Opinion
H044519
12-03-2018
In re the Marriage of ISMAEL G. JIMENEZ and EVA M. RUIZ GOMEZ. ISMAEL G. JIMENEZ, Respondent, v. EVA M. RUIZ GOMEZ, Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. DR54223)
Eva M. Ruiz Gomez (Mother) appeals a judgment of the superior court denying her petition under the Hague Convention on the Civil Aspects of International Child Abduction, October 25, 1980, T.I.A.S. No. 11670 (the Convention) to require the return of her daughter, Bianca, to Mexico. She contends that the trial court erred in finding the United States to be Bianca's country of habitual residence. As the evidence in the record reveals no clear error in the trial court's factual findings and the trial court correctly applied the Convention to those facts, we affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
Bianca is the daughter of Mother and respondent Ismael G. Jimenez (Father). Mother and Father were both born in Mexico; Mother is a United States citizen and Father is a legal resident. The parties married in Big Sur, California, in 2002. Approximately a year later, they moved with Mother's two children from a previous relationship to San Miguel de Allende, in the state of Guanajuato, Mexico. They started a business and built a house there.
In approximately 2007, Father came back to the United States, specifically Monterey County in California, to work. He would return to Mexico to visit the family; Bianca was conceived in early 2009 during one of these visits. Having lost a previous pregnancy due to miscarriage, the parties determined Mother should give birth in Monterey County. Mother delivered Bianca in Salinas in October 2009. The family then remained in Monterey County, living first in Monterey, then Big Sur and Pacific Grove.
The parties separated in May 2013. Father and Bianca moved to Salinas, where they lived with Father's sister and her family. Mother lived with her boyfriend, Ricardo Ramos, from October 2013 through at least the end of 2014; thereafter she rented an apartment in Carmel until September 2015. During this time, Mother traveled back and forth between San Miguel de Allende and Monterey County. In September 2015, Mother formally moved back to San Miguel de Allende.
Mother's son from a different relationship lived with her and Ramos until she moved to Carmel. The son then lived with Father and Bianca until September 2015, when he moved with Mother to Mexico, back to the house the parties built before Bianca's birth. Mother's older daughter from a different relationship also lived with the family for a period, moving back to Mexico in September 2014.
Following the parties' separation in May 2013, Mother took Bianca to San Miguel de Allende for several visits with Father's permission, including in October 2013, October 2014, April 2015, and June-July 2015. During these visits, Mother enrolled Bianca in dance, art, and music classes. In July 2015, Mother enrolled Bianca in kindergarten at the Yemayá Waldorf school in San Miguel de Allende.
At the end of the July 2015 visit, Mother arranged for a friend to travel with Bianca back to the United States, where Father would pick her up. Father thereafter took his own trip with Bianca to Mexico, returning August 27, 2015. When Father and Bianca returned from the trip, Mother came back to Carmel to vacate her apartment and take Bianca back to San Miguel de Allende. Father refused to allow permission for Bianca to go. Mother thus returned to Mexico with her son.
B. Legal Proceedings
Father filed a petition for dissolution in Monterey County in 2013. In September 2015, he filed an amended petition to seek custody of Bianca. He then filed a Request for Order, seeking custody and visitation orders for Bianca, including temporary orders pending the hearing. The trial court granted orders giving Father temporary physical custody of Bianca pending the hearing, ordering also that neither party could remove Bianca from Monterey County. The court conducted custody hearings in October 2015 and January 2016, ultimately granting Father sole legal and physical custody of Bianca, with supervised visitation to Mother. Mother was not present at either hearing; she denies having received proper notice of the October hearing, and alleges the court's telephone appearance system did not work for the January hearing.
In October 2016, the District Attorney for the County of Monterey (the District Attorney) filed the subject petition under the Hague Convention seeking Bianca's return to Mexico, alleging Mexico was Bianca's habitual residence, and Father wrongfully retained her in the United States in breach of Mother's custody rights. The District Attorney also filed a Request for Order to have the petition set for hearing.
The District Attorney's role in Hague Convention proceedings is to calendar Convention proceedings before the court upon receiving a Hague petition from the State Department; the District Attorney does not advocate for either side or state an opinion regarding who should prevail in the proceedings but acts as a "friend to the court" for purposes of facilitating the proceedings under the Convention. (See Fam. Code, §§ 3130 et seq., 3455.)
At the initial hearing on the petition, the trial court indicated it would not consider the substance of the petition that day but would set a future hearing. The parties agreed to submission of testimony by declarations, rather than requiring the witnesses to personally appear. They confirmed this applied both to the declarations already filed with the court, and to any additional declarations filed by a set date.
