Castro Sarabia v. Ruiz Perez
Filing
54
OPINION AND ORDER: The alleged harm in this case does not present a grave risk justifying not returning KMRC to Mexico. Had I concluded KMRCs habitual residence was Mexico, I would have granted Castros petition and ordered KMRC returned to Mexico immediately. Because KMRCs habitual residence remains the United States, Castros petition for return is DENIED. Signed on 12/7/2016 by Judge Michael J. McShane. (cp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ANITA CASTRO SARABIA,
Case No. 6:16-cr-01045-MC
Plaintiff,
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
v.
BULMARO RUIZ PEREZ,
Defendant.
_____________________________
MCSHANE, Judge:
Plaintiff Anita Castro Sarabia (“Castro”) filed a complaint requesting this court order the
return of KMRC1, her seven year old son with defendant Bulmaro Ruiz Perez (“Ruiz”), to
Mexico. Castro argues Ruiz wrongfully retained KMRC in the United States during what was
supposed to be a two month visit for medical treatment. On November 29 and 30 of 2016, I
presided over a bench trial in this matter.2 These findings of fact and conclusions of law follow
that hearing. Because I conclude the United States remains KMRC’s country of habitual
residence, Castro’s petition for return is DENIED.
1
As KMRC is a minor, I identify him only by his initials.
Castro’s attempts at securing a visa to attend the hearing proved unsuccessful. The court’s own efforts, via the
United States Central Authority also proved unsuccessful. As the options were to wait several months to learn the
decision of the Department of Homeland Security or proceed via a hearing where Castro would appear via
videoconference, the court chose the latter option. Fortunately, the Mexico City Central Authority provided a
videoconference room for Castro to use during the hearing.
2
1 – FINDINGS OF FACT AND CONCLUSIONS OF LAW
FINDINGS OF FACT
In 2008, Castro and Ruiz met at a church in Albany, Oregon. They lived together for a
few months before separating. Two months after the separation, Castro learned she was pregnant
with Ruiz’s child, KMRC. When Castro informed Ruiz she was pregnant, Ruiz immediately told
Castro he would help support the child. Even before KMRC’s birth, Ruiz began making monthly
child support payments to Castro. At trial, Castro tried to minimize the consistency of Ruiz’s
payments. While the parties did not seek a support order from a court, Ruiz produced bank
statements demonstrating a general pattern of consistent monthly payments to Castro.3
Castro gave birth to KMRC in April 2009. As was the case with the monthly support
payments, Castro attempted in her testimony to minimize Ruiz’s involvement in KMRC’s life,
initially stating that Ruiz visited the child only once and only in order to sign the birth certificate.
Castro later testified Ruiz visited KMRC only two or three times between April 2009 and
September 2011.4 Castro testified that one of those visits was to sign the birth certificate and
another was to obtain KMRC’s passport. Ruiz, on the other hand, testified that although he
worked during the week and lived about an hour’s drive away, he visited KMRC on many
weekends. Ruiz testified he would take KMRC shopping to buy toys and “little things like that.”
While Ruiz clearly was not a daily fixture in KMRC’s life, I find his testimony more credible
than Castro’s. Rather than simply signing the birth certificate, Ruiz was at the hospital and held
KMRC on the date of his birth. He was aware that Castro had gone into labor and was present
3
The monthly payments totaled $2,500 in 2009, $3,273 in 2010, and $4,179 in 2011. When Castro took KMRC to
Mexico in late 2011, Ruiz continued with monthly payments averaging about $200 per month until 2015. KMRC
returned to the United States in September 2015. That year, Ruiz made monthly payments of approximately $100
per month through September.
4
Castro and Ruiz testified through an interpreter. In addition to the in-court interpreter, Castro had an interpreter
with her in Mexico City to interpret the courtroom proceedings outside her own testimony. This situation, while
less-than ideal, was the best available given the limited options.
2 – FINDINGS OF FACT AND CONCLUSIONS OF LAW
enough to know that the baby was born premature. Ruiz’s testimony that he and Castro remained
in regular communication during this time is credible. Castro’s attempts to minimize Ruiz’s
involvement in KMRC’s life while in the United States are simply not credible in light of all of
the evidence.
