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In re Application of, Ever Nahum Mendieta Chirinos

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

May 29, 2019

IN RE THE APPLICATION OF, EVER NAHUM MENDIETA CHIRINOS, Petitioner,
v.
YURIS ONEYDA ORTEZ UMANZOR, Respondent.

          MEMORANDUM OPINION AND ORDER

          BARBARA M.G. LYNN CHIEF JUDGE.

         In this 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 Honduras.

         I. Background

         Petitioner 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.

         a. Stipulated Facts

         The 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 2017. [Id.].

         In 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.].

         Respondent 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.].

         b. Trial Testimony

         Petitioner 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.

         At some 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.

         At this 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.

         Respondent 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.

         In her 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.

         Petitioner 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 at 4].

         Petitioner 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 grandparents' house.

         I.N. 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 funds.

         Petitioner 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.

         Petitioner 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.

         c. Petitioner's Supporting Witnesses

         Three 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.

         Rolmann 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 ...


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