With the petition, the District Attorney submitted a statement from Mother alleging she had moved with Bianca and her other children to Mexico after the parties separated in 2013; she claims she brought Bianca back to Monterey County on several occasions to visit Father. One of Mother's cousin's provided a statement describing Mother's positive parenting attributes, and confirming Mother's family missed Bianca while she was in the United States. Two acquaintances in San Miguel de Allende described their relationship with Bianca, who they met her during one of her many visits; Bianca helped the women learn English, and told them about her life in San Miguel de Allende. Several of Mother's business associates also provided statements, describing their excellent working relationship with Mother, and confirming her future employment prospects in Mexico. Along with these statements, the petition included additional evidence purporting to show Bianca's habitual residence in Mexico, such as documents confirming her enrollment in classes there, and photographs.
The parties submitted statements not signed under penalty of perjury and declarations signed under penalty of perjury. The trial court did not distinguish between the two types of submissions.
Prior to the hearing on the petition, Mother filed additional pleadings. She provided more photographs reflecting Bianca's life in San Miguel de Allende. She also confirmed her ownership of her home and business in Mexico and Bianca's enrollment in school there. In addition, Mother provided a letter from her older daughter, who stated the family's "habitual place of residence" was San Miguel de Allende, where they lived since 2004. The daughter also noted Bianca was enrolled in school in San Miguel de Allende, as well as in ballet and music classes until September 2015.
With his pre-trial pleadings, Father provided his own declaration alleging Bianca lived with him in Monterey County since the parties separated in 2013. He included documents showing Bianca's enrollment in school and dance class in October 2015. Father filed declarations from several other people supporting his claims. Declarations from Mother's ex-boyfriend, Ramos, and Mother's son, alleged Mother lived in Monterey County until at least February 2015. Father provided records for Mother's gym membership confirming visits at the gym through December 2014. He also provided the son's school records, showing enrollment through May 2015. Mother's son declared Bianca lived with Father after the parties separated; the son moved with Mother to Mexico in September 2015, but moved back to live with Bianca and Father in October 2016. Mother's son claimed Bianca never lived in Mexico.
In addition to the declarations from Ramos and Mother's son, Father provided declarations from four of his sisters, his nephew, his employer, and another acquaintance, each describing the declarant's knowledge of Bianca's living situation and personal interactions with Bianca in the United States. Father's family members alleged Bianca continuously lived with Father, his sister Claudia, and her family since May 2013. The other declarants confirmed having regular, in-person contact with Bianca in Monterey County since 2013.
The parties appeared for hearing on January 30, 2017. Mother represented herself; Father was represented by an attorney. The court confirmed it had reviewed the pleadings and declarations already submitted by the parties. Mother did not call any witnesses. Rather, she reviewed with the court the evidence submitted prior to the hearing she believed supported an order requiring Bianca to return to Mexico. Of particular note, the court asked Mother about a UCCJEA declaration submitted with the Hague petition, signed by her on October 27, 2015. In the declaration, Mother stated Bianca lived in Salinas from 2013-2015. At trial, Mother argued this was a typographical error, noting the declaration also says Bianca lived with Mother and Father, a clear mistake given the parties' separation. While she claimed Bianca did not live in Salinas from 2013-2015, Mother confirmed she and Bianca did not live in Mexico full time during that period either, despite the statement she provided with the petition. Mother conceded she resided in Monterey County through 2014 as a result of custody orders regarding her son from a prior relationship. She continued to maintain an address in Monterey County until her son completed the 2014-2015 school year.
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (Fam. Code, § 3400 et seq.) "is the exclusive method of determining subject matter jurisdiction in custody disputes involving other jurisdictions." (Ocegueda v. Perreira (2015) 232 Cal.App.4th 1079, 1084 [internal citations omitted].) In a custody proceeding, the parties must submit an affidavit providing information about the child's current address or whereabouts, where the child has lived in the last five years, and other specified information. (Fam. Code, § 3429, subd. (a).) The Judicial Council adopted a mandatory form for this purpose, Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (FL-105), often referred to as a "UCCJEA declaration."
At trial, Mother argued for the first time that she and Father had agreed that Bianca would live with Mother in Mexico, traveling back to visit Father in the United States when he wanted to see Bianca. In exchange, Mother says she agreed there would be no child support, spousal support, or strict visitation orders, thus keeping the matter entirely out of the court system.