In 2011, Castro decided to go to Mexico. The intent underlying this decision is hotly
contested and forms the crux of the parties’ arguments in this case. I find Ruiz’s testimony
credible. Ruiz testified the parties got into an argument in mid-2011 when Castro called Ruiz and
informed him she was taking KMRC to Mexico to visit her parents. Ruiz, who did not want
KMRC going to Mexico, informed Castro that taking KMRC without his consent was illegal.
Castro continued pressing Ruiz on the subject of the visit, although she was unwilling to commit
to a time frame with respect to the length of the trip. At one point, Castro said she would go for
three months. Later, she said six months. As Castro had not seen her parents in a long time, Ruiz
ultimately consented to the request. I find the parties reached an agreement that Castro could take
KMRC to Mexico on a seven month trip.
Because Castro needed Ruiz’s permission to take KMRC out of the country, on October
25, 2011 Ruiz signed a notarized statement giving Castro permission to take KMRC “on their
trip to Pachuca Hidalgo, Mexico. The trip is scheduled for departure on November 2nd, 2011
with an approximant [sic] 7 month stay, returning on May 15, 2012.” Def. Ex. 110. Perhaps no
one other than Castro knows if she ever really intended on returning to the United States. At the
least, I find she convinced Ruiz she intended to return with KMRC in May 2012. Although
Castro testified she and Ruiz always agreed the move to Mexico would be permanent, I find her
testimony not credible. When pressed for an explanation as to why Ruiz wrote that Castro and
KMRC would return in May 2015, Castro had no real explanation. If, as Castro testified, she and
3 – FINDINGS OF FACT AND CONCLUSIONS OF LAW
Ruiz agreed this was a permanent relocation, Ruiz had no reason to put any return date on the
permission slip. The permission slip, signed by Ruiz just days before Castro took KMRC to
Mexico, combined with Ruiz’s own credible testimony, is the best evidence of the parties’
agreement. I find Ruiz credible when he says he only allowed KMRC to travel to Mexico under
the condition he would return to the United States in May of 2012.
By May of 2012, contrary to her agreement with Ruiz, Castro had essentially settled in
Mexico. KMRC at this time was one month past his third birthday. Castro married in August
2012 and lived on her parents’ ranch in a rural area outside of Mexico City. Castro’s parents also
lived on the ranch, in another home yards away from Castro’s home. Castro’s new husband (“Pa
Alfredo”) brought two children into the new marriage. It is unclear if Ruiz knew Castro had
married, but by this time Ruiz had concerns about Castro returning to the United States with his
child. Ruiz testified he questioned Castro at this time and Castro’s response was that a return
might not be possible as she had started a new relationship. Ruiz asked Castro to send KMRC
back to the United States in accordance with the parties’ agreement. Ruiz testified he told Castro
“I want to see the boy. Send him to me.” Castro did not agree but said she would send KMRC at
some later point if Ruiz gave her an extension. Ruiz testified, convincingly to me, that he really
had no choice at this time but to agree to an extension. On June 15, 2012, Ruiz signed a second
notarized permission slip. Pl.’s Ex. 3. This slip extended the Mexico trip, “scheduled for
departure on November 2, 2011 with an approximate returning date of May 15, 2014.” I find that
by June 2012, Castro made the unilateral decision to keep KMRC in Mexico.
Complicating this matter is the fact that neither Ruiz nor Castro can travel freely back
and forth between Mexico and the United States. Ruiz, living in Oregon with his other children,
could not simply fly to Mexico to get KMRC. Perhaps more accurately, while Ruiz could fly to
4 – FINDINGS OF FACT AND CONCLUSIONS OF LAW
Mexico, he might not be able to fly back. Castro attempted to minimize Ruiz’s attempts to
contact KMRC in Mexico. Once again, I find Ruiz’s testimony more credible. Ruiz testified he
called Castro attempting to speak with his son. But Castro usually made excuses why Ruiz could
not talk to KMRC. For instance, Castro would say KMRC was sleeping or visiting with his
grandparents. With Castro limiting even phone calls between Ruiz and his son, and with Castro
simply not returning in accordance to the original agreement, Ruiz had to agree to the two year
extension as his best hope for his son to someday return to the United States. I find Ruiz
consistently held the desire and belief that KMRC would one day return home to live
permanently in the United States.
