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Dona v. Castilblanco

United States District Court, N.D. Texas, Dallas Division

February 16, 2018



          Sam A. Lindsay S United States District Judge.

         Before the court is Petitioner Jonathan Jadiel Martinez Dona's (“Petitioner”) Motion Under the Hague Convention for Entry of a Temporary Restraining Order and Scheduling of an Expedited Hearing (Doc. 17), filed February 13, 2018. After considering the motion, pleadings, and applicable law, the court denies Petitioner's Motion Under the Hague Convention for Entry of a Temporary Restraining Order and Scheduling of an Expedited Hearing (Doc. 17).

         I. Factual and Procedural Background

         This case involves the alleged wrongful removal or retention of a child under the Hague Convention on the Civil Aspects of International Child Abduction (“Convention”), Oct. 25, 1980, T.I.A.S. No. 11670, S. Treaty Doc., No. 99-11, which is implemented in the United States through the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. § 9003 et seq. Petitioner brought this action on September 14, 2017, requesting that the court order the return of his three-year old biological son J.S.M.P. to his alleged “habitual residence” of San Antonio de Coronado, Costa Rica. In addition, Petitioner requests: (1) “for the well-being of the child, that he be given immediate access to his child, pending further hearing in this Court”; (2) that the court issue an order immediately prohibiting the removal of J.S.M.P. from the jurisdiction and requiring the turnover of the child's travel documents; and (3) that the court set the matter for an expedited hearing. Pet. ¶¶ 5.10-5.3.

         In support of his Petition for Return of the Child to Petitioner (“Petition”) (Doc. 1), Petitioner submitted a copy of the Convention; a portion of the Spanish version of Costa Rica's Family Code or Código de Familia; an unsworn affidavit by Petitioner, which constitutes no evidence; correspondence dated January 6, 2017 from the Patronato Nacional De La Infancia; and a “Formulario de denuncia” or “denunciation form” dated September 6, 2016, that Petitioner filed with the Patronato Nacional De La Infancia in Costa Rica. Petitioner alleges that Respondent, the biological mother of J.S.M.P, removed the child to the United States without Petitioner's consent. Petitioner does not allege in his Petition or state in his affidavit whether he and Respondent are married, but it is apparent from the documents relied on by him they are not married. The parties' pleadings and the documentation submitted by Petitioner also show that Petitioner, Respondent, and J.S.M.P. were all born in Honduras; that Petitioner, Respondent, and J.S.M.P. were residing in Costa Rica immediately before J.S.M.P.'s removal; that Petitioner's country of habitual residence is Costa Rica; and Respondent's country of habitual residence is the United States.

         Petitioner alleges that Respondent wrongfully removed the child without his consent from Costa Rica to the United States on February 27, 2016, in violation of the Convention. Petitioner alleges that Respondent has continued to wrongfully retain the child in the United States, and he believes the child is presently living with his mother in Dallas, Texas, at his maternal grandmother's residence. Petitioner contends that he has rights of custody under Costa Rican law (Articles 141, 151, and 157 of Costa Rica's Código de Familia or Family Code); that he was exercising those custody rights before the child was wrongfully removed; and that return of the child to Costa Rica is required under Articles Three and Five of the Convention.

         After filing this action, Petitioner, who is represented by counsel, filed an application to proceed in forma pauperis (“IFP”), which was granted by the magistrate judge on September 22, 2017. On November 27, 2017, the magistrate judge ordered the clerk of the court to issue and serve a summons on Respondent within thirty days and return the case for further action to the district court. Service was effected as to Respondent on December 12, 2017.

         On January 2, 2018, Respondent filed her pro se Answer to the Petition, denying Petitioner's allegations and contending that this action is baseless and frivolous:

Denial of Allegations.Respondent enters a general denial.

         [Petitioner] has no bas[is] to file this suit. Respondent has suffered greatly under the hard rule of this man. Such, to the point that she had to get an order of protection from the local authorities for the innumerable attacks that he made upon Respondent. Enclosed is a copy with a general translation, as Respondent could not obtain a word by word translation, as it is cost-prohibitive.

Petitioner[] is making a baseless frivolous accusation with the intention of hurting Respondent[] because she left him. Since he found out where his child lives, he has not made any attempts to provide for his care and upkeep. He never provided for him while they lived in Costa Rica or Honduras for that matter. He has never cared for this child on his own. More than likely, it could be said, that the child does not know him. When they lived in Costa Rica[, ] [Respondent] never received any help for their child. She also never received any help while she was pregnant. Since the child was born, [Respondent] has constantly depended on her own mother, who lived in Dallas, Texas[, ] for any financial help or assistance.

