Soberano v. Arreygue Guillen

[5] 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT SEATTLE 8 FERMÍN RAMOS SOBERANO, CASE NO. C21-1084 RSM 9 Petitioner, ORDER GRANTING MOTION FOR TEMPORARY RESTRAINING ORDER 10 v. 11 ANDREA ARREYGUE GUILLEN, 12 Respondent. [13] 14 I. INTRODUCTION 15 This matter is before the Court on Petitioner’s Motion for Ex Parte Immediate Temporary 16 Restraining Order and Order to Show Cause. Dkt. #7. Petitioner filed the petition initiating this 17 matter under the Hague Convention on the Civil Aspects of International Child Abduction (the 18 “Convention”)1 and the United States’ implementing statutes. Dkt. #1 at ¶ 1.3. The Convention, 19 “designed to discourage child abduction” and forum shopping in custody disputes, provides for 20 the return of children “wrongfully removed or retained” from their country of “habitual 21 residence.” See Lozano v. Montoya Alvarez, 572 U.S. 1, 16 (2014); Convention, art. 12. 22 Petitioner alleges that Respondent, the mother of his three minor children—F.R.A. age 13, [23] 1 Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, [24] T.I.A.S. No. 11670, 1343 U.N.T.S. 89 (effective July 1, 1988). 1 A.V.R.A. age 8, and M.R.A. age 6—, removed the children from their habitual residence in 2 Mexico in violation of his lawful custody rights. Petitioner believes that Respondent and the 3 children are now residing within this Court’s jurisdiction and seeks an order restraining 4 Respondent’s ability to further interfere with his custody rights. Respondent, despite having 5 notice of this action, has not appeared or opposed Petitioner’s motion. Based on the uncontested 6 record, the Court grants the requested relief. 7 II. BACKGROUND 8 A. Petitioner’s Custody Proceedings in Mexico 9 Petitioner Fermín Ramos Soberano and Respondent Andrea Arreygue Guillen were 10 previously married and lived together with their three children in Morelia, Michoacán, Mexico. 11 In 2018, Respondent filed for divorce in the First Family Orality Court of the Morelia Judicial 12 District (the “Family Court”) and the Family Court entered an order requiring Petitioner to leave 13 the family home and pay Respondent temporary support for the children. Dkt. #12 at 24; Dkt. 14 #13 at ¶¶ 6–9. In 2019, Petitioner objected to Respondent having sole custody and raised his 15 concern that Respondent may remove the children to the United States and more specifically to 16 Washington State, where Respondent’s father and two brothers lived. Dkt. #13 at ¶ 10. The 17 Family Court “entered an order prohibiting either parent from leaving the country” with the 18 children. Dkt. #12 at 24–25; Dkt. #13 at ¶ 15. Petitioner and Respondent also subsequently 19 agreed on a 50-50 custody arrangement with alternating weeks of custody and visitation on 20 Wednesdays for the week’s non-custodial parent. Dkt. #12 at 25; Dkt. #13 at ¶¶ 16–17. The 21 resultant Family Court order approved of the plan and set out each parent’s residential address 22 and required the parents to update their addresses if they moved. Dkt. #12 at 40–41; Dkt. #13 at 23 ¶ 19; Dkt. # 23. [24] 1 Despite the arrangement and lawful order, Petitioner has not seen his children since he 2 delivered them to Respondent’s custody on August 2, 2020. Dkt. #12 at 43; Dkt. #13 at ¶ 20. 3 When Petitioner realized that Respondent was not intent on returning the children to his custody, 4 he sought relief from the Family Court which required Respondent’s counsel to disclose an 5 address for her. Dkt. #12 at 55; Dkt. #13 at ¶ 26. Respondent’s counsel, Pedro Balderas 6 Hernandez, informed the Family Court that Respondent and the children were visiting 18517 – 7 36th Avenue W. Apt. E-201, Lynnwood, Washington 98037, an address that Petitioner knew as 8 the residence of Respondent’s brother. Dkt. #13 at ¶ 26. After Respondent and the children did 9 not return from the visit, Petitioner filed a child abduction report in Mexico and the Family Court 10 subsequently found that Respondent had violated the custody agreement set forth in its order and 11 directed the U.S. Department of State, the Central Authority that administers the Convention in 12 the United States, to order Respondent’s return of the children to Mexico. Dkt. #12 at 65–67; 13 Dkt. #13 at ¶ 29. Subsequently, the Family Court issued an arrest warrant for Respondent for 14 contempt of its court orders. Dkt. #13 at ¶ 52. 