During the entire time KMRC remained in Mexico, Ruiz continued to make relatively
consistent child support payments to Castro. Castro attempted, in testimony here and in filings
she made in Mexican courts, to minimize the payments. But Ruiz’s bank documents refute
Castro’s testimony. Ruiz made these payments despite not being able to communicate with his
son and despite not knowing exactly when, if ever, KMRC would return to the United States.
Like the first deadline to return, the second deadline came and went. Eventually, by
September 2015, Castro decided to send KMRC to live in Oregon with her sister for two months.
Castro, her sister, and her parents all testified the purpose of this trip was for KMRC to receive
medical treatment for a neck issue. As no one ever even attempted to make an appointment for
KMRC to see a doctor, this explanation appears odd. I remain puzzled as to the purpose of this
trip. Perhaps Castro experienced domestic troubles at this time and needed to send KMRC to a
safer place. There is certainly evidence which could support such a theory. Another theory could
be that Castro was afraid that Ruiz’s support payments would cease if Castro did not allow the
child to visit his father. It may be that Castro simply wanted KMRC to see his father. Each
5 – FINDINGS OF FACT AND CONCLUSIONS OF LAW
theory seems more plausible than Castro’s own, that KMRC went to the United States solely for
medical treatment (that no one ever bothered to arrange once he arrived) for a condition that she
was unable to adequately describe. For whatever reason, on September 10, 2015, Castro sent
KMRC, accompanied by his grandparents, back to the United States. Nearly four years had
passed since six year old KMRC last set foot in the United States.
Once again, Ruiz provided a notarized permission slip for KMRC to travel. Pl.’s Ex. 4.
This slip states KMRC and his grandparents will arrive in “the United States on September 10 of
2015 and they all going [sic] to go back on december 10 of 2015.” Castro argues this slip signed
by Ruiz demonstrates his intention that KMRC would return to Mexico after only a short visit.
As with the second permission slip, I find Ruiz by this point would sign pretty much anything if,
in his mind, it increased his chances of seeing his son. I certainly do not see this third slip as
demonstrating Ruiz had conceded (or agreed) that KMRC would remain in Mexico. His later
action of retaining his child is inconsistent with an intent that the child should return to Mexico.
In Oregon, KMRC would stay with Castro’s sister Edilia. Edilia made no attempt to have
KMRC meet with a medical professional. Edilia, apparently acting on behelf of Castro, agreed
that Ruiz could pick up KMRC on Friday evening and return him on Sunday evening. Edilia and
Ruiz signed a notarized permission slip. Pl.’s Ex. 9. In addition to laying out the visitation
agreement, the slip states, “I Bulmaro Ruiz Perez agree what is written on Edilia’s letter and that
I will not cause any trouble when my son KMRC is here in the united states.” This statement
reveals some concern that Ruiz might try to keep KMRC in the United States. It reinforces my
findings that: (1) Ruiz never agreed that KMRC would remain permanently in Mexico; and (2)
Castro unilaterally decided in June 2012 that KMRC would remain with her in Mexico.
6 – FINDINGS OF FACT AND CONCLUSIONS OF LAW
During the second or third visit, Ruiz noticed some scars or bruising on KMRC. Ruiz
questioned KMRC, who allegedly told Ruiz that Pa Alfredo and Castro beat him with a belt.
Ruiz photographed the alleged bruises and scars. While there is clearly some evidence of
corporal punishment while KMRC was in Mexico, it is difficult to discern exactly how serious or
abusive this punishment was. Although Castro disputes any corporal punishment occurred, I find
Ruiz was concerned enough that he refused to return KMRC to Edilia and contacted Oregon’s
Department of Human Services (“DHS”).
Jose Maciel is a DHS child protective service worker who interviewed KMRC upon
receiving Ruiz’s complaint. Maciel has extensive training and experience in the forensic
interviewing of children exposed to trauma. Maciel conducted such an interview of KMRC in
Spanish. Although KMRC was only six years old, Maciel concluded he articulated his home life
well for his age. KMRC told Maciel some things occurred in Mexico “that were not alright with
him.” For instance, KMRC said he had to hide to avoid being beaten with a belt. Specifically,
KMRC said he had to hide from Castro while doing homework to avoid being hit with a belt.
