Opinion
F078695
12-06-2019
MILAGROS MEDINA GARCIA, Plaintiff and Appellant, v. RUBI MORENO FLORES, Defendant and Respondent.
Bryan Cave Leighton Paisner, Aileen M. Hunter, Kristin S. Webb, David Harford, and Michael E. Olsen for Petitioner and Appellant. Rubi Moreno Flores, in pro. per., for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BFL-18-002432)
OPINION
APPEAL from an order of the Superior Court of Kern County. Susan M. Gill, Judge. Bryan Cave Leighton Paisner, Aileen M. Hunter, Kristin S. Webb, David Harford, and Michael E. Olsen for Petitioner and Appellant. Rubi Moreno Flores, in pro. per., for Defendant and Respondent.
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Milagros Medina Garcia (mother) appeals an order denying her petition under the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention or the Convention) for the return of her now 11-year-old daughter, D.U. (D.U. or the child), from California to Mexico. She contends the trial court erred in denying the petition because (1) she established a prima facie case for her daughter's return under the Convention, (2) there was insufficient evidence to establish her daughter was at grave risk of harm if returned to her, and (3) the well-settled defense did not apply. Finding no merit to mother's arguments, we affirm.
See generally Hague Convention, October 25, 1980, Treaties and Other International Acts Series No. 11670, 1343 United Nations Treaty Series 89 (reprinted at 51 Fed.Reg. 10494 (Mar. 26, 1986)). The International Child Abduction Remedies Act (22 U.S.C. § 9001 et seq.) implements the Convention in the United States.
FACTUAL AND PROCEDURAL BACKGROUND
D.U. was born in Bakersfield in 2008. Mother was not married to the child's father; the two separated when the child was a few weeks old and he was not involved in her life. Prior to the child's birth, mother met Rubi Moreno Flores (Moreno). They lived near each other and spent time together.
In June 2014, mother moved to Mexico with the child, who was six; mother did not intend to return to the United States. Mother, who has five other children, moved because she wanted to live with them in Mexico and she was having trouble finding work in the United States. Mother and the child lived with mother's significant other and two of her three sons, who were young teenagers. Mother denied sending the child to spend the night with other people or leaving her alone with her half-brother, K.M., who is six years older than the child. Mother also said the child never told mother she was being touched inappropriately. When asked if the child attended school while in Mexico, mother responded, "[v]ery little."
Although not clearly stated in the record, it appears mother's significant other also lived with her in the United States, as they had a 10-year relationship.
The Custody Arrangement
In 2015, Moreno and her husband traveled to Mexico for summer vacation. While there, they visited mother at her invitation. It was during this visit that the idea of the child living with Moreno arose. Mother and Moreno, however, provided different accounts of how that occurred.
According to mother, it was Moreno who raised the subject of the child living with her in the United States to take advantage of the educational opportunities there. Mother wanted time to think about the decision and discuss it with her significant other, as the child had never been separated from her. After thinking it over for a day, mother decided the child could go if she wanted, but Moreno would need to bring her back during the December school break. Then, if the child was doing well in her studies, mother would allow her to return to the United States for school, with the understanding Moreno would bring her back to visit during school breaks. Although the agreement was temporary, they did not put a date on when the agreement would end because Moreno said she would bring the child back during "vacation time." Mother and Moreno went to a notary and signed a paper that put Moreno "in charge" of the child for medical issues and school.
Moreno, however, testified the subject of the child coming to live with them arose when her husband made a joke about it, and mother responded as if it were a serious offer, saying, "Okay. That's fine." Mother immediately took steps to facilitate the child's trip to the United States—she retrieved the child's birth certificate, "expired passport," and immunization records, and proposed they see an attorney to ensure Moreno had legal authority to take the child, and make medical and educational decisions for her.
At first Moreno did not want to take the child. Moreno proposed a one-week trial period, during which the child would stay with Moreno and her husband to see if she wanted to go with them. Moreno was concerned the child would want Moreno to take her back to mother, but mother assured her the child was accustomed to being with other people. It was during this week the child first disclosed to Moreno that her stepfather and K.M. were "touching her" in her "private part." The child also told Moreno mother would not let her eat and sometimes sent her off with people she did not know. The child shared these things on her own, without Moreno or her husband questioning her. Moreno believed the child. During that week, the child did not have contact with mother, stepfather, or her siblings.
