1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 WILFRIDO SANDOVAL DELGADO, Case No. 23-cv-05141-VKD
9 Petitioner, FINDINGS OF FACT AND 10 v. CONCLUSIONS OF LAW
11 VERANIA DIAZ MARQUEZ, Respondent. 12
13 I. INTRODUCTION 14 Petitioner Wilfrido Sandoval Delgado filed this petition pursuant to the Hague Convention 15 on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670 (“Hague 16 Convention”),1 against respondent Verania Diaz Marquez, seeking the return of their son, JASD, 17 to Mexico.2 Dkt. No. 1. Mr. Sandoval asserts that Ms. Diaz wrongfully removed JASD from his 18 habitual residence in Mexico and that he is entitled to JASD’s return pursuant to Article 3 of the 19 Hague Convention. Id. 20 In advance of trial, the parties agreed, and the Court found, that Mr. Sandoval has 21 established the elements of his case for return of JASD under Article 3. Specifically, the 22 following facts are not disputed: (1) respondent Ms. Diaz removed JASD from Mexico on April 23 21, 2022; (2) Mexico was at that time JASD’s habitual residence; (3) the removal was in violation 24 of Mr. Sandoval’s custody rights under Mexican law; and (4) Mr. Sandoval was actually 25
26 1 In the United States, the Hague Convention is implemented by the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. § 9001 et seq. 27 1 exercising his custody rights at the time of the removal. See Dkt. No. 33 at 1 2 Ms. Diaz asserts two defenses to Mr. Sandoval’s petition. First, Ms. Diaz asserts that the 3 Court should not order JASD’s return to Mexico because Mr. Sandoval delayed in filing his 4 petition and JASD is now settled in the United States, as provided in Article 12 of the Hague 5 Convention. To establish this defense, Ms. Diaz must prove that Mr. Sandoval failed to 6 commence judicial proceedings for JASD’s return within one year of his removal, and that JASD 7 is now settled in his new environment. See Hague Convention, Art. 12. In advance of trial, the 8 Court concluded as a matter of law that Mr. Sandoval filed his petition for return on October 6, 9 2023, and therefore did not commence these proceedings within one year of JASD’s removal from 10 Mexico, leaving only the question of whether JASD is settled in the United States. Dkt. No. 33 at 11 2. 12 Second, Ms. Diaz asserts that the Court should not order JASD’s return to Mexico because 13 there is a grave risk that return would expose him to physical or psychological harm, as provided 14 in Article 13(b) of the Hague Convention. See Hague Convention, Art. 13(b). The parties 15 disagree about the facts pertaining to this defense, including whether Mr. Sandoval engaged in acts 16 or threats of violence against Ms. Diaz. See Dkt. No. 33 at 2-3. 17 Ms. Diaz’s defenses were tried to the Court without a jury over three days, from January 18 31, 2024 to February 2, 2024. Dkt. Nos. 38-40. The Court heard testimony from the following 19 witnesses: 20 1. Verania Diaz Marquez (Respondent) 21 2. Arturo Garcia Marquez (Respondent’s uncle) 22 3. Juana Ibeth Marquez Garcia (Respondent’s mother) 23 4. Wilfrido Sandoval Delgado (Petitioner) 24 All witnesses testified with the assistance of certified Spanish language interpreters. See 25 Dkt. Nos. 38-40. The parties stipulated to the admission of certain exhibits in evidence. Dkt. No. 26 36. Additional exhibits were admitted during trial. See Dkt. Nos. 38-1, 39-1, 40-1 (trial logs). At 27 the conclusion of the trial, the Court allowed, but did not require, the parties to file final proposed 1 findings of fact and conclusions of law.3 2 Having considered the evidence presented, the Court now makes the following findings of 3 fact and conclusions of law pursuant to Rule 52(a)(1) of the Federal Rules of Civil Procedure. As 4 explained in further detail below, the Court finds that Ms. Diaz has established both of her 5 defenses under Articles 12 and 13(b) of the Hague Convention. 6 II. FINDINGS OF FACT4 7 A. JASD’s Habitual Residence in Mexico 8 1. Mr. Sandoval and Ms. Diaz are both Mexican citizens. At all times relevant to this 9 action, Mr. Sandoval resided in Mexico. Until April 21, 2022, Ms. Diaz also resided in Mexico. 10 Dkt. No. 29 at 3; Dkt. No. 38; Ex. 318 at 2. 11 2. Mr. Sandoval and Ms. Diaz began a romantic relationship in May of 2017, when 12 she was 17 years old and he was 34 years old. Dkt. No. 29 at 3; Dkt. No. 38; Ex. 48 at 4; Ex. 308 13 at 14. 14 3. Ms. Diaz and Mr. Sandoval began living together in August of 2017. Dkt. No. 38; 15 Ex. 308 at 14. They never married. Dkt. No. 29 at 3. 16 4. Ms. Diaz gave birth to JASD in May of 2018. Ms. Diaz and Mr. Sandoval are 17 JASD’s biological parents. Dkt. No. 29 at 3. 18 5. Mr. Sandoval and Ms. Diaz temporarily separated on several occasions. They 19 ended their romantic relationship and permanently separated in March of 2021. At that point, Mr. 20 Sandoval moved out of the house he shared with Ms. Diaz and JASD, and Ms. Diaz continued to 21 reside there with JASD. Mr. Sandoval saw JASD frequently after the separation, but Ms. Diaz 22 was always present when Mr. Sandoval and JASD were together. Dkt. No. 38. 23 B. Ms. Diaz’s and JASD’s Residence in California 24 6. On April 21, 2022, Ms. Diaz traveled to Watsonville, California with her son 25 3 Respondent filed final proposed findings of fact and conclusions of law (Dkt. No. 43); petitioner 26 did not.