Father did not call any sworn witnesses at the trial, but his attorney reviewed with the court the evidence he believed supported denying the petition. He focused primarily on the timeline Father set forth in his supporting declaration illustrating where Bianca lived between 2013 and 2015, noting it matched with Mother's UCCJEA declaration submitted with the petition. He emphasized the declaration Mother's son provided, indicating Bianca lived in the United States, not Mexico, her whole life. Father's attorney discussed evidence showing Bianca was "well settled" in Monterey County, including declarations from family members, neighbors, and Father's employer. The trial court stated, "in these declarations there is interspersed a lot of conclusion and a lot of statements which appear to me not sufficiently foundationalized [sic] for personal knowledge. I want the record to note that I am not giving any weight, even though not objected to, to those statements. There is, however, nonetheless, a fair amount of helpful and factual information which is provided, and that I am considering."
At the conclusion of the hearing, the court issued its oral ruling, finding "no question that the United States and Monterey County are the habitual residence of Bianca. There's just overwhelming documentary evidence in addition to the declarations that show that this is her habitual country of residence." Although both parties addressed whether Bianca was well-settled in Monterey County, the court found it was not necessary to consider that issue, as it was an affirmative defense raised by Father in the event the court determined Mexico to be Bianca's habitual residence.
The court filed the written Judgment on Petition Under the Hague Convention on February 3, 2017. Mother timely filed her notice of appeal of that judgment on March 27, 2017. (Code Civ. Proc., § 940.1, subd. (a)(10); Fam. Code, §§ 3454, 3455.)
II. DISCUSSION
A. Overview of The Convention
The Convention, to which the United States and Mexico are both signatories (see Bardales v. Duarte (2010) 181 Cal.App.4th 1262, 1270, fn. 7), was adopted "in an effort 'to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.' (Convention, Preamble; Mozes v. Mozes (9th Cir. 2001) 239 F.3d 1067, 1069-1070.)" (In re Marriage of Forrest & Eaddy (2006) 144 Cal.App.4th 1202, 1210 (Forrest).) The United States has implemented the treaty through the Federal International Child Abduction Remedies Act (ICARA), Title 22 United States Code section 9001 et seq. (formerly 42 U.S.C. § 11601 et seq.). (See Chafin v. Chafin (2013) 568 U.S. 165, 168.) Federal and state courts have concurrent jurisdiction to determine rights under the Convention. (22 U.S.C. § 9003(a).) We therefore look to both state and federal case law to evaluate Mother's appeal.
The goal of the Convention is to restore a wrongfully removed or retained child to his or her habitual country of residence for an appropriate adjudication of custody issues. "To deter parents from crossing international boundaries to secure a more favorable forum for the adjudication of custody rights, the Convention provides for the prompt return of a child who is 'wrongfully removed to or retained in' any country that has signed on to the Convention. (Convention, art. 1; [citations].) It thus provides a means by which to restore the status quo when one parent unilaterally removes the child from the child's country of habitual residence and/or retains the child in a new jurisdiction. (Mozes v. Mozes, supra, 239 F.3d at pp. 1069-1070.)" (Forrest, supra, 144 Cal.App.4th at p. 1210.) In evaluating a petition under the Convention, the trial court does not look to the merits of an underlying parental custody dispute; it only determines whether the child should be returned to the country of the complaining parent, leaving custody issues for proceedings in the child's country of habitual residence. (Ibid.) The issue of which placement is best for a child in the long run is not relevant. (Ibid.)
The petitioner under the Convention "bears the burden of proving the child's wrongful removal or retention by a preponderance of the evidence. [Citations.]" (Forrest, supra, 144 Cal.App.4th at p. 1211.) The trial court must determine the child's country of habitual residence to ensure that the adjudication of custody rights is decided in the appropriate forum. (See Holder v. Holder (9th Cir. 2004) 392 F.3d 1009, 1013 [". . . the Convention should deprive parties of any tactical advantages gained by absconding with a child to a more favorable forum."].) "The Convention does not define the term 'habitual residence,' although the cases interpreting it have concluded that the term refers to the child's customary residence prior to the wrongful removal or retention." (Forrest, supra, 144 Cal.App.4th at p. 1213.) "[I]n ascertaining how to make this determination, we are guided by the precedent of our sister circuits in concluding that 'there is no real distinction between ordinary residence and habitual residence.' [Citations.] As the Sixth Circuit explained: 'A person can have only one habitual residence. On its face, habitual residence pertains to customary residence prior to the removal. The court must look back in time, not forward.' [Citation.]" (Miller v. Miller (4th Cir. 2001) 240 F.3d 392, 400; see Forrest, supra, 144 Cal.App.4th at p. 1213.)
