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In re Application of Orellana

United States District Court, E.D. Tennessee, Knoxville

November 20, 2017

IN RE THE APPLICATION OF OSMIN MANUEL GUARDADO ORELLANA, Petitioner,
v.
FIAMA MAGDALENA VELASQUEZ CARTAGENA, Respondent.

          MEMORANDUM OPINION

          C. Clifford Shirley, Jr. United States Magistrate Judge.

         This case is before the undersigned pursuant to 28 U.S.C. § 636(c), Rule 73(b) of the Federal Rules of Civil Procedure, and the consent of the parties, for all further proceedings, including entry of judgment. [Doc. 40]

         This matter is before the Court on Petitioner's Verified Complaint and Petition for Return of Child. [Doc. 1]. The Petition alleges that Respondent wrongfully removed his child from Honduras, and he seeks the return of his child to Honduras where an appropriate custody determination can be made by a Honduras court. Upon agreement of the parties, the Court entered several temporary restraining Orders [Docs. 4, 9, 17] to preserve the status quo pending resolution of the matter. The Court held an evidentiary hearing in this case on August 31, 2017, and the parties filed post-trial briefs [Docs. 60, 62, 64, 65]. Upon consideration of the parties' arguments, the evidence introduced in the record, and the relevant law, the Court GRANTS the Petition [Doc. 1] for the return of his child to Honduras.

         I. BACKGROUND

         This litigation relates to the alleged wrongful removal from Honduras and retention of Petitioner's child (hereinafter, “Child”) in the United States by the Child's mother, Respondent. [Doc. 1]. The parties do not dispute that Petitioner is the father of the Child, Respondent is the mother of the Child, and that Petitioner and Respondent have never been married. [Doc. 53 at ¶ 1]. Further, the parties do not dispute that the Child was born in Honduras on November 14, 2013, and that the Child resided solely in Honduras prior to her removal on or about September 11, 2015. [Id. at ¶¶ 2-3]. In addition, the parties agree that Respondent did not discuss the Child's removal from Honduras with Petitioner before the Child was removed, nor did Respondent receive a custody order from any Honduras court granting Respondent full custody of the Child. [Id. at ¶¶ 4-5].

         Respondent alleges, however, that returning the Child to Honduras would pose a grave risk and that doing so would expose the Child to physical or psychological harm or otherwise place the Child in an intolerable situation. [Doc. 34 at 3]. In addition, Respondent argues that returning the Child would not be permitted by the fundamental principles relating to the protection of human rights and fundamental freedom. [Id.].

         During the evidentiary hearing in this matter, four witnesses testified: (1) Osmin Manuel Guardado Orellana, (2) Natali Garay, (3) Fiama Magdalena Velasquez Cartagena, and (4) Carlos Garay. The Court will summarize the testimony of each witness.

         A. The Testimony of Osmin Manuel Guardado Orellana (“Petitioner”)

         Petitioner testified that he is a machinist at a palm oil plant. He stated that prior to the Child's removal, the Child lived with him and his family, including Respondent and Respondent's son from her prior relationship with Carlos Garay. Petitioner described his relationship with the Child as a nice relationship and that the Child had a good relationship with Petitioner's mother and family. He continued that the Child would wait for Petitioner to get home from work and that they played together and watched television together. Petitioner testified that he provided food and clothing for the Child and that the Child attended church regularly with Petitioner. In addition, Petitioner stated that he and the Child celebrated birthdays together, including the Child's birthday, and they do activities together. Petitioner further testified that the Child visited the doctor frequently, she was healthy, and her shots were up to date. In support of his testimony, Petitioner submitted the Child's medical records, [Ex. B], and a photograph of Petitioner, Respondent and the Child that was taken on the Child's birthday. [Ex. C].

         Petitioner testified that on September 11, 2015, Respondent left with the Child. He discovered that they were gone when Respondent's sister called and told him. Petitioner stated that a few days later, Respondent called him and stated that she had left in order to financially help her parents. Petitioner stated that he filed a complaint with the National Police on September 12, 2015. In addition, he testified that he filed complaints with INTERPOL and with the immigration police. Petitioner stated that he filed his complaints immediately because his Child is important to him and he was afraid for the Child's well-being.

         Petitioner testified that since the Respondent has been in the United States, he has had limited contact with the Child. He continued that when Respondent arrived in the United States, she stated that she was living with an aunt. Petitioner stated that his contact with Respondent was more frequent when Respondent first moved to the United States. Petitioner stated that he stopped receiving telephone calls in December 2015. Respondent told Petitioner that she was in a relationship with Carlos Garay.

         Petitioner stated that he is aware that Respondent has accused him of abuse. He continued that he is very surprised by the allegations and that he never hit Respondent or the Child. He repeated that he absolutely did not hit Respondent. Petitioner stated that he saw the photograph of Respondent's face [Ex. 2] and that the alleged bruises on her face were actually suck marks. He denied that the marks were made from punching Respondent. Petitioner stated that he took the photograph of Respondent. When asked whether he was aware that Respondent filed a police report against him, Petitioner stated that he was not aware of Respondent's actions at the time the police report was allegedly filed. He stated that he has never been arrested, nor was he questioned about the allegations made in the police report. He testified that the town, San Pedro Sula, where the police report was allegedly filed, is about two hours from his home. Petitioner testified that there are two police stations near his town: one that is located approximately ten minutes away and another located approximately twenty minutes away. Petitioner continued that he and an attorney went to the National Police and the Prosecutor's Office for Women to determine whether a complaint against him existed. Petitioner testified that no complaint had been registered with either organization. Petitioner testified that he could not independently determine or verify that the police report exists. Petitioner also stated that he went to the police department in San Pedro Sula, where the police report was allegedly filed. He was told that the police report did not exist.