When Moreno brought the child back to mother, they agreed to prepare a document allowing Moreno to take her. The child, who was on the second floor of mother's house, refused to come down, so Moreno and her husband left. Mother subsequently called Moreno and told her to pick up the child, as she wanted to go with them. At some point, Moreno told mother the child said she was being sexually abused and took the child to a pediatrician in Mexico. Moreno and her husband kept the child in Mexico for 10 days as paperwork was drawn up giving them legal authority to care for her. According to Moreno, she and mother did not make arrangements about when the child would visit mother.
The document mother and Moreno testified about was admitted into evidence, in both the original Spanish and an English translation. The document, or authorization, states, in pertinent part: "MI[LAGROS] MEDINA GARCIA . . . states that [she] grants guardianship of [her] youngest daughter, so that she may exercise it for all legal purposes; as well as the Permission and authorization to [her] minor daughter named [D.U.], born in Bakersfield, California, over who exercises parental authority and can leave the National Territory, accrediting with the birth certificate . . . issued by Count[]y of Kern, Department of Public Health, so that you can travel in the company of your godmother and tutor, Mrs. RUBI MORENO FLORES, and accompany the photograph of the minor who grants you permission to sign and print your fingerprint." The authorization is signed by mother and notarized on June 26, 2015.
The child moved to the United States with Moreno and her husband on July 23, 2015.
The Custody Dispute
After moving to the United States, the child spoke with mother by telephone often. Moreno enrolled the child in school in August 2015. At first, she did poorly; she did not know how to write her last name and "would ignore that she had a second name." By January 2016, she began doing better in school.
Moreno testified she spoke with mother once or twice a week, but mother did not discuss bringing the child to her for Christmas break. Mother testified when Moreno did not bring the child to see her in December 2015, Moreno said it was because she could not renew the child's expired passport using the authorization mother provided. Mother said she and Moreno then decided the child would not visit that month.
Moreno, however, testified mother asked her, soon after she returned to the United States, if she could apply for a passport for the child, although they never talked about why she needed a new one. Moreno told mother she could not, as she was not an immediate family member. Moreno claimed both she and mother knew she could not obtain a passport for a child who did not belong to her. Moreno knew when she took the child from Mexico in July 2015 that she could not get a passport to send her back.
According to mother, after Moreno told her she could not apply for a passport, Moreno told mother she would send a paper for mother to sign that would allow her to get a passport, but mother needed to send $9,000. Mother told Moreno she needed to see the paper before signing it, but Moreno never sent it. Moreno then told mother that when she signed the paper she would give her "$60,000 pesos."
Mother further testified that around April 2016, she learned Moreno wanted her to sign "custody paper[s]." Mother accused Moreno of attempting to buy her daughter and told Moreno she wanted her "to give my daughter back" and she was going to wait for her in Tijuana. Moreno responded that mother could do what she wanted. Mother again said she was not going to sign something she had not seen and she wanted Moreno to return her daughter. Mother and Moreno texted back and forth a lot, and were verbally fighting. Moreno again said mother could do what she wanted, but she was not going to give the child back. Mother also claimed Moreno told her she "was going to do all sorts of things" so she could not get her daughter back, and would "say that my daughter had been touched," and that mother "was dirty" and "did not feed her." These conversations all occurred in and around April 2016.
Mother also testified she "started to fight" with Moreno about custody in 2017, when Moreno told her she had obtained custody of the child. Mother said she then withdrew her permission for Moreno to keep the child through a "revocation paper." Mother, however, confirmed it was in 2016 that Moreno said she would not bring the child back.
Mother said she went to her local police station to report "that someone had stolen my daughter," but "[t]hey couldn't help me." Mother considered traveling to the United States to get the child herself, and sold a house her mother had given her, as well as her car and store, so she could do that. Mother went to the United States Embassy to see if there was a way she could cross the border, but was told that without papers, she would have to go back, and she should "[c]ome back again and do things right." She was told to contact an immigration agent in Mexico.
In contrast to mother's testimony, Moreno denied having any conversations with mother in April 2016 about sending the child to Mexico or meeting her in Tijuana. Moreno claimed the first time mother asked for the child's return was around August 2017, when they began arguing about it and Moreno told mother she could not return the child because she had custody of her.
Moreno Obtains Guardianship
Meanwhile, in 2016, Moreno decided to seek legal guardianship of the child, although she did not tell mother her plan. On March 22, 2017, Moreno and her husband filed a petition in probate court to be appointed the child's guardians, in which they alleged that when the child came to live with them, she confided she was physically and sexually abused while in Mexico. Moreno and her husband were appointed the child's temporary legal guardians that day. Thereafter, Moreno advised mother she had temporary guardianship or custody.