"Most frequently, the analysis of this issue begins with an examination of the intent of the person or persons entitled to determine where the child lives. (Mozes v. Mozes, supra, 239 F.3d at pp. 1073-1075.) If the child has not yet reached a stage in her development that she is deemed capable of making an independent decision about her living arrangements, the parents' last shared intent as to the child's residence is frequently determinative, provided that that intent has been carried out for an appreciable period of time. (Id. at pp. 1076-1078; Gitter v. Gitter (2d Cir. 2005) 396 F.3d 124, 132-134; [citation].)" (Forrest, supra, 144 Cal.App.4th at p. 1213.)
B. Standard of Review
We review de novo the trial court's "application of the Convention to the facts it has found . . . ." (Noergaard v. Noergaard (2015) 244 Cal.App.4th 76, 85, [internal citation and italics omitted].) However, California courts have not consistently applied one standard of review of the trial court's factual determinations in Convention cases, with some applying the "clear error" standard taken from the Federal Rules of Civil Procedure, and others applying the substantial evidence standard under state law. (Escobar v. Flores (2010) 183 Cal.App.4th 737, 748, citing In re Marriage of Witherspoon (2007) 155 Cal.App.4th 963, 971 [using clear error standard] and Forrest, supra, 144 Cal.App.4th at p. 1213 [using substantial evidence standard].) "Like 'the familiar and highly deferential substantial evidence standard of review' that we apply to factual findings under state law [citation], the federal 'clear error' or 'clearly erroneous' standard of review is deferential to the finder of fact [citation]. Under the federal standard, ' "[a] finding is 'clearly erroneous' [only] when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." ' [Citation.]" (Escobar v. Flores, supra, 183 Cal.App.4th at p. 748.) We need not resolve the issue of which of the two standards of review should be applied when reviewing the trial court's factual determinations, as they are substantially similar and our conclusion would be the same under either deferential standard. (See Maurizio R. v. L.C. (2011) 201 Cal.App.4th 616, 633-634.) We use the language of the clear error standard for clarity.
C. Bianca's Conception in Mexico Does Not Determine her Habitual Residence
Mother first argues Mexico became Bianca's habitual residence upon her conception there in 2009, citing Article 21 of the Civil Code of the State of Guanajuato, which provides that a person obtains protection under the laws of that code from the moment the person is conceived. She cites to Gitter v. Gitter, supra, 396 F.3d 124 (Gitter), for the proposition that we must consider the other country's laws when interpreting the Convention. However, Gitter does not require us to apply the State of Guanajuato's Civil Code in our analysis. Rather, Gitter states, "We are also mindful that the Supreme Court has instructed the lower courts that when interpreting international conventions and treaties 'the opinions of our sister signatories [are] entitled to considerable weight.' [Citations.]" (Gitter, supra, 396 F.3d at p. 131.) Certainly, if Mother cited opinions from a Mexican court interpreting the place of "habitual residence" as the place of conception under relevant Mexican legal authority, we would give them considerable weight. She has not done so. Nor are we aware of any California or United States Federal authority that so holds.
Mother did not provide a copy of the statute or a certified translation, but provided a statement of her own translation of the statute: "The legal capacity of natural persons is acquired by birth and is extinguished by death; But from the moment an individual is conceived, he comes under the protection of the law and is born for the purposes stated in this Code." Court personnel provided a similar translation of the statute, which, in Spanish, reads: "Artículo 21. La capacidad jurídica de las personas físicas se adquiere por el nacimiento y se extingue por la muerte; pero desde el momento en que un individuo es concebido, entra bajo la protección de la ley y se le tiene por nacido para los efectos declarados en el presente Código." (Código Civil para el Estado de Guanajuato, Art. 21, available as amended through Sept. 24, 2018 on the website of the Guanajuato State Legislative Branch at <http://www.congresogto.gob.mx/uploads/codigo/pdf/6/Codigo_Civil_PO_D324_24Sep2018.pdf> [as of Oct. 10, 2018], archived at: <https://perma.cc/XSD5-AC2Q>.)
