Carmen Flores Castro v. Bertha Hernandez Renteria ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARMEN FLORES CASTRO, No. 19-16048
Petitioner-Appellant,
D.C. No.
v. 2:18-cv-01739-
GMN-CWH
BERTHA HERNANDEZ RENTERIA,
Respondent-Appellee. OPINION
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, District Judge, Presiding
Argued and Submitted July 7, 2020
Seattle, Washington
Filed August 19, 2020
Before: MICHAEL DALY HAWKINS, D. MICHAEL
FISHER, * And MILAN D. SMITH, JR., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
*
The Honorable D. Michael Fisher, United States Chief Circuit
Judge for the U.S. Circuit Court of Appeals for the Third Circuit, sitting
by designation.
2 FLORES CASTRO V. HERNANDEZ RENTERIA
SUMMARY **
Hague Convention
The panel affirmed the district court’s denial of a petition
for the return of a child to Mexico pursuant to the Hague
Convention on the Civil Aspects of International Child
Abduction.
Petitioner, the child’s paternal half-sister, alleged that the
child’s maternal grandmother either wrongfully removed her
from Mexico or wrongfully retained her in the United States.
The panel concluded that the date of wrongful removal or
retention was more than one year prior to the date of the
petition, which was filed on September 7, 2018. The panel
held that the district court clearly erred in its factual finding
regarding the date of removal, which was August 25, 2017.
The panel further held that the grandmother’s removal of the
child was wrongful because it was in breach of a Mexican
court’s rights of custody. The panel gave great weight to the
Mexican court’s own rulings regarding the wrongfulness of
the removal, and it concluded that neither the petitioner nor
the Mexican court gave affirmative prior consent to the
child’s removal from Mexico.
Because the date of wrongful removal was more than one
year prior to the date of the petition, the return of the child
was not mandatory, and the district court had discretion
whether to order her return to Mexico. The panel affirmed
the district court’s discretionary decision not to order the
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
FLORES CASTRO V. HERNANDEZ RENTERIA 3
return of the child pending custody proceedings because she
was now settled in Las Vegas, Nevada.
COUNSEL
Vincent Mayo (argued), The Abrams & Mayo Law Firm,
Las Vegas, Nevada, for Petitioner-Appellant.
Richard C. Gordon (argued), Kelly H. Dove, Eric D.
Walther, and Evan Hall, Snell & Wilmer LLP, Las Vegas,
Nevada, for Respondent-Appellee.
OPINION
M. SMITH, Circuit Judge:
Carmen Flores Castro appeals the district court’s denial
of her petition for the return to Mexico of Z.F.M.Z., a now
ten-year-old child who is Carmen’s paternal half-sister,
pursuant to the Hague Convention on the Civil Aspects of
International Child Abduction (the Hague Convention or
Convention). Bertha Hernandez Renteria, Z.F.M.Z.’s
maternal grandmother, who has been raising Z.F.M.Z. in Las
Vegas, Nevada since 2017, opposes the petition.
The parties’ dispute concerns the precise date on which
Bertha either wrongfully removed or wrongfully retained
Z.F.M.Z. within the meaning of the Convention, which
dictates whether Carmen’s petition was timely filed. We
conclude that the date of wrongful removal or retention was
more than one year prior to the date of Carmen’s petition.
Accordingly, we affirm the district court’s discretionary
decision not to order the return of Z.F.M.Z. to Mexico
4 FLORES CASTRO V. HERNANDEZ RENTERIA
pending custody proceedings, because Z.F.M.Z. is now
settled in Las Vegas.
FACTUAL AND PROCEDURAL BACKGROUND
I.
Z.F.M.Z. was born in Las Vegas in 2009, the daughter of
Rusia Michel Zamora and Raul Flores Hernandez. Rusia
and Raul thereafter moved to Mexico, where they lived
separately. Z.F.M.Z. lived primarily with Rusia and Bertha.
In 2014, Rusia disappeared under unknown circumstances.