Although Moreno testified she knew mother was residing in Mexico when she filed the request for temporary guardianship, notice of the guardianship proceedings was provided to mother by publication after attempts were made to personally serve her at an address in Bakersfield.
A non-relative investigative report prepared by the Kern County Department of Human Services (Department) pursuant to Probate Code section 1513, subdivision (a), was filed in the guardianship proceeding on April 28, 2017. A hearing on the petition was held on August 22, 2017, and the probate court issued an order appointing Moreno and her husband as the child's guardians on September 6, 2017. Letters of guardianship issued the following day.
On May 25, 2018, the probate court ordered the Department to conduct a Probate Code section 1513, subdivision (b) investigation to determine (1) whether the Department would take jurisdiction over the case, or (2) whether mother would be a proper placement for the child.
A social worker interviewed the child, mother, mother's significant other, and K.M. In addition, a forensic interview was held with the child, which was transcribed. In those interviews, the child disclosed sexual abuse by mother's significant other and K.M.; physical abuse by being hit with a belt and shoes, and being made to fight with her cousins; and neglect, such as being denied food and being sent to stay with strangers. Mother, her significant other, and K.M. all denied any sexual or physical abuse, or neglect, occurred.
The social worker reported the child had a mental health assessment in April 2017, and attended monthly treatment sessions until October 2017. After a new mental health assessment was completed in April 2018, the child was diagnosed with chronic posttraumatic stress disorder. The child " 'reported feeling scared that she w[ould] return to her previous home environment, in which she was severely neglected and was sexually molested.' " She was to be assessed to determine the need for psychotropic medication, and participate in weekly group and individual therapy, as well as monthly family therapy.
The Department determined there was no legal basis to pursue a juvenile dependency petition, as Moreno and her husband were meeting the child's needs and providing a safe environment, and the child was bonded to Moreno, who the child saw as being her mother and with whom she wanted to remain " 'forever.' " In addition, the allegations of abuse and neglect by mother and her significant other were inconclusive.
As to whether mother would be a proper placement for the child, the Department made several observations. First, the allegations of abuse and neglect, and sexual abuse, were inconclusive. The social worker stated that "[w]hile the statements of the child cannot be discounted," her allegations sometimes seemed "exaggerated or at times inconsistent," and her statements during the social worker's interview "seemed prepared" and "her list of grievances well-thought out." The social worker further stated: "While this could be due [to] any number of reasons, it was striking [the child's] statements often closely paralleled statements made by Mrs. Moreno, therefore the suspicion that Mrs. Moreno may have coached [the child] in what to say is a concern."
Second, while mother felt Moreno contrived the allegations as a ploy to keep the child from being returned to her, she indicated she would believe her daughter and take steps to protect her by keeping the alleged perpetrators out of the home. Third, the child clearly expressed her wish to remain with the legal guardians and did not want to return to mother's care in Mexico. The social worker was concerned about the child's mental health, although mother said mental health services were available locally and would be accessible. Finally, the social worker stated a home and parent assessment by the local Mexican authority may be advisable. Mother's Petition , The Hearing , and the Trial Court's Ruling
Meanwhile, on July 3, 2017, mother went to the Mexican Central Authority and Notary. An official document was created by which mother revoked the June 26, 2015 "custody and guardianship and authorization for traveling previously granted" Moreno, and granted permission for the child to travel with her uncle.
Mother first learned she could file a petition under the Hague Convention on July 18, 2017, and she submitted an application for the child's return to the Mexican Central Authority on July 25, 2017. The application made its way through the Mexican authorities, the United States Department of State, and the California Attorney General's Office. On April 27, 2018, the Kern County District Attorney filed a petition on mother's behalf under the Hague Convention seeking the child's return to Mexico.
An evidentiary hearing was held on mother's petition, at which mother and Moreno testified. The parties agreed the trial court could consider the two reports the Department prepared in the guardianship proceeding, as well as mother's petition and its attachments. After the parties submitted closing briefs, the trial court issued a ruling denying mother's petition.
Although mother argued Moreno obtained the guardianship order without proper notice to her, the trial court determined the issue of notice was not before it. The trial court explained when this matter commenced, it asked the probate court to consider whether mother had been given proper notice in the guardianship proceeding, and after further proceedings in the probate court, that court again found proper notice had been given and the guardianship remained intact. Thus, the trial court proceeded with the understanding Moreno had "a legal right to custody of [the child], separate and apart from the jurisdictional issues under the Hague Convention," and treated the matter as one involving two parents.
