Opinion
Case No. 4:22-cv-00183-SMR-HCA
2022-06-24
Eny Adamy Mejia RODRIGUEZ, Petitioner, v. Dennys Antonio Reyes MOLINA, Respondent.
Cara S. Donels, Thomas Merrill Patton, Fredrikson & Byron, P.A., Des Moines, IA, for Respondent.
Cara S. Donels, Thomas Merrill Patton, Fredrikson & Byron, P.A., Des Moines, IA, for Respondent.
ORDER ENTERING PRELIMINARY INJUNCTION
STEPHANIE M. ROSE, CHIEF JUDGE
I. BACKGROUND
Petitioner Eny Adamy Mejia Rodriguez filed a Petition pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (the "Convention") and the International Child Abduction Remedies Act ("ICARA"). [ECF No. 1]. In the Complaint, Petitioner alleges Respondent unlawfully took their child from Honduras to the United States. Id. The Court construed Petitioner's request as a Temporary Restraining Order ("TRO") under Federal Rule of Civil Procedure 65(b). Id. The requested order would, among other things, prohibit Respondent Dennys Antonio Reyes Molina from removing the child from the jurisdiction. Id. The Court granted the order. [ECF No. 9].
The child refers to the individual whose identifying information is contained in sealed documents. [ECF Nos. 5–8 (Sealed)].
After granting the order, the Court set an expedited hearing to determine whether to convert the TRO into a preliminary injunction. [ECF No. 9]. At the hearing, Petitioner and Respondent – both represented by counsel – stipulated to extending the order until a final determination could occur. [ECF No. 12]. In so doing, parties agreed that the circumstances supporting the issuance of the TRO remained. Id. Finally, parties agreed that the preliminary injunction hearing would not be consolidated with a merits trial under Fed. R. Civ. P. 65(a)(2). Id. Given the parties’ agreement, as well as the Court's review of the requirements of Federal Rule of Civil Procedure 65, the preliminary injunction is GRANTED.
II. GOVERNING LAW
The United States of America is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction ("the Convention"). The Convention's goals are twofold: 1) "to secure the prompt return of children wrongfully removed to or retained in any Contracting State" and 2) "to ensure that rights of custody and of access under the law of one Contracting state are effectively respected in the other Contracting States." Hague Convention on the Civil Aspects of International Child Abduction, art. 1(a),(b), Oct. 24, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89 ("The Convention."). The Senate considered and unanimously ratified the Convention in October 1986. S. Treaty Doc. No. 99-11. Shortly afterwards, the International Child Abduction Remedies Act ("ICARA") was enacted to carry out the treaty domestically. See 22 U.S.C. § 9001 – 9010.
Although the Convention and ICARA created a detailed framework to address potential child abductions, a petitioner seeking a temporary restraining order or preliminary injunction must still comply with the requirements of Federal Rule of Civil Procedure 65. See Morgan v. Morgan , 289 F. Supp. 2d 1067, 1069 (N.D. Iowa 2003) ; Babcock v. Babcock , 3:20-cv-00066-RWP, 2020 WL 6293445, at *2 (S.D. Iowa Aug. 24, 2020) ; McIntyre v. Smith , Case No. 21-cv-2182 (WMW/LIB), 2021 WL 5167280, at *1 (D. Minn. Oct. 7, 2021). For district courts sitting within the United States Court of Appeals for the Eighth Circuit, they must consider the following four factors before granting a preliminary injunction or temporary restraining order: "(1) the threat of irreparable harm to the movant; (2) the state of the balance between this harm and the injury that granting the injunction will inflict on other [ ] litigant[s]; (3) the probability that movant will succeed on the merits; and (4) the public interest." Dataphase Sys., Inc. v. C L Sys., Inc. , 640 F.2d 109, 113 (8th Cir. 1981). "No single factor in itself is dispositive; in each case all of the factors must be considered to determine whether on balance they weigh towards granting the injunction." Baker Elec. Coop., Inc. v. Chaske , 28 F.3d 1466, 1472 (8th Cir. 1994) (quoting Calvin Klein Cosmetics Corp. v. Lenox Labs., Inc. , 815 F.2d 500, 503 (8th Cir. 1987) ); see also D.M. by Bao Xiong v. Minn. State High Sch. League , 917 F.3d 994, 999 (8th Cir. 2019) (citation omitted).