27 4 No certified transcript of the trial has been requested or prepared. In this order, the Court cites 1 JASD. She and JASD began living at the home of Ms. Diaz’s uncle, Arturo Garcia Marquez. 2 Dkt. No. 29 at 3; Dkt. No. 38; Dkt. No. 39; Ex. 308 at 16, Ex. 318 at 12. 3 7. After arriving in California, Ms. Diaz placed JASD, who was then nearly four years 4 old, in a Head Start program run by Encompass Community Services. JASD graduated from the 5 Head Start program in May of 2023. Dkt. No. 38; Ex. 320 (Head Start certificate). 6 8. Ms. Diaz then enrolled JASD in a bilingual kindergarten program in the Pajaro 7 Valley Unified School District for the 2023-2024 school year. A report card from the first quarter 8 of the school year indicates that JASD is doing well academically and has a nearly perfect 9 attendance record. In November 2023, JASD received a certificate from his school for academic 10 achievement in writing. Dkt. No. 38; Ex. 321 (report card); Ex. 322 (school ID); Ex. 326 11 (certificate of achievement). 12 9. JASD has taken swim lessons at a local swim school. Dkt. No. 38; Ex. 325. He 13 has made friends with other children in the community. JASD does not have any friends in 14 Mexico. Occasionally, he communicates by telephone with his grandparents in Mexico. Dkt. No. 15 38. 16 10. JASD received a physical examination prior to starting kindergarten, including a 17 nutritional assessment, vision screening, hearing examination, and dental assessment. He is in 18 good physical health and has received all of his required immunizations. Dkt. No. 38; Ex. 328; 19 Ex. 329. JASD has received therapy from Santa Cruz County Behavioral Health Services, 20 although the nature of that therapy is not part of the record.5 Dkt. No. 39. 21 11. In December of 2022, Ms. Diaz filed an application for asylum in the United States, 22 asserting fear of violence from Mr. Sandoval if she were to return to Mexico. Dkt. No. 38; Ex. 23 318. JASD is included as a derivative beneficiary on Ms. Diaz’s application. Ex. 318 at 2. Ms. 24 Diaz’s asylum application remains pending. Ms. Diaz has permission to work in the United States 25 while her application is pending. Dkt. No. 38; Ex. 319. 26
27 5 No party asked the Court to order an independent forensic psychological exam of JASD. 1 12. After living with Ms. Diaz’s uncle for approximately one year, Ms. Diaz and JASD 2 moved into a small, one bedroom house that they share with Ms. Diaz’s brother. The house has a 3 play area for JASD. Dkt. No. 38. 4 13. Ms. Diaz has been employed full-time in Watsonville since June of 2022. She 5 earns enough money to be support herself and JASD. She does not receive financial support from 6 Mr. Sandoval. Dkt. No. 38. 7 14. Both Ms. Diaz and JASD have social security numbers. Dkt. No 38. 8 15. Ms. Diaz and JASD have a large extended family in the Watsonville area. Ms. 9 Diaz and JASD often spend time with family, including at family gatherings, school events, and 10 religious services. Dkt. No. 38; Dkt. No. 39; see also Ex. 325 (photographs of family activities). 11 C. Mr. Sandoval’s Alleged Abuse of Ms. Diaz 12 16. At trial, Ms. Diaz testified that Mr. Sandoval physically and emotionally abused her 13 on many occasions during their relationship and after their separation. Mr. Sandoval testified that 14 he pushed Ms. Diaz during an argument on one occasion, but denied her other allegations of 15 abuse. The Court had an opportunity to assess Ms. Diaz’s and Mr. Sandoval’s credibility when 16 each testified at trial and to evaluate other evidence in the record related to the alleged abuse. 17 With respect to these allegations, the Court finds Ms. Diaz’s testimony generally credible, and 18 finds Mr. Sandoval’s testimony generally not credible. The Court concludes that the following 19 incidents of physical and emotional abuse occurred: 20 17. In September of 2017, Mr. Sandoval called Ms. Diaz a “whore” because he 21 believed she was flirting with one of his cousins at a family event. Mr. Sandoval was intoxicated 22 at the time. Dkt. No. 38; Ex. 308 at 14-15. 23 18. On December 24, 2017, while Ms. Diaz was pregnant with JASD, she and Mr. 24 Sandoval had an argument at the house where they were living. Mr. Sandoval again insulted Ms. 25 Diaz, threw her against a wall, and tried to hit her. Mr. Sandoval’s sister was present during this 26 incident and prevented Mr. Sandoval from striking Ms. Diaz. Dkt. No. 38; Ex. 308 at 15. 27 19. At the time Ms. Diaz was due to give birth to JASD in May 2018, Mr. Sandoval 1 procedure. JASD was born by caesarean section. Dkt. No. 38; Ex. 308 at 15. 2 20. In January of 2019, Ms. Diaz and Mr. Sandoval had another argument. Mr. 3 Sandoval again insulted Ms. Diaz and took her cell phone from her. Mr. Sandoval told Ms. Diaz 4 he was going to leave with JASD, who was then about nine months old. Ms. Diaz asked for help 5 from a neighbor, who called the police. Police officers arrived and prevented Mr. Sandoval from 6 leaving with JASD. Dkt. No 38; Ex. 308 at 15. 7 21. On September 1, 2020, Mr. Sandoval came home very intoxicated. He threatened 8 to kill himself. Mr. Sandoval put his neck through the strap of purse that Ms. Diaz had left 9 hanging on the railing of a staircase. Dkt. No. 38; Ex. 308 at 15. Ms. Diaz did not regard Mr. 10 Sandoval’s behavior as a genuine effort to actually commit suicide. Ex. 308 at 15. At trial, Ms. 11 Diaz testified that Mr. Sandoval also threatened to kill her and JASD, although it is not clear from 12 her testimony that he made these threats on September 1, 2020. Dkt. No. 38; but see Ex. 308 at 15 13 (stating that on September 1, 2020, “[Mr. Sandoval] was threatening that he was tired of suffering 14 and that he would rather kill me and his son.”). JASD was in the same room as Ms. Diaz and Mr. 15 Sandoval when Mr. Sandoval threatened to kill himself. Dkt. No. 38; Ex. 308 at 15. 