Raul was in prison at the time, and Bertha became
Z.F.M.Z.’s primary caregiver. Upon Raul’s release in 2016,
Bertha and Raul agreed to an informal arrangement pursuant
to which Bertha would have custody of Z.F.M.Z. on
weekdays, and Raul on weekends.
In May of 2017, Raul and Carmen initiated custody
proceedings against Bertha in family court in Jalisco,
Mexico. The court granted Raul full custody during the
pendency of the proceedings. Z.F.M.Z. then resided partly
with Raul and partly with Carmen. That arrangement ended
when Raul was arrested in Mexico on allegations of drug
trafficking by the U.S. Office of Foreign Assets Control.
After his arrest, Raul allegedly gave Carmen informal
custody of Z.F.M.Z.
Subsequent to Raul’s arrest, with custody proceedings
ongoing, Bertha obtained provisional custody of Z.F.M.Z.
from the Jalisco court for the purpose of taking Z.F.M.Z. to
be interviewed by a psychologist. The provisional custody
period was originally one week, from August 11 through 18,
2017. On August 18, the court granted Bertha an extension
through September 8. On August 25, Bertha left Mexico
with Z.F.M.Z. on a flight from Guadalajara to Las Vegas.
FLORES CASTRO V. HERNANDEZ RENTERIA 5
On August 30, Carmen reported to the Jalisco court that
Bertha had taken Z.F.M.Z. out of Mexico. The Jalisco court
issued an order the same day that set the custody hearing for
September 8; ordered Bertha to appear along with Z.F.M.Z.
at the hearing; acknowledged that Bertha had “left the
country with [Z.F.M.Z.]”; set a bond on Bertha’s
appearance; and directed personal notice to Bertha “that she
may not leave the territory of this court . . . or the country,
accompanied by the mentioned minor, without leaving a
duly authorized representative to take part in this trial.”
Neither Bertha nor Z.F.M.Z. appeared at the September
8 hearing. On September 13, the court received a letter from
Bertha stating that she would be staying in the United States
indefinitely with Z.F.M.Z.
On October 2, the court issued an order directing
communication to the Mexican Ministry of Foreign Affairs
and the U.S. Consulate General in Guadalajara, to inform
them “that [Z.F.M.Z.] was illegally taken out of the country
against all the judicial orders.” On October 12, the Jalisco
court issued a further order stating that Bertha “did not
comply with the secure order decreed in the resolution of
August 30th, 2017, and left out of the territory with
[Z.F.M.Z.].” The order directed the Jalisco District Attorney
to notify Bertha of her noncompliance by virtue of “taking
[Z.F.M.Z.] out of the country without authorization.” The
order additionally directed that the relevant diplomatic
offices be informed “about the illegal subtraction of
[Z.F.M.Z.] out of the country.”
On September 7, 2018, Carmen filed her Hague
Convention petition with the district court, requesting
Z.F.M.Z.’s return to Mexico.
6 FLORES CASTRO V. HERNANDEZ RENTERIA
II.
The case was initially considered by Magistrate Judge
Hoffman, who heard testimony at an evidentiary hearing on
November 9, 2018. In addition to the facts recounted above,
testimony and evidence presented at the hearing established
that Bertha had enrolled Z.F.M.Z. in a Las Vegas elementary
school on August 31, 2017. Z.F.M.Z. quickly learned
English and made three good friends at school. Z.F.M.Z.’s
teacher testified that Z.F.M.Z. has improved greatly in
school since she started, even receiving awards for her
reading ability. Z.F.M.Z. regularly sees her extended family
members who also live in Las Vegas, including a same-age
cousin with whom she has a “sister-like relationship.”
Z.F.M.Z. testified that she likes living with Bertha and
would prefer to remain in Las Vegas with Bertha. The
parties’ stipulated expert in child psychiatry, Dr. Roitman,
testified that Z.F.M.Z.’s maturity level is such that it would
be appropriate to consider her wishes. Dr. Roitman testified
that Z.F.M.Z. is “strongly attached to her grandmother” and
views Bertha as her primary caregiver, like a mother. He
testified that the two traumas Z.F.M.Z. has experienced in
her life were the disappearance of her mother, Rusia, and the
three-month separation from Bertha when Z.F.M.Z. was
living with Raul and Carmen in 2017. He testified that
Z.F.M.Z. “lives in constant fear that the separation [from
Bertha] may occur again,” and “experiences nightmares
when she anticipates visits with [Carmen].”