Each of these four factors weighs in favor of converting the temporary restraining order into a preliminary injunction. Accordingly, the Court GRANTS the preliminary injunction.
III. ANALYSIS
A. Irreparable Harm
The first factor requires a moving party to show they will suffer an irreparable harm if the preliminary injunction is not granted. Gen. Motors Corp. v. Harry Brown's, LLC , 563 F.3d 312, 318–19 (8th Cir. 2009) (citing Dataphase , 640 F.2d at 113 ). "A party must show that the harm is certain and great and of such imminence that there is a clear and present need for equitable relief." Iowa Utilities Bd. v. F.C.C. , 109 F.3d 418, 425 (8th Cir. 1996) (citing Packard Elevator v. I.C.C. , 782 F.2d 112, 115 (8th Cir. 1986) ). Likewise, there must be no alternative besides granting the preliminary injunction that would redress the harm. Watkins Inc. v. Lewis , 346 F.3d 841, 846–47 (8th Cir. 2003) (affirming the district court's denial of a preliminary injunction because adequate relief was available to Plaintiffs in the form of money damages). An unreasonable delay in seeking injunctive relief often precludes a finding of irreparable harm in the case. See Adventist Health Sys./Sunbelt, Inc. v. United States Dep't of Health and Hum. Servs. , Case No. 3:20-cv-00101-SMR-SBJ, 2021 WL 973455, at *7 (S.D. Iowa Mar. 12, 2021) (citing Benisek v. Lamone , ––– U.S. ––––, 138 S. Ct. 1942, 1944, 201 L.Ed.2d 398 (2018) ).
The petition and supporting record demonstrate that Petitioner will suffer irreparable harm in the absence of a preliminary injunction. Specifically, the Complaint asserts Respondent brought the child from Honduras to the United States without requesting or receiving Petitioner's permission to do so. [ECF No. 1 at 3]. This action deprived her of the ability to care for the child, who allegedly resided with her full-time in Honduras. Id. Petitioner made several attempts to secure the return of the child, both by herself and through the Honduran and the United States governments. [ECF Nos. 5 (Sealed); 8 (Sealed)]. These requests were not fulfilled.
Petitioner lacks the ability to see the child after Respondent and the child arrived in the United States. At the beginning of the dispute, she alleges that she was limited to sending messages to the child through Facebook Messenger for a two-hour period each day, as well as only brief phone or video calls. [ECF No. 1 at 3]. Later in the dispute, but before filing the Complaint, Petitioner asserts Respondent and Respondent's significant other blocked her on Facebook, which prevented any communication with the child. [ECF No. 1-8 at 2–3]. More recently, she has had minimal phone calls and no in-person visits with the child. [ECF No. 1 at 3].
The denial of a parent's lawful right to connect with and visit a child constitutes irreparable harm under Federal Rule of Civil Procedure 65(b)(1)(A), particularly in an ICARA case. Morgan , 289 F. Supp. 2d at 1070. The record demonstrates Petitioner has almost completely been denied access to the child, which means she will suffer irreparable injury in the absence of an injunction maintaining this Court's jurisdiction over the Respondent and child pending expeditious resolution of this matter. Accordingly, this element has been met.
B. Balance of Equities
"A court should flexibly weigh the case's particular circumstances to determine whether the balance of equities so favors the movant that justice requires the court to intervene ... until the merits are determined." United Indus. Corp. v. Clorox Co. , 140 F.3d 1175, 1179 (8th Cir. 1998) (quoting Calvin Klein , 815 F.2d at 503.). "In balancing the equities, we weigh ‘the threat of irreparable harm’ shown by the movant against ‘the injury that granting the injunction will inflict on other parties.’ " MPAY Inc. v. Erie Custom Comput. Applications, Inc. , 970 F.3d 1010, 1020 (8th Cir. 2020) (quoting Dataphase Sys. , 640 F.2d at 113 ). This balancing test requires a court to distinguish between "weak or illusory injur[ies]" and "very real threats" of injuries. Sak v. City of Aurelia, Iowa , 832 F. Supp. 2d 1026, 1046 (N.D. Iowa 2011).
As discussed, Petitioner has produced evidence suggesting she suffered and will continue to suffer irreparable injury without a preliminary injunction. Conversely, the injunction constitutes a minimal intrusion on Respondent because it would not mandate he move the child from her current location, it would not require the return of the child to Honduras, and it is not a final determination on the merits. The injunction maintains the status quo until an expeditious final determination, required under the Convention, is issued. Accordingly, this element also supports granting the preliminary injunction.