15 B. Petitioner’s Lack of Contact with His Children 16 During the time that Petitioner has been deprived of his custody rights, he has not had 17 any contact with the middle child, has received one video message from the youngest child, and 18 has had sporadic text exchanges with the eldest. Id. at ¶ 30. Petitioner’s limited interactions are 19 further constrained by his belief that Respondent will review his text communications, forcing 20 him to maintain overly sterile conversations to shield his children from the effects of the ongoing 21 disputes. Id. at ¶¶ 34–36. Nevertheless, Petitioner’s limited communications allowed him to 22 learn that the children were living at 18517 – 36th Avenue W. Apt. H-201, Lynnwood, and he 23 was able to send Christmas presents that he knows the children received. Id. at ¶ 37. [24] 1 C. Petitioner’s Initiation of this Action and Difficulties Effecting Service of Process 2 Despite knowing addresses for two locations the children may reside, COVID delayed 3 Petitioner’s ability to pursue this action and he was unable to prepare an application for the return 4 of his children until June 2021. Id. at ¶ 38. With the assistance of the U.S. Department of State, 5 Petitioner was able to connect with local counsel and begin pursuing his case. Id. at ¶ 39. 6 However, Petitioner has been unable to effect personal service of process on Respondent. 7 Petitioner had a process server attempt to serve Respondent at her presumed residence on several 8 occasions. See generally Dkt. #3. Petitioner has also attempted to reach Respondent through her 9 brother who lives in the same apartment complex. Id.; see generally Dkt. #9. Petitioner has 10 attempted to facilitate service by calling phone numbers associated with Respondent, by sending 11 emails to addresses associated with Respondent, and by mailing documents to Respondent’s 12 residence and her counsel before the Family Court. See generally Dkt. #9. Additionally, 13 Petitioner has sought school records to verify Respondent’s contact information. Dkt. #9 at ¶ 18. 14 Nevertheless, Petitioner was unable to serve process upon filing this action. 15 D. Petitioner’s Motion for a Temporary Restraining Order 16 Unable to secure Respondent’s attendance at these proceedings, Petitioner elected to file 17 a motion for an ex parte temporary restraining order (“TRO”) and sought relief on a significant 18 number of issues. Specifically, Petitioner sought an order: (1) restraining Respondent from 19 removing the children from the jurisdiction of this Court; (2) restraining Respondent from 20 permitting third parties to remove the children from the jurisdiction of this Court; (3) requiring 21 daily video communications between Petitioner and his children; (4) requiring Respondent to 22 surrender travel documents to the Court; (5) requiring Respondent to post a $25,000 bond 23 conditioned on her compliance with the TRO; (6) requiring Respondent to show cause why final 24 relief should not be granted in Petitioner’s favor; (7) waiving any requirement for Petitioner to 1 post his own bond for wrongful injunction; (8) setting a scheduling conference; and (9) setting 2 an expedited final hearing. Dkt. #7. 3 E. Petitioner’s Continued Difficulties Effecting Service 4 After Petitioner filed his ex parte motion for a TRO, the Court noted with concern that 5 Respondent had not been served in the case and had not appeared. Dkt. #11. Additionally, the 6 Court noted that Petitioner had not provided distinct notice of his motion for a TRO, only notice 7 of the action in general. Id. Accordingly, the Court ordered Petitioner to make further attempts 8 at service of process and to provide Respondent notice of his motion for a TRO. Id. Petitioner 9 made further attempts at service through a process server, by emailing and mailing documents, 10 and by calling Respondent, but was unsuccessful. See generally Dkts. #15, #17, and #18. 11 F. Telephonic Hearing and Petitioner’s Subsequent Efforts to Effect Service 12 On September 30, 2021, the Court held a telephonic hearing on Petitioner’s motion for a 13 TRO. Dkt. #20. The Court remained concerned about Petitioner’s inability to effect personal 14 service and Respondent’s lack of verifiable notice of the proceedings and the motion for TRO. 15 Accordingly, the Court deferred ruling on Petitioner’s motion for a TRO and directed Petitioner 16 to make further attempts to serve Respondent so that she could understand the seriousness of this 17 matter. Dkt. #21. Petitioner again undertook attempts to personally serve Respondent through a 18 process server2 and provided Respondent notice of the proceedings by mail, email, and phone. 