The magistrate recommended granting Carmen’s
petition pursuant to the mandatory return provision of
Article 12 of the Convention. The magistrate found that
Carmen had rights of custody and was exercising those
rights during the relevant time period, pursuant to the Jalisco
court’s award of custody to Raul, and Raul’s informal
FLORES CASTRO V. HERNANDEZ RENTERIA 7
passing of custody to Carmen upon his arrest. The
magistrate found that Bertha, however, had “provisional
custody” at the time she removed Z.F.M.Z. from Mexico.
The magistrate determined that September 8, 2017, when
Bertha failed to appear at the Jalisco court hearing with
Z.F.M.Z., “was the earliest unequivocal act when [Carmen]
should have known that [Bertha] had wrongfully retained
[Z.F.M.Z.].” 1 On this basis, the magistrate concluded that
the date of wrongful retention was September 8, 2017, and
that Carmen’s September 7, 2018 petition was therefore
timely filed.
Notwithstanding its threshold conclusion that Carmen’s
petition was timely filed, the magistrate also made findings
concerning whether Z.F.M.Z. “is now settled in [her] new
environment,” which is a defense that may apply to untimely
petitions. Hague Conv. Art. 12. The magistrate found that,
“[a]lthough she has only been in Las Vegas for a little over
a year, [Z.F.M.Z.] has established significant connections to
Las Vegas, as she has developed friends, attends school
regularly, and has family that resides in the area.” Finding
that neither immigration status nor financial status weighed
toward a contrary conclusion, the magistrate thus concluded
that Z.F.M.Z. is now “settled” with Bertha in Las Vegas.
III.
The district court rejected the magistrate’s
recommendation regarding the timeliness of Carmen’s
petition, and ultimately denied the petition. Reviewing the
facts de novo, the court found that Bertha “had no right to
1
In the alternative, the magistrate concluded that Bertha’s “intent to
remain in Las Vegas was unequivocally clear upon receipt of her letter
on September 13, 2017.”
8 FLORES CASTRO V. HERNANDEZ RENTERIA
take Z.F.M.Z. to the United States,” and that this matter was
therefore “one of wrongful removal” rather than wrongful
retention. In support of this conclusion, the court made four
findings: (1) Carmen notified the Jalisco court on August 30,
2017, that Bertha “wrongfully left” Mexico with Z.F.M.Z.;
(2) the Jalisco court’s August 30 order imposed travel
restrictions “preventing [Bertha] from leaving Mexico with
Z.F.M.Z. during the pendency of custody proceedings”;
(3) Carmen “never acquiesced or consented to the relocation
of Z.F.M.Z. in the United States”; and (4) Bertha’s
provisional award of custody from August 11 to September
8 did not grant her the right to leave Mexico to obtain the
psychological report. On this basis, the court concluded that
wrongful removal occurred on August 30, 2017, 2 and that
Carmen’s September 7, 2018 petition was therefore filed
more than one year after the operative date.
The court noted that the magistrate’s now-settled
findings were based “on a thorough analysis of testimony
from Z.F.M.Z., Z.F.M.Z.’s cousin, and Z.F.M.Z.’s teacher in
Las Vegas.” As no party had objected to these findings, the
court accepted them without further examination.
The court then declined to exercise its discretion to
nevertheless order return. See In re B. Del C.S.B., 559 F.3d
999, 1015–16 (9th Cir. 2009). The court highlighted the
magistrate’s uncontested findings on the now-settled
defense, including that Z.F.M.Z. had made “significant
improvement in English,” achieved “several school awards,”
made “three best-friends” in her new environment, and has
2
The district court noted that Bertha “states that she actually left
Mexico with Z.F.M.Z. on August 25, 2017,” but used the August 30 date
based on language in the Jalisco court’s October orders indicating that
Bertha and Z.F.M.Z. “left” Mexico on August 30.