The trial court first found mother did not meet her burden of proving she was entitled to relief under the Hague Convention. While Mexico was the child's habitual residence before her removal to the United States, the trial court found mother and Moreno shared a mutual intent to abandon Mexico as the child's habitual residence in favor of the United States so she could avail herself of the benefits of the American education system. Accordingly, jurisdiction over the child's custody was in the United States and the Hague Convention did not apply. The trial court also found the child had become so acclimatized to life in the United States that her life was firmly rooted here, as she had lived in the United States for all but one of her 10 years, she was so disturbed by the possibility of returning to mother that she was diagnosed with posttraumatic stress disorder, and she was thriving in this country in all ways.
The trial court also found that, even if the Hague Convention applied, Moreno established two exceptions to application of the Convention, namely, the grave risk of harm and well-settled exceptions. On the grave risk exception, the trial court found there was clear and convincing evidence of grave risk to the child if she were returned to mother's care, based on: (1) her reports of sexual abuse by her stepfather and half-brother, which the trial court found credible; (2) her allegations of being passed off to third parties, being underfed, and not being allowed to go to school consistently; and (3) her extreme reaction to the possibility of being returned to mother and the home in which she alleged she was abused.
On the well-settled exception, the trial court found by a preponderance of the evidence that (1) the child had been in the United States for more than one year before the Hague Convention petition was initiated in July 2017, as the alleged wrongful retention began prior to July 2016, and (2) the child was well settled with Moreno in the United States.
Accordingly, the trial court ordered that mother's application for relief pursuant to the Hague Convention be denied, without prejudice to mother seeking further review of the child's custody in the guardianship proceeding.
DISCUSSION
I. The Hague Convention
"The Convention . . . was adopted in an effort 'to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.' [Citations.] To deter parents from crossing international boundaries to secure a more favorable forum for the adjudication of custody rights, the Convention provides for the prompt return of a child who is 'wrongfully removed to or retained in' any country that has signed on to the Convention. [Citations.] It thus provides a means by which to restore the status quo when one parent unilaterally removes the child from the child's country of habitual residence and/or retains the child in a new jurisdiction. [Citation.] [¶] The only function of a proceeding under the Convention is to decide whether a child should be returned to the country of the complaining parent; it does not govern the merits of parental custody disputes, but leaves those issues to be determined by appropriate proceedings in the child's country of habitual residence." (In re Marriage of Forrest & Eaddy (2006) 144 Cal.App.4th 1202, 1210 (Forrest).) The United States and Mexico are parties to the Convention. (Reyes Valenzuela v. Michel (9th Cir. 2013) 736 F.3d 1173, 1176 (Reyes Valenzuela).)
"A petitioner under the Hague Convention 'bears the burden of proving the child's wrongful removal or retention by a preponderance of the evidence. [Citation.]' [Citation.] If the petitioner succeeds in showing a wrongful removal, the [Hague Convention] requires repatriation of the abducted child to its country of habitual residence in all but a few exceptional circumstances. [Citations.] Exceptions to the Hague Convention must be narrowly interpreted 'lest they swallow the rule of return.' " (Maurizio R. v. L.C. (2011) 201 Cal.App.4th 616, 633 (Maurizio R.).)
Two exceptions are at issue here. The well-settled exception applies in the case of a petition brought more than one year from the date of the wrongful removal or retention and the child becomes "settled in [his or her] new environment." (Hague Convention, art. 12.) The respondent has the burden of proving by a preponderance of the evidence that this exception applies. (22 U.S.C. § 9003(e)(2)(B).) The other is the "grave risk" exception, which provides that return of a child to his or her country of habitual residence need not be ordered if "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." (Hague Convention, art. 13b; see 22 U.S.C. § 9003(e)(2)(A).) This exception is narrow and the respondent has the burden of proving it by clear and convincing evidence. (22 U.S.C. § 9003(e)(2)(A); Maurizio R., supra, 201 Cal.App.4th at p. 633; In re Marriage of Witherspoon (2007) 155 Cal.App.4th 963, 974 (Witherspoon).)
The Hague Convention states: "Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. [¶] The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment." (Hague Convention, art. 12, italics added.)
On appeal from an order granting or denying a Hague Convention petition, we generally apply a deferential standard of review to the trial court's findings of fact and determine questions of law, including the interpretation of the Convention, de novo. (Maurizio R., supra, 201 Cal.App.4th at pp. 633-634.) California courts differ as to whether the correct standard is the federal " 'clear error' " or " 'clearly erroneous' " standard, or California's " 'substantial evidence' " rule. (Ibid.; see Escobar v. Flores (2010) 183 Cal.App.4th 737, 748.) Although phrased differently, the two standards are substantially similar, in that both require appellate deference to the trial court's factual findings, particularly where the trial court's findings rest on its assessment of the credibility of witnesses. (Escobar, at p. 748 & fn. 6.) We need not resolve this issue, however, as our conclusion would be the same under either standard. (Maurizio R., at p. 633.)
