Opinion
No. 5:20-CV-195-D
2021-02-12
Norma Edith RODRIGUEZ SANCHEZ, Petitioner, v. Justino Fausto PERALTA-RANGEL, Respondent.
Amy Anne Vukovich, Legal Aid of North Carolina, Durham, NC, TeAndra M. Miller, Sarah E. Mabry-Caraffa, Legal Aid of North Carolina, Raleigh, NC, for Petitioner. Justino Fausto Peralta-Rangel, Angier, NC, Pro Se.
Amy Anne Vukovich, Legal Aid of North Carolina, Durham, NC, TeAndra M. Miller, Sarah E. Mabry-Caraffa, Legal Aid of North Carolina, Raleigh, NC, for Petitioner.
Justino Fausto Peralta-Rangel, Angier, NC, Pro Se.
ORDER
JAMES C. DEVER III, United States District Judge
The court held a hearing on February 12, 2021. At the end of the hearing, the court entered findings of fact and conclusions of law and granted the verified petition seeking return of child to petitioner under the Hague Convention. The court now memorializes its findings and conclusions.
I.
Petitioner Norma Edith Rodriguez Sanchez ("Rodriguez Sanchez" or "petitioner") is a citizen of Mexico who currently resides in Tamaulipas, Mexico. Rodriguez Sanchez has lived in the City of Madero, Mexico at the same address since 2010. Respondent Justino Fausto Peralta-Rangel ("Peralta-Rangel" or "respondent") is a citizen of Mexico who currently resides in Angier, North Carolina.
A.P.R. was born on May 11, 2008, in Raleigh, North Carolina, and is the biological daughter of Rodriguez Sanchez and Peralta-Rangel. A.P.R. is 12 years old. The parties were never married. They met while living in North Carolina, and A.P.R. is their sole child.
In early 2010, Rodriguez Sanchez and A.P.R. returned to Mexico to stay with her family. Rodriguez Sanchez was not legally in the United States and was not able to return to North Carolina. The relationship between Rodriguez Sanchez and Peralta-Rangel ended shortly after she and A.P.R. returned to Mexico. A.P.R. has lived nearly her entire life in Madero, Tamaulipas, Mexico, with Rodriguez Sanchez. Between 2010 and December 18, 2018, Rodriguez Sanchez and A.P.R. resided in Madero, Tamaulipas, Mexico.
Since A.P.R.’s birth, Peralta-Rangel only returned to Mexico in June 2015. During this one visit, Peralta-Rangel briefly saw A.P.R. During A.P.R.’s life in Mexico, Peralta-Rangel did not provide support in the form of clothing, money, or anything else. Rodriguez Sanchez never relied on Peralta-Rangel to meet A.P.R.’s basic needs.
Rodriguez Sanchez reared A.P.R. in Mexico from infancy. Rodriguez Sanchez ensured A.P.R.’s health care and educational needs, and made all day-to-day decisions with little to no input from Peralta-Rangel. A.P.R. is a citizen of both Mexico and the United States. No court in either country has ever entered an order regarding the custodial rights of the parties in either country. A.P.R. attended school in Madero, Tamaulipas, Mexico through the first semester of fifth grade. A.P.R. is fluent in Spanish.
In 2018, Rodriguez Sanchez and Rodriguez Sanchez's sister, Alejandra Rodriguez Sanchez ("Alejandra"), discussed sending A.P.R. to Benson, North Carolina, to visit Alejandra's family and attend one semester of school to learn English. In October 2018, Rodriguez Sanchez contacted Peralta-Rangel and asked Peralta-Rangel to complete a form allowing A.P.R. to renew her United States passport. Peralta-Rangel completed the form, but did not participate in the plans for A.P.R.’s visit. In December 2018, Rodriguez Sanchez's niece, Cindy Garcia Rodriguez ("Cindy"), flew to Tamaulipas to visit family and escort A.P.R. to Benson, North Carolina, to stay with Alejandra. On December 18, 2018, Cindy and A.P.R. arrived in the United States. A.P.R. drove with Cindy directly to Alejandra's home that evening, where A.P.R. remained for the next five months.
On January 3, 2019, A.P.R. was enrolled for a semester at Benson Middle School as Rodriguez Sanchez planned. Benson Middle School is in the school district that encompassed Alejandra's address. Cindy was listed as the emergency contact, along with Alejandra Rodriguez, Adrian Rivera, and Maria Rodriguez. Peralta-Rangel was listed as the fifth contact on the emergency contact form.
Shortly after A.P.R.’s arrival, Peralta-Rangel appeared at Alejandra's door unannounced asking to see A.P.R. For approximately two months, Peralta-Rangel visited A.P.R. weekly. A.P.R. was not comfortable going anywhere alone with him. The visits ceased in approximately mid-February 2019.