FLORES CASTRO V. HERNANDEZ RENTERIA 9
family in the United States that “supports her academic and
recreational interests.” The court found that Bertha did not
attempt to conceal Z.F.M.Z. after her entry into the United
States, but rather informed the Jalisco court of Z.F.M.Z.’s
relocation to Las Vegas shortly after her arrival. See id. The
court also found that Carmen is capable of litigating custody
issues here in the United States, whereas Bertha would likely
be unable to litigate custody in Mexico due to her
outstanding arrest warrant for abducting Z.F.M.Z. See
Fernandez v. Bailey, 909 F.3d 353, 364–65 (11th Cir. 2018).
In addition, the court found that Bertha’s “inability to be
present for proceedings in Mexico would likely create
extensive distress to Z.F.M.Z. were she to be returned
without [Bertha].” On the other hand, the court expressed
concern for Bertha’s lack of respect for court orders, as
indicated by her wrongful removal of Z.F.M.Z. during the
Jalisco custody proceedings, and her frustration of a court-
imposed visitation schedule during this case. However, the
court concluded that “[o]n balance,” the facts favored
preserving Z.F.M.Z.’s stability in her current environment.
This appeal followed.
JURISDICTION AND STANDARD OF REVIEW
The Hague Convention is in force between the United
States and Mexico. Federal district courts have jurisdiction
over actions arising under the Hague Convention pursuant to
22 U.S.C. § 9003. We have jurisdiction to review the district
court’s decision pursuant to 28 U.S.C. § 1291. We review
the district court’s factual determinations for clear error, and
the district court’s application of the Convention to those
facts de novo. In re B. Del C.S.B., 559 F.3d at 1008.
10 FLORES CASTRO V. HERNANDEZ RENTERIA
ANALYSIS
I.
The Hague Convention generally provides that when a
child has been “wrongfully removed or retained” across
international borders, the judicial authority of the State
“where the child is . . . shall order the return of the child” if
an eligible parent or guardian 3 petitions for return within one
year. Hague Conv. Art. 12. “[T]he Convention reflects a
design to discourage child abduction.” Lozano v. Montoya
Alvarez, 572 U.S. 1, 16 (2014). The return remedy “lays
venue for the ultimate custody determination in the child’s
country of habitual residence rather than the country to
which the child is abducted.” Id. at 5. However, the
Convention does not pursue these goals “at any cost.” Id.
at 16. As relevant here, if the other parent or guardian fails
to petition for return within one year, and “it is demonstrated
that the child is now settled in its new environment,” the
3
We use the term “guardian” herein as shorthand for “a person, an
institution or any other body” that “jointly or alone” has “rights of
custody” within the meaning of the Convention. Hague Conv. Art. 3(a).
We adopt the conclusion of the House of Lords in In re H that a court in
the child’s country of habitual residence may be such a guardian where
custody proceedings are pending before it. In re H (A Minor)
(Abduction: Rights of Custody), [2000] 2 A.C. 291, 1999 WL 1319095
(appeal taken from Eng.); see Fawcett v. McRoberts, 326 F.3d 491, 500
(4th Cir. 2003) (adopting same, noting that “judicial ‘opinions of our
sister signatories’ to the Convention are ‘entitled to considerable
weight.’” (quoting Air France v. Saks, 470 U.S. 392, 404 (1985))),
abrogated on other grounds by Abbott v. Abbott, 560 U.S. 1 (2010).
FLORES CASTRO V. HERNANDEZ RENTERIA 11
judicial authority is not required to order return. 4 Hague
Conv. Art. 12.
The one-year period is triggered by the “date of the
wrongful removal or retention” of the child. Id. A removal
or retention of a child is “wrongful” if it is “in breach of the
rights of custody” attributed to any guardian “under the law
of the State in which the child was habitually resident.”
