United States District Court, N.D. Texas, Dallas Division
IN RE THE APPLICATION OF, EVER NAHUM MENDIETA CHIRINOS, Petitioner,
YURIS ONEYDA ORTEZ UMANZOR, Respondent.
MEMORANDUM OPINION AND ORDER
BARBARA M.G. LYNN CHIEF JUDGE.
action, Petitioner Ever Nahum Mendieta Chirinos seeks the
return of his two children, Y.A. and I.N., to the country of
Honduras under the 1980 Hague Convention on the Civil Aspects
of International Child Abduction (the “Hague
Convention”) and the International Child Abduction
Remedies Act, 22 U.S.C. § 9001 et. seq.
(“ICARA”). The Court held a two-day bench trial
on the merits of Petitioner's Verified Petition [ECF No.
1], beginning on April 29, 2019. For the following reasons,
the Court GRANTS the Verified Petition and
ORDERS that Y.A. and I.N. be returned to
is a resident of the Republic of Honduras and currently
resides there. Respondent and the children, Y.A. and I.N.,
initially resided in Honduras, but immigrated to the United
States in late 2017. Respondent and the children currently
reside in Irving, Texas. There is no evidence that Respondent
and the children sought legal status prior to entering the
United States, or that they have sought or attained legal
status in the time since they arrived here.
parties stipulate to the general facts that underlie this
action. The parties agree that Petitioner is the father of
Y.A. and I.N. and that Respondent is the children's
mother. [ECF No. 63 at 2]. Y.A. was born on March 29, 2012,
and I.N. was born on October 8, 2015. [Id.]. Both
children were born in Honduras and lived there until November
November 2017, Respondent and the children left Honduras and
entered the United States in December 2017. [Id.].
Petitioner did not give consent, written or otherwise, to
Respondent's removal of the children from Honduras.
[Id.]. No. court, in Honduras or elsewhere, has
granted Respondent full custody of the children or has
stripped Petitioner of his custody rights. [Id.].
and the children remain in the United States. [Id.].
Petitioner commenced this action on October 9, 2018, seeking
the return of the children to Honduras. [Id.].
and Respondent met at a dance in Honduras in 2006 and began a
relationship. The two were romantically involved until
Petitioner illegally immigrated to the United States later
that year. Petitioner remained in the United States until he
was deported in 2010. After his deportation, Petitioner
returned to Honduras and the romantic relationship between
Petitioner and Respondent resumed. Respondent became pregnant
with the couple's daughter, Y.A., in 2011. After
Respondent learned that she was pregnant, Petitioner and
Respondent began living together at the home of
Petitioner's mother. Y.A. was born on March 29, 2012, and
lived with Petitioner and Respondent at the home of
Petitioner's mother until at least April 2015.
time after Y.A. was born, Petitioner had a relationship with
a woman other than Respondent. This relationship produced a
son, E.S., who was born on July 29, 2014. Petitioner never
lived with E.S. or his mother, and he does not keep in
contact with E.S. E.S. and his mother, with Petitioner's
consent, moved to the United States when E.S. was about two
years old. Petitioner testified that he never lived with E.S.
or his mother.
point, the parties' and witnesses' versions of events
diverge significantly. Respondent testified that while she
was pregnant with I.N., in April 2015, she became aware that
Petitioner had been involved with another woman and that the
woman was pregnant. Respondent alleges that she confronted
Petitioner about this and that he shoved her. Respondent
alleges that she then took the children and moved to the home
of her maternal grandparents. Respondent testified that
neither she nor the children ever lived with Petitioner after
April 2015. Respondent also initially testified that the
children never spent the night with Petitioner after she
moved out in April 2015, but Respondent later recounted a
time when Petitioner allegedly took Y.A. from the front yard
of her grandparent's home and only later returned Y.A. to
Respondent reluctantly. Respondent acknowledged that Y.A. did
spend the night with Petitioner during this time.
testified that Petitioner only saw the children two or three
times after she moved out in April 2015: once from afar in
public, once at a political rally, and once when he took Y.A.
from Respondent's grandparents' home. Respondent
testified that Petitioner represented a physical danger to
the children because “he's a drunk” and
“gets high.” Respondent testified that she found
bags of cocaine in Petitioner's pocket three times.