C. Likelihood of Success on the Merits
"Success on the merits has been referred to as the most important of the four factors." Roudachevski v. All-Am. Care Ctrs., Inc. , 648 F.3d 701, 706 (8th Cir. 2011). The factor requires a court to consider whether a party has "a substantial likelihood of success on the merits." Planned Parenthood Minn., N.D., S.D. v. Rounds , 530 F.3d 724, 731 (8th Cir. 2008) (quoting Richenberg v. Perry , 73 F.3d 172, 172–73 (8th Cir. 1995) ). "[T]he moving party need not demonstrate a mathematical probability of success, such as greater than 50 percent." Yankton Sioux Tribe v. Kempthorne , 442 F. Supp. 2d 774, 782 (D. S.D. 2006) (quoting Heartland Acad. Cmty. Church v. Waddle , 335 F.3d 684 (8th Cir. 2003) ). The moving party "must simply show a ‘fair chance of prevailing.’ " Jet Midwest Int'l Co., Ltd. v. Jet Midwest Grp. , LLC, 953 F.3d 1041, 1045 (8th Cir. 2020) (quoting Planned Parenthood Minn., N.D., S.D. , 530 F.3d at 732 ). More importantly, a court need not decide whether the party "will ultimately win." PCTV Gold, Inc. v. SpeedNet, LLC. , 508 F.3d 1137, 1143–44 (8th Cir. 2007) (citing Glenwood Bridge, Inc. v. City of Minneapolis , 940 F.2d 367, 371 (8th Cir. 1991) ).
The relevant laws created a four-part merits test. First, a court must address whether the countries in the dispute, i.e., the country where the child was allegedly removed and the country to which the child was brought, are signatories of the Convention. Abbott v. Abbott , 560 U.S. 1, 9, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010). Second, a court must determine the child's habitual residence – better understood as a child's home at the time of abduction – to identify the applicable law. Monasky v. Taglieri , ––– U.S. ––––, 140 S. Ct. 719, 726, 206 L.Ed.2d 9 (2020) (citing Hague Convention on the Civil Aspects of International Child Abduction, art. 3(a)). Third, a court asks whether the person who took the child violated "the right of custody" of the remaining parent under the habitual country's law. Chafin v. Chafin , 568 U.S. 165, 168, 133 S.Ct. 1017, 185 L.Ed.2d 1 (2013) (citation omitted). If the answer is yes, a court must order the return of the child to the habitual country unless an exception is proven by respondent. Hague Convention on the Civil Aspects of International Child Abduction, arts. 12–13; see also 22 U.S.C. § 9003. A merits analysis must avoid addressing the underlying custody dispute between the parties and "determine only rights under the Convention." 22 U.S.C. § 9001(b)(4).
For the reasons below, Petitioner has shown a fair chance of success on the merits in this case, which means this factor weighs in favor of granting the preliminary injunction.
i. Signatories of the Convention
The first step is to determine whether the countries involved in the dispute are signatories to the Convention. Abbott , 560 U.S. at 9, 130 S.Ct. 1983. The official list of signatories to the Convention can be found in the relevant status table. Monasky , 140 S. Ct. at 723 (citing Hague Convention on the Civil Aspects of International Child Abduction, Status Table). Petitioner's documents suggest that the relevant countries are Honduras and the United States of America. [ECF Nos. 1; 1-4; 1-5]. Honduras and the United States are both signatories of the Convention. Hague Convention on the Civil Aspects of International Child Abduction, Status Table. Thus, Petitioner is likely to succeed in showing the relevant countries are signatories of the Convention.
ii. Habitual Residence
"[T]he Convention's ‘core premise’ [is] that ‘the interests of children in matters relating to their custody’ are best served when custody decisions are made in the child's country of ‘habitual residence.’ " Monasky , 140 S. Ct. at 723 (quotation omitted). "[T]he Hague Convention does not define the term ‘habitual residence,’ " but it is best understood to be where the child resides. Id. at 726. The determination of habitual residence is a "fact-driven inquiry" that mandates a court consider significantly more information than "domicile and nationality." Id. at 727. The relevant factors include the place the child considers home, the length of time a child has resided in a location, the degree of the child's integration into the environment, and the intention of the caregivers on where the family will reside. Id. at 726–27. However, no factor is singularly dispositive. Id. at 728.
