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Alcala v. Hernandez

United States Court of Appeals, Fourth Circuit

June 15, 2016


          Argued: March 22, 2016

         Appeals from the United States District Court for the District of South Carolina, at Florence. R. Bryan Harwell, District Judge. (4:14-cv-04176-RBH)


          Matthew Adams Abee, Thomas William McGee, III, NELSON MULLINS RILEY & SCARBOROUGH LLP, Columbia, South Carolina, for Appellant/Cross-Appellee.

          Kevin Roger Eberle, EBERLE LAW FIRM, LLC, Charleston, South Carolina, for Appellee/Cross-Appellant.

         ON BRIEF:

          Brendan P. Barth, Nicholas W. Lewis, BARTH, BALLENGER & LEWIS, LLP, Florence, South Carolina, for Appellee/Cross-Appellant.

          Before KING, AGEE, and FLOYD, Circuit Judges.


         In June 2013, Appellee Claudia Garcia Hernandez (Mother) removed her two minor children from their home in Mexico. Mother crossed into the United States with the children and arrived in South Carolina in August 2013. In October 2014, the children's biological father, Appellant Fernando Contreras Alcala (Father), petitioned for return of the children to Mexico pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (the "Hague Convention" or "Convention"), Oct. 25, 1980, T.I.A.S. No. 11670, 19 I.L.M. 1501. The district court found that Mother's removal of the children was wrongful under the Convention, which would ordinarily require the district court to order the children returned to Mexico. The district court further found, however, that the children were now settled in their new environment and that the Convention did not require a return order under the circumstances. The district court declined to order the children returned, and Father appealed. We conclude that the district court correctly applied the Convention and therefore affirm.


         The underlying facts are drawn from the order of the district court, which was entered subsequent to a bench trial.


         Father, Mother, and both minor children, F.C.G. and A.C.G., are Mexican nationals. Although Father and Mother were never married, in early 2013 they were living together with the children in Cosolapa, Oaxaca. At that time, the children were approximately eight- and two-years old, respectively.

         Mother began discussing with Father her desire to move with the children to the United States. Father, however, did not want to move to the United States. On June 17, 2013, Mother took the children, without telling Father, and went to a relative's home in a neighboring town. The next day, Father complained to the local authorities. He informed the authorities that Mother had expressed a desire to move to the United States and that Mother had family already living there.

         Mother, with the assistance of family and friends, made her way with the children to the border. She and the children entered the United States without authorization around July 2, 2013. Mother and the children subsequently arrived in Florence, South Carolina, on August 22, 2013. Mother's mother and two sisters had previously settled in Florence after entering the United States without authorization sometime in 2004 or 2005. The sisters completed schooling through high school in Florence. Both sisters own and operate small businesses in the area, as does their mother. The sisters participate in the Department of Homeland Security's Deferred Action for Childhood Arrivals (DACA) program.[1]


         Mother and the children initially lived with her mother in Florence. Within a short time, Mother enrolled the older child, F.C.G. (Son), in the third grade at Greenwood Elementary. The younger child, A.C.G., was not old enough to attend school. Neither Mother nor Son spoke English when they arrived, and one of Mother's sisters helped register Son for school. During this time, Mother worked for her mother and sisters. Sometime in 2013, Mother met her current boyfriend, Jose Vasquez (Vasquez).

         In January 2014, in order to have more space, Mother and the children moved out of her mother's home and into a mobile home owned by one of Mother's sisters. Their new home was in neighboring Darlington County, South Carolina. Upon moving, Mother withdrew Son from Greenwood Elementary and enrolled him at Brockington Elementary in Darlington on February 4, 2014. That same month, Vasquez moved in with Mother and the children.

         Son completed the 2013-2014 school year at Brockington Elementary. He was absent from school eight days during the spring term. Son made decent grades and worked with the English for Speakers of Other Languages (ESOL) program.

         In November 2014, Mother, Vasquez, and the children moved to their current home, a mobile home owned by Vasquez's father in Darlington County. The location of their new home required Mother to transfer Son to another Darlington school, St. John's Elementary.


         On October 27, 2014, Father filed a petition in district court, seeking the return of the children to Mexico under the Hague Convention. Father argued that when children under the age of 16 have been wrongfully removed from their country of habitual residence, the Convention requires the country to which the children have been brought to promptly order their return.

         On January 5, 2015, Father and Mother filed a joint stipulation of facts. The stipulated facts established that Mother had wrongfully removed the children from Mexico, their state of habitual residence. On February 4, 2015, Mother filed an answer to Father's petition. Mother asserted that certain exceptions to the Convention's general rule of return were applicable here. Specifically, Mother argued that: (1) Son was now settled in his new environment in South Carolina; (2) Son was a mature child who objected to his return; and (3) the children faced grave risk if returned.

         The district court held a bench trial on May 11 and 12, 2015. The district court heard testimony from Father, Mother, Mother's mother and two sisters, Vasquez and his father, one of Mother's friends from church, and several of Son's teachers and school officials. Son also underwent a forensic interview, which was reviewed by the district court.[2]

         Following trial, the district court issued an order enumerating its factual findings relevant to the issue of whether Son was now settled in South Carolina. The district court noted that Son's forensic interview indicated that Son can speak, understand, and converse in English. The district court characterized this fact as "significant evidence of his acclimatization to his new environment given the fact that he could not speak any English when he arrived in August of 2013." J.A. 442. With regard to Son's academic performance, Son's most recent report card showed that he received all As and Bs except for one C in his Science and Math class in the first term of the year. Son's English teacher testified that Son has a good grasp of the language and was expected to receive an A at the end of the current term in his English and Language Arts class. Son is enrolled in the ESOL program, although Son's English teacher testified that Son does not receive any of the special accommodations generally afforded to ESOL participants. The district court described Son as "perform[ing] exceptionally well in school." J.A. 443.

         The district court found that Son has substantial family ties in his new environment, with a number of family members living nearby including his grandmother, two aunts, and several cousins. The district court found that Son has extensive contact with those family members and attends numerous family gatherings. The district court also found that the family has strong ties to the local community through successful ownership and operation of various local businesses. The district court credited testimony that Mother and Vasquez are in a stable, loving relationship and that they eventually plan to marry. Son regularly attends church, and the district court credited testimony that he gets along well with the other children and has friends at the church. The district court also found that Son has friends elsewhere in his new environment. One of Son's teachers testified that Son is well-liked by his peers and has a number of friends in class. Evidence also showed that Son plays with other children in his neighborhood.

         The district court further found that despite Mother's admitted unauthorized presence in the United States, and her concomitant lack of legal authorization to work, Mother has remained gainfully employed and consistently earned an income since her arrival. The district court found that Mother "is clearly able to provide for the minor children" and that the children were always provided adequate clothing, food, and shelter. J.A. 444. Mother's ...

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