16 22. In December of 2021, several months after Ms. Diaz and Mr. Sandoval ended their 17 relationship and had stopped living together, Ms. Diaz traveled to Watsonville, California with 18 JASD to visit her grandmother, who was ill, and to visit other family members in the area. When 19 she was ready to return to Mexico, she and Mr. Sandoval agreed that Mr. Sandoval would drive to 20 Watsonville to pick up Ms. Diaz and JASD. Dkt. No. 38. 21 23. On April 4, 2022, Mr. Sandoval, Ms. Diaz and JASD began a multi-day drive from 22 Watsonville to Aguascalientes.6 Ms. Diaz made the trip voluntarily and did not believe that JASD 23 would be in danger if she and her son returned to Mexico with Mr. Sandoval. Dkt. No. 38. Mr. 24 Sandoval testified that he and Ms. Diaz wished to reconcile and that he expected that she and 25 JASD would live with him in Mexico. Dkt. No. 39. However, Ms. Diaz had no such wish and she 26 did not agree to live together with Mr. Sandoval and their son. Dkt. No. 38. 27 1 24. Mr. Sandoval and Ms. Diaz arrived in Aguascalientes on April 6, 2022. Shortly 2 thereafter, they visited Mr. Sandoval’s parents at their house in Ecatepec de Morelos.7 Dkt. No. 3 38; Ex. 48 at 4. Mr. Sandoval’s parents invited Mr. Sandoval, Ms. Diaz, and JASD to join them 4 on a trip they were about to take to the beach in Acapulco.8 Ms. Diaz agreed that she and JASD 5 would join Mr. Sandoval and his parents on this trip. Dkt. No. 38. 6 25. On the morning of April 9, 2022, Mr. Sandoval, Ms. Diaz, and JASD were staying 7 at Mr. Sandoval’s parents’ house. Mr. Sandoval left the house to go to his office, which was down 8 the street from the house. While he was gone, Ms. Diaz took a shower and let JASD play with her 9 cell phone. While Ms. Diaz was still in the shower, Mr. Sandoval returned to the house. He took 10 Ms. Diaz’s cell phone from JASD and saw messages from a man she had met in the United States. 11 Dkt. No. 38; Dkt. No. 39; Ex. 48 at 4-5; Ex. 308 at 16; Ex. 318 at 5. 12 26. Mr. Sandoval left the house, taking Ms. Diaz’s cell phone with him. Dkt. No. 39. 13 Once Ms. Diaz realized what had happened, she left the house with JASD and walked down the 14 street to Mr. Sandoval’s office to find him and retrieve her cell phone. Surveillance video of the 15 outside of the office shows Mr. Sandoval’s truck parked next to the door. The video shows Ms. 16 Diaz, holding JASD’s hand, speaking with Mr. Sandoval’s cousin outside the office, then walking 17 back with JASD in the direction of the house. Dkt. No. 38; Ex. 4. The video bears a date stamp of 18 April 9, 2022. The video begins at 10:21 a.m. and ends at 10:23 a.m. Ex. 4. 19 27. Mr. Sandoval returned to his parents’ house and gave Ms. Diaz her cell phone. 20 Dkt. No. 39. He began beating Ms. Diaz and called her a “whore.” In his parents’ living room 21 with JASD present, Mr. Sandoval threw Ms. Diaz down on an armchair or couch and tried to 22 strangle her. Dkt. No. 38; Ex. 48 at 5; Ex. 308 at 16; Ex. 318 at 15. Mr. Sandoval then attempted 23 to leave the house with JASD. Ms. Diaz tried to stop him. She screamed at Mr. Sandoval to 24 release JASD and used her hands and body to try to take her son from him. While holding JASD, 25 Mr. Sandoval hit Ms. Diaz with closed fists and kicked her. Mr. Sandoval said to JASD “your 26 7 Ecatepec de Morelos is a city in the State of Mexico, Mexico. 27 1 mom is a whore and you are never going to see her again.” Mr. Sandoval then left the house with 2 JASD. Dkt. No. 38; Dkt. No. 39; Ex. 48 at 5; Ex. 308 at 16. 3 28. Shortly thereafter, Ms. Diaz went back to Mr. Sandoval’s office to look for Mr. 4 Sandoval’s cousin. Dkt. No. 38. Surveillance video of the outside of the office shows Mr. 5 Sandoval’s truck parked next to the door. It also shows Ms. Diaz, alone, outside of the office. 6 She appears distraught. At first, she pounds on the door of the office with her hands. Then she 7 takes a metal object resembling a tire iron from the bed of truck and uses it to beat on the office’s 8 door and grilled windows. She appears to be yelling. Ms. Diaz briefly walks away and then 9 returns and strikes the back and sides of the truck with the metal object. Dkt. No. 38; Ex. 5. She 10 then walks back in the direction of Mr. Sandoval’s parents’ house alone. The video bears a date 11 stamp of April 9, 2022. The video begins at 10:40 a.m. and ends at 10:43 a.m. Ex. 5. 12 29. After returning to Mr. Sandoval’s parents’ house, Ms. Diaz called the police. The 13 police arrived within ten to fifteen minutes. Ms. Diaz told the police officers that she had been 14 beaten and that her son had been taken away. However, when Ms. Diaz told the officers Mr. 15 Sandoval’s name and showed them a photograph of his vehicle, they told Ms. Diaz that they could 16 not help her. The police officers did not take a statement from Ms. Diaz and left after five to 17 seven minutes. Dkt. No. 38; Ex. 48 at 5; Ex. 308 at 16; Ex. 318 at 5. 18 30. Ms. Diaz’s account of Mr. Sandoval’s behavior is corroborated by testimony from 19 her uncle, Arturo Garcia Marquez. Mr. Marquez lives in Watsonville, California, but on April 9, 20 2022, he was in the state of Nayarit, Mexico. That morning, approximately one hour after Mr. 21 Sandoval left his parent’s house with JASD, Mr. Marquez received a call from Mr. Sandoval. Mr. 22 Marquez testified that Mr. Sandoval told him there “had been violence” including “blows and 23 kicks” and that Mr. Sandoval was sorry. Mr. Sandoval also told Mr. Marquez that JASD was with 24 him. Dkt. No. 39. At trial, Mr. Sandoval acknowledged calling Mr. Marquez on the morning of 25 April 9, 2022 because he “thought it was the prudent thing to do,” but he denied telling Mr. 26 Marquez he was sorry. Dkt. No. 40. The Court finds Mr. Marquez’s testimony credible. 