Mother further argues Article 21 of the State of Guanajuato's Civil Code is similar to California Civil Code section 43.1, which provides, "A child conceived, but not yet born, is deemed an existing person, so far as necessary for the child's interests in the event of the child's subsequent birth." From this she concludes that Mexico, the undisputed location of Bianca's conception, is the child's habitual residence. There is no case law applying Civil Code section 43.1 to a petition under the Convention. However, in Norman v. Murphy (1954) 124 Cal.App.2d 95 (Norman) the Third District Court of Appeal described the rationale of the nearly identical predecessor to section 43.1, former Civil Code section 29, as follows: "As pointed out by this court in Scott v. McPheeters, 33 Cal.App.2d 629, 92 P.2d 678, 93 P.2d 562, [former Civil Code] section 29 was adopted to create a cause of action for the benefit of the child, and to protect its interests in the event of its subsequent birth. Under the common law the child had no right to recover damages for prenatal injuries and its parents had no right to recover damages for its death either before or after birth." (Norman, supra, at p. 98 [italics in orig.].) The statute's purpose is to provide redress for prenatal injury, not to identify the forum of adjudication. Here, Bianca does not assert a cause of action in these proceedings or seek a remedy through Mother's petition. Rather, the Convention is designed to determine the proper international forum for the adjudication of parental custodial rights.
Moreover, "whatever the parents' intent, habitual residence cannot be acquired without physical presence." (Mozes v. Mozes, supra, 239 F.3d at p. 1080.) Mother has not cited any legal authority indicating Bianca's conception in Mexico establishes Bianca's physical presence there, particularly as the child was born in the United States. We therefore are not persuaded that the fact of Bianca's conception in Mexico establishes that nation as her habitual country of residence.
D. The Record Supports an Implied Finding of the Parties' Shared Intent that the United States be Bianca's Habitual Residence
1. Shared Intent
As already noted, the trial court's analysis of a child's habitual residence typically starts with consideration of the shared intent of the people responsible for determining where the child lives. (Forrest, supra, 144 Cal.App.4th at p. 1213.) Intent is a question of fact; we thus defer to the trial court's finding on the issue. (Gitter, supra, 396 F.3d at p. 133.) Here, the trial court did not make a specific finding that the parties' shared intent was that the United States be Bianca's habitual residence; however, it indicated it was "abundantly clear" based on "overwhelming documentary evidence in addition to the declarations" that the United States is Bianca's habitual country of residence. "The doctrine of implied findings requires the appellate court to infer the trial court made all factual findings necessary to support the judgment. [Citation.] The doctrine is a natural and logical corollary to three fundamental principles of appellate review: (1) a judgment is presumed correct; (2) all intendments and presumptions are indulged in favor of correctness; and (3) the appellant bears the burden of providing an adequate record affirmatively proving error. [Citations.]" (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58, as modified (Apr. 24, 2007).)
Mother suggests her fixed and stated intent to return to San Miguel de Allende in the future demonstrates that the parents intended that location as Bianca's habitual residence, given their frequent movement within Monterey County. We are not persuaded. The law looks more to the conduct of the parties than their statements. ". . . [O]ne need not have this settled intention at the moment of departure; it could coalesce during the course of a stay abroad originally intended to be temporary. Nor need the intention be expressly declared, if it is manifest from one's actions; indeed, one's actions may belie any declaration that no abandonment was intended. [Fn. omitted.] If you've lived continuously in the same place for several years on end, for example, we would be hard-pressed to conclude that you had not abandoned any prior habitual residence. [Fn. omitted.] On the other hand, one may effectively abandon a prior habitual residence without intending to occupy the next one for more than a limited period. [Fn. omitted.]" (Mozes v. Mozes, supra, 239 F.3d at pp. 1075-1076; see also Gitter, supra, 396 F.3d at p. 133 ["We would be hard pressed to conclude, for example, that a child who has spent fifteen years abroad in the same State is not habitually resident there, even if the parents intended some day to return and did not intend that the child acquire a new habitual residence."].)
The parents agreed to come to the United States for Bianca's birth. They continued to live in the United States with Mother's children for over three years after Bianca's birth, which the trial court could have reasonably found to be an "appreciable period of time" as required by the Convention to establish the United States as Bianca's habitual residence. (Forrest, supra, 144 Cal.App.4th at p. 1213.) Once the parties' separated, Bianca lived with Father; there is no evidence he expressed any intent to return to Mexico. Mother also remained in the United States, living first with a boyfriend, then renting her own apartment. Prior to August 2015, the record reflects Bianca visiting Mexico five times, but never for more than a few weeks. This evidence provides abundant support for the trial court's implied finding that the parties intended the United States to be Bianca's habitual residence.