Respondent admitted, however, that she has no evidence-beyond
her own testimony-that Petitioner had a history of drinking,
drug use, or of abusing her physically.
testimony, Respondent alleged that Petitioner never gave her
money to support the children, but she did acknowledge at
trial that Petitioner's mother provided money for the
children, at times. Respondent admitted that she never spoke
to Petitioner about terminating Petitioner's custodial
rights over the children.
told a very different story. Petitioner acknowledged that
Respondent did move out of his mother's home for a time
while she was pregnant with I.N. However, according to
Petitioner, Respondent remained away for only two or three
days, after which she returned to live at his mother's
home. Petitioner testified that Respondent continued living
with him at his mother's home until mid-to-late 2016,
when I.N. was about one year old. It was not until this time,
Petitioner alleges, that Respondent and the children began
living away from Petitioner at the home of Respondent's
grandparents. This testimony conflicted with Petitioner's
earlier verified statement that Respondent and the children
moved out of his mother's home in August 2017. [ECF No. 1
testified that, after Respondent and the children moved, he
visited the children at Respondent's grandparents'
house almost every day after work. Petitioner also testified
that, after they moved out, Respondent and the children
visited him at his mother's house. Petitioner claimed
that he played with the children, brought them toys and
juices, and took them for rides on his motorcycle. Petitioner
also testified that he provided money to Respondent for the
support of the children while she was at her maternal
was born with a cleft palate, which caused the child to have
difficulty swallowing. Petitioner testified that, through a
friend, he became aware of an international charity known as
Operation Smile, which provided free treatment for children
with cleft palates. Respondent testified that she, not
Petitioner, learned of Operation Smile and contacted them
seeking treatment for I.N. I.N. had a surgery provided by
Operation Smile on or about April 23, 2017. After the
operation, I.N. needed special milk which cost 600 to 800
Honduran Lempiras. Petitioner testified that he often bought
the milk for I.N., or provided money to Respondent to buy it.
Respondent testified that Petitioner never provided any such
testified that, on November 27, 2017, he borrowed a bicycle
and went to see the children at Respondent's
grandparents' home. Upon arriving, Petitioner allegedly
heard Respondent speaking to a “coyote” with whom
Respondent planned to travel to the United States. Petitioner
testified that, after hearing this, he told Respondent the he
did not want the children going to the United States.
Petitioner testified that he returned the next day and found
that Respondent and the children were gone.
then sought legal help to secure return of the children. He
first went to the local court, but was told to wait 72 hours
before initiating a lawsuit. Petitioner then traveled to the
El Salvador-Honduras border in hopes of intercepting
Respondent and the children. After this was unsuccessful,
Petitioner sought help with various authorities in
Tegucigalpa before he was put in touch with the United States
Department of State and later filed this lawsuit. Petitioner
estimates that he has spent about $1, 500 pursuing the return
of the children.
Petitioner's Supporting Witnesses
witnesses testified in support of Petitioner. Angel Gabriel
Ortiz Dominguez, a neighbor of Petitioner when Petitioner
lived at his mother's home, has known Petitioner for 25
years. Ortiz testified that Respondent moved out of
Petitioner's mother's home about five months before
she left for the United States in November 2017. Ortiz also
testified that, after Respondent and the children moved, he
visited Respondent's grandparents' house with
Petitioner three times so that Petitioner could see the
children. Ortiz also testified that he saw Petitioner with
the children once in town at a medical clinic after they
began living with Respondent's grandparents. Ortiz
testified that, in his opinion, Petitioner was a good father.
Ezequiel Avila Turcios also testified in support of
Petitioner. Avila lives two houses away from Petitioner's
mother's home. Avila testified that he was in the
presence of Petitioner and the children many times. Avila
testified that, after Respondent moved to her
grandparents' house, he visited the grandparents'
house with Petitioner several times. Avila testified that he
saw Petitioner playing with the children at the
grandparents' house and that Petitioner would remain
there for two to three hours. Avila also testified that he
saw Petitioner give Respondent money ...