27 31. Ms. Diaz’s account of Mr. Sandoval’s behavior is also corroborated by physical 1 neck. The first set of photographs were taken by Ms. Diaz’s aunt on April 12, 2022, and the 2 second set of photographs were taken by a police officer on April 13, 2022. Dkt. No. 39; Exs. 3 315-317 (April 12 photographs); Exs. 309-314 (April 13 photographs). 4 32. Ms. Diaz’s account is also consistent with the surveillance videos described above, 5 which show the time period after Mr. Sandoval took her cell phone and the time period after Mr. 6 Sandoval took JASD. The beatings described by Ms. Diaz occurred in the interval between the 7 two videos. 8 33. On April 9, 2022, after Mr. Sandoval had beaten Ms. Diaz and threatened to take 9 JASD away, he again returned to his parents’ house. At the time, Ms. Diaz was speaking on her 10 cell phone to her uncle, Mr. Marquez. Mr. Sandoval took the cell phone from Ms. Diaz and spoke 11 to Mr. Marquez himself. Dkt. No. 38. Mr. Marquez testified that Mr. Sandoval told him that if 12 Mr. Marquez took Ms. Diaz back to the United States, Mr. Sandoval would kill Mr. Marquez and 13 “five people of [his] family.” Dkt. No. 39; see also Ex. 48 at 5; Ex. 318 at 12. Mr. Sandoval 14 denied threatening Mr. Marquez. Dkt. No. 39. The Court finds Mr. Marquez’s testimony 15 credible. 16 34. Later on April 9, 2022, Mr. Sandoval, Ms. Diaz and JASD left for Acapulco. Ms. 17 Diaz testified that Mr. Sandoval did not give her an option to go on the trip to Acapulco or not— 18 he just placed JASD in his vehicle and told Ms. Diaz she had to go with him. Dkt. No. 38. 19 35. On the way to Acapulco, Mr. Sandoval and Ms. Diaz stopped at a pharmacy in 20 Mexico City. Ms. Diaz bought medication for the pain and bruising from Mr. Sandoval’s beating. 21 While she was in the pharmacy, Mr. Sandoval waited in the vehicle with JASD. Ms. Diaz did not 22 attempt to escape or ask for help at the pharmacy. Ms. Diaz testified that Mr. Sandoval told her 23 that if he saw her do anything strange, he was going to leave with JASD. She also testified that 24 Mr. Sandoval showed her photos taken by some unknown person depicting the outside of her 25 father’s house, which she understood as a threat by Mr. Sandoval to harm her father if she did not 26 do as he asked. Dkt. No. 38; Ex. 48 at 5-6; Ex. 318 at 12. Mr. Sandoval acknowledged that they 27 stopped at a pharmacy, but he denied that it was for the purpose of obtaining medication for Ms. 1 help. Dkt. No. 39. The Court finds Ms. Diaz’s testimony on this point credible, and finds Mr. 2 Sandoval’s contrary testimony not credible. 3 36. During the drive to Acapulco, Mr. Sandoval and Ms. Diaz stopped at a gas station 4 and at toll booths operated by the Mexican National Guard. Ms. Diaz testified that she did not ask 5 for help at any of these stops because Mr. Sandoval had threatened to leave with JASD and 6 because Mr. Sandoval had told her that he had a friend in the federal police who would get him out 7 of trouble. Dkt. No. 38. The Court finds Ms. Diaz’s testimony about why she did not seek help at 8 a gas station or toll booth credible. 9 37. After returning from Acapulco on April 11, 2022, Mr. Sandoval, Ms. Diaz, and 10 JASD travelled to Mr. Sandoval’s house in Tecamac.9 Dkt. No. 38. Mr. Sandoval bought Ms. 11 Diaz flowers. A video, apparently recorded by Mr. Sandoval, shows Ms. Diaz arranging the 12 flowers and speaking to Mr. Sandoval in the Tecamac house, while JASD plays. Dkt. No. 39; Ex. 13 10. Ms. Diaz testified that that night Mr. Sandoval told her to sleep in his bed with him. Ms. Diaz 14 got into the bed, but told Mr. Sandoval that she did not want him to touch her and that she did not 15 want to have sex with him. Mr. Sandoval responded by telling her to be quiet and threatened to hit 16 her and wake JASD, who was sleeping in the same room, if she did not comply. Dkt. No. 38; Ex. 17 48 at 5; Ex. 308 at 16; Ex. 318 at 12. It is undisputed that Mr. Sandoval had sex with Ms. Diaz on 18 that night. Dkt. No. 39; Dkt. No. 40; Ex. 49 at 4. Mr. Sandoval testified that Ms. Diaz wished to 19 sleep in bed with him and was eager to have sex with him. Dkt. No. 40. The Court finds Ms. 20 Diaz’s testimony on this point credible, and finds Mr. Sandoval’s contrary testimony not credible. 21 38. On April 12, 2022, Ms. Diaz took JASD with her to visit an aunt. Mr. Sandoval 22 did not accompany Ms. Diaz and JASD, but WhatsApp messages Ms. Diaz exchanged with Mr. 23 Sandoval show that Ms. Diaz shared the details of her travel and her real-time location with Mr. 24 Sandoval. Dkt. No. 39; Ex. 38 at 17-21. Ms. Diaz testified that she did not call the police while 25 she was with her aunt because Mr. Sandoval had previously threatened her father’s safety and 26 because the police had not helped her when she called them from Mr. Sandoval’s parent’s house 27 1 on April 9, 2022. Dkt. No. 39. The Court finds Ms. Diaz’s testimony about why she did not seek 2 help while visiting her aunt credible. 3 39. At some point, Ms. Diaz sent messages to her mother, Juana Ibeth Marquez Garcia, 4 that caused Ms. Marquez to believe that Mr. Sandoval was exerting control over Ms. Diaz and not 5 permitting her to leave. Ms. Marquez testified that she did not initially act on these messages 6 because Ms. Diaz told her not to. Ms. Marquez also testified that she had consulted with an 7 attorney, who advised her not to take action until Ms. Diaz returned to Aguascalientes. Dkt. No. 8 39. 