KMRC reported Pa Alfredo struck him with a branch on two occasions. KMRC also spoke of
some instances of domestic violence in Mexico. On one occasion, KMRC told Maciel he
witnessed Pa Alfredo grab Castro’s hair with both hands and drag her from the living room to the
bedroom. Based on his experience, Maciel found KMRC to be credible, with no indication of
“coaching.” Maciel noted KMRC “crawled into a shell when describing the abuse” and included
great detail when speaking with Maciel. Maciel inspected KMRC for bruises but found none.
Despite multiple attempts, Maciel could not reach Castro or her family to get their side of the
story.
7 – FINDINGS OF FACT AND CONCLUSIONS OF LAW
At the start of KMRC’s two month visit to the United States, Edilia enrolled him in a
local school. KMRC exhibited aggressive behavior. The school referred KMRC to Jason Chin, a
mental health therapist with Linn County Mental Health. At the time of trial, Chin had worked
with KMRC for about six months. KMRC told Chin there was a time in Mexico when he was hit
without really knowing why, perhaps for not doing chores or homework. Because Chin’s role
was that of a therapist and not a forensic investigator, Chin did not press KMRC for details. Chin
diagnosed KMRC with Post Traumatic Stress Disorder (“PTSD”). Although KMRC was not
very specific, Chin interpreted the abuse as violence towards KMRC, not domestic violence
against Castro. Chin felt KMRC progressed well in the past six months. Initially quiet and
reserved, KMRC is now more engaged. Chin noted KMRC had stabilized in school.
In the weeks and months after Ruiz refused to return KMRC to Edilia, the parties filed
multiple custody-related pleadings in courts in Mexico and Oregon. On October 20, 2015, Ruiz
requested an “Immediate Danger” order in Linn County Circuit Court. Def. Ex. 1. On October
26, 2015, Ruiz served Castro with the filings. Def. Ex. 2. Castro admitted being served in
Mexico. Importantly, these documents contained Ruiz’s Oregon address. After being served with
the Oregon proceedings, Castro filed her own cases in Mexico state court. In fact, Castro filed
two cases. In each, she alleged Ruiz failed to fulfill his parental financial support obligations.
Castro also informed those courts Ruiz lived in Mexico. In doing so, it appears Castro was
attempting to get a Mexican version of a default judgment against Ruiz. Castro had no
meaningful explanation for lying in these documents. As noted, she had Ruiz’s address in
Oregon from being served as part of the Oregon case. She was well aware that Ruiz was living in
Oregon with her child. I find Castro intentionally misled the Mexican courts into believing Ruiz
lived near Castro in a rural area outside Mexico City.
8 – FINDINGS OF FACT AND CONCLUSIONS OF LAW
Castro’s actions are, of course, perfectly understandable given her predicament. Like
most parents, Castro simply did whatever she felt she had to do to see the return of her child. But
Castro’s actions confirm that she will say or do just about anything, even in open court, when her
child’s future hangs in the balance. Unfortunately for Castro, this case resolves around a dispute
concerning the parties’ agreement when Castro first took KMRC to Mexico in November 2012.
The resolution of that question is critical to the outcome here. While Castro now swears Ruiz
knew all along that once she left she would never return, I conclude that Castro is simply saying
what she feels she needs to say to influence a court to order KMRC’s return to Mexico.
CONCLUSIONS OF LAW
Adopted on October 25, 1980, the Hague Convention on the Civil Aspects of
International Child Abduction, 19 I.L.M. 1501 (the "Convention") is an international treaty
establishing procedures for "the prompt return of children wrongfully removed or retained in any
Contracting State." Convention, Art. 1(a), 19 I.L.M. at 1501. Congress enacted the International
Child Abduction Remedies Act, 24 U.S.C. §§ 11601-11610 to implement the Convention. §
11601(b). Mexico and the United States are both signatories to the Convention.
The Convention aims to discourage forum shopping in international custody disputes.
Holder v. Holder, 392 F.3d 1009, 1013 (9th Cir. 2004). The role of the court applying the
Convention is solely to determine the rights available under the Convention, as opposed to the
merits of the underlying child custody claim. Id. at 1013-14; § 11601(b)(4). In other words, the
court does not "determine whether a child is happy where it currently is, but whether one parent
is seeking unilaterally to alter the status quo with regard to the primary locus of the child's life."