Petitioner submitted evidence to raise a fair probability that the child's habitual residence is Honduras. She submitted the child's birth certificate from the National Registry of Honduras, which demonstrates she is the biological mother of a Honduran child. [ECF No. 1-5 (Sealed)]. She maintains the child continuously resided with her in Santa Cruz de Yojoa from birth until October 2021, when the incident occurred. [ECF No. 1 at 3]. To support a finding that Honduras is the child's habitual residence, Petitioner acquired and then submitted letters from community members suggesting the child is thoroughly integrated into Santa Cruz de Yojoa. [ECF No. 1-6]. Notably, one letter is from the child's second-grade teacher, Nora Josely Mejia Saenz, who states Petitioner was responsible for the education of the child. Id. at 3. Another letter is from a neighbor, who discusses the everyday interactions she observed between Petitioner and the child. Id. at 7. Petitioner has shown a fair likelihood of demonstrating the child's habitual residence is Honduras.
Petitioner only needs to establish this element by "a preponderance of the evidence." 22 U.S.C. § 9003(e)(1)(A).
The Convention significantly relaxes the traditional evidentiary requirements. It states, "[a]ny application submitted to the Central Authorities or directly to the judicial or administrative authorities ... together with documents and any other information appended thereto ... shall be admissible in the courts or administrative authorities." Hague Convention on the Civil Aspects of International Child Abduction, art. 30. Likewise, ICARA waives the authentication requirement in the Federal Rules of Evidence by stating, "[w]ith respect to ... any petition to a court under section 9003 of this title ... or any other documents or information included with such application or petition or provided after such submission which relates to the application ... no authentication of such application, petition, document, or information shall be required in order for [them] to be admissible in court." 22 U.S.C. § 9005. These rules are generous "to guarantee that children are returned quickly to the correct jurisdiction" without waiting for time consuming authentication to occur. Norinder v. Fuentes , 657 F.3d 526, 533 (7th Cir. 2011) (citing 22 U.S.C. § 9005 ).
iii. Breach of Right of Custody
"The removal or the retention of a child is to be considered wrongful where ... it is in breach of rights of custody attributed to a person ... under the law of the State in which the child was habitually resident immediately before the removal or retention." Hague Convention on the Civil Aspects of International Child Abduction, art. 3(a). "The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial administrative decision, or by reason of any agreement having legal effect under the law of that State." Id. "Right of custody shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence." Hague Convention on the Civil Aspects of International Child Abduction, art. 5(a).
Petitioner plainly has rights of custody over the child. [ECF No. 1]. First, she submitted the birth certificate of the child, which demonstrates she is the biological mother. [ECF No. 1-5]. Second, she filed the "La Solicitud de Restitucion Internacional" or "International Restitution Request" she submitted to the Honduran government to secure the return of the child, i.e. , an exercise of her rights of custody. [ECF No. 1-7]. Third, she provided the official letter that the United States Department of State drafted and mailed to Respondent requesting the child be returned to Honduras by January 4, 2022. [ECF No. 1-4 (Sealed)]. These documents, when taken together, create a presumption Petitioner is the mother of Nami Yoshimi Reyes Mejia who has authority to determine where the child resides.
Under Honduran law, parental rights are a "set of rights and duties that parties have with respect to the person and property of their children." [ECF No. 1-9 at 4 (citing Honduras Family Code, art. 185)]. These include "the right to legally represent the minor, to exercise guardianship and care of the minor, to feed, assist, educate, and administer his or her property." Id. (citing Honduras Family Code, art. 186). Parental rights presumptively apply to both biological parents absent a court order to the contrary. Honduras Family Code, art. 187.
Presuming Respondent took the child out for ice cream in October 2021 and did not return, Petitioner would not been able to care for or see her child since this date. [ECF No. 1 at 3]. She would not and has not been able to physically visit the child, as well as provide care and comfort, since that time. The Honduran Family Code guarantees the rights of parents to care and provide for their children. Petitioner has raised a fair likelihood that Respondent's conduct infringed upon her rights of custody under Honduran law.
iv. Exception to Return Requirement
There are four exceptions to the requirement that a child must promptly be returned to the child's country of habitual residence when the child has been wrongfully removed or retained. Hague Convention on the Civil Aspects of International Child Abduction, arts. 12–13; see also 22 U.S.C. § 9003. First, a judicial authority "is not bound to order the return of the child if ... there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." Id. at art. 13(b). Second, a court is not required to order return if more than a year has elapsed between the abduction and initiation of the proceeding and the child is "now settled in its new environment." Id. at art. 12. Third, the judicial authority "may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views." Id. at art. 13. Finally, the reviewing body may decline to return the child if the custodial parent was not using their custodial authority at the time. Id. at art. 13(a).