2. Mother's Time in Monterey County was Not "Involuntary"
Mother next argues her time living in the United States between Bianca's birth and 2013 was not the product of her free choice, but was involuntary. As a result of custody proceedings involving her son, Mother asserts she was prosecuted in Monterey County, with that court issuing an order precluding her from returning to Mexico as she intended. She indicates the court terminated that order in 2013, although the record does not include copies of any relevant orders. While Mother could have returned to Mexico at that time, her son could not, effectively forcing her to remain in the United States until 2014, when the court allowed her to take her son to Mexico. Mother says she waited until 2015 to fully move so that her son could finish the school year.
In support of her argument Mother cites Application of Ponath (D. Utah 1993) 829 F.Supp. 363, in which the trial court found the subject child's habitual residence was Utah, although the child had been in Germany for almost a year. The court determined the mother and child "were detained in Germany against [the mother's] desires by means of verbal, emotional and physical abuse [at the hands of the father]. The court cannot conclude under such circumstances that respondent and the minor child were habitually resident in Germany within the meaning of the Hague Convention. Although it is the habitual residence of the child that must be determined, the desires and actions of the parents cannot be ignored by the court in making that determination when the child was at the time of removal or retention an infant. The concept of habitual residence must, in the court's opinion, entail some element of voluntariness and purposeful design. Indeed, this notion has been characterized in other cases in terms of 'settled purpose.' " (Id. at p. 367.) Other courts have also indicated a party cannot establish a child's habitual residence in one location when the removing spouse is coerced to remain in that country as a result of abuse. (Silverman v. Silverman (8th Cir. 2003) 338 F.3d 886, 900, citing Application of Ponath, supra, and Tsarbopoulos v. Tsarbopoulos (E.D. Wash. 2001) 176 F.Supp.2d 1045, 1055 [mother had no choice in the move to a new country where father concealed his intent to remain in the foreign country and abused the mother and children].)
There is no evidence in this record that Father undertook any action to coerce Mother to stay in the United States or detained her in any way. Mother does not assert that she is the victim of domestic violence or verbal or emotional abuse. Nor are we persuaded that her decision to remain in the United States because of circumstances from a criminal prosecution or the custody litigation for her son from a different relationship renders her stay involuntary. In Application of Ponath, supra, the court focused on the coercive actions of a parent that undercut the notion that the parents shared any intent at all. Clearly there is a distinction between the imposition of intolerable conditions on one parent by another that negates the concept of a shared intent to remain in a location, and a parent's decision to stay in place because of conditions, albeit negative, unrelated to the other parent. Mother herself concedes that she remained for an additional year in the United States so that her older son could complete school. This was not a choice coerced by Father. Mother may have been unhappy with the circumstances that caused her to choose to remain in the United States, but these did not render her choice involuntary as the result of Father's actions.
3. There is Insufficient Evidence Parties Agreed to Change Habitual Residence After Separation
Mother also argues the parties at minimum shared an intent for Mexico to become Bianca's habitual residence after they separated in 2013. There is minimal evidence in the record supporting this argument. Mother alleges Father agreed she could move with Bianca to Mexico once she resolved her son's custody issues. The primary evidence she cites in support of that argument is her own testimony. Mother is correct in asserting there need not be a written agreement to establish the settled intent of the parties. (Mendez v. May (1st Cir. 2015) 778 F.3d 337, 346.) However, it was reasonable for the trial court to find no credible evidence of such an agreement in this case.
While the trial court did not make any explicit findings about the existence or nonexistence of such an agreement, presumably it did not credit Mother's claim that Father agreed to the move. The record reflects numerous inconsistencies in Mother's presentation to the trial court that raised doubts about her credibility. In her petition under the Convention, Mother states, "Approximatively [sic], in the month of March 2013 for diverse reasons such as incompatibilities and, by mutual consent, Mr. Garcia who is still my spouse, I and my minor children went back to San Miguel de Allende, State of Guanajuato, Mexico to reside permanently, where my children go to school, [sic] [¶] It is noteworthy that since we got back to San Miguel de Allende, State of Guanajuato, Mexico, to reside permanently with my children, I had taken my daughter periodically to Monterey, State of California, in the United States of America to visit her father, who still is my spouse, during holidays, for periods up to a week time as well as for long weekends, at his request."
