Tavarez v. Jarrett

252 F. Supp. 3d 629, 2017 U.S. Dist. LEXIS 85383
CourtDistrict Court, S.D. Texas
DecidedMay 16, 2017
DocketCivil Action No. H-16-2978
StatusPublished
Cited by4 cases

This text of 252 F. Supp. 3d 629 (Tavarez v. Jarrett) is published on Counsel Stack Legal Research, covering District Court, S.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tavarez v. Jarrett, 252 F. Supp. 3d 629, 2017 U.S. Dist. LEXIS 85383 (S.D. Tex. 2017).

Opinion

FINDINGS OF FACT & CONCLUSIONS OF LAW

DAVID HITTNER, United States District Judge

On April 26, 2017, this Court commenced a non-jury trial in the above-entitled matter, during which the Court received evidence and heard sworn testimony. Having considered the evidence, testimony, and oral arguments presented during trial, along with post-trial submissions and the applicable law, the Court now enters the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a). Any finding of fact that should be construed as a conclusion of law is hereby adopted as such. Any conclusion of law that should be construed as a finding of fact is hereby adopted as such.

I, BACKGROUND

This case involves the wrongful removal of a child pursuant to the Hague Convention (the “Convention”)1 and the International Child Abduction Remedies Act (“ICARA”).2 Petitioner Yolanda Sanchez Tavarez (“Petitioner”) alleges Respondent Michael Jarrett (“Respondent”) wrongfully removed their six-year-old daughter, BLSJ, from Mexico to the United States on January 24,2016. Petitioner filed suit in this Court on October 4, 2016, asking the Court to order the return of BLSJ to her “habitual residence” of Mexico. Respondent contends Petitioner consented or acquiesced to the relocation of BLSJ to the United States. Respondent also contends Mexico poses a grave risk of harm to BLSJ due to inadequate medical care, a risk of disease, a high rate of criminal activity, and abuse.

II. FINDINGS OF FACT3

The following facts have been established by a preponderance of the evidence:

1. Petitioner is a Mexican national and Respondent is an American national.

[633]*6332. Petitioner has been employed as a high school computer software teacher for eleven years. Respondent is retired.

3. The parties never formally married but lived in the same residence in Lagos de Moreno, Jalisco, Mexico from 2009 until their separation in 2014. There is no order from a Mexican court pertaining to parental rights, custody, or conservatorship with regard to BLSJ.

4. The parties are the parents of one six-year-old child, BLSJ.

5. BLSJ was born in Lagos de Moreno, Jalisco, Mexico on June 13, 2010. BLSJ resided in Mexico until she was removed to the United States on January 24, 2016.

6. Petitioner also has two other teenage children from a prior relationship.

7. Upon separation, the parties shared custody of and caretaking responsibilities for BLSJ while continuing to reside in Lagos de Moreno, Jalisco, Mexico. At that time, Petitioner resided in her parents’ home, and Respondent continued to reside in the parties’ former home.

8. Respondent concedes that Mexico was the country of BLSJ’s habitual residence.

9. From the time of the parties’ separation until BLSJ’s removal to the United States, Petitioner had possession of the child every weekday from approximately 2 p.m. until 9 or 10 p.m., every weekend, and for multiple approximately week-long periods when Respondent traveled to the United States.

10. On May 10, 2012, BLSJ was hospitalized in Mexico after suffering seizures and fainting. At that time, BLSJ was transferred to a hospital in Guadalajara, Mexico (the “Guadalajara Hospital”).

11. BLSJ was subsequently diagnosed with anti-NMDA encephalitis (“Anti-NMDA”), an autoimmune disease.

12. BLSJ was placed in a medically induced coma and required feeding and breathing tubes.

13. BLSJ does not have viral encephalitis.

14. BLSJ received immunoglobulin treatment and other treatments for Anti-NMDA while at the Guadalajara Hospital.

15. BLSJ was released from the Guadalajara Hospital in November 2013 and thereafter received continuing medical treatments, physical therapy, and speech therapy.

16. Dr. Margarita Gonzalez Cruz (“Dr. Cruz”)4 served as BLSJ’s treating pediatric neurologist at the Guadalajara Hospital.

17. Both parents regularly attended BLSJ’s medical appointments with Dr. Cruz in Guadalajara, Mexico.

18. Dr, Cruz frequently treats patients diagnosed with Anti-NMDA. The Guadalajara Hospital has the experience and facilities to treat BLSJ’s Anti-NMDA.

19. Dr. Cruz does not have any concerns about BLSJ’s ability to receive the appropriate medical treatment in Mexico.

20. Dr. Cruz obtained a background and history from the parents, and neither parent reported any information to Dr. Cruz that would cause her. to be concerned about BLSJ’s living conditions in Mexico or their effects on BLSJ’s health.

21. At the time of BLSJ’s last appointment in Mexico, on November 20, 2015, BLSJ’s disorder was stable and controlled, and Dr. Cruz believed BLSJ would likely go into remission.

22. On January 24, 2016, Respondent removed BLSJ from Mexico and brought her to the United States. The same day, Petitioner went to Respondent’s residence [634]*634in Mexico to retrieve BLSJ, but Respondent’s home was empty and his vehicle was gone.

23. Respondent testified that, he and Petitioner agreed BLSJ should move to' the United States to seek medical treatment for BLSJ’s Anti-NMDA.

24. Neither parent ever spoke to Dr. Cruz about the possibility of transferring BLSJ to the United States. Respondent did not bring BLSJ’s medical records to the United States. Petitioner never told her aunt, Maria Loreto Tavarez Reyes (“Loreto”),5 that Petitioner agreed to Respondent taking BLSJ to the United States. Petitioner never told her mother, Maria - de Los .Angeles Tavarez Reyes (“Angeles”),6 that Petitioner agreed to Respondent taking BLSJ to the United States. Respondent told BLSJ’s uncle (Respondent’s witness), Fredy Garcia (“Garcia”),7 that Respondent was considering bringing BLSJ to the United States, but Garcia was not aware of an agreement between Petitioner and Respondent to do so.

25. On January 25, 2016, Petitioner sent Respondent a text message stating, “I hope you aren’t mean to take [BLSJ] away from her mother and her family. You know that she love us and she us suffering. I never hurt her in my life.”8 Respondent did not respond. On February 3, 2016, Petitioner sent Respondent another text message stating “May god take care of you my [BLSJ], you are not at fault for anything and you are suffering from the wrong decisions.”9 Respondent did not respond.

26. Petitioner did not have any knowledge of Respondent’s plans to leave with BLSJ on January 24,,2016.

27. Petitioner did not agree to Respondent removing BLSJ from Mexico.

28. Petitioner did not execute any document giving Respondent permission to remain in the United States with BLSJ.

29. On March 31, 2016, Petitioner filed an application for return under the Hague Convention with the Central Authority in Mexico (the Ministry of Foreign Affairs), seeking to have BLSJ returned to Mexico.10

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Cite This Page — Counsel Stack

Bluebook (online)
252 F. Supp. 3d 629, 2017 U.S. Dist. LEXIS 85383, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tavarez-v-jarrett-txsd-2017.