Mozes v. Mozes, 239 F.3d 1067, 1079 (9th Cir. 2001).
9 – FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Convention only requires the return of a child whose removal or retention was
"wrongful":
The removal or the retention is to be considered wrongful where a) it is in breach of rights of custody attributed to a person . . . under the law of the
state in which the child was habitually resident immediately before the removal or
retention; and
b) at the time of removal or retention those rights were actually exercised, . . . or
would have been so exercised but for the removal or retention.
Convention, Art. 3, 19 I.L.M. at 1501.
In determining whether the removal or retention was "wrongful" under the Convention,
courts answer four questions:
(1) When did the removal or retention take place? (2) Immediately prior to the
removal or retention, in which state was the child habitually resident? (3) Did the
removal or retention breach the rights of custody attributed to the petitioner under
the law of the habitual residence? (4) Was the petitioner exercising those rights at
the time of the removal or retention?
Mozes, 239 F.3d at 1070. The petitioner must establish that the removal or retention was
"wrongful" by a preponderance of the evidence. § 11603(e)(1)(A).
Here, the only disputed issue regarding whether Ruiz wrongfully retained KMRC is the
issue of KMRC’s country of habitual residence. If KMRC’s country of habitual residence is the
United States, Castro’s petition must be denied because the Convention applies only when a
child is wrongfully retained or removed in a country other than one’s country of habitual
residence. In my mind, this issue is a close call. Here, Castro made the unilateral decision to
change KMRC’s country of habitual residence from the United States to Mexico. Ruiz never
consented or acquiesced to that change. Instead, Ruiz always firmly wished for KMRC to return
to live in the United States. I recognize that many judges would conclude as a matter of law that
a six year old child who lives four years with his mother in her native country is now a habitual
10 – FINDINGS OF FACT AND CONCLUSIONS OF LAW
resident of that country. My reading of Mozes, however, along with practically no evidence of
KMRC’s acclimatization in Mexico, leads me to conclude otherwise. I conclude Castro failed to
meet her burden of demonstrating Mexico is KMRC’s country of habitual residence.
Because "children . . . normally lack the material and psychological wherewithal to
decide where they will reside[,]" courts look to the intentions of those entitled to fix the child's
residence when determining the habitual residence of a child. Mozes, 239 F.3d at 1076. A young
child may acquire a new habitual residence in one of two ways: (1) through the parents' shared
settled intention to abandon the initial habitual residence; or (2) if "the objective facts point
unequivocally to a person's ordinary or habitual residence being in a particular place." Id. at
1081 (internal citations omitted).
There is no dispute that when KMRC was born, he was a habitual resident of the United
States. KMRC was born in Oregon. Both of his parents had lived in Oregon for years and, at
least at that time, had no intention of leaving. KMRC then spent the next 30 months or so in the
United States. The question here is at what point does a young child abandon one habitual
residence and acquire a new one when one parent unilaterally decides to keep the child in a new
country? This question becomes a closer one when, as here, the parent does not flee with the
child to a new country in the middle of the night. Here, Castro had Ruiz’s permission to travel
for seven months to Mexico, Castro’s native land.
The Ninth Circuit first analyzed the term “habitual residence” in Mozes. There, after
living in Israel for their entire lives, the mother, with father’s consent, brought the children to the
United States. The parents agreed on a trip of 15 months, but lacked any real agreement on what
the family would do after that time. After a year in the United States, the mother filed for divorce
11 – FINDINGS OF FACT AND CONCLUSIONS OF LAW
and the father filed a petition under the Hague Convention. The children ranged from five to nine
year old.
The court discussed the primary goal of the Convention, which is to deter the “unilateral
removal or retention of children by parents, guardians, or close family members.” Mozes, 239
F.3d at 1070. To accomplish this goal, the convention deters forum shopping by the abductor—
often the “primary motivation” for the abductor—by ordering the return of the child to that
child’s habitual residence. Id. In most cases, the habitual residence question is outcome
determinative. Absent a few narrow exceptions, a court must either order the prompt return of
the child to its country of habitual residence or, if the child is already in that country, dismiss the
petition. As the Mozes court noted, facts in Hague Convention cases are seldom “ordinary.” This
case—where, after four years in a new country, the original wrongful retainer seeks return of the
child following a two month trip to the original habitual residence—is even less ordinary.