Hague Conv. Art. 3(a). 5 According to the U.S. State
Department:
Generally speaking, “wrongful removal”
refers to the taking of a child from the person
who was actually exercising custody of the
child. “Wrongful retention” refers to the act
of keeping the child without the consent of
the person who was actually exercising
custody. The archetype of this conduct is the
refusal by the noncustodial parent to return a
child at the end of an authorized visitation
period.
Hague International Child Abduction Convention; Text and
Legal Analysis, 51 Fed. Reg. 10,494, 10,503 (Mar. 26,
1986).
4
Other exceptions to return include where the left-behind parent or
guardian was not “actually exercising” custody rights, where there is a
“grave risk” that return would “place the child in an intolerable
situation,” or where the child herself is of sufficient “age and . . .
maturity” and “objects to being returned.” Hague Conv. Art. 13.
5
Wrongfulness further requires that the left-behind parent or
guardian’s rights of custody have been “actually exercised” at the time
of removal or retention. Hague Conv. Art. 3(b).
12 FLORES CASTRO V. HERNANDEZ RENTERIA
The district court concluded that Bertha wrongfully
removed Z.F.M.Z. from Mexico no later than August 30,
2017. Carmen argues that Bertha’s removal of Z.F.M.Z. was
not wrongful at all, and that Bertha’s retention of Z.F.M.Z.
outside of Mexico did not become wrongful until at least
September 8, 2017, when Bertha failed to appear with
Z.F.M.Z. at the custody hearing.
A.
In order to evaluate the relevant context, we first
ascertain the date on which Bertha removed Z.F.M.Z. from
Mexico. Bertha alleges that she and Z.F.M.Z. boarded a
flight from Guadalajara to Las Vegas on August 25, 2017.
The only record evidence that potentially contradicts this
account is an order issued by the Jalisco court on October
11, 2017 that states: “[Bertha] did not comply with the
secure order decreed in the resolution of August 30th, 2017,
and left out of the territory with [Z.F.M.Z.].” The district
court interpreted this October order to have found that
Bertha and Z.F.M.Z. “left” Mexico specifically on August
30, 2017. However, the record contains copies of the August
25 boarding passes for Bertha and Z.F.M.Z., and Carmen has
not raised any questions about the authenticity of these
copies. In light of this evidence, we conclude that the district
court’s finding was clearly erroneous. We proceed on the
understanding that Bertha removed Z.F.M.Z. from Mexico
on August 25, 2017. 6
6
We interpret the Jalisco court’s October 11 order as specifying only
the date of its own previous decree, and not the date on which Bertha and
Z.F.M.Z. actually “left.” To the extent that any of the Jalisco court’s
orders or writings do suggest that the removal took place specifically on
August 30, 2017, we observe that it is unclear whether the Jalisco court
FLORES CASTRO V. HERNANDEZ RENTERIA 13
B.
Carmen argues that Bertha’s removal of Z.F.M.Z. was
not wrongful because neither Carmen nor the Jalisco court
had expressly objected to Bertha leaving Mexico with
Z.F.M.Z. during Bertha’s period of provisional custody. She
contends that the Jalisco court’s August 11 and August 18
provisional custody orders did not impose any restriction on
travel outside of Mexico. She argues that in the absence of
such restriction, Bertha had the right to travel internationally
with Z.F.M.Z. during this period. We disagree.
For a removal to be “wrongful,” the Convention requires
that the removal be in breach of the “rights of custody” of
any guardian. The Convention in turn defines “rights of
custody” to include “the right to determine the child’s place
of residence.” Art. 5(a). Prior to this appeal, there has been
no dispute that both Carmen and the Jalisco court had such
“rights of custody” at the time that Bertha removed Z.F.M.Z.
from Mexico. 7 There remains no dispute that at least the
Jalisco court had the relevant “rights of custody.”
had the benefit of the boarding passes in evidence here in order to make
that determination.