While A.P.R. was in the United States, Rodriguez Sanchez remained in constant contact with A.P.R., texting and calling almost every day. At no time did Rodriguez Sanchez abandon or act as though she abandoned A.P.R. In mid-February 2019, A.P.R. expressed homesickness and asked Rodriguez Sanchez if she could return to Mexico sooner than planned. At the time, Alejandra and Rodriguez Sanchez could not afford the return tickets, and they asked A.P.R. to be patient
On May 10, 2019, after nearly three months without contact, Peralta-Rangel arrived at A.P.R.’s school and demanded that she be released into his care. Benson Middle School administrators contacted Cindy and Alejandra about Peralta-Rangel's demand and asked that they come to the school. Cindy immediately went to Benson Middle School. When Cindy arrived, she found A.P.R., who was very upset. The principal told Cindy that the school had to release A.P.R. to Peralta-Rangel because he was her father. Cindy contacted Rodriguez Sanchez via videophone and was able to speak to A.P.R. during the incident. A.P.R. asked not to be released to her father, but the principal did so on May 10, 2019. That was the last day that A.P.R. stayed with Alejandra and Cindy as Rodriguez Sanchez had planned.
Peralta-Rangel never returned A.P.R. to Alejandra's care or retrieved A.P.R.’s belongings from Alejandra's home. A.P.R. came to the United States to visit Rodriguez Sanchez's family, stayed with Rodriguez Sanchez's family, was enrolled in school by Rodriguez Sanchez's family and in the family's school district, and was scheduled to return to Mexico at the end of the semester. Rodriguez Sanchez maintained her custody rights under the doctrine of patria potestas and actively exercised her custody rights of A.P.R. from the time A.P.R. arrived in the United States until Peralta-Rangel wrongfully retained A.P.R. on May 10, 2019. Rodriguez Sanchez never consented to Peralta-Rangel withholding A.P.R.
Rodriguez Sanchez tried to speak to Peralta-Rangel by phone in the days following May 10, 2019, but he would not answer. On May 16, 2019, Rodriguez Sanchez filed a Hague Application for the return of A.P.R.
Rodriguez Sanchez never acquiesced to A.P.R. remaining with Peralta-Rangel in the United States. A.P.R. remained at Benson Middle School after the retention. During this time, Alejandra was able to pass a cellphone to A.P.R. through her daughter, Raquel. A.P.R. then communicated with Rodriguez Sanchez for a period of time following the retention.
In July 2019, Peralta-Rangel filed a verified custody complaint in Johnston County, North Carolina, and asserted, among other things, that Rodriguez Sanchez's address was unknown to Peralta-Rangel. Since Peralta-Rangel's wrongful retention, communication between A.P.R. and Rodriguez Sanchez has been intermittent
Rodriguez Sanchez never consented to Peralta-Rangel's retention of A.P.R. or acquiesced in the retention. To the contrary, Rodriguez Sanchez filed her Hague Application within days of the retention, signed a power of attorney naming her niece, Cindy Rodriguez, and consulted with lawyers in both the United States and Mexico.
On May 8, 2020, Rodriguez Sanchez filed her Hague Petition for the Return of A.P.R., which is within one year of A.P.R.’s wrongful retention. When Rodriguez Sanchez filed this action and at all times throughout this proceeding, A.P.R. has resided with the Peralta-Rangel in Angier, North Carolina. Angier is within the jurisdiction of the United States District Court of the Eastern District of North Carolina.
II.
This court has jurisdiction over this action pursuant to 22 U.S.C. § 9003(a). It arises under the Hague Convention on the Civil Aspects of International Child Abduction as implemented by the International Child Abduction Remedies Act ("ICARA"), as well as 28 U.S.C. § 1331. Venue is proper under 22 U.S.C. § 9003(b) and 28 U.S.C. § 1391.
A.P.R. resides in the Eastern District of North Carolina. The court has personal jurisdiction over Peralta-Rangel and A.P.R.
A.P.R. is under 16 years of age; therefore, the Hague Convention applies. See Hague Convention art. 4, July 1, 1988, T.I.A.S. No. 11670, 22514 U.N.T.S. (hereinafter "Hague Convention"). The Hague Convention is a United States Treaty within the meaning of Articles II and VI of the United States Constitution. Both Mexico and the United States are signatories to this treaty. See Hague Convention, at 1. Congress enacted ICARA to implement procedures for the Hague Convention within the United States. See 22 U.S.C. §§ 9001 – 9011. Rodriguez Sanchez has standing because she has custody rights within the meaning of Articles 3 and 5 of the Hague Convention, and she is A.P.R.’s mother.
