Sanchez v. Sanchez
| Decision Date | 31 March 2021 |
| Docket Number | 1:18CV449 |
| Court | U.S. District Court — Middle District of North Carolina |
| Parties | NESTOR ARIEL MEDINA SANCHEZ, Petitioner, v. DAYSI VANESSA HERRERA SANCHEZ, Respondent. |
This matter comes before the Court for disposition of Petitioner's Verified Petition under Hague Convention Seeking Return of Child to Petitioner (Docket Entry 2 ("Petition"))1 and Respondent's Verified Response to Petition (Docket Entry 9 ("Response")), which asserts, as an affirmative defense to the subject child's return, the Hague Convention's "Grave Risk Exception" (id. at 2-9). (See Docket Entry 24 (referring this case to undersigned Magistrate Judge for all proceedings and entry of final judgment, pursuant to 28 U.S.C. § 636(c)).) Because the credible evidence at trial clearly and convincingly established "a grave risk that [the subject child's] return would expose [her] to . . . psychological harm," Hague Convention, art. 13(b), 1988 WL 411501, at *5, the Court denies the Petition.
The Petition demands "the return of [Petitioner's then-]eight-year-old daughter, N.D.M.H., [because she] was, without [his] consent or acquiescence, wrongfully removed from Honduras and brought to th[e United States] by her mother, Respondent . . . ." (Docket Entry 2 at 1 (parenthetical omitted); see also id. ().) The Response admits that "N.D.M.H. was born in . . . Honduras . . . to Petitioner and Respondent" (Docket Entry 9 at 2), that "N.D.M.H. was eight (8) years old at the time she was removed to the United States" (id.), "that N.D.M.H.'s country of habitual residence was Honduras" (id.), and that Respondent "removed N.D.M.H. from Honduras without the consent of Petitioner" (id. at 9). "However, pursuant to Article 13(b) of the Hague Convention, [the Response] claims the [Grave Risk E]xception, as it applies to [N.D.M.H.'s] return to Honduras." (Id.) Based on that affirmative defense, the Response asks "[t]hat the Court grant a final judgment in favor of Respondent and deny Petitioner's request for [N.D.M.H.] to be returned to Honduras." (Id. at 14.)
The parties agreed to a pretrial schedule (see Docket Entry 15), which the Court adopted (with minor clarifications) (see Text Order dated Nov. 30, 2018; see also Minute Entry dated Feb. 7, 2019 (extending certain deadlines)). At the conclusion of the pretrial period, the parties filed a Joint Stipulation of Undisputed Facts(Docket Entry 39 ("Joint Stipulation")) and the Court ruled on Petitioner's objections (Docket Entry 32) to Respondent's final pretrial disclosures (Docket Entry 23) at a final pretrial conference (see Minute Entry dated Mar. 20, 2019). The Court also "notif[ied] the parties that, in connection with the adjudication of Respondent's Article 13(b) defense, the Court may take judicial notice, pursuant to Federal Rule of Evidence 201(b)(2), (c)(1), and (d), of the United States Department of State's September 20, 2018 Travel Advisory for Honduras and Honduras 2018 Human Rights Report, both of which [then we]re available via the United States Department of State's official website." (Text Order dated Mar. 21, 2019.) A three-day bench trial followed, at which Respondent, her mother and sister, an expert witness retained by Respondent, Petitioner, and the girlfriend of one of Petitioner's brothers (who shared a home with N.D.M.H., Respondent, and Petitioner, in Orocuina, Honduras, throughout the relevant period) all testified. (See Docket Entries 41-43, 47-52.) At the conclusion of the bench trial, the Court denied Petitioner's oral motion under Federal Rule of Civil Procedure 52(c) and took the case under advisement. (See Minute Entry with Docket Entry 43.)
The Court now enters this Order denying the Petition pursuant to the Hague Convention's Grave Risk Exception (based on Findings of Fact and Conclusions of Law stated below as required by Federal Rule of Civil Procedure 52(a)(1)).