7
Carmen argues for the first time on appeal that only the Jalisco
family court had relevant “rights of custody” during Bertha’s provisional
custody period, and thus that Carmen lacked standing to object (or fail
to consent) to Z.F.M.Z.’s removal or retention during that time. Hague
Conv. Art. 3(a). “Ordinarily, an appellate court will not hear an issue
raised for the first time on appeal.” Kaass Law v. Wells Fargo Bank,
N.A., 799 F.3d 1290, 1293 (9th Cir. 2015) (quoting Cornhusker Cas. Ins.
Co. v. Kachman, 553 F.3d 1187, 1191 (9th Cir. 2009)). Even if an
exception might apply here, see id., we need not resolve this issue
because it does not affect our judgment. We ultimately conclude that
14 FLORES CASTRO V. HERNANDEZ RENTERIA
Accordingly, we must determine whether Bertha’s
removal of Z.F.M.Z. was “in breach” of either Carmen’s or
the Jalisco court’s rights of custody under Mexican law.
Hague Conv. Art. 3(a). Here, the Convention encourages us
to “take notice directly . . . of judicial or administrative
decisions . . . in the State of the habitual residence of the
child.” Art. 14. The Convention further permits the judicial
authorities of the country of habitual residence to issue “a
decision or other determination that the removal or retention
was wrongful within the meaning of Article 3 of the
Convention.” Art. 15. Accordingly, we give great weight to
the Jalisco’s court’s own rulings concerning the
wrongfulness of the removal in this case.
We conclude that the Jalisco court’s decisions issued in
October 2017 make clear that the removal was in breach of
the relevant rights of custody, even if we characterize the
removal as mere travel. In its October 2 order, the Jalisco
court stated that “the girl was illegally taken out of the
country.” Similarly, in its October 11 order, the Jalisco court
stated that the “taking of [Z.F.M.Z.] out of the country” was
“without authorization,” and referred to the “illegal
subtraction of [Z.F.M.Z.] out of the country.” The district
court therefore found that the Jalisco court considered
Bertha’s initial removal of Z.F.M.Z. from Mexico to be
wrongful, and we agree. The Jalisco court’s statements are
inconsistent with the proposition that Bertha had the right,
under Mexican law generally or the Jalisco’s court’s
provisional custody orders specifically, to unilaterally
“take[]” or “subtract[]” Z.F.M.Z. from Mexico during her
neither Carmen nor the Jalisco family court consented to Z.F.M.Z.’s
removal.
FLORES CASTRO V. HERNANDEZ RENTERIA 15
provisional custody period, regardless of whether Bertha’s
initial intent was only temporary travel. 8
C.
This result is reinforced by all of the relevant caselaw
cited by either party, which consistently relies on the left-
behind parent or guardian’s affirmative consent — not the
absence of an express objection or court-imposed travel
restriction — to render a removal not wrongful. 9 In addition,
8
To the extent that any of the Jalisco court’s later orders or writings
indicating that the removal was wrongful might rely on the finding that
the removal took place on August 30, subsequent to the court’s
August 30 travel restriction, we note that we would reach the same
ultimate result. Even if the August 25 removal had not been wrongful,
we would conclude that Bertha’s retention of Z.F.M.Z. became wrongful
on August 30, 2017, due to the clear manifestations of objection by both
Carmen (complaining to the Jalisco court that Bertha had left the country
with Z.F.M.Z.) and the Jalisco court itself (as discussed below). See
Blackledge v. Blackledge, 866 F.3d 169, 179 (3d Cir. 2017) (“[T]he
[wrongful] retention date is the date beyond which the [left-behind]
parent no longer consents[,] . . . as clearly and unequivocally
communicated through words, actions, or some combination thereof.”).
Our ultimate conclusion regarding the timeliness of Carmen’s petition
would be the same.
9
See Garcia v. Pinelo, 808 F.3d 1158, 1159–60 (7th Cir. 2015) (case
was one of wrongful retention because there was affirmative consent to
the initial travel); Darin v. Olivero-Huffman, 746 F.3d 1, 10 (1st Cir.
