Olga Maria MERO, Petitioner,
v.
Eloy Roberto PRIETO, Respondent.
No. 07CV2662 JFB/WDW.
United States District Court, E.D. New York.
June 6, 2008.ORDER ADOPTING REPORT AND RECOMMENDATION
JOSEPH F. BIANCO, District Judge.
On July 2, 2007, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (the "Hague Convention"), as implemented by the International Child Abduction Remedies Act, 42 U.S.C. §§ 11601 et seq., petitioner Olga Maria Mero ("petitioner" or "Mero") petitioned the Court to order the return of Mero's minor biological daughter to Ecuador, where petitioner holds citizenship and currently resides (the "petition"). Mero's daughter, Jennifer, is eight years old and an American citizen. Aside from approximately six months in 2005, when she lived with petitioner in Ecuador, Jennifer has always lived in the United States. She presently resides in New York with her biological father, respondent Eloy Roberto Prieto ("respondent" or "Prieto"), petitioner's husband and a permanent resident of the United States.
On July 13, 2007, pursuant to Rule 72 of the Federal Rules of Civil Procedure, the Court referred the petition to Magistrate Judge William D. Wall for an evidentiary hearing and Report and Recommendation. On March 6, 2008, after holding a two-day hearing that included testimony both from petitioner and respondent, Magistrate Judge Wall issued a thorough and well-reasoned Report and Recommendation recommending that the Court deny the petition (the "R & R"). On March 25, 2008, Mero submitted her objections to the R & R (the "R & R objections"). The R & R objections focused on the credibility of the witnesses that testified before Magistrate Judge Wall and, in particular, argued that Magistrate Judge Wall failed to consider Prieto's purported lack of credibility.[1] Although "the Second Circuit has ... held that [a] district judge reviewing the credibility determinations of a magistrate may defer to the judgement of the magistrate because of the magistrate's superior ability as the primary factfinder to observe witnesses and their demeanor," Spinner v. City of New York, No. CV-01-2715, 2003 U.S. Dist. LEXIS 14854, at *28 (E.D.N.Y. Aug. 27, 2003) (collecting cases), the Court, in its discretion and in an abundance of caution held an additional hearing on April 28, 2008 at which both petitioner and respondent, as well as an additional witness for petitioner, again provided testimony (the "April hearing"). For the reasons set forth below, after this additional evidentiary hearing, and after carefully reviewing de novo all portions of the R & R to which Mero specifically objected and the rest for clear error, the Court adopts the factual and legal findings of the R & R (with the exceptions noted herein) and agrees with and adopts Magistrate Judge Wall's overall recommendation that petitioner has failed to meet her burden of proof under the Hague Convention. Accordingly, the petition is denied.
I. FACTS
Unless otherwise noted, the facts set forth below are undisputed. The Court notes that Magistrate Judge Wall set forth a detailed description of the facts relevant to the petition in the R & R, with which the Court assumes the parties' familiarity.
A. Background
Mero and Prieto met in 1997 in Ecuador and were married there in 1998. (Transcript of April hearing ("Apr. T.")7.) Initially, Prieto lived in the United States and visited Mero two or three times per year. (Apr. T.8.)
Petitioner visited the United States for the first time in June 1998 in order to take her sick son of whom respondent was not the biological father to a hospital in Miami. (Apr. T.8.) Mero's son died after he and petitioner returned to Ecuador. (Apr. T.9.)
In June 1999, petitioner entered the United States through Mexico in order to live with respondent in New York. (Apr. T.10.) Petitioner gave birth to Jennifer in the United States on April 19, 2000. (Apr. T.11.) Respondent is Jennifer's biological father. (Apr. T.66.)
B. October 2004 Trip to Ecuador
In October 2004, Mero learned that she had obtained an appointment at the American Consulate in Ecuador (the "Consulate") for the purpose of receiving documentation that would enable her to reside legally in the United States. (Apr. T.14.) Along with her son, Carlos who is not respondent's biological child petitioner brought Jennifer from the United States to Ecuador for the appointment (the "October 2004 trip"). (Apr. T.15.)