19 See generally Dkt. #22. To date, Petitioner has been unsuccessful in personally serving 20 Respondent and Respondent has not appeared or taken part in these proceedings. 21 // [22] 2 The process server attempted service at Respondent’s presumed residence no fewer than eight [23] times over five days. Dkt. #24. On several instances the process server had reason to believe that there were people within the residence, but no one would answer the door and instead [24] attempted to conceal their presence. Id. 1 III. DISCUSSION 2 A. Legal Standard 3 The standard for issuing a TRO is the same as the standard for issuing a preliminary 4 injunction. See New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345 , 1347 n.2 5 (1977). A TRO is “an extraordinary remedy that may only be awarded upon a clear showing that 6 the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 , 24 7 (2008). “The proper legal standard for preliminary injunctive relief requires a party to 8 demonstrate (1) ‘that he is likely to succeed on the merits, (2) that he is likely to suffer irreparable 9 harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor, and (4) 10 that an injunction is in the public interest.’” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th 11 Cir. 2009) (citing Winter, 555 U.S. at 20 ). However, where the “balance of hardships . . . tips 12 sharply towards the plaintiff,” a plaintiff need only show “serious questions going to the merits,” 13 rather than likelihood of success on the merits, to warrant preliminary injunctive relief. All. for 14 the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (quotation marks and citation 15 omitted). In both scenarios, the moving party bears the burden of persuasion and must make a 16 clear showing that he is entitled to such relief. Winter, 555 U.S. at 22 . 17 B. Notice to Respondent 18 Where a plaintiff requests a TRO ex parte—“without written or oral notice to the adverse 19 party or its attorney”—the court may grant the TRO 20 only if specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before 21 the adverse party can be heard in opposition; and the movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be 22 required. 23 FED. R. CIV. P. 65(b)(1). Further, this Court’s local rules require that “[u]nless the requirements 24 of Fed. R. Civ. P. 65(b) for issuance without notice are satisfied, the moving party must serve all 1 motion papers on the opposing party before or contemporaneously with the filing of the motion 2 and include a certificate of service with the motion.” LOCAL RULES W.D. WASH. LCR 65(b)(1). 3 Respondent has not been formally served, but the Court nevertheless concludes that 4 Respondent has received adequate notice of this action and has chosen not to appear. See 5 generally Dkt. #22. Petitioner has obtained the address, phone numbers, and email address which 6 Respondent provided to the Edmonds School District, where the children attend school. 7 Petitioner’s process server has visited Respondent’s residence multiple times, but no one has 8 answered the door, despite indications that persons were within the residence. Petitioner has left 9 phone messages and has sent text messages, emails, and postal mail to Respondent. Petitioner 10 has contacted Respondent’s brother and has provided him notice of the proceedings. In these 11 circumstances, the Court concludes that Respondent has presumptively received notice of these 12 proceedings and has voluntarily failed to appear. 13 The Court notes that this result is consistent with various other district court decisions 14 granting ex parte motions for temporary injunctive relief in cases proceeding under the 15 Convention. See, e.g., Brooke v. Willis, 907 F. Supp. 57 (S.D.N.Y. 1995); Babcock v. Babcock, 16 Case No. 3:20-cv-66, 2020 WL 6293445 (S.D. Iowa Aug. 24, 2020); Galli v. Marques, Case No. 17 6:21-cv-358-PGB-LRH, 2021 WL 2829018 (M.D. Fla. Mar. 5, 2021). 