In order to prevail, Rodriguez Sanchez must prove by a preponderance of the evidence that (1) before the wrongful retention of A.P.R., A.P.R. was a habitual resident in Mexico; (2) Peralta-Rangel's wrongful retention of A.P.R. in the United States breached Rodriguez Sanchez's custody rights under the laws of Mexico; and (3) Rodriguez Sanchez was actually exercising her custodial rights at the time of Peralta-Rangel's wrongful retention. See, e.g., Bader v. Kramer, 484 F.3d 666, 668 (4th Cir. 2007) ; Humphrey v. Humphrey, 434 F.3d 243, 246 (4th Cir. 2006).
As for the first element, the Hague Convention does not define the term "habitual residence." This fact-driven inquiry, however, must be "sensitive to the unique circumstances of the case and informed by common sense." Monasky v. Taglieri, ––– U.S. ––––, 140 S. Ct. 719, 727, 206 L.Ed.2d 9 (2020) (quotation omitted). Based on the evidence presented and crediting Rodriguez Sanchez's testimony about how and where she reared A.P.R., A.P.R.’s habitual residence is Mexico.
As for the second element, Rodriguez Sanchez must prove that she has a right to custody under the laws of the contracting state. See Bader, 484 F.3d at 668. Chapter I and II of the Civil Code for the State of Tamaulipas outline the custodial rights of a parent See Pl. Ex. 2 [D.E. 2-4]. Articles 382 & 383 of the Civil Code for the State of Tamaulipas, Mexico establishes what may be described as "joint custody" in the absence of a court order under the doctrine of patria potestas. See id. at 2. Article 386 states, in part, "When anyone exercising the parental authority/responsibility (patria potestas) prevents the other from exercising his/her rights to the parental authority/responsibility (patria potestas), the judge may limit, modify or cancel the right to joint custody." Id. at 3.
Patria potestas rights are "rights of custody" as defined by the Convention and ICARA. See Mota v. Rivera Castillo, 692 F.3d 108, 117 (2d Cir. 2012) ; Whallon v. Lynn, 230 F.3d 450, 459 (1st Cir. 2000) ; Velarde v. Gurgan, Civil Action No. SA-17-CA-792-XR, 2017 WL 4570304, at *7 (W.D. Tex. Oct. 13, 2017) (unpublished). Both parents retain joint custodial rights to A.P.R., and it was Peralta-Rangel's affirmative action in retaining A.P.R. that hampered Rodriguez Sanchez's joint custodial rights under the Civil Code for the State of Tamaulipas, Mexico. Under the Civil Code of the State of Tamaulipas, Mexico, Rodriguez Sanchez maintained her rights of custody over A.P.R. while A.P.R. was visiting with family in the United States. See, e.g., Chambers v. Russell, No. 1:20CV498, 2020 WL 5044036, at *7 (M.D.N.C. Aug 26, 2020) (unpublished); Rodriguez Palomo v. Howard, 426 F. Supp. 3d 160, 174–76 (M.D.N.C. 2019).
As for the third element, Rodriguez Sanchez must prove that she was actually exercising her custodial rights when A.P.R. was wrongfully retained. See Bader, 484 F.3d at 668. "A parent who sends his or her child to live with a caretaker has not relinquished custody rights but rather has exercised them." Hague International Child Abduction Convention, Text and Legal Analysis, 51 Fed. Reg. 10,503, 10,506 (Mar. 26, 1986) ; see Pl.’s Ex. 1 [D.E. 2-3] 1–2. A parent exercises custodial rights "whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child." Bader, 484 F.3d at 671.
Rodriguez Sanchez maintained daily contact with A.P.R. until May 10, 2019, when the wrongful retention occurred. Even after the wrongful retention, Rodriguez Sanchez continued to contact A.P.R. daily, even when A.P.R. was unable to respond. Rodriguez Sanchez has proven that she was exercising her custodial rights under the laws of Tamaulipas, Mexico at the time of Peralta-Rangel's wrongful retention. See, e.g., Chambers, 2020 WL 5044036, at *8–9 ; Rodriguez Palomo, 426 F. Supp. 3d at 176–77.
In his response, Peralta-Rangel asserted the following affirmative defenses: (1) Rodriguez Sanchez was not actually exercising her custody rights of A.P.R. at the time of the retention; (2) Rodriguez Sanchez consented to the retention or acquiesced in the retention; (3) Rodriguez Sanchez failed to file the petition withing one year of the retention and A.P.R. is now well settled; and (4) A.P.R. will suffer physical or psychological harm or otherwise be in an intolerable situation if returned to Mexico.
Peralta-Rangel presented no evidence to support these defenses. Thus, they fail. Alternatively, the defenses fail on the evidence presented.
As for the first defense, the record demonstrates that Rodriguez Sanchez was exercising her custody rights of A.P.R. at the time of the retention.
As for the second defense, the affirmative defense of consent and acquiescence requires the respondent to prove the defense by a preponderance of the evidence. The "consent defense concerns the petitioner's conduct before the contested removal or retention, [and] the acquiescence defense concerns whether the petitioner subsequently agreed to or accepted the removal or retention." Padilla v. Troxell, 850 F.3d 168, 175 (4th Cir. 2017).