2014) (same); Nixon v. Nixon, 862 F. Supp. 2d 1168, 1173–74, 1178
(D.N.M. 2011) (same); Pesin v. Osorio Rodriguez, 77 F. Supp. 2d 1277,
1285–86 (S.D. Fla. 1999) (same); see also Blackledge, 866 F.3d at 179
(“[T]he retention date is the date beyond which the noncustodial parent
no longer consents to the child’s continued habitation with the custodial
parent and instead seeks to reassert custody rights.” (emphasis added));
Baxter v. Baxter, 423 F.3d 363, 371 (3d Cir. 2005) (“If the petitioner
agrees to a removal under certain conditions or circumstances and
contends those conditions have been breached, the court must also
16 FLORES CASTRO V. HERNANDEZ RENTERIA
the Convention places the burden on the party opposing the
return of the child to prove the affirmative defense that the
left-behind parent or guardian “consented to or subsequently
acquiesced in the removal or retention.” Art. 13(a);
22 U.S.C. § 9003(e)(2)(B); see also Baxter v. Baxter,
423 F.3d 363, 371 (3d Cir. 2005) (“In examining a consent
defense, it is important to consider what the petitioner
actually contemplated and agreed to in allowing the child to
travel outside its home country.”). The corollary here is that
we presume the left-behind parent or guardian did not
consent, and that their lack of consent renders the removal
wrongful.
There is no evidence that either Carmen or the Jalisco
court gave affirmative prior consent to Z.F.M.Z.’s removal
from Mexico on August 25, 2017. The district court found,
examine any wrongful retention claim.” (emphasis added)); Flores-
Aldape v. Kamash, 202 F. Supp. 3d 793, 801 (N.D. Ohio 2016) (wrongful
removal did not occur because father consented to child traveling to
United States, even if mother misrepresented her motivations); Kosewski
v. Michalowska, No. 15-CV-928, 2015 WL 5999389, at *20 (E.D.N.Y.
Oct. 14, 2015) (“[I]n this case, petitioner, by his own account, never
consented to M.K.’s removal from Poland and retention in the United
States. Thus, the date of the wrongful removal or retention was August
16, 2013, the date the child arrived in the United States.” (emphasis
added)); Guerrero v. Oliveros, 119 F. Supp. 3d 894, 905 n.3 (N.D. Ill.
2015) (“Technically, because Petitioner agreed to allow the Children to
temporarily visit the United States, this is a case of wrongful retention
rather than wrongful removal.” (emphasis added)); In re C (A
Minor)(Abduction) [1989] 1 FLR 403, 411 (Eng. Ct. App.) (“If anyone,
be it an individual or the court or other institution or a body, has a right
to object, and either is not consulted or refuses consent, the removal will
be wrongful within the meaning of the Convention.” (emphasis added)).
The underlying assumption in these cases is that it is typically
“wrongful” to remove a child across international borders, even if merely
for travel, without the prior consent of other parents or guardians who
have “rights of custody.” Hague Conv. Art. 3.
FLORES CASTRO V. HERNANDEZ RENTERIA 17
per Carmen’s admission, that Carmen “never acquiesced or
consented to the relocation of Z.F.M.Z. in the United
States.” 10 The district court further found that the Jalisco
court’s provisional custody orders of August 11 and 18, 2017
did not authorize Bertha to take Z.F.M.Z. out of Mexico.
Although Carmen contends such permission was implicit,
she has pointed to no language in those orders that
affirmatively authorizes international travel. If anything, the
Jalisco court’s emphasis on “the address of the residence
dwelling where [Bertha] will continue the [temporary]
custody: . . . in the town of Las Aguilas within the Zapopan
Municipality, Jalisco,” suggests the contrary. Further, as
discussed above, the Jalisco court later interpreted Bertha’s
“taking” or “subtraction” of Z.F.M.Z. from Mexico to have
been “illegal” and “without authorization,” necessarily
implying that the Jalisco court did not give prior consent for
the taking. Accordingly, we see no reason to disturb the
district court’s finding that Bertha “had no right to take
Z.F.M.Z. to the United States.”
D.