         Additionally[, ] Respondent now requests . . . that [Petitioner] be made to pay for the care and support of his child. Perhaps that since he is now in this country, he should be made aware that a child needs care and food and not just a demand for possession. [Petitioner] has never paid a dollar for his support, and now I insist that he become responsible for this child.

         Answer 1-2. Both parties request an award of attorney's fees and costs.

         On February 13, 2018, Petitioner moved for a temporary restraining order (“TRO”). In his motion for a TRO, Petitioner requests that the court prohibit Respondent, and others acting on her behalf, from removing J.S.M.P. from the court's jurisdiction until after a determination has been made regarding the merits of his Petition. Petitioner contends that ICARA empowers a district court to take appropriate steps “to protect the well-being of the child involved or to prevent the child's further removal or concealment before final disposition of the petition, ” and the injunctive relief requested by him “is necessary to prevent irreparable harm to [him] and to preserve the status quo.” TRO Mot. 1 (citing 22 U.S.C. § 9004(a)). Petitioner further requests that the court expedite the briefing on his request for a TRO and all other motions; schedule an immediate hearing on the motion for TRO; set a hearing on the merits of his Petition; and order Respondent to show cause at a hearing why his Petition should not be granted. In addition, Petitioner appears to request, pursuant to Federal Rule of Civil Procedure 65, that any preliminary injunction hearing be consolidated with the hearing on his Petition.

         II. Standard for Preliminary Injunction and TRO

         Under federal law, there are four prerequisites for the extraordinary relief of preliminary injunction or temporary restraining order. A court may grant such relief only when the movant establishes that:

(1) there is a substantial likelihood that the movant will prevail on the merits; (2) there is a substantial threat that irreparable harm will result if the injunction is not granted; (3) the threatened injury [to the movant] outweighs the threatened harm to the defendant; and (4) the granting of the preliminary injunction will not disserve the public interest.

Clark v. Prichard, 812 F.2d 991, 993 (5th Cir. 1987); Canal Auth. of the State of Florida v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974) (en banc). The party seeking such relief must satisfy a cumulative burden of proving each of the four elements enumerated before a temporary restraining order or preliminary injunction can be granted. Mississippi Power and Light Co. v. United Gas Pipeline, 760 F.2d 618, 621 (5th Cir. 1985); Clark, 812 F.2d at 993. Otherwise stated, if a party fails to meet any of the four requirements, the court cannot grant the temporary restraining order or preliminary injunction. Because a TRO is considered an “extraordinary and drastic remedy, ” it is not granted routinely, “but only when the movant, by a clear showing, carries the burden of persuasion.” Holland Am. Ins. Co. v. Succession of Roy, 777 F.2d 992, 997 (5th Cir. 1985).

         III. Law Applicable to Petitions for Return of Children

         The Convention was adopted to address the problem of international child abductions in connection with domestic disputes. Abbott v. Abbott, 560 U.S. 1, 8 (2010). The purpose of the Convention is 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.” Id. (quoting Convention, art. 1). Under the Convention, a child who is abducted in violation of the “rights of custody” must be returned to the child's country of habitual residence, unless certain exceptions apply.” Abbott, 560 U.S. at 5.

         The Convention is implemented through the ICARA. Id. Under the ICARA, state courts and federal district courts have concurrent original jurisdiction over actions arising under the Convention. 22 U.S.C. § 9003(a). A person, who seeks the return of a child wrongfully removed or retained may file a petition for relief “in any court which has jurisdiction of such action and which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed.”Id. § 9003(b). Although Respondent disputes Petitioner's entitlement to custody and return of J.S.M.P., she does not expressly dispute that the child was not located in Dallas County, Texas, when the Petition in this case was filed, and she acknowledges that her current address is 10637 Coogan Dr., Dallas, Texas, 75229. For this reason and because Costa Rica and the United States are both signatories to the Convention, the court determines that it has jurisdiction over this action. See Sealed Appellant v. Sealed Appellee, 394 F.3d 338, 342 (5th Cir. 2004). The Federal Rules of Evidence apply to wrongful removal and retention cases brought under the Convention. Vazquez v. Vasquez, No. 3:13-CV-1445-B, 2013 WL 7045041, at *1 n.1 (N.D. Tex. Aug. 27, 2013) (citing cases). Authentication requirements, however, are relaxed. See 22 U.S.C. § 9005.

         When a child less than sixteen years of age has been wrongfully removed or retained and less than one year has elapsed between the alleged wrongful removal or retention and the commencement of return proceedings, the court in the country to which the child has been brought must “order the return of the child forthwith, ” if the petitioner establishes that the removal or retention was wrongful and none of the Convention's exceptions apply. Abbott, 560 U.S. at 9; 51 Fed. Reg. at 10507. Even when return proceedings are initiated after the expiration ...

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