In Mozes, the court described four scenarios commonly arising in Hague cases:
On one side are cases where the court finds that the family as a unit has
manifested a settled purpose to change habitual residence, despite the fact that one
parent may have had qualms about the move. Most commonly, this occurs when
both parents and the child translocate together under circumstances suggesting
that they intend to make their home in the new country. When courts find that a
family has jointly taken all the steps associated with abandoning habitual
residence in one country to take it up in another, they are generally unwilling to
let one parent’s alleged reservations about the move stand in the way of finding a
shared and settled purpose.
On the other side are cases where the child’s habitual translocation from an
established habitual residence was clearly intended to be of a specific, delimited
period. In these cases, courts have generally refused to find that the changed
intentions of one parent led to an alteration in the child’s habitual residence.
In between are cases where the petitioning parent had earlier consented to let the
child stay abroad for some period of ambiguous duration. Sometimes the
circumstances surrounding the child’s stay are such that, despite the lack of
perfect consensus, the court finds the parents to have shared a settled mutual
12 – FINDINGS OF FACT AND CONCLUSIONS OF LAW
intent that the stay last indefinitely. When this is the case, we can reasonably infer
a mutual abandonment of the child’s prior habitual residence. Other times
however, circumstances are such that, even though the exact length of the stay
was left open to negotiation, the court is able to find no settled mutual intent from
which such abandonment can be inferred.
239 F.3d at 1076-77 (internal footnotes omitted).
This case involves multiple scenarios described above. When Castro first took KMRC to
Mexico, the parties agreed on a “specific, delimited period” of seven months. After those seven
months, Castro simply decided to stay in Mexico with KMRC. The parties then negotiated, for
lack of a better term, on an extension. Castro, however, held all the cards in this negotiation.
Ruiz could not leave the country and simply had to agree to whatever Castro suggested.
Agreeing to whatever terms Castro supplied represented Ruiz’s only chance for KMRC’s return
to the United States. As described above, I conclude Ruiz never abandoned the United States as
KMRC’s country of habitual residence.
But shared parental intent is not the only way a child can acquire a new habitual
residence. At some point, a child obtains a new habitual residence if “the objective facts point
unequivocally to a person’s ordinary or habitual residence being in a particular place.” Id. at
1081 (quoting Zenel v. Haddow, 1993 S.L.T. 975, 979 (Scot. 1st Div.)). This question is easier
asked than answered. Courts look to a child’s acclimatization to a new country and, indeed, to all
the facts of the particular case in determining how deeply rooted the child’s ties are to the new
country. Put another way, would returning the child to a particular country “be tantamount to
sending them home?” Holder, 392 F.3d 1019.5
5
The younger the child, the harder it is to overcome the lack of shared parental intent. See Holder, 392 F.3d at 102021 (“it is practically impossible for a newborn child, who is entirely dependent on its parents, to acclimatize
independent of the immediate home environment of the parents.”).
13 – FINDINGS OF FACT AND CONCLUSIONS OF LAW
Regarding KMRC’s acclimatization in Mexico from 2012 to 2016, I note a surprising
dearth of evidence presented by Castro on this issue. Other than a few isolated statements from
Castro and her parents that KMRC was “happy” in Mexico, there is literally no evidence from
Castro about how KMRC acclimated to Mexico. Other than an inference that the Oregon school
had to get KMRC’s records from a school in Mexico, we do not even know for sure if KMRC
attended school in Mexico. If so, we certainly do not know how he did or how well he fit in. As
noted by Ruiz during trial, Castro rested without offering the bulk of her documents into
evidence. 6 As for what is in evidence, there is practically no evidence to show KMRC
acclimated in any way at all to life in Mexico.7 We know KMRC lived with Castro, Pa Alfredo
and two siblings or half-siblings. We know Castro’s parents live on the same plot of land. We
know it is a rural area described as a “ranch.” We know from pictures Castro submitted from
DIF, essentially the Mexican equivalent of DHS, that the home is relatively clean and there is
food in the refrigerator. We know Castro and her parents said KMRC was happy there. We know
Castro and her parents denied any abuse or corporal punishment. But at least from Castro, that is
literally all the court knows about KMRC’s life in Mexico.