Prieto purchased the airplane tickets for the October 2004 trip for petitioner and her children, including Jennifer. (Apr. T.15.) He purchased one-way tickets for Mero and her son, Carlos. Petitioner purchased a round-trip ticket for Jennifer. (Apr. T.15.) Jennifer's ticket indicated that she was going to return to the United States in November. (Apr. T.17.) However, Jennifer did not return at that time and the ticket expired. (Apr. T.17.)
Mero had an appointment at the Consulate on November 22, 2004, at which she was told to obtain additional paperwork. (Apr. T.17.) She had a second appointment on March 29, 2005, at which she was informed that she could not apply for legal residence in the United States for ten years. (Apr. T.21.)
C. April 2005 Trip to United States
After petitioner's second appointment at the Consulate, Mero agreed that Jennifer could travel to her father in New York. (Apr. T.23.) Specifically, on April 15, 2005, Mero executed papers, in accordance with Ecuadorian law, authorizing Jennifer to fly to the United States with her cousin. (See Petitioner's Exh. K.) An English translation of the authorization states: "She expressly authorizes her daughter the minor JENNIFER ELIANA PRIETO MERO, of United States nationality, to leave Ecuadorian territory and travel on Thursday the twenty-first of April of this year to New York City, accompanied by her cousin... to be reunited with her father ELOY ROBERTO PRIETO GUERRERO, a resident of the United States." (Id.) The authorization did not define the length of the trip. (Id.)
Prieto purchased Jennifer a round-trip plane ticket for the purpose of this trip. (Apr. T.23.) Jennifer traveled to the United States from Ecuador on April 21, 2005 (the "April 2005 trip") and, to date, has not returned to Ecuador. (Apr. T.24.)
The parties' central factual dispute relates to the April 2005 trip. Specifically, according to Mero, she and Prieto had agreed that the April 2005 trip was merely a vacation for Jennifer, after which she would return to live with petitioner in Ecuador. According to Prieto, he and Mero had agreed that the April 2005 trip was not a vacation, but took place for the purpose of continuing Jennifer's permanent residence in New York.
II. PROCEDURAL HISTORY
Mero filed the instant petition on July 2, 2007, and the Court held a conference that day. At that conference, in addition to ordering Prieto to surrender all of Jennifer's travel documents and other forms of identification to the Court, the Court ordered respondent not to remove Jennifer from the Court's jurisdiction during the pendency of the action. Further, as stated supra, the Court referred the petition to Magistrate Judge Wall on July 13, 2007 for a Report and Recommendation. On August 6, 2007, Prieto filed his response to the petition. Magistrate Judge Wall held his hearing on October 25, 2007 and October 29, 2007 (the "October hearing"). On November 16, 2007 and November 29, 2007, respectively, petitioner and respondent submitted post-trial memoranda to Magistrate Judge Wall, who issued the R & R on March 6, 2008.[2] On March 25, 2008, Mero submitted the R & R objections. After reviewing these objections and conducting a telephone conference with the parties on April J, 2008, the Court held the April hearing,[3] at the close of which the Court afforded both parties the opportunity to make additional written submissions. Mero made such an additional submission by letter dated May 7, 2008, as did Prieto by letter dated May 19, 2008.
In conjunction with this Order Adopting Report and Recommendation, the Court has considered all of the written submissions the parties made both to the Court and to Magistrate Judge Wall. Further, in addition to conducting the April hearing, the Court has carefully reviewed the transcript of the October hearing and has taken the testimony provided at that hearing into account as well.
III. STANDARD OF REVIEW
A district judge may accept, reject, or modify, in whole or in part, the findings and recommendations of the Magistrate Judge. See DeLuca v. Lord, 858 F. Supp. 1330, 1345 (S.D.N.Y.1994); Walker v. Hood, 679 F. Supp. 372, 374 (S.D.N.Y. 1988). As to those portions of a report to which no "specific, written objection" is made, the Court may accept the findings contained therein, as long as the factual and legal bases supporting the findings are not clearly erroneous. See Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140, 149, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); Greene v. WCI Holdings Corp., 956 F. Supp. 509, 513 (S.D.N.Y.1997). As to those portions of a report to which specific written objections are made, the Court reviews such findings de novo. See Fed. R.Civ.P. 72(b); Hynes v. Squillace, 143 F.3d 653, 656 (2d Cir.1998); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir.1997). Thus, as stated supra and as set forth below, the Court has reviewed all portions of the R & R to which Mero specifically objected de novo and the remainder of the R & R for clear error.