Padilla v. Troxell, 850 F.3d 168, 175 (4th Cir. 2017) (internal footnote and citation omitted); see also id. at 175 n.5 (); Pleites Hernandez v. Garcia Pena, 820 F.3d 782, 786 (5th Cir. 2016) (). "As relevant here, the [Hague] Convention provides that [A] a child who was 'wrongfully removed' from h[er] place of habitual residence in violation of a person's custody rights must be returned to that place unless [B] certain 'narrow exceptions' apply." Padilla, 850 F.3d at 175 (quoting Contreras Alcala v. Garcia Hernandez, 826 F.3d 161, 169 (4th Cir. 2016)).
Under part A of that framework:
[P]etitioner[] was required to establish, by a preponderance of the evidence, that [N.D.M.H.] w[as] "wrongfully removed . . . within the meaning of the [Hague] Convention." Thus, [Petitioner] had to prove that: (1) [N.D.M.H.] w[as] "habitually resident" in [Honduras] at the time [Respondent] removed [N.D.M.H.] to the United States; (2) the removal was in breach of [Petitioner's] custody rights under [Honduran] law; and (3) [Petitioner] had been exercising those rights at the time of removal.
Miller v. Miller, 240 F.3d 392, 398 (4th Cir. 2001) (internal citation omitted) (quoting ICARA provision now codified at 22 U.S.C. § 9003(e)(1), as well as Hague Convention, art. 3, 1988 WL 411501, at *2). Petitioner has carried that burden, as the parties' Joint Stipulation establishes that, while "Honduras was the habitual residence of [N.D.M.H.]" (Docket Entry 39 at 2), "Respondent removed [N.D.M.H.] from Honduras without Petitioner's permission or knowledge and brought [N.D.M.H.] to the United States" (id.), in contravention of Petitioner's ongoing "exercis[e of] his custody rights with [N.D.M.H.] as defined under Honduran law" (id.; see also id. ()).
That determination moves the Court to part B of the (above-quoted) Hague Convention framework (as formulated by the United States Court of Appeals for the Fourth Circuit), pursuant to which N.D.M.H. "must be returned to [Honduras] unless certain narrow exceptions apply," Padilla, 850 F.3d at 175 (internal quotation marks omitted); see also id. . Put another way, as a function of "substantiation by [Petitioner] that removal of [N.D.M.H.] from [Honduras] was wrongful, [her] return [to Honduras i]s required unless . . . [R]espondent[] . . .establishe[s] one of four available defenses." Miller, 240 F.3d at 398 (); see also id. at 398-99 (). As noted in the Introduction, Respondent has asserted only one such affirmative defense, i.e., the Grave Risk Exception within Article 13 of the Hague Convention, pursuant to which "the judicial or administrative authority of the requested State is not bound to order the return of the child if the person . . . oppos[ing such] return establishes that . . . b there is a grave risk that [such] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." Hague Convention, art. 13, 1988 WL 411501, at *4-5 (emphasis added). Importantly, Respondent, in "oppos[ing] the return of [N.D.M.H.] has the burden of establishing . . . by clear and convincing evidence that . . . the [Grave Risk E]xception[] set forth in [A]rticle 13b . . . of the [Hague] Convention applies[.]" 22 U.S.C. § 9003(e)(2) (emphasis added); see also Miller, 240 F.3d at 402 ().
For the reasons that follow, Respondent carried that burden at trial (albeit not on most of the grounds raised in the Response) and the Court thus declines "to order the return of [N.D.M.H.]," Hague Convention, art. 13, 1988 WL 411501, at *4.
The Response initially invoked the Grave Risk Exception based on these (verified (see Docket Entry 9 at 17)) allegations:
1) "returning [N.D.M.H.] to Honduras would place her at grave risk for serious sexual, physical, and emotional abuse in the future, both at Petitioner's hands and the hands of third-parties such as 'Dario,' wh[ose sexual abuse of N.D.M.H.] was facilitated and condoned by [] Petitioner and N.D.M.H.'s paternal grandmother" (id. at 10 (emphasis added)); see also id. at 5-7 ();
2) "[g]iven that N.D.M.H. has already been subjected to physical abuse by Petitioner, as well as sexual abuse which was facilitated and condoned by Petitioner at the hands of a third-party, this risk [of physical or psychological harm to...
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