9 40. On the morning of April 13, 2022, Ms. Marquez went to an office that provided 10 “assistance for women” and then contacted the police. She reported that Ms. Diaz was being kept 11 against her will by Mr. Sandoval. At the police station, Ms. Marquez made a written statement 12 accusing Mr. Sandoval of kidnapping Ms. Diaz. Using location data from Ms. Diaz’s cell phone, 13 police officers located Mr. Sandoval, who was driving with Ms. Diaz and JASD, and arrested him. 14 Dkt. No. 39; Ex. 45 (Ms. Marquez’s statement); Ex. 47 at 5-8 (statements from arresting officers); 15 Ex. 304 (minute entry from Mr. Sandoval’s initial appearance). 16 41. After Mr. Sandoval was arrested, police officers took Ms. Diaz and JASD to 17 another location to collect evidence. There, Ms. Diaz made a written statement, and the police 18 documented her injuries. Ex. 48 (Ms. Diaz’s statement); Ex. 49 (gynecological exam report); Ex. 19 51 (injury report); Exs. 309-314 (photographs of injuries). Ms. Diaz’s testimony at trial about the 20 events of April 9-13, 2022 is consistent with the statement she gave to the police in all material 21 respects. 22 42. Police officers also examined JASD for physical or psychological injuries, but 23 found none. Dkt. No. 39 see also Ex. 50-A (photograph of JASD taken on April 13, 2022). 24 43. The Aguascalientes state prosecutor charged Mr. Sandoval with the crime of 25 “deprivation of liberty.” On April 16, 2022, Mr. Sandoval made an initial appearance before a 26 judge who released him from custody on conditions including an order that he refrain from 27 contacting Ms. Diaz. Ex. 304 (minute entry). 1 conditionally suspended the prosecution. The court required Mr. Sandoval, for a period of six 2 months, to reside at a specific address, stay away from Ms. Diaz and refrain from contacting her 3 electronically, receive treatment from a psychologist, and provide his signature or fingerprints to 4 law enforcement every two months. Ex. 307. In addition, the court required Mr. Sandoval to pay 5 Ms. Diaz 84,000 pesos so that she could obtain psychological therapy. Dkt. No. 38; Dkt. No. 39; 6 Ex. 307. 7 45. On March 27, 2023, the court determined Mr. Sandoval had complied with the 8 conditions it had set and dismissed the criminal case against him. Dkt. No. 39; Ex. 77. A final 9 order of dismissal was entered on May 4, 2023. Ex. 37. Mr. Sandoval did not admit that he 10 committed any crime, nor was he ever convicted of a crime. Dkt. No. 39; Ex. 41. 11 III. CONCLUSIONS OF LAW 12 A. Petitioner’s Case for Return under Article 3 13 The “core premise” of the Hague Convention is that “‘the interests of children . . . in 14 matters relating to their custody’ are best served when custody decisions are made in the child’s 15 country of ‘habitual residence.’” Monasky v. Taglieri, 140 S. Ct. 719, 723 (2020) (quoting Hague 16 Convention preamble). “To that end, the Convention ordinarily requires the prompt return of a 17 child wrongfully removed or retained away from the country in which she habitually resides.” Id. 18 The United States and Mexico are parties to the Hague Convention. Valenzuela v. Michel, 736 19 F.3d 1173, 1176 (9th Cir. 2013). 20 In the United States, ICARA allows a parent seeking relief under the Hague Convention to 21 file a petition for return of a child in state or federal court, where it will be decided “in accordance 22 with the Convention.” 22 U.S.C. § 9003(d). Courts are empowered “to determine only rights 23 under the Convention and not the merits of any underlying child custody claims.” Id. § 24 9001(b)(4); see also Hague Convention, Art. 19. 25 Mr. Sandoval petitions for the return of JASD pursuant to Article 3 of the Hague 26 Convention. He must establish by a preponderance of the evidence that JASD was wrongfully 27 removed or retrained from his country of habitual residence. 22 U.S.C. § 9001(e)(1). A removal 1 the State in which the child was habitually resident immediately before the removal or retention” 2 and “at the time of removal or retention those rights were actually exercised . . . or would have 3 been so exercised but for the removal or retention.” Hague Convention, Art. 3. As noted above, 4 Mr. Sandoval has established the elements of his case for return of JASD. Thus, JASD must be 5 returned to Mexico unless Ms. Diaz establishes a defense to return. 6 B. Respondent’s Defenses to Return under Articles 12 and 13(b) 7 The Hague Convention recognizes six exceptions or defenses that may be raised against a 8 petition for return of a child. Hague Convention, Arts. 12, 13. These defenses are interpreted 9 narrowly. Asvesta v. Petroutsas, 580 F.3d 1000, 1004 (9th Cir. 2009). Even if a defense is 10 established, a court retains discretion to order a child’s return. Hague Convention, Art. 18; 11 Asvesta, 580 F.3d at 1004. 12 1. Article 12 13 Article 12 provides that when proceedings for return of a child “have been commenced 14 after the expiration of the period of one year” from the child’s removal, the court “shall . . . order 15 the return of the child, unless it is demonstrated that the child is now settled in its new 16 environment.” Hague Convention, Art. 12. “Commencement of proceedings” means the 17 initiation of “judicial proceedings” by filing a petition in a court of appropriate jurisdiction. 22 18 U.S.C. §§ 9003(b), (f)(3); see also Monzon v. De La Roca, 910 F.3d 92, 98-99 (3d Cir. 2018) 19 (holding that notice filed with central authority in child’s country of habitual residence did not 20 constitute “commencement of proceedings”). To establish a defense under Article 12, Ms. Diaz 21 must prove by a preponderance of the evidence that JASD is now settled in California. 22 U.S.C. 22 § 9003(e)(2)(B). 