The "familiar and highly deferential substantial evidence standard of review" "calls for review of the entire record to determine whether there is any substantial evidence, contradicted or not contradicted, to support the findings below. We view the evidence in the light most favorable to the prevailing party, drawing all reasonable inferences and resolving all conflicts in its favor." (People ex rel. Brown v. Tri-Union Seafoods, LLC (2009) 171 Cal.App.4th 1549, 1567.)
Under the federal standard, " '[a] finding is "clearly erroneous" [only] when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.' " (Anderson v. Bessemer City (1985) 470 U.S. 564, 573.) "This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently." (Ibid.)
II. Wrongful Retention
The retention of a child is "wrongful" under article 3 of the Convention where: "a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and [¶] b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention." (Mozes v. Mozes (9th Cir. 2001) 239 F.3d 1067, 1070 (Mozes).)
"[I]n order to prevail on a claim under the Hague Convention a petitioner must show that (1) the child was habitually resident in one State and has been removed to or retained in a different State; (2) the removal or retention was in breach of the petitioner's custody rights under the law of the State of habitual residence; and (3) the petitioner was exercising those rights at the time of the removal or retention." (Gitter v. Gitter (2nd Cir. 2005) 396 F.3d 124, 130-131.)
It is undisputed mother was exercising her rights of custody at the time of retention. The question is whether the child's habitual residence was Mexico or the United States at that time. If the child's habitual residence was the United States, the Convention would not compel her return to Mexico because she was "neither 'removed' from the state of habitual residence nor 'retained' in another state." (Holder v. Holder (9th Cir. 2004) 392 F.3d 1009, 1014 (Holder).) On the other hand, if her habitual residence was Mexico, the Convention's protections would apply and the child would be returned to Mexico. As the trial court found Mexico was the child's habitual residence prior to her removal to the United States, the question is whether she acquired a new habitual residence in the United States.
"The term 'habitual residence' was intentionally left undefined in the Convention." (Holder, supra, 392 F.3d at p. 1015.) Cases interpreting the term, however, have concluded it refers to the child's customary residence prior to the wrongful removal or retention. (Forrest, supra, 144 Cal.App.4th at p. 1213.)
The Ninth Circuit has set forth an analytical framework to determine whether a child has acquired a new habitual residence. (Holder, supra, 392 F.3d at p. 1015; Mozes, supra, 239 F.3d at pp. 1071-1073.) "First, . . . there must be a 'settled intention to abandon the one left behind.' . . . Second, there must be (A) an 'actual "change in geography," ' [citations], combined with (B) the 'passage of "an appreciable period of time." ' [Citations.] This period of time must be 'sufficient for acclimatization.' " (Holder, supra, 392 F.3d at p. 1015, citing Mozes, supra, 239 F.3d at pp. 1071-1073, 1075-1076, 1078.)
Thus, "the analysis of this issue begins with an examination of the intent of the person or persons entitled to determine where the child lives. [Citation.] If the child has not yet reached a stage in her development that she is deemed capable of making an independent decision about her living arrangements, the parents' last shared intent as to the child's residence is frequently determinative, provided that that intent has been carried out for an appreciable period of time." (Forrest, supra, 144 Cal.App.4th at p. 1213.) The habitual residence analysis is a mixed question of fact and law, under which we review the trial court's historical facts for substantial evidence (or clear error) and the ultimate issue of habitual residency de novo. (Ibid.; Holder, supra, 392 F.3d at p. 1015.)
Here, the trial court found the authorization mother signed in June 2015, which states mother " 'grants guardianship' " of the child to Moreno so she " 'may exercise it for all legal purposes,' " granted Moreno an informal legal guardianship with no restrictions or termination date. The trial court further found nothing in the authorization supported mother's testimony she only agreed to allow the child to stay with Moreno for a limited period of time; rather, the absence of a specific time period or provision for the child's return to mother's care in Mexico supported Moreno's testimony there was no agreement for the child to be returned to mother.
Based on these findings, the trial court found mother, as the parent exercising actual custody over the child, granted Moreno "the authority to act indefinitely as [the child]'s guardian 'for all legal purposes,' " with "the understanding and intent" the child "would move to the United States and live with [Moreno] and her husband in order to avail herself of the American education system." Comparing this case to Reyes Valenzuela, supra, 736 F.3d 1173, the trial court found the parties shared this intent, and since there was an actual change of geography following the parties' agreement and an appreciable period of time passed before they began arguing about the arrangement, "the parties had a shared mutual intent to abandon Mexico as [the child]'s habitual residence in favor of the United States." Accordingly, the trial court determined the child's habitual residence was the United States, not Mexico.
