I.R.A. was born at a hospital in El Paso, Texas.

5. At the time of the child's birth, the parties were living in a rented home in Juarez. After his birth, Acosta, Rodela, and the child stayed in El Paso for a few days—not more than two months by Rodela's account—long enough to allow the mother to recuperate. Thereafter, Acosta and Rodela moved back to Juarez with the child.

6. Once in Juarez, Acosta, Rodela, and D.I.R.A. lived in multiple rented homes, until sometime in 2007, when Rodela and Acosta purchased a house there. The house is located on a street across from and in front of the house of Maria del Rocio Acosta Saldivar, Petitioner's sister.

7. The family lived together in the purchased house until October 2010, when Rodela and Acosta separated and he moved to El Paso. Since their separation, D.I.R.A. has lived with his mother in that house until his removal to the United States in January 2012. Acosta continues to live there.

8. After the parties' separation in 2010 and prior to D.I.R.A.'s removal in January 2012, D.I.R.A. spent weekends with his father in El Paso. On occasion, the father visited the child in Juarez during weekdays after his school. During his school-break in summer 2011, D.I.R.A. stayed with his father in El Paso for three to four weeks.

9. On August 10, 2011, Rodela filed a petition for divorce in the 388th Judicial District Court of Texas in El Paso. In his petition, he also sought sole custody of D.I.R.A. Acosta was not aware of this filing until sometime later.

10. On Saturday, January 7, 2012, shortly before noon, Rodela arrived at the family's house in Juarez to take D.I.R.A. to El Paso. Acosta believed the child's trip to El Paso would be for that weekend only. She asked Rodela to return the child by 9:00 p.m. on Sunday, January 8, 2012, and Rodela agreed. The child picked up a few toys and his backpack, and left with the father. On January 8, when the child was not returned, Acosta called Rodela on his cellphone several times beginning at around 9:00 p.m., but her calls went unanswered. On the morning of January 9, she called Rodela again and asked him to return the child. Rodela instructed her to meet at the Ysleta–Zaragoza International Bridge for the purpose of returning D.I.R.A. When she arrived at the bridge on the Mexican side, she called Rodela on his cellphone, and he told her that he could not cross the bridge because he had lost his wallet and his ID. Explaining that it would not be safe for the child to cross over to the Mexican side by himself, Rodela instructed Acosta to cross the bridge to the American side to pick up the child. When she did as instructed, a process server approached her and served her with Rodela's petition for divorce. Neither Rodela nor D.I.R.A. met Acosta at the bridge; D.I.R.A. was not returned.

11. D.I.R.A. now resides with his father at his paternal grandmother's home in El Paso.

12. On February 2, 2012, Acosta filed an application under the Hague Convention with the Office of Children's Issues at the United States Department of State. On March 5, 2012, she filed a petition under the Convention with this Court.³

13. On March 28, 2012, Acosta filed a petition for divorce in the First Family Court of Bravos Judicial District in Juarez. In that petition, she also sought custody of the child.

14. At the time of his removal, D.I.R.A. was enrolled in second grade at Colegio Latino Americano in Juarez and was mid-way through 2011–2012 academic year. Prior to that, he completed first grade and kindergarten, also in Juarez. Beginning January 9, 2012, he attends Lujan Chavez Elementary School in El Paso.

15. At around the age of three, D.I.R.A. began to show signs of developmental and behavioral problems. He had difficulties with sustaining attention, following instructions, dealing with authority figures, and interacting with children of his age. The mother described that on occasion, he would refuse to go outside of home, would be found naked in the home, and would hit himself and cry. Between 2008 and 2010, he received therapy at a Chihuahua state facility(Centro de Atencion Multiple), where twice a week he attended classes for children with special needs. With therapy, his condition improved, but in the recent years, following his parents' separation, it has worsened.

16. During the parties' marriage and prior to their separation, Rodela held jobs in El Paso, though he lived in Juarez. During the same period, Acosta did not work. After their separation, she began to work in Juarez and continues to work there as of this date.

B. Conclusions of Law

1. The Hague Convention: Background and Applicable Standards

The Convention was adopted in 1980 in response to the emerging problem of international child abductions perpetrated by parents, guardians, and close family members. Mozes v. Mozes, 239 F.3d 1067, 1069–70 (9th Cir.2001). Such abductors unilaterally remove a child from its habitual residence to a country whose courts are likely to be friendlier to them for deciding custodial disputes. Abbott v. Abbott, ––– U.S. ––––, 130 S.Ct. 1983, 1989, 1996, 176 L.Ed.2d 789 (2010). The drafters of the Convention sought to deter “this unsavory form of forum shopping in the international child-custody disputes.” Kijowska v. Haines, 463 F.3d 583, 586 (7th Cir.2006).⁴ The Convention's stated objective is “to secure the prompt return of children wrongfully removed to or retained in Contracting State” ⁵ to the State of their habitual residence, Hague Convention, art. 1, and thereby to “restore the pre-abduction status quo.” Sealed Appellant v. Sealed Appellee, 394 F.3d 338, 344 (5th Cir.2004) (internal quotation marks and citation omitted). To achieve that objective, the Convention sets out procedures and rules regulating the prompt return of the child. Hague Convention, Preamble. At the core of these procedures is the Convention's return remedy: when a child under the age of sixteen has been wrongfully removed or retained, the country to which the child has been brought must “order the return of the child forthwith,” unless certain exceptions, or affirmative defenses, apply. Abbott, 130 S.Ct. at 1989;Sealed Appellant, 394 F.3d at 343; Hague Convention, arts. 4, 12.

In 1988, Congress enacted ICARA, the legislation implementing the Convention in this country. The provisions of ICARA “are in addition to and not in lieu of the provisions of the Convention.” 42 U.S.C. § 11601(b)(2). Under ICARA, anyone seeking the return of a child allegedly wrongfully removed to or retained in the United States may commence a civil action in any court that has jurisdiction over the action and the place where the child is located. Id. § 11603(b). Once such an action is filed, the “court in which [the] action is...