United States District Court, D. Nevada
M. NAVARRO, CHIEF JUDGE
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).
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).
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).
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.).
Raul and Petitioner Seek Custody over Z.F.M.Z.
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).
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).
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).
Respondent and Z.F.M.Z. Travel to the United States
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).
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.
Petitioner Files a Complaint in This Court Pursuant to the
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).
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
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).
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).
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).