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In re S.E.

Court of Appeals of Texas, Second District, Fort Worth

August 1, 2019

In the Interest of S.E. and E.E., Minor Children

          On Appeal from the 442nd District Court Denton County, Texas Trial Court No. 18-6826-16

          Before Sudderth, C.J.; Gabriel and Wallach, JJ. [1]

          MEMORANDUM OPINION

          Bonnie Sudderth Chief Justice

         I. Introduction

         S.E. and E.E. were born in Michigan and lived there with their parents— Appellant Father, a citizen of Argentina, and Appellee Mother, a citizen of the United States—until Father was deported in September 2015. After the family moved to Argentina, Father and Mother separated. In September 2017, Mother received permission from a court in Argentina to take the children back to the United States for 90 days. After Mother's father died on December 3, 2017, Mother petitioned for an extension of time to keep the children abroad, but the Argentine court denied her request and ordered her to return the children by January 26, 2018. Mother did not comply.

         On August 2, 2018, Father filed a verified petition in Denton County district court under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) and the International Child Abduction Remedies Act (ICARA), which implemented the treaty in the United States,[2] seeking S.E. and E.E.'s return to Argentina. See 22 U.S.C.A. §§ 9001–9011. In his petition, Father alleged that the children had been habitually resident in Argentina under article 3 of the Hague Convention and that the children were wrongfully removed from Argentina and wrongfully retained in the United States under articles 3 and 5 of the Hague Convention. He sought issuance of a show cause order to be served on Mother for a hearing and asked for permission to appear by video or telephonically if he could not obtain a humanitarian visa to enter the United States for the hearing. See Tex. Fam. Code Ann. §§ 152.001–.317.

         Mother responded that the children's habitual residence was the United States-not Argentina-such that the Hague Convention did not apply. She further asserted that if the Hague Convention applied, then the "grave risk" exception-that the children's return would expose them to a grave risk of physical or psychological harm or otherwise place them in an intolerable situation-required the trial court to deny Father's request.

         After a hearing that lasted several days, the trial court issued an order denying Father's petition. In his first issue, Father argues that the evidence is factually insufficient to support the trial court's conclusion that there is a grave risk that returning the children would expose them to physical or psychological harm or would place them in an intolerable situation. In his second issue, Father argues that the evidence is legally insufficient to support the trial court's finding that there is no evidence of ameliorative measures or undertakings to reduce the grave risk of harm to the children. We will affirm without reaching either of these issues. See Tex. R. App. P. 47.1.

         II. Background

         On August 28, 2018, the trial court started the hearing on Father's petition. Father appeared by video transmission (Skype) and through his attorney, and Mother appeared in person and through her attorney. The trial court heard evidence over the course of three days. After denying Father's petition, and upon his request, the trial court issued the following findings of fact:

1. Petitioner, [Father], is a citizen of Argentina.
2. Respondent, [Mother], is a citizen of the United States of America.
3. The parties lived in Ann Arbor, Michigan when the children the subject of this suit, S.G.E. and E.G.E., were born . . . .
4. [Father] was ordered to be removed or deported by the U.S. Immigration and Customs Enforcement on June 23, 2015 and cannot reenter the United States of America[] for a period of ten years.
5. On September 20, 2015, the parties and children moved to San Carlos de Bariloche, Argentina and established a residence.
6. In May of 2016, [Father] and [Mother] separated.
7. Upon separation, [Father] and [Mother] agreed to evenly divide the children's time in a fifty/fifty possession schedule in which each parent had the children for three and a half days every week.
8. The children lived in Argentina and attended school in Argentina in 2016 and 2017.
9. In August of 2017, pursuant to [Mother's] request, the Argentina court permitted her to travel to the United States of America with the children.
10. [Mother] traveled with the children on or about September 13, 2017 to the United States of America pursuant to the Argentinian court's order permitting the children to travel with her until December 10, 2017.
11. On December 6, 2017, [Mother] requested an extension of the time the children were permitted to remain in the United States.
12. On January 11, 2018, the Argentinian court denied that extension and ordered [Mother] to return the children to San Carlos de Bariloche, Argentina within fifteen days--by January 26, 2018.
13. [Mother] failed and refused to return the children to San Carlos de Bariloche, Argentina by January 26, 2018.
14. The children's habitual residence under the Hague Convention on the Civil Aspects of International Child Abduction when they were wrongfully retained in the United States of ...

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