23 Here, Mr. Sandoval filed his petition initiating this action on October 6, 2023, more than 24 one year after JASD’s removal on April 21, 2022. Dkt. No. 1; Dkt. No. 33 at 2. Ms. Diaz 25 contends that JASD is now settled in California and should not be returned to Mexico for that 26 reason. Mr. Sandoval did not present any evidence that JASD is not settled in the United States, 27 and he did not dispute the evidence Ms. Diaz presented. Rather, he challenges whether Ms. Diaz’s 1 The Ninth Circuit has identified several factors “bear[ing] on whether the child has 2 significant connections to the new country” to aid courts in determining whether a child is 3 “settled.” In re B. Del C.S.B., 559 F.3d 999, 1009 (9th Cir. 2009).10 They include: “(1) the 4 child’s age; (2) the stability and duration of the child’s residence in the new environment; (3) 5 whether the child attends school or day care consistently; (4) whether the child has friends and 6 relatives in the new area; (5) the child’s participation in community or extracurricular school 7 activities, such as team sports, youth groups, or school clubs; and (6) the respondent’s 8 employment and financial stability.” Id. “Ordinarily the most important [factor] is the length and 9 stability of the child’s residence in the new environment.” Id. “[T]he immigration status of the 10 child and the respondent” may also be relevant, but generally this is only the case “if there is an 11 immediate, concrete threat of deportation.” Id. The Court considers each of these factors. 12 Age. JASD, who was born in May of 2018, was nearly four years old when Ms. Diaz 13 removed him to the United States in April of 2022. Mr. Sandoval filed his petition nearly 18 14 months later, in October of 2023, when JASD was about five-and-one-half years old. Some courts 15 have expressed doubt that very young children can form sufficient connections with a new country 16 to become settled. See, e.g., Riley v. Gooch, No. 09-cv-1019-PA, 2010 WL 373993, at *10-11 (D. 17 Or. Jan. 29, 2010) (two-year-old child too young to be settled). However, a child of JASD’s age is 18 capable of forming connections and relationships with extended family, other children, teachers 19 and others in the community, as JASD has done here. Courts regularly find that five-year-old 20 children are capable of being settled. See, e.g., Margain v. Ruiz-Bours, No. 13-cv-01162-TUC, 21 2014 WL 10987427, at *6 (D. Ariz. Jan. 22, 2014), aff’d, 592 F. App’x 619 (9th Cir. 2015) (five- 22 year-old child settled); Garza-Castillo v. Guajardo-Ochoa, No. 2:10-cv-00359-LDG, 2012 WL 23 523696, at *5 (D. Nev. Feb. 15, 2012) (child who was four years old when petition was filed and 24 five-and-one-half years old at time of decision was settled); In re Lozano, 809 F. Supp. 2d 197, 25 231 (S.D.N.Y. 2011), aff’d sub nom. Lozano v. Montoya Alvarez, 572 U.S. 1 (2014) (child who 26
27 10 Other circuits employ the same or similar factors. See, e.g., Lops v. Lops, 140 F.3d 927, 946 1 was five years old when petition was filed was settled). 2 This factor weighs modestly in Ms. Diaz’s favor. 3 Duration and stability of residence. Nearly 18 months elapsed between JASD’s removal 4 from Mexico and the date Mr. Sandoval filed his petition in this action. JASD has been 5 continuously present in California during that time. In addition, before arriving in Watsonville on 6 April 21, 2022, JASD spent several months with his mother in the same community between 7 December 2021 and early April 2022. Other courts have found children settled after similar 8 periods of residence in a new country. See, e.g., In re Lozano, 809 F. Supp. 2d at 230-31 (16 9 months duration, which the court described as “a long period of time in the life of a five-year- 10 old”); Margain, 2014 WL 10987427, at *6 (18 months’ duration); Cascio v. Pace, 992 F. Supp. 2d 11 856, 869 (N.D. Ill. 2014) (17 months’ duration). 12 JASD has lived in Watsonville, California for the entirety of his time in the United States. 13 Ms. Diaz and JASD initially lived with her uncle, Mr. Marquez, at his home, but after about a 14 year, they moved into their own home, which they share with Ms. Diaz’s brother. This move 15 suggests an increased level of stability in JASD’s residence. See Garza-Castillo, 2012 WL 16 523696, at *6; cf. Bernal v. Gonzalez, 923 F. Supp. 2d 907, 926-28 (W.D. Tex. 2012) (finding that 17 children’s “frequent moves and lack of relatives” raised “serious doubts as to the stability of the 18 new environment”). 19 JASD has lived in a stable home environment in the same community in Watsonville for 20 21 months as of the date of this order. The Court finds that this factor weighs in Ms. Diaz’s favor. 21 School and day care. JASD began attending a local Head Start program shortly after 22 arriving in the United States and graduated in May of 2023. He enrolled in kindergarten at the 23 beginning of the 2023-2024 school year. His attendance has been nearly perfect, and he is doing 24 well in school. See In re Lozano, 809 F. Supp. 2d at 231 (child was enrolled in kindergarten and 25 had attended pre-kindergarten the previous school year). 26 This factor weighs in Ms. Diaz’s favor. 27 Friends and relatives. JASD has a large extended family in the Watsonville area with 1 Garza-Castillo, 2012 WL 523696, at *5-6 (observing that child had approximately 50 extended 2 relatives in area and regularly saw them); Margain, 2014 WL 10987427, at *6 (noting that child 3 had “developed friendships with other children”). 4 This factor weighs in Ms. Diaz’s favor. 5 Community and extracurricular activities. Aside from family-related activities, the only 6 community or extracurricular activities in which JASD has participated are attending church and 7 taking swim lessons. JASD’s limited engagement in such activities is consistent with his age. 8 However, the evidence regarding this factor is not particularly compelling. 9 The Court finds that this factor is neutral. 