18 C. Likelihood of Success on the Merits 19 The record before the Court also satisfies the Court that Petitioner has demonstrated a 20 likelihood of success on the merits. The Court begins by noting the purpose of the Convention, 21 which is: “a) to secure the prompt return of children wrongfully removed to or retained in any 22 Contracting State; and b) to ensure that rights of custody and of access under the law of one 23 Contracting State are effectively respected in the other Contracting States.” Convention, art. 1. [24] 1 Central to accomplishing the Convention’s purpose is determining whether a particular 2 removal or retention is wrongful: 3 The removal or the retention of a child is to be considered wrongful where— 4 a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child 5 was habitually resident immediately before the removal or retention; and 6 b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. [7] 8 Convention, art. 3. As the Ninth Circuit has noted, a court’s determination turns primarily on 9 four questions: 10 (1) When did the removal or retention at issue take place? (2) Immediately prior to the removal or retention, in which state was the child habitually resident? (3) 11 Did the removal or retention breach the rights of custody attributed to the petitioner under the law of the habitual residence? (4) Was the petitioner 12 exercising those rights at the time of the removal or retention? 13 Mozes v. Mozes, 239 F.3d 1067, 1070 (9th Cir. 2001), abrogated by Monasky v. Taglieri, 14 ___ U.S. ___, 140 S. Ct. 719 (2020). 15 On this record—consisting of Petitioner’s uncontested Petition and motion for TRO and 16 supporting documents—Petitioner appears likely to establish, by a preponderance of the 17 evidence, that he is entitled to relief under the Convention. The uncontested record demonstrates 18 that prior to removal of the children, Petitioner, Respondent, and the Family Court agreed that 19 Petitioner and Respondent would share 50-50 custody and would reside in Mexico, the children’s 20 country of habitual residence. Respondent’s uncontested assertions likewise establish that 21 Petitioner was exercising his custody rights immediately before Respondent wrongfully removed 22 the children by failing to return them to Petitioner’s custody under the terms of the Family Court’s [24] 1 order.3 Under circumstances such as these, the Convention generally commands that the Court 2 “shall order the return of the child forthwith.” Convention, art. 12. 3 Of course, there are exceptions under which the Court need not order return. See Gaudin 4 v. Remis, 415 F.3d 1028 , 1034–35 (9th Cir. 2005). While there are indications in the record that 5 certain exceptions may apply in this case, Respondent has not appeared to support or add context 6 to those indications. For example, one exception to return applies where a custodial parent “fails 7 to petition for return within one year, and ‘it is demonstrated that the child is now settled in its 8 new environment.’” Flores Castro v. Hernandez Renteria, 971 F.3d 882, 887 (9th Cir. 2020) 9 (quoting Convention, art. 12). 10 In this case there appears to be some question as to whether Petitioner filed his Petition 11 within one year of the alleged wrongful removal of the children. Compare Dkt. #1 (Petition filed 12 August 13, 2021) with Dkt. #12 at 43 and Dkt. #13 at ¶ 20 (indicating that Petitioner has not seen 13 the children since delivering them to Respondent’s custody on August 2, 2020). But the 14 exceptions to an order of return are affirmative defenses and a respondent asserting a defense 15 bears the burden of proving the defense. 22 U.S.C. § 9003 (e)(2) (setting forth defenses that must 16 be proved by respondent with “clear and convincing evidence” and those that require only a 17 “preponderance of the evidence”); Cuellar v. Joyce, 596 F.3d 505, 509 (9th Cir. 2010). In 18 Respondent’s absence, the defenses appear unlikely to be supported and therefore do not diminish 19 Petitioner’s likelihood of success. 20 // [21] 22 3 See Flores Castro v. Hernandez Renteria, 971 F.3d 882, 887 (9th Cir. 2020) (“The archetype [wrongful removal or retention] is the refusal by the noncustodial parent to return a child at the [23] end of an authorized visitation period.”) (quoting Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed. Reg. 10,494 , 10,503 (Mar. 26, 1986)) (quotation [24] marks omitted). 1 D. Irreparable Harm 2 Having determined that Petitioner is likely to succeed on the merits of this action, the 3 Court also concludes that Petitioner has established a likelihood of irreparable harm in the 4 absence of injunctive relief. Importantly, Congress has explicitly found that “[t]he international 5 abduction or wrongful retention of children is harmful to their well-being.” 