IV. THE LAW OF HABITUAL RESIDENCE
In Gitter v. Gitter, the Second Circuit set forth the requirements of a petition brought pursuant to the Hague Convention. Specifically, the Second Circuit held:
In order to prevail on a claim under the Hague Convention a petitioner must show that (1) the child was habitually resident in one State and has been removed to or retained in a different State; (2) the removal or retention was in breach of the petitioner's custody rights under the law of the State of habitual residence; and (3) the petitioner was exercising those rights at the time of the removal or retention. The petitioner must establish these requirements by a preponderance of the evidence.
396 F.3d 124, 130-31 (2d Cir.2005). The Second Circuit also clarified the concept of "habitual residence":
[W]e conclude that in determining a child's habitual residence, a court should apply the following standard: First, the court should inquire into the shared intent of those entitled to fix the child's residence (usually the parents) at the latest time that their intent was shared. In making this determination the court should look, as always in determining intent, at actions as well as declarations. Normally the shared intent of the parents should control the habitual residence of the child. Second, the court should inquire whether the evidence unequivocally points to the conclusion that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents' shared intent.
Id. at 134.
Further, the Second Circuit has confirmed that the "parties' shared intent is `a question of fact to which [it] defer[s] to the district court." Daunis v. Daunis, 222 Fed.Appx. 32, at 34 (2d Cir.2007) (quoting Gitter, 396 F.3d at 132) ("reviewing] a district court's credibility determination regarding the parent's testimony about their shared intent for clear error" and affirming district court's dismissal of Hague Convention petition). In particular, courts considering petitions under the Hague Convention have noted that
[t]he inquiry into a child's habitual residence is a fact-intensive determination that cannot be reduced to a predetermined formula and necessarily varies with the circumstances of each case. This is especially true in cases ... where the petitioning parent initially agreed to allow the child to stay abroad for an indefinite duration, but subsequently had second thoughts about that decision. These cases ... generally have no clear answer and are very fact-dependent.
Karkkainen v. Kovalchuk, 445 F.3d 280, 291 (3d Cir.2006) (citations omitted); see also Yang-Yi v. Tsui 499 F.3d 259, 271 (3d Cir.2007) ("A case such as this, where the petitioning parent had consented to let the child stay abroad for an undetermined period of time, is especially fact-intensive.") (citing Mozes v. Mozes, 239 F.3d 1067, 1077-78 (9th Cir.2001)).
V. THE R & R
In the R & R, Magistrate Judge Wall applied the Gitter standard to the question of Jennifer's habitual residence prior to the April 2005 trip. Specifically, Magistrate Judge Wall held:
The court finds it likely, based on the testimony of the parents and the other evidence, that Mero and Prieto had no fixed intention as to what they would do if Mero could not obtain papers, that the last shared intention as to Jennifer's habitual residence was that it would be New York, and that Mero fully intended to return to New York with Jennifer once her immigration issues were resolved. When, in late March 2005, those plans were no longer viable, Mero argues that their new shared intention was that Jennifer should become habitually resident in Ecuador, but the court finds insufficient support for that position....
The court cannot, on the conflicting testimony and the contradictory evidence, determine that Mero and Prieto, after the denial of Mero's visa in March 2005, intended that Jennifer's new habitual residence would be Ecuador, and Mero has not established that intent by a preponderance of the evidence.