Despite Mother's suggestion in the petition that Bianca lived with her in Mexico from 2013 to 2015, based on the evidence before it the trial court was entitled to conclude Mother remained in the United States well after March 2013, after the court released her from any orders keeping her here, and after the court allowed her to take her son to Mexico. With the petition, the District Attorney submitted the UCCJEA declaration signed by Mother indicating Bianca lived in Salinas from 2013-2015. While Mother, at trial, argued that declaration was the product of a mistake or typographical error, the evidence shows Mother did live with her boyfriend in Salinas for at least a year after the parties separated in 2013. She thereafter rented an apartment in Carmel through most of 2015. Mother's son provided a statement confirming Mother lived in California from May 2013 to September 2015. Mother concedes in her reply brief that Bianca was present in Mexico only 11 weeks after 2014. At the trial on the petition, Mother agreed she resided in Monterey County through at least December 2014, after which she went back and forth to Mexico until her son was able to join her there after finishing the school year in 2015. Father provided declarations from his family stating Bianca lived with Father, his sister, and his brother-in-law, from the time of separation to the date Father declined to allow Bianca to travel to Mexico with Mother. Although Father allowed Bianca to travel to Mexico with Mother after the parties' separation, his permission always included specified return dates. These inconsistencies in Mother's testimony and the other evidence reasonably call into question Mother's credibility and support the trial court's implied finding that there was no agreement between the parents.
On appeal, Mother points out she raised an objection to the court considering her son's declaration in her trial brief, based on a statement by a therapist that her son has posttraumatic stress disorder resulting from his own custody issues. Mother did not state this objection on the record at trial when Father's attorney discussed the declaration with the court, and we thus find any objection was forfeited. Given the parties' stipulation to admit the declaration into evidence, we presume the trial court did consider it.
Mother argues the trial court took judicial notice of the declarations for their existence, but not for the truth of the matter asserted, stating the declarations lost judicial weight. At the initial hearing on the petition, the parties agreed to accept declarations as evidence in lieu of calling witnesses. While the court, at the evidentiary hearing, indicated it would not give weight to the conclusions and statements in those declarations it did not find to be "sufficiently foundationalized for personal knowledge," it did state it would consider the "helpful and factual information" contained therein. Although the written judgment states, "The court takes judicial notice of the declarations filed on behalf of the Respondent but not for the truth of the matters asserted," the court's statements on the record make it clear the court did consider those portions of the declarations containing factual statements sufficiently supported by a showing of personal knowledge. Statements from family members confirming Bianca lived with them, or that they spent time directly with Bianca, would fall within that category.
However, Mother also argues the trial court could have inferred the agreement for Bianca to move to Mexico based on the parties' alleged post-separation custody and visitation problems. She claims Father had a pattern of collecting Bianca late from school, evidenced by Bianca's school records. While she was concerned Father would obtain an order from the court precluding her from taking Bianca out of the county, as had happened in her son's case, Mother thinks Father was worried about being held in contempt for violation of visitation orders based on his chronic lateness. Mother argues she therefore agreed to forego child and spousal support, as well as a formal visitation order, in exchange for Father allowing her to move to Mexico with Bianca. There is no evidence in the record supporting Mother's theory, and based on the inconsistencies in Mother's evidence, it was reasonable for the trial court to conclude that no such agreement existed.
4. Bianca's Intent and Acclimatization
In addition to the parties' intent, Mother also suggests we should consider Bianca's settled intent to have Mexico be her habitual residence, or, at minimum, her acclimatization to Mexico as her home. When interviewed by an investigator from the District Attorney's office, Bianca indicated she lived in San Miguel de Allende and Big Sur. At the time, Bianca was six years old. The court can consider the child's intent, rather than the parents, if the child has "reached a stage in her development that she is deemed capable of making an independent decision about her living arrangements . . . ." (Forrest, supra, 144 Cal.App.4th at p. 1213, citing Mozes v. Mozes, supra, 239 F.3d at pp. 1076-1078.) The Mozes court pointed out a problem with considering the child's intent: "Children, particularly the ones whose return may be ordered under the Convention, normally lack the material and psychological wherewithal to decide where they will reside." (Mozes v. Mozes, supra, 239 F.3d at p. 1076.) Here, the record does not indicate the trial court considered Bianca's intent in ruling on the petition. But the record does not include evidence Bianca was at a stage in her development to be deemed capable of making a decision about her living arrangements, and there is no evidence she stated an opinion about whether she wanted to live in Mexico or the United States or an objection to either. Even if the court gave some consideration to Bianca's intent, the fact Bianca said she lived in both Mexico and the United States makes it likely the court reasonably gave minimal weight to her statements and looked rather to her parents' actions. Certainly, the fact Bianca said she lived in Mexico as well as the United States does not show clear error on the trial court's part in finding the parties' shared intent to establish the United States as her habitual residence.