22 U.S.C. 6 § 9001(a)(1). Likewise, the Ninth Circuit has noted that the Convention’s signatory states were 7 driven by a desire “‘to protect children internationally from the harmful effects of their wrongful 8 removal or retention,’ effects which are thought to follow when a child ‘is taken out of the family 9 and social environment in which its life has developed.’” Mozes, 239 F.3d at 1070 (citations 10 omitted). 11 There can be little doubt that if the children’s wrongful removal, depriving Petitioner and 12 his children of the parent-child relationship, had an immediate and harmful effect on the children, 13 the continued wrongful retention continues to harm Petitioner and the children. That this 14 continuing harm may require preliminary relief has been recognized by Congress which has 15 authorized courts to “take or cause to be taken measures under Federal or State law, as 16 appropriate, to protect the well-being of the child involved or to prevent the child’s further 17 removal or concealment before the final disposition of the petition.” 22 U.S.C. § 9004 (a). To a 18 certain extent, irreparable harm is inherent in many actions under the Convention. 19 Petitioner additionally argues that Respondent is likely to flee the jurisdiction of this 20 Court to escape the Court’s authority and argues that he will be irreparably harmed if Respondent 21 removes the children to an unknown location. While Petitioner’s allegations are somewhat 22 conclusory, in that there is no evidence indicating that Respondent is planning to imminently flee 23 the jurisdiction of this Court, Respondent has certainly demonstrated a willingness to violate 24 lawful court orders. Respondent removed the children in violation of the Family Court’s custody 1 order, has thus far refused to appear in this action, and is believed to be evading personal service. 2 Respondent’s willingness to undermine this and other legal proceedings certainly increases the 3 possibility that she may flee again to avoid legal resolution of this dispute. 4 And again, this conclusion is consistent with other district courts that have considered the 5 possibility of irreparable harm in issuing ex parte temporary restraining orders. See, e.g., 6 Application of McCullough on Behalf of McCullough, 4 F. Supp. 2d 411, 416 (W.D. Pa. 1998) 7 (“Were respondent to flee this jurisdiction with the children prior to this court accomplishing a 8 transfer of physical custody, the very purpose of the Convention and the [implementing statutes] 9 would be defeated. This, by definition, is irreparable harm.”); Morgan v. Morgan, 289 F. Supp. 10 2d 1067, 1070 (N.D. Iowa 2003) (noting that father’s inability to interact with his children and 11 the likelihood that custody and visitation rights would be further hindered in the absence of 12 injunctive relief sufficiently established likelihood of irreparable harm). The harm is similarly 13 noted by the Convention itself, as it “is designed to restore the ‘factual’ status quo which is 14 unilaterally altered when a parent abducts a child and aims to protect the legal custody rights of 15 the non-abducting parent.” Duarte v. Bardales, 526 F.3d 563 , 568–69 (9th Cir. 2008), abrogated 16 by Lozano, 572 U.S. 1 (quoting Feder v. Evans–Feder, 63 F.3d 217, 221 (3d Cir.1995)) 17 (quotation marks and citations omitted). 18 E. Balance of Equities and Public Interest 19 For the reasons set forth above, the Court also concludes that the balance of the equities 20 and the public interest support Petitioner’s request for a TRO. The record indicates that 21 Respondent wrongfully removed the children in violation of Petitioner’s custody rights and 22 interfered with the custodial and parental relationship. Conversely, the nature of the conduct to 23 be temporarily enjoined is unlikely to harm respondent. Accordingly, both the equities and the 24 public interest favor protecting Petitioner’s rights and Respondent has not argued that the 1 restrictions requested by Petitioner will constitute an undue burden upon her or the children. 2 These factors therefore support granting Petitioner his requested relief. 