Ruiz, however, presented evidence that KMRC did not acclimatize to life in Mexico. As
noted, Chin concluded KMRC’s time in Mexico resulted in PTSD. Chin rejected Castro’s
contention that the stressors leading to KMRC’s behavioral problems were associated with his
6
Castro submitted a witness list, ECF No. 31, stating she would call KMRC’s teacher from Luis Donaldo Colosio
School. This witness was to provide testimony that: (1) KMRC was not a rebellious child; (2) KMRC always arrived
at school well-groomed and with homework complete, accompanied by Castro and Pa Alfredo; and (3) Castro and
Pa Alfredo participated in school activities with KMRC. Castro never called this witness. Castro also never called
the ten or so other witnesses listed who would testify as to KMRC’s life in Mexico with Castro and Pa Alfredo.
7
I assume that KMRC acclimated the same as any other young child would in a new country. In other words, I
imagine KMRC enjoyed a relatively happy life. All children, across genders and nationalities, are remarkably
resilient. It is precisely this fact that some courts, and Mozes appears to be one such court, instruct that the proper
inquiry remains on the shared intentions of the parents rather than some inquiry into how “happy” a child appears in
its new surroundings.
14 – FINDINGS OF FACT AND CONCLUSIONS OF LAW
retention by Ruiz. In Chin’s opinion, any stress from the retention would result not in PTSD, but
in an adjustment disorder (which KMRC did not have). Maciel testified that KMRC was credible
regarding abuse that occurred in Mexico. I conclude some form of corporal punishment occurred
in Mexico, and that this impacted KMRC’s acclimatization in the sense that he appeared to not
feel completely safe there. As noted above, I conclude Castro limited Ruiz’s interactions with
KMRC in Mexico. This too could not have helped KMRC acclimate to a new place. I conclude
that even nearly four years spent in Mexico could not overcome the lack of shared parental intent
to acquire a new habitual residence. See Mozes, 239 F.3d at 1078 (“when circumstances are such
as to hinder acclimatization, even a lengthy period spent [with both parents in a new country]
may not suffice” to alter a child’s habitual residence). The only credible evidence demonstrates
KMRC never really acclimated to life in Mexico.8
Mozes pointed out the tightrope courts walk when determining the amount of time
necessary for a young child to acquire a new habitual residence absent shared parental intent. On
the one hand, “courts should be slow to infer from [a child’s contacts in the new country] that an
earlier habitual residence has been abandoned.” Id. at 1079. On the other hand, some amount of
time will lead to the inevitable conclusion that, even absent shared parental intent, a child at
some point becomes a habitual resident of the new country. Id. at 1081 n.42 (a child living 15
years in new country after wrongful removal is clearly a habitual resident of new country). As
noted, at some point, a child obtains a new habitual residence if “the objective facts point
unequivocally to a person’s ordinary or habitual residence being in a particular place.” Id. at
1081 (quoting Zenel, 1993 S.L.T. at 979). On this record, where the facts demonstrate that rather
8
I assume courts must inquire as to a child’s acclimatization to a new country in part because, absent shared parental
intent, more than the simple accumulation of a sufficient number of days is required to obtain a new habitual
residence.
15 – FINDINGS OF FACT AND CONCLUSIONS OF LAW
than acclimating to life in Mexico, KMRC instead developed PTSD and never felt entirely safe
there, I conclude Castro failed to establish that Mexico was KMRC’s habitual residence in
October 2015.9
Although I conclude Castro did not meet her burden of proving, by a preponderance of
the evidence, that KMRC’s country of habitual residence was Mexico, I turn next to Ruiz’s
affirmative defense. As noted, the habitual residence issue is, in my mind, a very close question.
Assuming the Ninth Circuit disagrees with my conclusion, this analysis is appropriate in the
interests of judicial economy and, in the event this court’s habitual residence analysis is
incorrect, to allow for a faster reunion of Castro and KMRC.
Ruiz argues returning KMRC to Mexico would subject KMRC to a grave risk of harm. A
court shall not order the return of a child if respondent establishes, by clear and convincing
evidence, that there is a grave risk of physical or psychological harm if the child is returned.
Convention, Art. 13(b), 19 I.L.M. at 1502. A serious risk of harm is not enough to prevent the
prompt return of a wrongfully removed or retained child; the risk must be grave. See Gaudin v.