         Finally, Petitioner testified that if the Child is returned to Honduras, he is willing and able to take care of her. He continued that he will abide by a Honduras court custody determination.

         B. Testimony of Natali Garay

         Natali Garay testified that she is the wife of Carlos Garay, although they have been separated for two years. She stated that when Respondent arrived in Knoxville, Tennessee, she stayed with Mr. Garay's mother and sister. Ms. Garay stated that Respondent never mentioned that she was physically abused or mistreated by Petitioner. Ms. Garay stated that she has seen Respondent yell at the Child in Spanish that she (Respondent) was going to splat the Child's head against the wall.

         Ms. Garay testified that Carlos Garay and Respondent planned to be together before Respondent arrived. She continued that Carlos Garay provided Respondent money to travel to the United States and that she heard Carlos Garay speaking to a coyote. She further testified that the Defendant provided a fake police report to immigration authorities and that she (Ms. Garay) saw blank documents through a video that “they” sent on WhatsApp.[1] Ms. Garay stated that Carlos Garay left her to be with Respondent in November 2015.

         C. Testimony Fiama Magdalena Velasquez Cartagena (“Respondent”)

         Respondent testified that she was born in Honduras, El Progresso, Yuro. She stated that her parents live in El Progresso. She has two children with Carlos Garay. The oldest is seven years old, and the youngest is almost one year old. She also has a Child with Petitioner. She attended school to be a nurse, and she worked three years as a nurse and one year for a pediatrician. She testified that when she became pregnant with the Child, Respondent denied that he was the father. After seven months, he began to take responsibility of the pregnancy. Respondent testified that Petitioner did not live with her during that time but that he helped with the finances. She stated that after the Child was born, she (Respondent) and the Child moved in with Petitioner and his family, including his father and two sisters. Respondent stated that after the Child was born, she went back to work for a doctor for about a year.[2] She testified that she eventually lost her job because Petitioner made her late to work. She testified that Petitioner never took care of the Child or took an interest in the Child. She claimed that when Petitioner got home from work, he went to the gym and that they only went to church one time. Respondent stated that Petitioner would scream at Respondent to make the Child stop crying. She testified that Petitioner pulled her son's ears. Respondent also stated that Petitioner slapped the Child on the back. Later, however, on cross examination, she testified that he pushed the Child to the side but that he had never hit the Child.

         Respondent continued that Petitioner was violent toward her and that he grabbed her by the face. When shown the photograph of Respondent's face [Ex. 2], she denied Petitioner's statement that they were just playing. Respondent stated that she actually took the photograph and sent it to her sister because the abuse was becoming more frequent. Respondent testified that she and Petitioner started arguing and he hit her on the leg. Respondent called her brother, and her brother picked her up. She filed the police report in San Pedro Sula. When asked why she filed the police report in San Pedro Sula, she testified that San Pedro Sula is where her mother lives. She stated that San Pedro Sula is approximately two hours from El Progresso. She testified that she wanted Petitioner to be arrested but that she did not provide Petitioner's address to the police. When asked why the police report states, “his two children, ” Respondent stated that her son was used to calling Petitioner “daddy.” After she filed the police report, she stayed with her mother for three days and then returned to Petitioner's house. Respondent stated that she did not tell Petitioner about the police report in fear that he would hit her again. She stayed with Petitioner for approximately seven days. On September 11, 2015, she left Honduras with her son and the Child. She explained that she suddenly decided to leave Honduras with her children. She explained that she left the same day that she thought about leaving. She continued that she came along with another female and had to travel through Mexico. She testified that she did not have a sponsor or plan to travel to the United States.

         Respondent entered the United States on September 30, 2015. [Ex. 3]. During a credible fear interview, she claimed that the first time Petitioner hit her was when she was pregnant with the Child and that the last time he hit her was in September. [Id.]. With respect to the incident occurring while she was pregnant, Respondent stated that Petitioner hit her on the back of her legs on her calves. [Id.]. The next time he physically mistreated Respondent was in September when he hit Respondent in the face. [Id.]. Respondent stated that Petitioner pinched her and that he also verbally abused her, including making a death threat. [Id.].

         Respondent testified that she called Mr. Garay when she was in the shelter. She continued that she provided Mr. Garay's name as someone she would stay with if released because Mr. Garay is the father of her first child. See [Ex. 3]. Respondent testified that she arrived in Knoxville on October 31, 2015. She came to Mr. Garay's house, but it was better to live with Mr. Garay's mom and sister. Respondent testified that she became pregnant by Mr. Garay in February 2016.

         D. Testimony of Carlos Alberto Garay

         Mr. Garay testified that Respondent contacted him when she was detained at the border. He paid for Respondent's plane tickets. When Respondent arrived, she stayed with Mr. Garay's family. At that time, they did not have a relationship. Their relationship began in January 2016 or February 2016. Respondent and Mr. Garay had another child who was born in October 2016.

         II. ANALYSIS

         The Court has considered the parties' positions and the evidence entered during the trial in this case. Accordingly, the Court finds that Petitioner has established by a preponderance of the evidence that the Child was wrongfully removed and retained in breach of Petitioner's custody rights. Further, the Court finds that Respondent has not established by clear and convincing evidence that there is a grave risk that returning the Child would expose her to physical or psychological harm or otherwise place her in an intolerable situation, nor has ...


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