Mother challenges the trial court's findings on the first element of the analysis, namely, whether there was a settled intention to abandon Mexico for the United States. She argues there was no shared intent to do so because Moreno's undisclosed intent was to remove the child from Mexico permanently, while mother's intent was for a temporary, finite stay, where the child was returned to her in Mexico during school breaks. She also argues the trial court improperly relied on the authorization as evidence she intended to have the child abandon Mexico as, in construing the authorization as an indefinite grant of all parental authority over the child, the trial court ignored Mexican law, which holds mother cannot renounce her parental authority.
Since mother was the only party who had the authority to determine where the child would live, it is her intent, rather than Moreno's, that is relevant to the analysis of whether there was a settled intent to abandon Mexico as the child's habitual residence. While mother testified the arrangement was temporary and she intended for Moreno to return the child to her during school breaks, the trial court rejected this testimony. Instead, the trial court found credible Moreno's testimony there was no agreement for the child to be returned to mother, which was supported by the absence of any specified time period or provision for the child's return to mother in the authorization. Therefore, the trial court determined mother's intent was to grant Moreno authority to act indefinitely as the child's guardian and allow the child to move to the United States to live with Moreno and her husband so she could attend school here. Although the trial court also mentioned the parties' shared intent, it is the trial court's findings regarding mother's intent that supports its decision regarding the child's habitual residence.
Mother contends that because a parent cannot legally give up his or her parental rights under Mexican law, the authorization cannot be evidence of mother's intent for the child to abandon Mexico as her habitual residence. In support, mother cites two cases which explain that Mexico's custody law, known as patria potestas, " 'places a series of correlative rights and obligations on the holder of parental authority,' " which include "the right to [choose] the minor's place of domicile" (Mota v. Rivera Castillo (2d Cir. 2012) 692 F.3d 108, 117), and "[n]either a custody agreement nor anything akin to one is listed as a condition that may terminate, suspend, or even limit patria potestas," which is not waivable (Garcia v. Pinelo (7th Cir. 2015) 808 F.3d 1158, 1167).
From this mother argues the authorization cannot be construed as an indefinite grant of all parental authority over the child, and therefore is not evidence mother intended the child to abandon Mexico. Instead, mother claims the authorization is merely a travel document, which according to the "CIVIL CODE FOR THE STATE OF GUANAJUATO," where mother lived, was a prerequisite for Moreno to travel with the child. (See art. 475 of the Civil Code for the State of Guanajuato ["While the child is in the patria potestas, he cannot leave the house of those who exercise it without their permission . . . ."].)
The trial court, however, did not find that, by signing the authorization, mother relinquished all her parental authority. Rather, the trial court found mother granted Moreno an informal guardianship, and because the authorization did not specify a termination date or require Moreno to return the child to her care, that grant was indefinite. Even if mother could not grant a guardianship under Mexican law, that she attempted to do so without expressly stating it was temporary or contingent on the child being returned to her during school breaks evidences her intent to have Moreno take custody of the child and move her to the United States, where she would live with Moreno and attend school indefinitely.
Thus, substantial evidence supports the trial court's finding mother's settled intent was for the child to abandon Mexico in favor of the United States. As mother does not challenge the trial court's remaining findings of an actual change in geography and the passage of an appreciable period of time, which are supported by the evidence, we affirm the trial court's decision the child was a habitual resident of the United States when Moreno retained her here.
Moreover, even if mother did not have a settled intent "to abandon the child's prior habitual residence, courts should find a change in habitual residence if 'the objective facts point unequivocally to [the child's] ordinary or habitual residence being in [the new country].' " (Mozes, supra, 239 F.3d at p. 1081.) While it is possible for a child's contacts standing alone to be sufficient for a change in habitual residence, courts " 'should be slow to infer from such contacts that an earlier habitual residence has been abandoned.' " (Holder, supra, 392 F.3d at p. 1019.) In determining whether the child has become acclimatized to a country, such as the United States, the inquiry is generally whether the child's life has become firmly rooted in her new surroundings. (Ibid.)
Here, the trial court found the child had become so acclimatized to life in the United States that her life was firmly rooted here. The trial court, noting the uniqueness of this case, found the child had lived in the United States for all but one of her 10 years; there was credible evidence the child was so disturbed by the possibility of returning to mother's care in Mexico that she had been diagnosed with posttraumatic stress disorder for which she was receiving counseling services; and the child was thriving in this country educationally, medically, and socially.
