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Torres Garcia v. Guzman Garcia

United States District Court, D. Nevada

August 15, 2019

ZENDY ARLENY TORRES GARCIA, Petitioner,
v.
TEOFILO ISRAEL GUZMAN GALICIA, Respondent.

          REPORT AND RECOMMENDATION

          BRENDA WEKSLER UNITED STATES MAGISTRATE JUDGE.

         This case arises out of a dispute between the parents of a minor child, L.M.G.T., whom the child's mother, petitioner Zendy Arleny Torres Garcia, alleges was wrongfully taken from the State of Michoacán, Mexico, to the United States by the child's father, respondent Teofilo Israel Guzman Galicia. Torres Garcia petitions for the child to be returned to her in Mexico under the Hague Convention and the International Child Abduction Remedies Act. This matter was referred to the undersigned magistrate judge for a report of findings and recommendations on Torres Garcia's ex parte emergency motion for immediate return of the minor child (ECF No. 9).

         I. Findings of fact

         Torres Garcia and Guzman Galicia were cohabitating in Morelia, which is in State of Michoacán, Mexico, when L.M.G.T. was born on July 4, 2006. (Torres Garcia Decl. (ECF No. 13) at ¶¶ 2-4.) Torres Garcia and Guzman Galicia are listed as L.M.G.T.'s parents on her birth certificate.[1] (Compl. (ECF No. 1) at Ex. 2.) Torres Garcia and Guzman Galicia lived together until May 2015 and that at some unspecified point after that, Guzman Galicia removed L.M.G.T. from Mexico to the United States without Torres Garcia's knowledge, consent, or acquiescence. (Torres Garcia Decl. (ECF No. 13) at ¶¶ 4, 6-7.)

         According to Torres Garcia, Guzman Galicia is “armed and dangerous” and his violent tendencies and substance abuse caused the parties' separation. (Id. at ¶ 20.) Torres Garcia states that she used to rely on Guzman Galicia for financial support, but that she was left without income when they separated. (Id. at ¶¶ 13-14.) Torres Garcia explains that the fact she had to “re-enter the work force and fend for [herself]” following the parties' separation is what allowed Guzman Galicia to keep L.M.G.T. and leave Mexico without Torres Garcia's knowledge. (Id. at ¶¶ 14-15.)

         In January 2017, Torres Garcia filed a custody motion and criminal offense report in Michoacán against Guzman Galicia for abducting L.M.G.T. (Id. at ¶ 20.) She filed a Hague Convention request for the return of the child with the Mexican authorities in February 2018. (Id. at ¶ 21; Compl. (ECF No. 1) at Ex. 4.) Torres Garcia states she did not know L.M.G.T.'s location until late 2018, when Guzman Galicia contacted Torres Garcia and informed her that he and L.M.G.T. were living in Las Vegas, Nevada. (Torres Garcia Decl. (ECF No. 13) at ¶¶ 12, 16.) According to Torres Garcia, Guzman Galicia pressured her to sign over her custody rights to him and threatened she would never see L.M.G.T. again. (Id. at ¶ 16.) Torres Garcia attempted to communicate with Guzman Galicia and his extended family to secure L.M.G.T.'s return to Mexico to no avail. (Id. at ¶ 18.) She also attempted to obtain a visa to travel to Las Vegas to get the child herself, but her initial visa application was denied. (Id. at ¶ 17.)

         Torres Garcia now seeks the return of L.M.G.T. to Mexico for a custody determination by the Mexican courts, arguing Guzman Galicia wrongfully removed and retained L.M.G.T. from Mexico, her habitual residence, in violation of Torres Garcia's custody rights. Torres Garcia argues she never acquiesced or consented to L.M.G.T.'s removal from Mexico and she was exercising her parental rights at the time L.M.G.T. was removed from Mexico. Torres Garcia also seeks attorney's fees and costs under 22 U.S.C. § 9007.[2]

         L.M.G.T. was 12 years old at the time the case was filed, but she has since turned age 13. (See Compl. at Ex. 2.) She attends J.D. Smith Middle School in North Las Vegas. (Torres Garcia Decl. (ECF No. 13) at ¶ 8.) She lives with Guzman Galicia and his family. (Id. at ¶ 12.) According to Torres Garcia's attorney, Guzman Galicia provided Torres Garcia with the following address: 5921 West Bartlett Avenue, Las Vegas, Nevada 89108. (Resch Aff. (ECF No. 20) at ¶ 4.)