(R & R at 6-7) (citations omitted) (emphasis in original).[4]
All of Mero's objections to the R & R relate to this holding regarding the parties' last shared intent. (See R & R objections at 3.) Thus, the Court has reviewed the question of intent de novo. As set forth below, after carefully conducting this de novo review, the Court concurs with Magistrate Judge Wall's primary factual conclusion. Specifically, the Court agrees that Mero failed to meet the first prong of the test in Gitter because she did not prove by a preponderance of the evidence that Mero's and Prieto's last shared intent was that Jennifer would reside permanently in Ecuador. Thus, as the Court also sets forth below, the Court rejects each of the R & R objections.[5]
VI. THE PARTIES' SHARED INTENT
A. Mero's and Prieto's Shared Intent at the Time of the October 2004 Trip
As set forth below, the testimonial and documentary evidence in this case demonstrates that Mero and Prieto fully expected, at the time of the October 2004 trip, that petitioner would receive permission from the Consulate to return to the United States with Jennifer. At the same time, the record fails to indicate that Jennifer's parents had made plans regarding Jennifer's residence should Mero be unable to return to the United States. The Court therefore agrees with Magistrate Judge Wall that Mero's and Prieto's shared intention at the time of the October 2004 trip was simply that Mero would return with Jennifer to reside in the United States.[6]
(1) Testimonial Evidence
a. Prieto's Testimony
At the April hearing, Prieto explained that at the time of the October 2004 trip, he and Mero expected and intended that petitioner would succeed at the Consulate and return to live in the United States with Jennifer. In particular, respondent testified:
Q: Did you at any time alone, or together with Ms. Mero, decide that Jennifer would remain with Ms. Mero regardless of whether or not she got her visa, her immigration papers that would allow her to live in the United States?
A: No. At no time did we have that conversation. Because for example, before she went to Ecuador, we talked at home that we would always live here. Because we always agreed that this was a country where you had the possibilities and the comforts. And this was a place where you could offer your daughter everything. And that is why she also decided that she would send her daughter here.
(Apr. T.92.)[7] In sum, Prieto testified that he and Mero "[a]t no time" contemplated options for Jennifer's residence other than the plan they "always" had for the family to reside together in the United States should petitioner fail at the Consulate.
b. Mero's Testimony
Moreover, at the October hearing, Mero personally corroborated Prieto's testimony. Specifically, during petitioner's cross-examination by respondent's counsel, the following colloquy took place:
Q: In October of 2004 when you traveled to Ecuador with Jennifer, that was for the purpose of obtaining your green card, obtaining a permanent residence status, as you earlier testified; is that correct?
A: Yes.
Q: And your intention at that time was to return to New York; is that correct?
A: Yes.
Q: In fact, you expected that you would be able to return to New York at that time; is that correct?
A: I thought I was going to do it, but I did not return.
Q: But at that time you believed you would return?
A: Yes.
Q: And it was your attention [sic] to return together with Jennifer?
A: Yes.
Q: And it was your intention to return together with Jennifer until you learned that your visa request had been denied; is that correct?
A: Yes.
(Transcript of October hearing ("Oct. T.")98-99.) Mero's testimony is, therefore, wholly consistent with Prieto's assertion that he and petitioner expected Mero to return with Jennifer to the United States.[8]
(2) Additional Facts
Various facts adduced from the testimonial and documentary evidence also demonstrate that Mero and Prieto expected that petitioner and Jennifer would to return to the United States after their trip to Ecuador. For instance, on October 22, 2004 immediately prior to the October 2004 trip Mero brought Jennifer to the pediatrician. The doctor's notes from that visit state: "Here for shots, she will be leaving tomorrow to Ecuador. To get mom green card, she will be staying 2 month." (Trial Exh. Y.) In addition, as Mero admitted at the April hearing, petitioner and respondent had "just bought" a home in New York prior to the October 2004 trip. (Apr. T.59.) Finally, Jennifer left many of her possessions behind in New York and brought only some clothes, two dolls, and a suitcase with her to Ecuador. (Apr. T.16.) In the context of the record overall, these facts support Prieto's testimony that both he and Mero intended petitioner and Jennifer to return to the United States. On the other hand, in the course of its de novo review, the Court has found no persuasive evidence tending to demonstrate that Mero or Prieto anticipated that the October 2004 trip could lead to Jennifer's permanent residence in Ecuador.
In sum, in light of Mero's own testimony at the October hearing and these additional facts, in the context of the overall record, the Court agrees with Magistrate Judge Wall that Mero and Prieto both expected petitioner to return to the United States with Jennifer at the time of the October 2004 trip, and that the parents did not form a shared intent regarding Jennifer's residence if Mero failed at the Consulate.
