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Castro v. Renteria

United States District Court, D. Nevada

April 20, 2019

CARMEN FLORES CASTRO, Petitioner,
v.
BERTHA HERNANDEZ RENTERIA, Respondent.

          ORDER

          GLORIA M. NAVARRO, CHIEF JUDGE

         Pending before the Court is Respondent Bertha Hernandez Renteria's (“Respondent's”) Objection, (ECF No. 55), to the Honorable Magistrate Judge Carl W. Hoffman's November 2, 2018 Report and Recommendation (“First R&R”), (ECF No. 35). Petitioner filed a Response, (ECF No. 57).

         Also pending before the Court is Respondent's Objection, (ECF No. 60), to Judge Hoffman's November 29, 2018 R&R (“Second R&R”), (ECF No. 56). Petitioner filed a Response, (ECF No. 69), and Respondent filed a Reply, (ECF No. 77).

         I. BACKGROUND

         This case concerns a petition to return an eight-year old child to Mexico pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention” or “Convention”), Oct. 25, 1980, 19 I.L.M. 1501, T.I.A.S. No. 11670, S. Treaty Doc. No. 99-11, governed by the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. § 9001 et seq. (formerly codified at 42 U.S.C. § 11601 et seq.). The child involved here is Z.F.M.Z, and she presently resides in the United States with Respondent (her grandmother). Petitioner is Z.F.M.Z.'s half-sister. (Resp. at 2, ECF No. 69).

         Z.F.M.Z. was born in Las Vegas, Nevada on November 23, 2009, to Rusia Michel Zamora (“Rusia”), her mother, and Raul Flores Hernandez (“Raul”), her father. (Id.). Rusia and Raul thereafter returned to Mexico with Z.F.M.Z. (Trial Tr. 70:7-21, ECF No. 47). In Mexico, Z.F.M.Z. lived primarily with Rusia, and part of the time with Raul. (Id. 117:21- 118:23). In April of 2014, however, Rusia disappeared, and the facts in this case do not reveal the cause of that disappearance. (Id.).

         A. Raul and Petitioner Seek Custody over Z.F.M.Z.

         After Rusia's disappearance, Raul and Respondent both cared for Z.F.M.Z. through an informal arrangement. (Id. 121:14-122:17). More specifically, around 2016, Respondent cared for Z.F.M.Z. on the weekdays, and Raul cared for her on the weekends. (Id.). Z.F.M.Z. would also spend time with Petitioner. (Id. 54:24-55:23).

         In May of 2017, Raul and Petitioner initiated custody proceedings against Respondent before a judge in the Sixth Judicial District Court of the State of Jalisco, Mexico (“Jalisco court”). (Second R&R 3:13-14). Raul received custody over Z.F.M.Z, on May 8, 2017, for the pendency of those custody proceedings. (Id.); (Trial Tr. 72:12-20); (Interlocutory Sentence at 2, Ex. 2 to Petitioner's Resp. (Trial Exhibit 7), ECF No. 69-3). Nevertheless, Z.F.M.Z. resided with Petitioner and her family on the weekends and some weekdays, and other times with Raul. (Trial Tr. 23:20-25, 27:1-4). That arrangement ended when Raul was arrested upon allegations of drug trafficking, after which, according to Petitioner's testimony, Raul informally gave Petitioner custody over Z.F.M.Z. (Id. 72:12-22); (Second R&R 4:3-4).

         As the custody proceedings continued in the Jalisco court, Respondent received short-term “provisional custody” allowing her to take Z.F.M.Z. to be interviewed by a psychologist. (Official Communication at 6, Exhibit 11 to Petitioner's Resp. (Trial Exhibit 19), ECF No. 69-12). That term of provisional custody was initially set for August 11, 2017, to August 18, 2017, when another custody hearing was to take place. (Id.). However, after Respondent appeared at the August 18, 2017 hearing without Z.F.M.Z. and without a psychological report, Respondent received an extension of provisional custody to September 8, 2017. (Id.). Respondent was not allowed to leave the State of Jalisco or Mexico with Z.F.M.Z. during those times. (Second R&R 4:15-19) (citing Trial Exhibits 12 and 14).[1]