Based on the evidence presented, including Rodriguez Sanchez's credible testimony, Rodriguez Sanchez did not consent to or acquiesce in Peralta-Rangel's retention of A.P.R. In making this finding, the court credits Rodriguez Sanchez's testimony.
As for the third defense, the record shows that Rodriguez Sanchez did file the petition within one year of the retention. Moreover, based on the evidence presented, the court finds that A.P.R. is not well settled. In making this finding, the court does not credit the testimony of Christina Peralta.
Finally, Peralta-Rangel asserts the grave risk defense under Article 13(b) of the Convention. A grave risk of harm for the purposes of the Convention can exist in only two situations. "First, there is a grave risk of harm when return of the child puts the child in imminent danger prior to the resolution of the custody dispute—e.g., returning the child to a zone of war, famine, or disease. Second, there is a grave risk of harm in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection." Friedrich v. Friedrich, 78 F.3d 1060, 1069 (6th Cir. 1996).
This defense is not intended to be used to litigate the child's best interests or place the child where he or she would be happiest. Id. at 1068. The grave risk inquiry is concerned only with the degree of harm that could occur in the immediate future. See Salguero v. Argueta, 256 F. Supp. 3d 630, 636 (E.D.N.C. 2017). The defense is narrow. See Miller v. Miller, 240 F.3d 392, 402 (4th Cir. 2001). Peralta-Rangel must prove this defense by clear and convincing evidence. See 22 U.S.C. § 9003(e)(2)(A).
Peralta-Rangel has not met his burden to prove by clear and convincing evidence a grave risk of harm to A.P.R. if she is returned to Mexico to Rodriguez Sanchez's care. See Chambers, 2020 WL 5044036, at *12–14. No evidence suggests that A.P.R. is returning to a zone of war, famine, or disease. Likewise, no evidence suggests a grave risk of harm due to abuse or neglect or extraordinary emotional dependence. In fact, the evidence suggests the opposite. The court credits Rodriguez Sanchez's testimony about her home and how she reared A.P.R. Moreover, the Department of State travel advisory advising United States citizens not to travel to Mexico due to "crime and kidnapping" in parts of Mexico does not establish by clear and convincing evidence that A.P.R.’s return to her home in Mexico would place A.P.R. at immediate grave risk to her safety.
Having reviewed the entire record and assessed the credibility of the witnesses, Rodriguez Sanchez has established a prima facie case for return of A.P.R. in that (1) before the wrongful retention of A.P.R., A.P.R. was a habitual resident of Mexico and merely visiting Rodriguez Sanchez's family in the United States; (2) Rodriguez Sanchez continued to act as custodial parent of A.P.R. in the months leading up to the wrongful retention, and the retention was a breach of Rodriguez Sanchez's custody rights under the laws of Mexico; and (3) Rodriguez Sanchez was actually exercising her custodial rights at the time A.P.R. was wrongfully retained by Peralta-Rangel on May 10, 2019. See, e.g., Bader, 484 F.3d at 668 ; Chambers, 2020 WL 5044036, at *3–15 ; Rodriguez Palomo, 426 F. Supp. 3d at 167–81.
Mexico is the proper jurisdiction for a ruling on custody. Thus, A.P.R. shall be returned to the care and custody of Rodriguez Sanchez. If Peralta-Rangel wants to contest custody, he must do so in a court in Tamaulipas, Mexico.
III.
In sum, the court GRANTS petitioner's verified petition under Hague Convention seeking return of child A.P.R. to petitioner [D.E. 2]. At 10:00 a.m. on February 16, 2021, respondent SHALL DELIVER the minor child A.P.R. to the Terry Sanford Federal Building and United States Courthouse, 310 New Bern Avenue, First Floor, Raleigh, North Carolina. At that time, respondent will allow petitioner's sister Alejandra Rodriguez Sanchez and niece Cindy Garcia Rodriguez to take physical custody of A.P.R. At the time of this exchange, respondent also will deliver to Alejandra Rodriguez Sanchez and Cindy Garcia Rodriguez sufficient clothing, personal care items, and medicine (if any) needed for the child to travel back to Mexico.
The U.S. Marshal is DIRECTED to supervise the exchange of the child from respondent to Alejandra Rodriguez Sanchez and Cindy Garcia Rodriguez, and to assist in executing this order as necessary.
All federal, state, and local law enforcement authorities are NOTIFIED that Alejandra Rodriguez Sanchez and/or Cindy Garcia Rodriguez are authorized to travel with the child A.P.R. from the United States to Mexico between the dates February 16, 2021, and February 28, 2021, in order to deliver the child A.P.R. to petitioner in Mexico.
SO ORDERED. This 12th day of February 2021.