Soto v. Contreras, 16-11541

• Decision Date: 23 January 2018
• Docket Number: No. 16-11541,16-11541
• Citation: 880 F.3d 706
• Parties: Alberto Ontiveros SOTO, Plaintiff–Appellee v. Veronica Lemus CONTRERAS, Defendant–Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

880 F.3d 706

Alberto Ontiveros SOTO, Plaintiff–Appellee

v.Veronica Lemus CONTRERAS, Defendant–Appellant

No. 16-11541

United States Court of Appeals, Fifth Circuit.

FILED January 23, 2018

Katherine Leigh Allen, Esq., Haley Hendrix Anderson, Esq., Dallas, TX, Maya Miriam Eckstein, Richmond, VA, Hunton & Williams, L.L.P., for Plaintiff–Appellee.

Thomas F. Allen, Jr., Joseph Christian Van Asten, Katherine Lyons Wall, Jones Day, Dallas, TX, for Defendant–Appellant.

Before SMITH, BARKSDALE, and HIGGINSON, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Veronica Lemus Contreras (Lemus), a native and citizen of Mexico residing in the United States, challenges the denial of her grave-risk defense to Alberto Ontiveros Soto’s (Ontiveros) seeking return of their child, A.O.L., to Mexico pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention), 24 Oct. 1980, T.I.A.S. No. 11670, S. Treaty Doc. No. 99–11. At issue is whether the court committed two legal errors in concluding Lemus failed to prove, by the requisite clear and convincing evidence, the existence of a "grave risk that [A.O.L.’s] return would expose [him] to physical or psychological harm or otherwise place [him] in an intolerable situation". Hague Convention, art. 13(b). AFFIRMED.

I.

Lemus and Ontiveros married in 1995, and have three children. The family resided in Mexico before Lemus came to the United States with two of the three children—A.O., female, age 15, and A.O.L., male, age 8—to escape alleged abuse by Ontiveros. Although their familial problems began much earlier, the couple "mutually decided" in September 2014 to file for divorce in Mexico.

In April 2015, Lemus told Ontiveros she and the children were going to a party in another town, a three-hour trip. Instead, she came to the United States with A.O. and A.O.L. Lemus sought political asylum in the United States; her application is pending. After learning the location of his wife and children, Ontiveros pursued in district court a petition—originally filed in Mexico—for return of an abducted child (A.O.L.) under the Hague Convention. (A.O.L. was the only child subject to the petition because the Hague Convention does not apply to children, such as A.O., over 16; at the time of the bench trial, she was past 16 years of age. Hague Convention, art. 4.)

At a bench trial, the parties presented incompatible versions of events leading to Lemus’ departing Mexico. She accused Ontiveros of, inter alia : physically abusing her and their daughter, A.O.; psychologically abusing the entire family; committing acts of violence against extended family members; and committing adultery. Although, with one exception, Ontiveros contested her accusations, he accused Lemus of, inter alia : committing adultery, incurring excessive debts, and assaulting him. To these ends, six witnesses testified: Ontiveros, Lemus, A.O., Soledad Contreras Lemus (Lemus’ sister, hereinafter, Contreras), A.O.L., and Edith Sauno (their neighbor in Mexico).

Ontiveros testified he and Lemus fought because she was financially irresponsible. He admitted to having one physical altercation early in the marriage, when he gave her "some spankings with the hand". He claimed Lemus often assaulted him, and denied further physical altercations. He stated he and Lemus, both represented by counsel, reached a divorce agreement, and he gave her at least 2,200 pesos a week to support the children, even though the divorce fell through. He testified, unrebutted, that, before A.O.L. was removed from Mexico, the two saw each other almost every day; they would eat meals and play soccer; and A.O.L. would "stay and spend the night with [Ontiveros]". Also unrebutted was that Ontiveros never physically abused A.O.L.

Conversely, Lemus described her relationship with Ontiveros as "slow torture", stating he beat her almost daily (or at least monthly) during their relationship. She recounted occurrences of alleged abuse: he beat her with a belt in the shower when she was pregnant with A.O.L.; he fought her brother when he confronted Ontiveros; and he assaulted A.O. and Contreras for trying to protect Lemus, throwing A.O. and Lemus onto the ground and into a garden rail. She stated he also psychologically abused her and the children, with A.O.’s wanting to hang herself and A.O.L.’s wetting the bed. She testified the Mexican police and district attorney refused to help her, forcing her to flee to the United States.

Lemus’ testimony, however, was at times inconsistent. Although she described Ontiveros’ throwing A.O. into the garden rail, she also testified he "never got into a fight or other physical altercation with any of [the] children"; was inconsistent in describing the frequency of Ontiveros’ physical abuse; made confused and incredible statements regarding her inability to obtain a divorce; and, after stating Ontiveros owned "four houses and [a] warehouse", then stated he "[did not] have a place where he [could] go and eat steadily much less [A.O.L.] will have a place like that".