3 IV. CONCLUSION 4 Having considered the Petition, Petitioner’s motion for a temporary restraining order and 5 supporting documents, and the remainder of the record, and for the reasons set forth above, the 6 Court finds and ORDERS that: 7 1. Petitioner’s Motion for Ex Parte Immediate Temporary Restraining Order and Order to 8 Show Cause (Dkt. #7) is GRANTED. 9 2. Respondent Andrea Arreygue Guillen shall not remove F.R.A., A.V.R.A., and M.R.A. 10 (the “children”) from Snohomish County, Washington or from the jurisdiction of this 11 Court for any purpose or reason without 72 hours prior written approval from the Court. 12 Respondent shall immediately notify Petitioner Fermín Ramos Soberano and the Court if 13 she changes or alters her residence or the residence of the children during the pendency 14 of this action. 15 3. Respondent shall not assist or permit any third parties or persons, whether acting on her 16 direction or authority or not, from removing or assisting in removing the children from 17 Snohomish County, Washington or from the jurisdiction of the Court. Likewise, third 18 parties and persons shall not remove the children from Snohomish County, Washington 19 or from the jurisdiction of the Court. 20 4. Effective on the date that Respondent receives notice of this Order, whether by email, by 21 postal mail, or by personal service, she shall provide Petitioner daily telephone and/or 22 video chat visits with the children for a period of not less than twenty (20) minutes per 23 day. Such video chat access shall be initiated by Respondent, except that F.R.A. may [24] 1 communicate directly with Petitioner using his own cell phone. Respondent shall not 2 impose limitations on these communications. 3 5. Respondent shall deliver all passports, visas, or other travel documents held in her name 4 and/or in the name of the children (both Mexican travel documents and American travel 5 documents) to the Clerk of the Court for the United States District Court for the Western 6 District of Washington, at Seattle, within 72 hours of receiving notice of this Order. 7 6. Respondent shall post a bond of no less than $25,000.00 within 72 hours of receiving 8 notice of this Order. 9 a. Respondent shall further provide Petitioner’s attorney of record proof of the bond 10 for $25,000.00 within 72 hours of the bond being posted. 11 b. The posted bond shall serve as a deterrent to violations of this Order and the 12 proceeds of the bond may be forfeited to the Petitioner if the Court determines 13 Respondent has violated the requirements of this Order. If forfeited, the proceeds 14 of the bond will be used to assist Petitioner in remedying the violation, including 15 his reasonable attorneys’ fees and costs. 16 7. Petitioner is not required to post a bond or security for this Order due to the nature of the 17 conduct temporarily enjoined and the fact that Respondent is unlikely to suffer any costs 18 or damages in the event the Court determines that she was wrongfully restrained. 19 8. The Court hereby consolidates a hearing on the issuance of a preliminary injunction with 20 a final evidentiary hearing on the merits of the Petition (Dkt. #1). This hearing is 21 scheduled to occur on Tuesday, October 26, 2021 at 9:00 a.m. at the Seattle Courthouse 22 of the United States District Court for the Western District of Washington, 700 Stewart 23 Street, Seattle, Washington, in Courtroom 13206. [24] 1 a. Respondent shall appear before the Court at that time and place and shall show 2 cause why this Court should not convert this Order to a preliminary injunction or 3 order that the children be returned to Mexico. 4 b. Respondent shall appear before the Court at that time and place and shall present 5 all evidence tending to show that the Court should not order the children returned 6 to Mexico, including but not limited to evidence relating to the habitual residence 7 of the children, Petitioner custodial rights, Petitioner exercise of his custodial 8 rights, Respondent’s authority to remove the children from Mexico under the 9 Family Court’s order, and such other matters as may be relevant to this matter. 10 9. This Order shall remain in full force and effect for fourteen days from the date and time 11 on which it is issued unless, before that time, the Court, for good cause shown, extends 12 this Order for a like period or Respondent consents to a longer period. 13 Dated at 3:15 p.m. this 14th day of October, 2021. [14] 15 A [16] RICARDO S. MARTINEZ 17 CHIEF UNITED STATES DISTRICT JUDGE