"If a child has attained the age of sixteen, the Convention no longer applies to it. See Convention, art. 4, 19 I.L.M. at 1501. Further, any child that has 'attained an age and degree of maturity at which it is appropriate to take account of its views' may object to being returned and have its wishes considered. Id., art. 13, 19 I.L.M. at 1502-03. Children who fall under neither of these provisions are clearly not in a position to make independent choices as to where they wish to reside. Cf. Gonzalez v. Reno, 212 F.3d 1338 (11th Cir. 2000) (upholding INS determination that six-year-old child lacked sufficient capacity to assert asylum claims unless represented by adult)."
Mother also suggests Bianca's acclimatization to Mexico reflects the shift in her habitual residence from the United States to Mexico. Mother points to evidence that while visiting in Mexico, Bianca participated in various activities, such as dance and music classes; Mother also enrolled Bianca in kindergarten in San Miguel de Allende. While in Mexico, Bianca experienced positive interactions with numerous members of Mother's work and social circles.
At the hearing, Mother alleged Bianca actually attended kindergarten before leaving for the United States in July 2015, a fact she believes further shows a shift in Bianca's habitual residence to Mexico. The record shows Mother enrolled Bianca at the Yemayá Waldorf school on or after the day Bianca left Mexico in July 2015.
The Mozes court addressed the "difficult question" of "when evidence of acclimatization should suffice to establish a child's habitual residence, despite uncertain or contrary parental intent. Most agree that, given enough time and positive experience, a child's life may become so firmly embedded in the new country as to make it habitually resident even though there be lingering parental intentions to the contrary. [Fn. omitted.] The question is how readily courts should reach the conclusion that this has occurred. Since the Convention seeks to prevent harms thought to flow from wrenching or keeping a child from its familiar surroundings, it is tempting to regard any sign of a child's familiarity with the new country as lessening the need for return and making a finding of altered habitual residence desirable. Further, some courts regard the question whether a child is doing well in school, has friends, and so on, as more straightforward and objective than asking whether the parents share a 'settled intent.' [Fn. omitted.] Despite the superficial appeal of focusing primarily on the child's contacts in the new country, however, we conclude that, in the absence of settled parental intent, courts should be slow to infer from such contacts that an earlier habitual residence has been abandoned." (Mozes v. Mozes, supra, 239 F.3d at pp. 1078-1079.)
Applying the sound reasoning of Mozes to the instant case, we do not find it reasonable to infer that 11 weeks in Mexico spread over several visits provides a sufficient basis to find that Bianca's habitual residence shifted from the United States to Mexico based on her presumably positive experiences there. The record provides no evidence that Bianca's experience in extracurricular activities and social activities was distinct from that of any child whose parents are separated, where the child is visiting a distantly located and loved parent. In essence, Bianca spent the equivalent of summer break with in Mexico as one of her five visits to Mother. We cannot conclude from this record that she became "firmly embedded" there such that establishing her habitual residence as the United States would be harmful to her.
In sum, we find the record supports an implied finding the trial court determined the parties shared an intent that the United States be Bianca's habitual residence under the Convention. Moreover, having considered all of the evidence, we are not left with " ' "the definite and firm conviction that a mistake has been committed." ' " (Escobar v. Flores, supra, 183 Cal.App.4th at p. 748.) We conclude that the trial court committed no clear error when it found Bianca has not resided anywhere other than the United States and the United States has always been her habitual residence under the Convention. Thus, the trial court properly denied Mother's petition to remove Bianca to Mexico.
E. The Custody Orders Are Not the Subject of This Appeal
Mother requests that we reverse the custody orders issued by the trial court in November 2015, and January 2016, prior to her filing her petition under the Convention. Mother did not raise either of these two orders in her notice of appeal. The only order Mother references in her notice of appeal is the judgment on the petition under the Hague Convention. The trial court issued the custody orders as part of the underlying dissolution action, not in conjunction with its ruling on the Hague petition. As Mother has not noticed an appeal of either of the custody orders, we decline to rule on her requests pertaining to those orders as we are without jurisdiction to review this separate order. (See Nellie Gail Ranch Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 1007-1008, as modified on denial of rehg. (Oct. 27, 2016), review denied (Jan. 18, 2017).)
III. DISPOSITION
The February 3, 2017 Judgment on Petition Under the Hague Convention is affirmed.
/s/_________
Greenwood, P.J. WE CONCUR: /s/_________
Premo, J. /s/_________
Elia, J.