Mother does not challenge the trial court's finding of acclimatization. Thus, even if the trial court erred in finding that the child was a habitual resident of the United States based on mother's settled intent, we still would conclude the trial court did not err when it found mother failed to meet her burden of proof entitling her to relief under the Hague Convention.
III. The Well-settled Exception
Even though we need not discuss the exceptions to the Hague Convention, we will address the exception that applies when the petition was not filed within one year from the date of wrongful retention of the child and the child becomes settled in her new environment. The trial court found the exception applied because the alleged wrongful retention began prior to July 2016, more than one year before mother filed her application with the Mexican Central Authority in July 2017, and the child was now settled with Moreno in the United States.
Mother first contends the trial court erred in finding the wrongful retention occurred more than one year after the petition was filed. A retention occurs when the petitioner "unequivocally signaled her opposition to [the child's] presence in the United States," at which point the child "remained with [the guardian in the United States] against [mother's] wishes." (Karkkainen v. Kovalchuk (3rd Cir. 2006) 445 F.3d 280, 290; see id. at pp. 290-291.) In a more recent opinion, the Third Circuit held the "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, as clearly and unequivocally communicated through words, actions, or some combination thereof. That determination is, by necessity, fact-intensive and will vary with the circumstances of each case." (Blackledge v. Blackledge (3rd Cir. 2017) 866 F.3d 169, 179.)
The trial court used the date mother submitted her application to the Mexican Central Authority, July 25, 2017, to measure the one-year period. However, under article 12 of the Convention, the term "commencement of proceedings" means the filing of a petition in any court which has jurisdiction of the action and which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed. (22 U.S.C. § 9003(b) & (f)(3).) Thus, in order to commence the proceedings, the petition must be filed in court. (See Muhlenkamp v. Blizzard (E.D.Wash. 2007) 521 F.Supp.2d 1140, 1152 [one-year period is measured from when the petition was filed in court]; Belay v. Getachew (D.Md. 2003) 272 F.Supp.2d 553, 561 [the filing of the petition in court commences the judicial proceedings]; Wojcik v. Wojcik (E.D.Mich. 1997) 959 F.Supp. 413, 420 [same].) Under these authorities, mother commenced the proceeding on April 27, 2018, when the petition was filed in superior court. Mother appears to concede this is the appropriate date from which to measure the one-year period.
Here, the trial court found the retention began prior to July 2016, because mother first began asking for her daughter's return at the end of 2015 and insisting on it around April 2016. Mother testified that around April 2016, she began arguing with Moreno about her daughter, and told Moreno she wanted her back and was going to wait for her in Tijuana, but Moreno told her she would not give her daughter back. It was at this time mother "unequivocally communicated" that she no longer consented to her daughter continuing to live with Moreno and sought to reassert her custody rights. While Moreno denied these conversations occurred and claimed the first time mother asked for the child's return was around August 2017, the trial court was not required to accept this testimony, but rather could rely on mother's admission that she asked for her return in April 2016, yet Moreno refused. The trial court therefore did not err when it found the wrongful retention occurred in April 2016, more than a year before the filing of the petition in April 2018.
In her reply brief, mother asserts a wrongful retention does not occur until the taking party takes action inconsistent with the parties' custody agreement, citing Falk v. Sinclair (D.Me. 2009) 692 F.Supp.2d 147, 162. Mother argues Moreno, by her own admission, did not take action to repudiate her agreement with mother until sometime after March 2017. In Falk, the district court found the wrongful retention began when the agreed-upon date for the minor's return to the country of habitual residence passed without her return, rather than on the earlier date in which the respondent informed the petitioner of the respondent's intention not to return the child. (Falk, supra, 692 F.Supp.2d at pp. 161-164.) It did not involve a situation where, as the trial court found here, there is no prior agreement concerning the date or time the child would be returned. (See, e.g., Zuker v. Andrews (D.Mass. 1998) 2 F.Supp.2d 134, 139-140 [applying rule that wrongful retention begins when the noncustodial parent clearly communicated the desire to regain custody and the custodial parent refuses].) Moreover, according to mother, Moreno took action inconsistent with the parties' agreement when she refused to return the child to her in April 2016.