Lemus was also impeached on cross-examination. For example, when confronted with her signed affidavit, prepared for an ex parte proceeding in Texas state court, she accused Ontiveros of forging her signature. The affidavit erroneously stated that, "[i]f it were safe for [her] to do so, [she] would get a divorce", even though she had filed, with Ontiveros, a joint, voluntary petition for divorce in Mexico.

The daughter removed to the United States, A.O., testified favorably for Lemus, but in a sometimes contradictory fashion. She stated her parents fought every time Ontiveros drank (and he drank often), but she only saw her parents fight four times, the first when she was seven. She felt "sad" and "scared" when her parents "fought", and she corroborated the incident where Ontiveros threw her and Lemus on the ground into the garden rail. She said she did not want to live with her father because he "was very bad to [Lemus]". On cross-examination, A.O. testified she was "nervous" about testifying because she was "afraid [Lemus] might get in trouble" and even "be put in jail" if she (Lemus) lost the case.

Contreras testified Lemus and Ontiveros engaged in physical fights, and she had "several fights" with Ontiveros "because [she was] trying to defend [her] sister". Other than corroborating Ontiveros’ fighting Lemus’ brother, however, Contreras could not establish personal knowledge of such fights. She knew only about the abuse, "[b]ecause [Lemus] would always arrive crying to talk to us about how he mistreated her".

Answering mostly in "yes" or "no" form, A.O.L. testified on direct examination only that he: had seen Ontiveros hit Lemus; liked the United States; wanted to live with his mother; and did not want to return to Mexico. On cross examination, he admitted he did "fun stuff", playing soccer and eating meals, with Ontiveros and had smiled at him in the courtroom’s hallway. He also stated he would be "happy" "if [he] got to do fun stuff with [Ontiveros] sometimes and do fun stuff with [Lemus] sometimes".

Ontiveros called Sauno as a rebuttal witness. She testified she lived next door to the family and never heard any yelling or saw any abuse. In addition, she testified to Lemus’ reputation: "She cheated on her husband a lot" and "[is] well known for owing people money". On cross examination, Sauno conceded she lives in the United States and only travels to Mexico between one and three times a year.

Following the bench trial, the court rendered findings of fact and conclusions of law, ruling A.O.L. was wrongfully removed and Lemus failed, inter alia , to prove, by clear and convincing evidence, grave risk to A.O.L. Ontiveros v. Lemus , No. 3:16–CV–00867–N, slip op. at 7 (N.D. Tex. 18 Oct. 2016). For that grave-risk defense (the only Hague Convention defense raised on appeal), the court found, inter alia :

[Lemus]’s allegations of abuse—that [Ontiveros] physically and psychologically abused her, sometimes in front of their children, and that [Ontiveros] allegedly physically assaulted their daughter on one occasion—are in conflict with [Ontiveros’] testimony. [Ontiveros] testified that he could recall one instance in which he and [Lemus] engaged in a physical fight, but [Ontiveros] denied any other instances of abuse. Because neither side is able to provide objective evidence , [Lemus’] allegations of abuse fail to rise to the level of clear and convincing evidence of a grave risk of harm.

Id. at 4 (emphasis added).

The court also found "[Lemus] did not provide any evidence that [Ontiveros] abused or neglected [A.O.L.]". Id. And, as for A.O.L.’s testimony, it made the following finding:

The Court finds that [A.O.L.’s] responses as to where he would like to live were equivocal. Though in response to questioning by his mother’s attorney, [A.O.L.] responded that he does not want to return to Mexico, he also responded to his father’s attorneys that he enjoys spending time with his father and that he would prefer to split his time between both of his parents.

Id . at 5.

Because the court concluded Lemus’ grave-risk and other Hague Convention defenses failed, Ontiveros was "entitled to immediate return of [A.O.L.] ... for [a] custody determination" in Mexico. Id. at 7. In response, Lemus quickly filed a motion to stay the judgment pending appeal.

In denying the motion, the court replied to Lemus’ stating a basis for the stay was its "objective evidence" finding, which she would challenge on appeal. The court stated, inter alia : "The [c]ourt did not disregard the testimony of the two children ... rather, [it] noted that there was no evidence of physical abuse of [A.O.L.], which is the more pertinent issue for likelihood of grave risk of harm to [A.O.L.]". Ontiveros v. Lemus , No. 3:16–CV–00867–N, Order at 2 (N.D. Tex. 25 Oct. 2016).

II.

Lemus contends the court improperly imposed a heightened standard by committing two legal errors in rejecting her grave-risk defense: it...