B. Mero's and Prieto's Shared Intent at the Time of the April 2005 Trip
Moreover, the Court agrees with Magistrate Judge Wall that Mero failed to prove by a preponderance of the evidence that by the time of the April 2005 trip, both she and Prieto intended Jennifer to reside in Ecuador. However, the Court further concludes that, at the time of the April 2005 trip, Mero and Prieto continued to share the intention that Jennifer reside in the United States.[9] The Court arrived at this conclusion after personally observing the testimony both of Mero and Prieto, and carefully reviewing the record de novo in order to determine whether either party's testimony was corroborated by the evidence. After conducting this review, and as set forth below, the Court found that the record failed to corroborate petitioner's testimony, but wholly corroborated that of respondent.
(1) The Question of Deception
As a threshold matter, the Court rejects all of Mero's arguments in the R & R based on Prieto's purported "deception" of Mero with respect to purpose of the April 2005 trip. Essentially, Mero argues that Prieto deceived her into believing that the April 2005 trip was merely a vacation, and claims that Magistrate Judge Wall found "whatever deception" Prieto engaged in, (R & R at 10), to be "irrelevant" (R & R objections at 6). However, petitioner may have misunderstood the R & R. It is beyond cavil that both the Court and Magistrate Judge Wall are aware that a witness' deceptive behavior can bear on his credibility and should be considered on that issue. For instance, to the extent that the record of Prieto's divorce proceedings suggests that he acted deceitfully in that context, the Court has taken that evidence into account in determining respondent's credibility. Magistrate Judge Wall merely suggested that such deception would not, as Mero appears to contend, constitute intent per se in the context of such a fact-intensive inquiry. Further, nowhere in the R & R did Magistrate Judge Wall specifically find how respondent deceived petitioner regarding the purpose of the April 2005 trip Magistrate Judge Wall merely referred to "whatever deception Prieto engaged in" (R & R at 10) and this Court's review of the record reveals no such evidence. In any event, the Court has fully considered the issue of Prieto's alleged deception as related both to respondent's credibility and to his intent for Jennifer's habitual residence and concludes that the record does not contain credible evidence of deception in support of Mero's position.
(2) Evidence of Shared Intent
a. Prieto's Testimony
Prieto testified that his and Mero's shared intent did not change even after Mero learned that she could not return to the United States with Jennifer. Specifically, at the April hearing, respondent testified as follows, upon direct examination by his counsel:
Q: Between the time of the first appointment when Olga discovered she had a second opportunity, and the time of the second appointment which we understand from Ms. Mero's testimony took place at the end of March; what was your understanding in terms of if and when Jennifer would be returning to the United States?
A: Well, I always thought I always thought, and we would always talk to each other. Well it was that if anything happened, and she was not able to get the documentation to be able to come here, then the possibility would be that Jennifer would come back to the states to be able to go to school here in the US. And then from there on we continued talking to each other. But we never talked about any other trip. There was a time when we held a conversation, and Olga said: I'm going to send Jennifer to you to the U.S. to be with you, because she won't be learning anything here. And she is sick. She refuses to eat. She is not well. And then it was decided. She decided right then and there that we're going to send Jennifer to the US.
* * * * * *
Q: Just to clarify. Did you at any time agree that Jennifer would relocate to Ecuador permanently?
A: No, never. Never.
Q: And when Jennifer returned in April, 2005, was it clear to you at least that she was returning permanently to the United States?
A: Yes, to New York. Yes.
Q: Did you do anything prior to that time or at that time to mislead Ms. Mero into believing that in fact Jennifer was coming here only for a short period?
A: No, no, never. We never agreed to that. I have never misled her in anything.
(Apr. T.89-90, 96.)
In addition, respondent provided consistent testimony upon cross-examination by Mero's counsel, as the following exchange reflects:
Q: All right, Let's move on. Let's move on to March of '05, when you found out that Miss Mero's petition for U.S. residency had been denied. Did you discuss with Miss Mero at that time where Jennifer would be located?
A: At that time, when her visa was denied, we had not spoken for two or three days, and when we talked she wasn't feeling very good. And Jennifer wasn't feeling good, either. And that's all. That's what happened.
Q: So did you have any discussions as to where Jennifer would be located?
A: So I said yes. After that we discussed it and I said I want my daughter to study the language that belongs to her, English, and it would be worth it if she came back here to study.