These four exceptions are affirmative defenses, which means they must be proven by the individual opposing the return of the child. 22 U.S.C. § 9003(e). If the individual opposes the return of a child to the country of habitual residence based on Articles 12, 13, or 13(a), they must prove their defense "by a preponderance of the evidence." 22 U.S.C. § 9003(e)(2)(B). If the individual opposes return on the ground found in Article 13(b), i.e., grave risk, they must prove the defense by "clear and convincing evidence." 22 U.S.C. § 9003(e)(2)(A).
The record does not contain documents or evidence to suggest any of the four exceptions listed in the Convention apply to this case. Given that the burden of proving the application of one of these four defenses falls on Respondent, Petitioner has a fair likelihood of demonstrating none of the exceptions should apply.
v. Conclusion
Petitioner has shown a fair chance of success on the merits in this case, which means this factor supports granting the injunction. The analysis of Petitioner's likelihood of success on the merits for the purposes of a preliminary injunction is not a final determination on the merits.
D. Public Interest
The last factor requires a court to consider whether "an injunction is in the public interest." Scott v. Benson , 863 F. Supp. 2d 836, 844 (N.D. Iowa 2012) (citing Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) ). This analysis requires balancing the specific public interests that might be harmed and what public interests might be served. Sierra Club v. U.S. Army Corps of Eng'rs , 645 F.3d 978, 997 (8th Cir. 2011). When the public benefits of granting the injunction outweigh the specific harms, this factor is appropriately weighed in favor of the party seeking a preliminary injunction. All. for the Wild Rockies v. Cottrell , 632 F.3d 1127, 1138 (9th Cir. 2011) ("Courts will not grant a preliminary injunction, however, unless those public interests outweigh other public interests that cut in favor of not issuing the injunction.").
The public interests favor issuing the preliminary injunction in this case. Congress made several findings on the public interests at stake in cases such as these ones. 22 U.S.C. § 9001(a). Specifically, it noted, "[t]he international abduction or wrongful retention of children is harmful to their well-being" and individuals "should not be able to obtain custody of children by virtue of their wrongful removal." 22 U.S.C. § 9001(a)(1-2). While addressing this issue is difficult, it is important enough that Congress implemented a complex framework of international and domestic law to achieve its goal. 22 U.S.C. § 9001(a)(3–4). Simply put, there are many compelling interests – specifically "resolv[ing] the problem of international abduction" and ensuring custody disputes are resolved by the relevant country – furthered by the injunction. 22 U.S.C. § 9001(a)(3), (b)(4).
IV. CONCLUSION
In light of the parties’ agreement and its analysis, the Court orders the following:
1) Respondent Dennys Antonio Reyes Molina, and any person acting in concert with Respondent, is prohibited from removing, or taking actions to remove, the child, from the jurisdiction until the final resolution of this case. Any individual seeking to remove the child from the jurisdiction must file an appropriate motion in this Court and receive permission before doing so.
2) No agency – either federal, state, or local – may remove, or take actions to remove, the child from the jurisdiction pending resolution of this matter on the merits. An agency seeking to remove the child from the jurisdiction must file an appropriate motion in this Court and receive permission.
3) Respondent must allow and facilitate, at a minimum, daily phone calls of thirty (30) minutes between the Petitioner and the Child, which must not be monitored or recorded.
4) Respondent must allow daily text messaging between Petitioner and the child between the hours of 6pm Central Time and 8pm Central Time.
5) The name of the child shall be entered into the National Crime Information Center's (N.C.I.C.) missing person's section pursuant to 34 U.S.C. § 41307.
6) Petitioner need not submit the security deposit typically required under Federal Rule of Civil Procedure 65(c). The Convention prohibits any judicial officer from requiring a "security, bond, or deposit ... to guarantee the payment of costs and expenses." See Hague Convention on the Civil Aspects of International Child Abduction, art. 22.
7) The order may be enforced by any United States Marshal, federal police officer, state police officer, local police officer, or equivalent official.
IT IS SO ORDERED.