10 Respondent’s employment and financial stability. Ms. Diaz has been continuously 11 employed full-time since arriving in California. She is able to support herself and JASD without 12 assistance. There is no indication that Ms. Diaz has been unable to provide for JASD. 13 This factor weighs in favor of Ms. Diaz. 14 Immigration status and risk of deportation. Ms. Diaz has applied for asylum in the United 15 States, with JASD as a derivative beneficiary. While the application has not been adjudicated, 16 there is no indication that Ms. Diaz or JASD face an “immediate, concrete threat of deportation.” 17 In re B. Del C.S.B., 559 F.3d at 1009. The Court finds that JASD’s immigration status does not 18 weigh against a conclusion that he is settled. See Etienne v. Zuniga, No. C10-5061BHS, 2010 WL 19 4918791, at *2-3 (W.D. Wash. Nov. 24, 2010) (finding child with pending asylum application 20 settled). 21 * * * 22 Considering all of the factors described by the Ninth Circuit In re B. Del C.S.B., and 23 particularly the duration and stability of JASD’s residence in Watsonville, California, the Court 24 concludes that JASD is now settled in the United States. All but one of the factors weighs in favor 25 of this conclusion. One factor—JASD’s participation in community and extracurricular 26 activities—is neutral. No factor weighs against a finding that JASD is settled. 27 2. Article 13(b) 1 party opposing return establishes that “there is a grave risk that his or her return would expose the 2 child to physical or psychological harm or otherwise place the child in an intolerable situation.” 3 Hague Convention, Art. 13(b). Even if a court finds that a grave risk of harm exists, it may still 4 order the child’s return with ameliorative measures that would “allow both the return of the child[] 5 to [his] home country and [his] protection from harm.” Gaudin v. Remis, 415 F.3d 1028, 1035 6 (9th Cir. 2005), abrogated on other grounds by Golan v. Saada, 596 U.S. 666, 676 n.6 (2022). 7 “The exception for grave harm to the child is not license for a court in the abducted-to 8 country to speculate on where the child would be happiest.” Id. at 1035 (quoting Friedrich v. 9 Friedrich, 78 F.3d 1060, 1068 (6th Cir. 1996)) (cleaned up); Cuellar v. Joyce, 596 F.3d 505, 509 10 (9th Cir. 2010) (quoting Asvesta, 580 F.3d at 1020) (“So as not to impair the Convention’s general 11 policy, [the grave risk] exception is ‘narrowly drawn.’”). “Rather, the question is whether the 12 child would suffer ‘serious abuse, that is ‘a great deal more than minimal.’” Gaudin, 415 F.3d at 13 1035 (quoting Blondin v. Dubois, 238 F.3d 153, 163 n.11 (2d Cir. 2001) and Walsh v. Walsh, 221 14 F.3d 204, 218 (1st Cir. 2000)) (cleaned up). 15 “A respondent parent can establish a grave risk of harm from abuse ‘where the petitioning 16 parent had actually abused, threatened to abuse, or inspired fear in the children in question.’” 17 Colchester v. Lazaro, 16 F.4th 712, 717-18 (9th Cir. 2021) (quoting Ermini v. Vittori, 758 F.3d 18 153, 164 (2d Cir. 2014)). Domestic violence committed by one parent against the other may also 19 establish a grave risk of harm to the child, particularly when the violence occurs in the presence of 20 the child. Id.; see also Golan, 596 U.S.at 680 (“[D]omestic violence in the home may also 21 constitute an obvious grave risk to the child’s safety that could not readily be ameliorated.”). In 22 determining whether domestic violence between parents creates a grave risk of harm, “the proper 23 inquiry focuses on the risk faced by the child, not the parent.” Gomez v. Fuenmayor, 812 F.3d 24 1005, 1010 (11th Cir. 2016). 25 As the party arguing that return to Mexico would expose JASD to a grave risk of harm, 26 Ms. Diaz must establish that this defense applies by clear and convincing evidence. 22 U.S.C. 27 § 9003(e)(2)(A). 1 domestic violence against Ms. Diaz, some of which occurred in JASD’s presence, and by 2 threatening Ms. Diaz and her family. As the Court finds above, Ms. Diaz has established that Mr. 3 Sandoval abused her physically and emotionally on several occasions and threatened Ms. Diaz and 4 her family members as a means of exerting control over Ms. Diaz. Mr. Sandoval did not 5 physically abuse JASD at any time. 6 Ms. Diaz has not established by clear and convincing evidence that if JASD is returned to 7 Mexico there is a grave risk that he will be exposed to physical harm by Mr. Sandoval. However, 8 Ms. Diaz has established by clear and convincing evidence that if JASD is returned to Mexico 9 there is a grave risk that he will be exposed to psychological harm. 10 JASD witnessed Mr. Sandoval beat his mother in front of him and heard Mr. Sandoval say 11 that JASD would never see his mother again. Indeed, Mr. Sandoval has repeatedly threatened to 12 take JASD away from his mother. See Khan v. Fatima, 680 F.3d 781, 787 (7th Cir. 2012) 13 (“[R]epeated physical and psychological abuse of a child’s mother by the child’s father, in the 14 presence of the child (especially a very young child, as in this case), is likely to create a risk of 15 psychological harm to the child.”). Mr. Sandoval has also threatened JASD’s relatives—Ms. 16 Diaz’s family—with violence to coerce their behavior and Ms. Diaz’s. See Acosta v. Acosta, 725 17 F.3d 868, 875-76 (8th Cir. 2013) (finding a grave risk when petitioner had a “violent temper and 18 inability to cope with the prospect of losing custody of [his] children” and had “made multiple 19 threats to kill [respondent] and her family”). And Mr. Sandoval, while intoxicated, has spoken of 20 killing himself, and has even gone through the motions of hanging himself, with JASD present. 