(Apr. T.120.)[10]
b. Documentary Evidence
As set forth below, the Court has carefully reviewed the record in this case, and concludes that the key documentary evidence corroborates Prieto's testimony.
1. Travel Authorization
First, the broad, open-ended authorization Mero signed permitting Jennifer to take the April 2005 trip corroborates Prieto's testimony. Specifically, as stated supra, Mero authorized Jennifer to travel to the United States to be "reunited" with her father for an undefined period of time. Such a potentially limitless authorization is consistent with Prieto's testimony that Jennifer took the April 2005 trip for the purpose of continued permanent residence in the United States.[11]
2. Medical Records
Further, the Court has carefully reviewed Jennifer's medical records, and finds that they corroborate Prieto's testimony that Mero sent Jennifer back to the United States to live because Jennifer was not feeling well. Indeed, at the April hearing, petitioner's counsel cross-examined respondent extensively regarding his claim that Mero sent Jennifer back to the United States for health reasons. However, rather than undermine Prieto's position, petitioner highlighted its credibility.[12]
As a threshold matter, petitioner conceded that Jennifer was sick twice in Ecuador even though she was there for less than six months. In particular, Mero explained that Jennifer first had "a very strong infection and fever," and that the "second time she got infection of the tonsils and fever." (Apr. T.59.)
Further, on April 28, 2005 one week after Jennifer returned to the United States respondent took Jennifer to the pediatrician. The doctor's notes from that visit state:
Here w/father who reports child just returned after a 6 month stay in Ecuador w/mom but since return to USA he has noted that she has lost a lot of hair, has pale lips with dark circles under her eyes with poor appetite.....
Washed out, subdued, pale lips are prominent. + nearly 1 lb of weight loss since last evaluated here 10/04.
(Exh. Y.) Jennifer was diagnosed with anemia. (Id.) Clearly, this description of Jennifer's thin and sickly appearance, as well as her diagnosis, directly support Prieto's argument that Mero sent Jennifer back to the United States for medical reasons.
Moreover, the Court rejects each of petitioner's attempts to minimize the importance of this record. For instance, the Court rejects Mero's argument that Jennifer's weight loss was too small to support Prieto's claim that Jennifer was "very thin," or to support his argument that petitioner sent Jennifer back to the United States to live for health reasons. As of April 28, 2005, Jennifer weighed only 40.5 lbs. and had dropped from the 77th percentile in weight to the 55th percentile in weight in only approximately six months. (Id.) In proportion to her overall weight, surely the drop in weight could have been a visible cause of concern to both of Jennifer's parents.[13] For the same reason, the Court is unpersuaded by Mero's emphasis on Jennifer's health problems prior to the October 2004 trip; even if Jennifer were experiencing other symptoms prior to her trip to Ecuador, the loss in Jennifer's weight coupled with the other signs of anemia could have appeared to be a new symptom warranting residence in the United States. Finally, the Court rejects petitioner's argument that Mero would not have sent Jennifer to the United States for a problem as easily remedied as anemia. Petitioner has provided no evidence that she knew Jennifer had anemia, and not a more serious problem. Thus, Mero could not have known with any certainty that Jennifer's health problems could be easily solved.
In sum, the Court finds that Prieto's testimony that Mero intentionally sent Jennifer to reside in the United States was fully supported by the key documentary evidence in the case, including the travel authorization Mero executed and Jennifer's medical records.[14]
(3) Mero's Unsupported Testimony
In stark contrast to Prieto's assertions, which are supported by the record, the Court has reviewed Mero's testimony indicating that both she and Prieto intended for Jennifer to reside in Ecuador at the time of the April 2005 trip, and finds that petitioner's testimony is wholly uncorroborated and not credible. As set forth below, Mero has failed to meet her burden to demonstrate shared intent by a preponderance of the evidence.[15]
In attempting to meet her burden to show that her last shared intent with Prieto prior to the April 2005 trip was for Jennifer to live in Ecuador, Mero repeatedly testified, in essence, that she and Prieto "had always agreed that the daughter, that a daughter should always be with her mother, especially because she is a female. And we always agreed, and we repeated, that the child would always be with me, with the mother." (Apr. T.25.) According to Mero, she operated under this assumption until after the April 2005 trip, when respondent stated his intention not to return Jennifer to Ecuador. (Apr. T.60.) The Court has carefully reviewed the record for evidence that corroborates petitioner's testimony on this crucial issue. However, the Court has been unable to find any evidence persuasive or otherwise that supports Mero's account of events. Indeed, as set forth below, the Court finds that the record contradicts petitioner's testimony with respect to a crucial point.