         B. Respondent and Z.F.M.Z. Travel to the United States

         On August 30, 2017, Petitioner informed the Jalisco court that Respondent had left Mexico with Z.F.M.Z. (Second R&R 4:20-21) (citing Trial Exhibit 14); (Resp. at 6, ECF No. 69) (citing Trial Exhibits 8 and 9). That same day, the Jalisco court entered an Order prohibiting Respondent from leaving Mexico with Z.F.M.Z., set a hearing for September 8, 2017, and authorized a warrant for Respondent's arrest. (Jalisco Court Order at 3, Ex. 8 to Petitioner's Resp. (Trial Exhibit 14), ECF No. 69-9); (Official Communication at 6, Exhibit 11 to Petitioner's Resp. (Trial Exhibit 19), ECF No. 69-12). Respondent, however, failed to appear at the September 8, 2017 hearing. (Second R&R 5:3-5) (citing Trial Ex. 19 at Castro 000139). The Jalisco court then received a letter on September 13, 2017, from Respondent, stating that she would be staying in the United States indefinitely with Z.F.M.Z. (Id.). Moreover, as of August 31, 2017, Respondent had enrolled Z.F.M.Z. in a Las Vegas, Nevada elementary school. (Trial Tr. 139:15-141:10).

         On July 4, 2018, Petitioner filed an initial application for the return of Z.F.M.Z. with the Jalisco court, naming the Jalisco court judge as the petitioner. (Second R&R 5:19-21); (Compl. at 6, ¶ 29, ECF No. 1). That application was returned, however, as needing more information. (Compl. at 6, ¶¶ 29-30). Petitioner then submitted a complete application to the Mexican Central Authority on August 20, 2018. (Id.). About three days later, the United States Department of State received that application. (Id.).

         C. Petitioner Files a Complaint in This Court Pursuant to the Hague Convention

         On September 7, 2018, Petitioner filed her Complaint with the Court, (ECF No. 1), seeking the return of Z.F.M.Z. to Mexico pursuant to the Hague Convention. Roughly eight days later, upon Petitioner's emergency request, the Court imposed a temporary restriction on Respondent from leaving the Court's jurisdiction with Z.F.M.Z. (Order 1:22-25, 3:7-4:4, ECF No. 4). On September 21, 2018, the Court extended that restriction for the remainder of the case. (Mins. Proceedings, ECF No. 7).

         During a case-management conference on September 26, 2018, the Court imposed a visitation schedule, which declared that, “[p]ending the conclusion of this case, ” Petitioner could exercise visitation with Z.F.M.Z. “every weekend from 9:00 a.m. on Saturdays to 5:00 p.m. on Sundays.” (Scheduling Order 2:22-3:3, ECF No. 13); (Mins. Proceedings, ECF No. 12). That same day, the Court filed an Emergency Order, (ECF No. 11), referring this case to the Pro Bono Program in order for Respondent to obtain counsel.

         One day after the Court's case-management conference, Respondent obtained a guardianship order over Z.F.M.Z. from the Family Division of the Eighth Judicial District Court for Clark County, Nevada. (First R&R 7-10, ECF No. 35) (stating that Respondent obtained a temporary guardianship order on September 27, 2018). Petitioner soon after filed a motion to vacate that guardianship order. (Mot. Sanctions at 5, ECF No. 14); (Mot. Sanctions at 8-9, ECF No. 26).

         On October 18, 2018, Richard C. Gordon, Adam Q. Tully, and Evan G. Hall, with the law firm of Snell & Wilmer, L.L.P., appeared as Respondent's pro bono counsel. (Notices of Appearance, ECF Nos. 20-22). The Court then held an evidentiary hearing on the merits of this case on November 9, 2018, with Judge Hoffman presiding. (Mins. Proceedings, ECF No. 46). Judge Hoffman filed a Report and Recommendation concerning the merits of Petitioner's Complaint on November 29, 2018. (Second R&R, ECF No. 56), which recommended, among other things, that the Court grant Petitioner's Complaint pursuant to the Hague Convention, and order Respondent to return Z.F.M.Z to Mexico. (Id. 22:17-25). Respondent thereafter filed a timely Objection to that Report and Recommendation. (Obj., ECF No. 60). On April 16, 2019, the Court held a hearing for oral argument to address that Objection and an earlier Objection to a separate Report and Recommendation. (Mins. Proceedings, ECF No. 81).

         II. LEGAL STANDARD

         A party may file specific written objections to the findings and recommendations of a United States Magistrate Judge made pursuant to Local Rule IB 1-4. 28 U.S.C. § 636(b)(1)(B); D. Nev. Local R. IB 3-2. Upon the filing of such objections, the Court must make a de novo determination of those portions of the Report to which objections are made. Id. The Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge. 28 U.S.C. § 636(b)(1); D. Nev. Local R. IB 3-2(b).

         III. ...


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