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Soto v. Contreras

United States Court of Appeals, Fifth Circuit

January 23, 2018


         Appeals from the United States District Court for the Northern District of Texas

          Before SMITH, BARKSDALE, and HIGGINSON, Circuit Judges.

          RHESA HAWKINS BARKSDALE, Circuit Judge:

         Veronica Lemus Contreras (Lemus), a native and citizen of Mexico residing in the United States, challenges the denial of her grave-risk defense to Alberto Ontiveros Soto's (Ontiveros) seeking return of their child, A.O.L., to Mexico pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention), 24 Oct. 1980, T.I.A.S. No. 11670, S. Treaty Doc. No. 99-11. At issue is whether the court committed two legal errors in concluding Lemus failed to prove, by the requisite clear and convincing evidence, the existence of a "grave risk that [A.O.L.'s] return would expose [him] to physical or psychological harm or otherwise place [him] in an intolerable situation". Hague Convention, art. 13(b). AFFIRMED.


         Lemus and Ontiveros married in 1995, and have three children. The family resided in Mexico before Lemus came to the United States with two of the three children-A.O., female, age 15, and A.O.L., male, age 8-to escape alleged abuse by Ontiveros. Although their familial problems began much earlier, the couple "mutually decided" in September 2014 to file for divorce in Mexico.

         In April 2015, Lemus told Ontiveros she and the children were going to a party in another town, a three-hour trip. Instead, she came to the United States with A.O. and A.O.L. Lemus sought political asylum in the United States; her application is pending. After learning the location of his wife and children, Ontiveros pursued in district court a petition-originally filed in Mexico-for return of an abducted child (A.O.L.) under the Hague Convention. (A.O.L. was the only child subject to the petition because the Hague Convention does not apply to children, such as A.O., over 16; at the time of the bench trial, she was past 16 years of age. Hague Convention, art. 4.)

         At a bench trial, the parties presented incompatible versions of events leading to Lemus' departing Mexico. She accused Ontiveros of, inter alia: physically abusing her and their daughter, A.O.; psychologically abusing the entire family; committing acts of violence against extended family members; and committing adultery. Although, with one exception, Ontiveros contested her accusations, he accused Lemus of, inter alia: committing adultery, incurring excessive debts, and assaulting him. To these ends, six witnesses testified: Ontiveros, Lemus, A.O., Soledad Contreras Lemus (Lemus' sister, hereinafter, Contreras), A.O.L., and Edith Sauno (their neighbor in Mexico).

          Ontiveros testified he and Lemus fought because she was financially irresponsible. He admitted to having one physical altercation early in the marriage, when he gave her "some spankings with the hand". He claimed Lemus often assaulted him, and denied further physical altercations. He stated he and Lemus, both represented by counsel, reached a divorce agreement, and he gave her at least 2, 200 pesos a week to support the children, even though the divorce fell through. He testified, unrebutted, that, before A.O.L. was removed from Mexico, the two saw each other almost every day; they would eat meals and play soccer; and A.O.L. would "stay and spend the night with [Ontiveros]". Also unrebutted was that Ontiveros never physically abused A.O.L.

         Conversely, Lemus described her relationship with Ontiveros as "slow torture", stating he beat her almost daily (or at least monthly) during their relationship. She recounted occurrences of alleged abuse: he beat her with a belt in the shower when she was pregnant with A.O.L.; he fought her brother when he confronted Ontiveros; and he assaulted A.O. and Contreras for trying to protect Lemus, throwing A.O. and Lemus onto the ground and into a garden rail. She stated he also psychologically abused her and the children, with A.O.'s wanting to hang herself and A.O.L.'s wetting the bed. She testified the Mexican police and district attorney refused to help her, forcing her to flee to the United States.

         Lemus' testimony, however, was at times inconsistent. Although she described Ontiveros' throwing A.O. into the garden rail, she also testified he "never got into a fight or other physical altercation with any of [the] children"; was inconsistent in describing the frequency of Ontiveros' physical abuse; made confused and incredible statements regarding her inability to obtain a divorce; and, after stating Ontiveros owned "four houses and [a] warehouse", then stated he "[did not] have a place where he [could] go and eat steadily much less [A.O.L.] will have a place like that".

         Lemus was also impeached on cross-examination. For example, when confronted with her signed affidavit, prepared for an ex parte proceeding in Texas state court, she accused Ontiveros of forging her signature. The affidavit erroneously stated that, "[i]f it were safe for [her] to do so, [she] would get a divorce", even though she had filed, with Ontiveros, a joint, voluntary petition for divorce in Mexico.

         The daughter removed to the United States, A.O., testified favorably for Lemus, but in a sometimes contradictory fashion. She stated her parents fought every time Ontiveros drank (and he drank often), but she only saw her parents fight four times, the first when she was seven. She felt "sad" and "scared" when her parents "fought", and she corroborated the incident where Ontiveros threw her and Lemus on the ground into the garden rail. She said she did not want to live with her father because he "was very bad to [Lemus]". On cross-examination, A.O. testified she was "nervous" about testifying because she was "afraid [Lemus] might get in trouble" and even "be put in jail" if she (Lemus) lost the case.

         Contreras testified Lemus and Ontiveros engaged in physical fights, and she had "several fights" with Ontiveros "because [she was] trying to defend [her] sister". Other than corroborating Ontiveros' fighting Lemus' brother, however, Contreras could not establish personal knowledge of such fights. She knew only about the abuse, "[b]ecause ...

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