Mother next argues the child was not well-settled in Bakersfield. The Hague Convention does not define what it means for a child to be "settled" under article 12. Federal courts have generally agreed the term means " 'that the child has significant emotional and physical connections demonstrating security, stability, and permanence in its new environment.' " (Alcala v. Hernandez (4th Cir. 2016) 826 F.3d 161, 170 [approving Second Circuit's definition].) In determining whether a child is "settled," courts review the totality of the circumstances. (Ibid.; In re B. Del C.S.B. (9th Cir. 2009) 559 F.3d 999, 1009 [factors include child's age, stability of residence, school attendance, participation in activities, connections to the new area, and possibly immigration status if deportation is a risk].) "[C]ourts should consider any relevant circumstance that demonstrates security, stability, or permanence—or the lack thereof—in a child's new environment." (Alcala, at p. 170.)
Here, the trial court found the child was well-settled in Bakersfield because she was attending and doing well in school; she was learning English; she received regular medical, dental and mental health treatment; and she felt safe with Moreno. The trial court also noted the thought of returning to mother in Mexico caused the child such anxiety she had been diagnosed with posttraumatic stress disorder. Mother does not dispute any of this evidence or argue it does not support a finding the child was well-settled in Bakersfield. Instead, she argues the child was not well-settled because "Moreno should not be allowed to profit from her deceitful conduct by continuing to retain [the child] in Bakersfield." Citing Lozano v. Montoya Alvarez (2014) 572 U.S. 1 (Lozano), mother asserts "Moreno's actions are akin to concealment of the child" since, despite the parties' agreement that Moreno's responsibility for the child was temporary, "Moreno devised a way to surreptitiously obtain permanent custody" by applying for guardianship without informing mother and falsely claiming in the guardianship application that she did not know where mother lived.
In Lozano, the United States Supreme Court held that the one-year period in article 12 of the Convention is not subject to equitable tolling. (Lozano, supra, 572 U.S. at p. 4.) In so holding, the court rejected the argument that absent equitable tolling, concealment of a minor by an abducting parent likely would result in the non-return of the minor, which in turn would encourage abduction. (Id. at pp. 16-17.) The court explained it was not "true that an abducting parent who conceals a child's whereabouts will necessarily profit by running out the clock on the 1-year period," as "American courts have found as a factual matter that steps taken to promote concealment can also prevent the stable attachments that make a child 'settled,' " and other signatories to the Convention "have likewise recognized that concealment may be taken into account in the factual determination whether the child is settled." (Id. at p. 17.)
In arguing Moreno's actions were similar to concealment, mother misapplies the Lozano decision. Even if Moreno was deceitful in seeking guardianship, she never tried to conceal the child from mother, thereby preventing the child from making stable attachments. There is no evidence Moreno moved frequently, so as to prevent the child from becoming settled in the community, as in Mendez Lynch v. Mendez Lynch (M.D.Fla. 2002) 220 F.Supp.2d 1347, 1363-1364; purposely kept the child out of community activities to prevent detection, as in Wigley v. Hares (Fla.Dist.Ct.App. 2011) 82 So.3d 932, 942; or attempted to hide her identity, as in In re Coffield (1994) 96 Ohio App.3d 52, 58 [644 N.E.2d 662, 666]. Instead, the evidence showed the child had significant emotional and physical connections that demonstrated security, stability, and permanence in Bakersfield. There is nothing to suggest Moreno's alleged deceit affected the child's ability to become settled in the United States.
In sum, substantial evidence supports the trial court's findings that the alleged wrongful retention occurred more than one year before the petition was filed and the child was settled in the United States. Thus, even if the Hauge Convention applied, the trial court was not required to return the child to Mexico. Since there is sufficient evidence to support the well-settled exception, we do not decide whether Moreno also met her burden of proving the grave risk of harm exception.
In arguing the trial court erred in finding D.U. was at grave risk of harm should she be returned to Mexico, mother asserts the trial court erroneously admitted Moreno's testimony that D.U. told her she had been abused under the spontaneous statement exception to the hearsay rule (Evid. Code, § 1240). Mother claims that apart from Moreno's testimony, the only evidence of abuse is contained in the Department's report, which the parties stipulated the trial court could consider and contains the same abuse allegations. Mother, however, argues the report's abuse allegations cannot support a finding of grave risk of harm by clear and convincing evidence because the social worker was concerned Moreno may have coached D.U. in what to say and found the allegations inconclusive. She also argues that even if there were a grave risk of harm, the trial court failed to consider whether the courts in Mexico could protect D.U. were she returned there. Since we do not reach the application of the grave risk of harm exception, we need not decide any of these issues.
DISPOSITION
The trial court's order is affirmed. Respondent Rubi Moreno Flores is awarded her costs on appeal.
/s/_________
SNAUFFER, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
MEEHAN, J.