We address one final counterargument. Carmen
contends that the Jalisco court expressly consented to
Bertha’s removal and/or retention of Z.F.M.Z. in its August
30, 2017 order. Because she raises this argument for the first
time on appeal, and no other exception applies, we review
for plain error. See Kaass Law v. Wells Fargo Bank, N.A.,
10
Carmen now argues that while she never “consented” to
Z.F.M.Z.’s “relocation” to the United States, it is more relevant that she
never “objected” to Z.F.M.Z.’s “travel” to the United States. However,
Carmen cites no evidence that she affirmatively consented to such travel,
so we find it unnecessary to resolve whether the initial purpose of the
removal was temporary travel.
18 FLORES CASTRO V. HERNANDEZ RENTERIA
799 F.3d 1290, 1293 (9th Cir. 2015). 11 Carmen cites
language in the Jalisco court’s August 30 order directing
personal notice to Bertha “that [Bertha] may not leave the
territory of this court . . . or the country, accompanied by
[Z.F.M.Z.], without leaving a duly authorized representative
to take part in this trial.” Carmen contends that this language
demonstrates that the Jalisco court did not consider the
removal that had then taken place to have been wrongful, nor
did it consider further retention to be wrongful so long as
Bertha appointed a representative to appear at trial.
Whatever may be the merits of Carmen’s interpretation
looking at this (translated) sentence in isolation, it is
inconsistent with the remainder of the August 30 order, 12 and
it is inconsistent with all of the Jalisco court’s subsequent
orders and writings that we have in the record. Accordingly,
we find no plain error in the district court’s conclusion that
the August 30 order expressly objected to Bertha leaving
Mexico with Z.F.M.Z.
Accepting those factual findings made by the district
court which we have not found to be clearly erroneous, and
11
Review of an issue for the first time on appeal is permitted where
“plain error has occurred and injustice might otherwise result.” Kaass,
799 F.3d at 1293 (quoting United States v. Echavarria-Escobar,
270 F.3d 1265, 1268 (9th Cir. 2001)). Given the potentially dispositive
nature of this argument on the fate of a child, we conclude that “injustice
might otherwise result” if the district court plainly erred in its
interpretation of the Jalisco court’s August 30 order.
12
For example, the August 30 order also states, “this last part is
warned, to the effect that [Bertha] must appear [at the September 8
hearing] along with [Z.F.M.Z.], so this court may take to consideration
the opinion of [Z.F.M.Z.]”; and, “[f]inally, as you solicited, due to what
you express, that [Bertha] has left the country with [Z.F.M.Z.], it is
decree as a preventive measure to guaranty the protection and interests
of the minor, the bond of the defendant [Bertha].”
FLORES CASTRO V. HERNANDEZ RENTERIA 19
reviewing de novo the application of the Convention to those
facts, see In re B. Del. C.S.B., 559 F.3d at 1008, we conclude
that Bertha wrongfully removed Z.F.M.Z. from Mexico on
August 25, 2017.
II.
Carmen’s petition was filed with the district court on
September 7, 2018. Her petition was therefore filed more
than one year after “the date of the wrongful removal or
retention.” Hague Conv. Art. 12; 22 U.S.C. § 9003(f)(3).
Accordingly, the district court had discretion to decline to
order the return of Z.F.M.Z. to Mexico if Bertha proved by
a preponderance of the evidence that Z.F.M.Z. is now
“settled” in Las Vegas. Hague Conv. Art. 12; 22 U.S.C.
§ 9003(e)(2)(B); In re B. Del C.S.B., 559 F.3d at 1009.
Carmen does not appeal the district court’s findings that
Z.F.M.Z. is “settled,” nor does Carmen argue that the district
court abused its discretion in declining to order return. Thus,
we hold that the district court’s decision was proper.
CONCLUSION
Because Carmen’s petition was not filed within one year
of the date of wrongful removal, and because Z.F.M.Z. is
now settled in her new environment, we affirm the district
court’s denial of Carmen’s petition for the return of Z.F.M.Z.
to Mexico pending custody proceedings.
AFFIRMED.