21 See Braude v. Zierler, No. 22 CV 03586 (NSR), 2022 WL 3018175, at *8 (S.D.N.Y. July 29, 22 2022), aff’d, No. 22-1985, 2023 WL 3012269 (2d Cir. Apr. 20, 2023) (finding a grave risk when 23 petitioner had a “concerning history of angry and manipulative behavior,” including threats of 24 suicide). These are not isolated incidents of abuse aimed at someone other than JASD. Rather, 25 they represent a pattern of physical and emotional abuse of JASD’s mother, in JASD’s presence. 26 In short, JASD has already been placed at risk of psychological harm. It is likely that JASD will 27 again be exposed to this risk if he is if returned to Mexico. 1 there is a grave risk that returning JASD to Mexico would expose him to psychological harm. 2 C. The Court’s Authority to Exercise Discretion 3 Even though Ms. Diaz has established defenses under both Article 12 and Article 13(b), 4 the Court retains discretion to order JASD’s return to Mexico. Hague Convention, Art. 18; 5 Asvesta, 580 F.3d at 1004. 6 With respect to the Article 12 defense, the Court may consider “interests of the child and 7 the non-abducting parent.” Lozano, 572 U.S. at 19 (Alito, J., concurring). For example, the Court 8 may consider JASD’s interest in returning to Mexico, including his need for contact with his 9 father and other family members. Id. at 20. In addition, the Court may also consider whether Ms. 10 Diaz engaged in inequitable conduct, such as concealing JASD’s location from Mr. Sandoval in 11 order to hinder his efforts to petition for JASD’s return. Id. 12 The Court does not question that Mr. Sandoval has an interest in contact with JASD, and 13 that JASD likewise has an interest in contact with Mr. Sandoval and with other family members in 14 Mexico. However, these interests do not outweigh the factors that the Court has already 15 considered in its determination that JASD is now settled in California. In addition, there is no 16 evidence that Ms. Diaz concealed JASD from Mr. Sandoval. See Garza-Castillo, 2012 WL 17 523696, at *4 (finding no concealment when “[petitioner] was not only well aware of 18 [respondent’s] connections to Las Vegas (where she was raised and has numerous relatives) but 19 that he was aware of the addresses of [respondent’s] relatives in Las Vegas”); Edoho v. Edoho, 20 Civ. A. No. H-10-1881, 2010 WL 3257480, at *7 (S.D. Tex. Aug. 17, 2010) (“[Respondent] made 21 no effort to conceal the children. While she did not inform [petitioner] of her whereabouts, she 22 went to live openly with a known relative, she did not change her name or the children’s names, 23 and she enrolled [one child] in school.”); see also In re B. Del C.S.B., 559 F.3d at 1014-15. The 24 Court notes that Mr. Sandoval has initiated custody-related proceedings in family court in Mexico, 25 and Ms. Diaz has refused to participate in those proceedings. Ms. Diaz’s refusal to return to 26 Mexico and to participate in custody proceedings there is not the kind of inequitable conduct that 27 warrants the return of a child who is settled in a new environment. See Margain, 2014 WL 1 but declining to return settled child), aff’d, 592 F. App’x at 621 (finding “no equitable factors 2 counsel against application of the Article 12 exception”). 3 With respect to the Article 13(b) defense, the Court may consider whether ameliorative 4 measures could ensure JASD’s safe return to Mexico. Golan, 596 U.S. at 679. “The fact that a 5 court may consider ameliorative measures concurrent with the grave-risk determination, however, 6 does not mean that the Convention imposes a categorical requirement on a court to consider any or 7 all ameliorative measures before denying return once it finds that a grave risk exists.” Id. at 677- 8 78. “[A]ny consideration of ameliorative measures must prioritize the child’s physical and 9 psychological safety. . . . A court may therefore decline to consider imposing ameliorative 10 measures where it is clear that they would not work because the risk is so grave.” Id. at 680. 11 “[D]omestic violence in the home may . . . constitute an obvious grave risk to the child's safety 12 that could not readily be ameliorated.” Id. Moreover, a court has “has no obligation under the 13 Convention to consider ameliorative measures that have not been raised by the parties.” Id. at 14 679. 15 At the Court’s invitation, Mr. Sandoval filed a document describing “proposed 16 ameliorative measures.” Dkt. No. 35. However, his proposal merely calls for JASD to be 17 returned to Mexico and for the parties to submit their dispute to the Mexican family court. See id. 18 This proposal does not address the Court’s concern that there is a grave risk that JASD will be 19 exposed to psychological harm if returned to Mexico. See Golan, 596 U.S. at 680. Because the 20 parties have not proposed any ameliorative measures addressing this concern, and because further 21 proceedings concerning such measures would unnecessarily prolong these proceedings, the Court 22 declines to exercise its discretion to impose ameliorative measures. Id. at 682 (“[A] district court 23 reasonably may decline to consider ameliorative measures that have not been raised by the parties, 24 are unworkable, draw the court into determinations properly resolved in custodial proceedings, or 25 risk overly prolonging return proceedings.”). 26 IV. CONCLUSION 27 Based on the foregoing findings of fact and conclusions of law, the Court concludes that 1 Convention, Ms. Diaz has established two defenses to the petition for return: (1) JASD is settled 2 || in California, as provided in Article 12, and (2) there is a grave risk that JASD would be exposed 3 to psychological harm if he were returned to Mexico, as provided in Article 13(b). 4 The Court therefore denies Mr. Sandoval’s petition. 5 IT IS SO ORDERED. 6 || Dated: February 9, 2024 7 . 28 Vrain ®, DeMarche VIRGINIA K. DEMARCHI 9 United States Magistrate Judge 10 11 12
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