         Guzman Galicia was served with the complaint and petition for return of the child and the summons. (Decl. of Service (ECF No. 8) (indicating the complaint and summons were delivered to Pedro Franco, roommate/co-resident at 5921 W. Bartlett Avenue, Las Vegas, Nevada, 89108).) Torres Garcia moved for an ex parte temporary restraining order and for a warrant in lieu of a writ of habeas corpus directing law enforcement to bring Guzman Galicia and L.M.G.T. before the court. (ECF Nos. 9, 10.) The court restrained Guzman Galicia from removing L.M.G.T from the State of Nevada pending further court order but denied the request for a warrant in lieu of a writ of habeas corpus. (TRO (ECF No. 12).) The court further ordered Guzman Galicia to show cause in writing why the temporary restraining order should not be converted to a preliminary injunction and to appear at a preliminary injunction hearing on August 8, 2019. (Id. at 5.)

         Torres Garcia served her emergency motion for injunctive relief (ECF Nos. 9, 10), her supporting declaration (ECF No. 13), and the court's temporary restraining order (ECF No. 12) on Guzman Galicia by United States mail on August 2, 2019. (Certificate of Service (ECF No. 14); Resch Aff. (ECF No. 20) at ¶¶ 12-13.) On August 7, 2019, Guzman Galicia contacted Torres Garcia's attorney's office and requested to move the hearing on the preliminary injunction because he had to work at the “solar farm, ” but the attorney's receptionist instructed Guzman Galicia to contact the court regarding any scheduling conflict he may have with the hearing. (Resch Aff. (ECF No. 2) at ¶¶ 14-15.) Guzman Galicia did not file a written response to the court's show-cause order or appear at the preliminary-injunction hearing on August 8, 2019. (See Mins. of Proceedings (ECF No. 16).) At the hearing, the court converted the temporary restraining order to a preliminary injunction prohibiting Guzman Galicia from removing L.M.G.T. from the State of Nevada pending trial in this case. (Id.)

         After the preliminary-injunction hearing, Torres Garcia attempted to serve the court's temporary restraining order (ECF No. 12), the minutes of the preliminary-injunction hearing (ECF No. 16), and the court's subsequent order setting a case-management conference for August 14, 2019 (ECF No. 15) on Guzman Galicia on August 9, 2019, at the Bartlett address, but nobody answered the door. (Resch Aff. (ECF No. 20) at ¶ 21.) At the time of the second service attempt on August 10, 2019, Guzman Galicia's sister told the process server that Guzman Galicia moved to North Las Vegas. (Id. at ¶ 22.) The process server gave the sister her business card and requested that Guzman Galicia contact her to accept service of the documents. (Id. at ¶ 23.) The process server informed Torres Garcia's attorney that on August 12, 2019, Guzman Galicia called the process server and indicated he was “on his way back from Boulder City” and would pick up the documents at the process server's office on August 13, 2019. (Id. at ¶ 24.) As of 3:00 p.m. on August 13, 2019, Guzman Galicia had not picked up the documents, so the process server left them with Guzman Galicia's sister at his last-known address on Bartlett Avenue that afternoon. (Id. at ¶¶ 26-28; Decl. of Service (ECF No. 17) (indicating the documents were delivered to Guzman Galicia's sister, Mireya Guzman, at 5921 W. Bartlett Avenue, Las Vegas, Nevada 89108).) Guzman Galicia did not appear at the case-management conference on August 14, 2019. (Mins. of Proceedings (ECF No. 21).)

         At the case-management conference, Torres Garcia testified under oath that her aunt informed her that Guzman Galicia and L.M.G.T. have left Las Vegas and are travelling to Mexico by bus with an expected arrival date of August 16, 2019. Apparently, Guzman Galicia texted a photograph of himself and L.M.G.T. on the bus to the aunt, but Torres Garcia has not seen the photograph. Additionally, Torres Garcia testified that Guzman Galicia contacted other family members, including Torres Garcia's brother and grandmother, to arrange for extended family members to see L.M.G.T. in Mexico next week. Torres Garcia provided to the court addresses in Michoacán where she expects L.M.G.T. will be residing and visiting family members next week. (Supp. (ECF No. 19).) Based on her communications with family members, Torres Garcia testified she does not believe Guzman Galicia and L.M.G.T. are still in Las Vegas. At the hearing, Torres Garcia's attorney verballed renewed the motion for a warrant in lieu of a petition for writ of habeas corpus and requested that the court order an “Amber Alert.” The court took the renewed motion for warrant in lieu of a petition for writ of habeas corpus under advisement and denied the request for an Amber Alert without prejudice of Torres Garcia to make any requests she deems necessary to the appropriate law enforcement agencies.

         II. Analysis

         The Hague Convention on the Civil Aspects of International Child Abduction is intended to “to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and . . . to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” Hague Convention, art. 1, 19 I.L.M. 1501 (entered into force October 25, 1980).[3] Both the United States and Mexico are signatories to the Convention.[4] The United States implemented ...


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