John Hernandez v. Irma Cardoso

Filing

Filed opinion of the court by Chief District Court Judge Shadid. AFFIRMED. William J. Bauer, Circuit Judge; Joel M. Flaum, Circuit Judge and James E. Shadid, Chief District Court Judge. [6806550-1] [6806550] [16-3147]

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In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-3147
JOHN ERICKSON COAHUILA HERNANDEZ,
Plaintiff-Appellant,
v.
IRMA BENITEZ CARDOSO,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:15-cv-11460 — Sharon Johnson Coleman, Judge.

____________________
ARGUED DECEMBER 7, 2016 — DECIDED DECEMBER 22, 2016
____________________
Before BAUER and FLAUM, Circuit Judges, and SHADID, Chief
District Court Judge.*
SHADID, Chief District Court Judge. Plaintiff-Appellant John
Erickson Coahuila Hernandez (“Hernandez”) and
Defendant-Appellee Irma Benitez Cardoso (“Cardoso”) are
both citizens of Mexico. They met sometime in 2001 and
*

Of the Central District of Illinois, sitting by designation.

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began cohabitating sometime later that year. They resided in
Mexico until December 15, 2014. They are the biological
parents of two children: A.E., born in 2008, and M.S., born in
2002.
Cardoso claims to have left Mexico with A.E. and M.S. in
December of 2014 to escape abuse from Hernandez and
protect the children. Subsequently, Hernandez learned of
Cardoso’s location in Chicago, Illinois, and on July 17, 2015,
filed an application with the Mexican Central Authority for
the return of A.E. pursuant to the Hague Convention on the
Civil Aspects of International Child Abduction (hereinafter,
“the Convention”). The Mexican Central Authority
transmitted Hernandez’s Application to the United States.
In August of 2015, Cardoso agreed to return M.S. to
Hernandez. Hernandez also requested the return of A.E. but
Cardoso refused.
On December 18, 2015, Hernandez filed a Verified Petition
for Return of Minor Child to Mexico and Issuance of a Show
Cause Order. On February 29, 2016, the District Court held an
evidentiary hearing, at which Hernandez, Cardoso and Alma
Cardoso, Cardoso’s sister, testified. Following the testimony
of all witnesses, the Court sua sponte, and without objection
from either party, took testimony from the child, in chambers,
and outside the presence of counsel or the parties. After
questioning of the child, the District Court allowed both
parties until March 14, 2016, to file objections to any questions
posed to the child. Neither party filed any such objections.
Following the evidentiary hearing, the District Court
allowed briefing and then entered its Order on July 13, 2016.
In its Order, the District Court found that Cardoso testified

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credibly that Hernandez would hit her in the presence of A.E.
with the intention of having A.E. witness the abuse of his
mother. The District Court also specifically noted it observed
a significant change in the demeanor of A.E. when the child
discussed Hernandez, the domestic violence and the possible
return to Hernandez’s custody. The District Court found that
Cardoso and AE’s testimony about the domestic violence,
taken as true, provides clear and convincing evidence that
there is a grave risk of physical or psychological harm to A.E.
if he is returned to Hernandez’s custody. This appeal
followed.
The Hague Convention “was adopted in 1980 in response
to the problem of international child abduction during
domestic disputes.” Abbott v. Abbott, 560 U.S. 1, 8 (2010). “The
United States is a contracting state to the Convention, and
Congress has implemented its provisions through the
International Child Abduction Remedies Act (ICARA) … 42
U.S.C. § 11601 et seq.” 560 U.S. at 5. As the Court noted in
Abbott, “[t]he Convention provides that a child abducted in
violation of ‘rights of custody’ must be returned to the child’s
country of habitual residence, unless certain exceptions
apply. Art. 1 S. Treaty Doc. No. 99-11, at 7.” 560 U.S. at 5. The
intention of the Hague Convention is “to secure the prompt
return of children wrongfully removed to or retained in any
Contracting State … to ensure that rights of custody and of
access under the law of one Contracting State are effectively
respected in the other Contracting States. Art. 1, Treaty Doc.
at 7.” Abbott, 560 U.S. at 7.
ICARA instructs a person who seeks a child’s return to file
a petition in state or federal court and further instructs the

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court hearing the case to decide it in accordance with the
Hague Convention. See 42 U.S.C. §§ 11603(a), (b), (d). The
elements to the prima facie cause of action for return are: the
child was wrongfully removed or retained; the child was
removed from his or her habitual residence; there was a
breach of the rights of custody under the law of the child’s
habitual residence; the left-behind parent was exercising
those custody rights; and the child is under the age of sixteen.
If the child in question has been wrongfully removed or
retained within the meaning of the Convention, the child shall
be promptly returned unless an exception is applicable. See 42
U.S.C. § 11601(a)(4).
The Hague Convention sets forth several affirmative
defenses. The affirmative defense relevant to this proceeding
is a grave risk of exposure to serious physical or psychological
harm. Article 13(b) provides that “when there is a grave risk
that the child’s return would expose the child to physical or
psychological harm or otherwise place the child in an
intolerable situation, the automatic return required by the
Convention should not go forward.” Norinder v. Fuentes, 657
F.3d 526, 533 (7th Cir. 2011). Here, Cardoso admits that
Hernandez did not agree that she could permanently relocate
the United States with the children.
Because Cardoso did not dispute that Hernandez
established a prima facie case for wrongful removal, the
District Court correctly limited its findings to the “grave risk
of harm” exception raised by Cardoso.
This Court reviews the District Court’s findings of fact for
clear error. Norinder, 657 F.3d at 533. Rule 52(a)(1) of the
Federal Rules of Civil Procedure requires the judge to “find