Remis, 415 F.3d 1028, 1036-37 (9th. Cir. 2005) (quoting 51 Fed.Reg. at 10509). Although the
living situation prior to removal may be relevant, the focus is on the situation into which the
child would be returned. Baxter v. Baxter, 423 F.3d 363, 374 (3rd Cir. 2005); 51 Fed.Reg. at
10506.
The Gaudin court noted that the grave risk exception is a narrow one and “the question is
whether the child would suffer serious abuse that is a great deal more than minimal.” Id. at 1035
9
While I recognize Mexico is Castro’s native country and thus presents a somewhat easier acclimatization for
KMRC, see Mozes, 239 F.3d at 1082, I find Ruiz only agreed to the seven month trip, a trip with “clear limitations.”
Additionally, as noted above, Castro presented almost no evidence of any acclimation by KMRC.
16 – FINDINGS OF FACT AND CONCLUSIONS OF LAW
(internal citations and quotations omitted). The court also emphasized how the exception fits
within the overall purpose of the act:
Moreover, because the Hague Convention provides only a provisional, short-term
remedy in order to permit long-term custody proceedings to take place in the
home jurisdiction, the grave-risk inquiry should be concerned only with the
degree of harm that could occur in the immediate future. Because psychological
harm is often cumulative, especially in the absence of physical abuse or extreme
maltreatment, even a living situation capable of causing grave psychological harm
over the full course of a child’s development is not necessarily likely to do so
during the period necessary to obtain a custody determination.
Id. at 1037. This case involves allegations of physical and psychological abuse.
While I am reluctant to describe the corporal punishment or domestic abuse in this case
as “minimal,” I conclude Ruiz has failed to demonstrate by clear and convincing evidence that
these facts fit the “grave risk” exception. I conclude KMRC was exposed to some form of
corporal punishment. On a few occasions, KMRC appears to have been hit with a belt. On two
other occasions, KMRC may have been hit with a branch or switch. KMRC mentioned one
incidence of domestic violence where Pa Alfredo allegedly dragged KMRC by her hair into a
bedroom.10 I find that while there likely was an instance of Pa Alfredo dragging KMRC by her
hair, that this type of domestic violence was not a common occurrence during KMRC’s years in
Mexico. I find the pictures taken by Ruiz of KMRC’s alleged scars and bruises do not portray
any injuries caused by abuse. Rather, the scars and bruises look to be normal scars and bruises
found on any active six year old boy. I note Maciel, trained to investigate instances of child
abuse, inspected KMRC for bruises within days of Ruiz’s complaint and found none.
The instances noted above cause the court some concern. But they do not rise to the level
of physical or psychological harm pointed to by other courts as demonstrating clear and
convincing evidence of a “grave risk.” For example, in Van de Sande v. Van De Sande, 431 F.3d
10
Chin, however, testified KMRC described only abuse towards himself, as opposed to any against Castro.
17 – FINDINGS OF FACT AND CONCLUSIONS OF LAW
567 (7th Cir. 2005), the father beat the mother several times per week. The beatings included
choking, throwing the mother against the wall, and kicking her in the shins. The father also
threatened to kill the children. In Walsh v. Walsh, 221 F.3d 204 (1st Cir. 2000), the beatings were
even worse, resulting in chipped teeth, and facial swelling and cuts. And the father did not only
beat the mother. After the father bested his adult son in a fistfight in the living room, he forced
his eight year old daughter to walk downstairs, look at her bloody brother, and tell him to leave.
In Rodriguez v. Rodriguez, 33 F.Supp.2d 456 (D. Md. 1999), the father beat his six year old son
so badly with a belt that the son missed one week of school. This was on top of weekly beatings
of the mother. After the mother fled, the father threatened to kill the mother’s family.
The alleged harm in this case does not present a “grave risk” justifying not returning
KMRC to Mexico. Had I concluded KMRC’s habitual residence was Mexico, I would have
granted Castro’s petition and ordered KMRC returned to Mexico immediately. Because KMRC’s
habitual residence remains the United States, Castro’s petition for return is DENIED.
IT IS SO ORDERED.
DATED this 7th day of December, 2016.
______/s/ Michael McShane_______
Michael McShane
United States District Judge
18 – FINDINGS OF FACT AND CONCLUSIONS OF LAW
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