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the facts specially and state conclusions of law separately”
when (s)he is the trier of fact.
The issue presented for review is whether the District
Court erred in concluding that Cardoso proved, by clear and
convincing evidence, that there is a grave risk of physical or
psychological harm to A.E. if he is returned to Mexico. Not
surprisingly, the parties provide different factual
backgrounds.
Hernandez claims error occurred by the District Court’s
reliance on (1) incidents of Coahuila’s corporal punishment of
A.E. with a belt when Cardoso admitted she has done the
same thing; (2) incidents of alleged spousal abuse by Coahuila
when the only specific incident alleged occurred in 2004; and
(3) A.E.’s “changed demeanor” in discussing these issues ex
parte with the Court. In addition, Hernandez argues that
Cardoso admitted she voluntarily returned M.S. to
Hernandez’s care and presented no evidence that he posed a
danger to their daughter.
Cardoso claims a continuous pattern of abuse at the hands
of Hernandez, beginning shortly after the birth of M.S. in
2002, when Cardoso claims she learned that Hernandez was
already married. Cardoso claims that in March of 2004
Hernandez slapped, kicked and beat her with a wooden
board in front of M.S., after which he proceeded to rape her.
She testified that he would “always do that [rape her] when
he would hit” her because “to him it was like make me
happy.”
She further testified that Hernandez would engage in the
abuse in the presence of the children. If Cardoso tried to

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ensure the children not witness the violence, Hernandez
would insist that the children remain and observe the abuse.
The District Court found that both Hernandez and
Cardoso used physical discipline of the children, but the
parties’ dispute whose discipline was more forceful.
Hernandez testified that he would spank the children with an
open hand and described Cardoso’s physical discipline as
“more harsh” because she would pull her daughter’s hair and
“really fight with her.” Cardoso testified that she would
spank the children with her hand or with a shoe. She objected
to the way Hernandez disciplined the children, because it was
“too much” and he would “hit them very hard” with a belt.
Hernandez denied ever using a belt to discipline the children.
The District Court questioned A.E. in camera during the
evidentiary hearing held on February 29, 2016. A.E. testified
that Hernandez would hit him with a belt if he misbehaved
“really bad.” He further testified that he saw Hernandez hit
Cardoso with a belt and with his hands and saw him give
Cardoso a black eye. A.E. said he was “a little bit” afraid of
Hernandez.
The District Judge was in the best position to observe the
demeanor of the witnesses and determine credibility, and her
credibility determinations are entitled to deference unless
they are clearly erroneous. “Under the clear error standard,
we will not overturn the district court’s factual findings
unless, after reviewing all the evidence, we are ‘left with [a]
definite and firm conviction that a mistake has been [made].’”
Ortiz v. Martinez, 789 F.3d 722, 728 (7th Cir. 2015). “In other
words, a district court’s credibility findings are ‘binding on
appeal unless the [court] has chosen to credit exceedingly

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improbable testimony.’” Id. at 729. Furthermore,
“[d]iscrepancies arising from impeachment, inconsistent
prior statements, or the existence of a motive do not render
witness testimony legally incredible.” Id.
The District Judge determined that Cardoso’s testimony
that Hernandez abused her repeatedly and in the presence of
the children was credible, despite the fact that she allowed her
daughter to return to Mexico to live with Hernandez and
provided inconsistent testimony about whether Hernandez
knew she would leave Mexico with the children. Cardoso’s
testimony about the abuse was corroborated by A.E., who
testified of Hernandez’s physical abuse toward Cardoso and
himself. With the deference given to the District Court, the
Court finds there was no error in the lower court’s credibility
determination.
Moreover, the District Court’s application of the facts in
this case to the Article 13(b) “grave risk” standard was
appropriate. We have previously held that “repeated physical
and psychological abuse of a child’s mother by the child’s
father, in the presence of the child (especially a very young
child, as in this case), is likely to create a risk of psychological
harm to the child.” Khan v. Fatima, 680 F.3d 781, 787 (7th Cir.
2012). The District Court recognized it had to consider “risk
in the father's behavior toward the mother in the child's
presence” in its analysis. Id. This Court having found the
District Court’s credibility determination was sound, finds
that the factual findings made by the lower court support the
conclusion that there was a “grave risk” of physical or
psychological harm to A.E. if he was returned to Hernandez’s
custody.

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The District Judge’s opinion indicates that she considered
all the evidence, which included the facts and credibility of
the witnesses, before concluding that the risk of harm to the
child was grave.
AFFIRMED