Specifically, the petition suggests that Prieto informed Mero in June 2005 that he was not going to return Jennifer to Ecuador. (Petition ¶ 25.) However, during counsel for respondent's cross-examination of Mero at the April hearing, petitioner provided vastly contradictory dates of this key conversation. First, Mero stated that she did not learn about Prieto's plan until July 31, 2005. (Apr. T.60.)[16] Subsequently, she stated that she did not learn of this plan until September 2005. (Apr. T.61.) When respondent's counsel pointed out these contradictions, Mero then testified: "Well, he said that [Mero would not see Jennifer again] in June, but then we continued talking to each other and things were so-so, and later in September is when he finally told me that it was final that 1 would never see Jennifer again." (Apr. T.64.) Given the grave importance of this alleged conversation to Mero's version of events and in light of petitioner's failure to point to any evidence to corroborate that this conversation occurred at all such inconsistency and imprecision in petitioner's testimony profoundly undermines petitioner's efforts to meet her burden of proof.[17]
In sum, after carefully conducting a de novo review of the question of the parties' last shared intent, the Court concludes that Mero and Prieto's shared intent immediately before the April 2005 trip was for Jennifer to reside permanently in the United States.
C. Acclimatization
As stated supra, although "[n]ormally the shared intent of the parents should control the habitual residence of the child," a court should also "inquire whether the evidence unequivocally points to the conclusion that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents' shared intent." Gitter, 396 F.3d at 134. Here, Magistrate Judge Wall conducted this requisite analysis regarding acclimatization, and held that
although the evidence suggests that Jennifer lived comfortably in Ecuador with her mother for six months, it does not point "unequivocally to the conclusion that the child has become acclimatized to [her] new surroundings and that [her] habitual residence has consequently shifted." Gitter, 396 F.3d at 133 (emphasis added).
(R & R at 9.) As the Court also stated supra, because Mero did not specifically object to this holding, the Court has reviewed it for clear error, and concludes that Magistrate Judge Wall did not so err. In any event, even under a de novo standard of review, the Court reaches the same conclusion. Specifically, the Court agrees with Magistrate Judge Wall that the following factors, taken together in the context of the entire record, demonstrate Jennifer's failure to acclimatize under Gitter: (1) Jennifer lived in Ecuador for less than six months; (2) Jennifer was very young during her visit to Ecuador; (3) Jennifer did not attend school in Ecuador, although she attended school in the United States both before and after her trip to Ecuador;[18] and (4) Jennifer had left many of her possessions behind in New York and brought only some clothes, two dolls, and a suitcase with her to Ecuador (Apr. T.16).[19]
VII. CONCLUSION
For the foregoing reasons, after reviewing those portions of the R & R to which petitioner objected specifically de novo and the remainder for clear error, the Court adopts the factual and legal findings of the R & R (with the exceptions noted herein) and agrees with and adopts Magistrate Judge Wall's overall recommendation that petitioner has failed to meet her burden of proof under the Hague Convention. Accordingly, the petition is denied.
SO ORDERED.
REPORT AND RECOMMENDATION
WILLIAM D. WALL, United States Magistrate Judge.
Before the undersigned, on referral from District Judge Bianco, is the petition of Olga Maria Mero for the return of her child, Jennifer Eliano Prieto Mero, pursuant to the child abduction provisions of the Hague Convention and the International Child Abduction Remedies Act ("ICARA"). The petition is opposed by Jennifer's father, the respondent Eloy Roberto Prieto. A hearing was held on October 25 and 29, 2007 and post-trial memoranda were submitted. Based on the testimony and evidence at the hearing and the written submissions of the parties, the undersigned recommends that the petition be denied. The court makes this recommendation pursuant to the applicable law, discussed infra, and with the hope that the respondent will allow contact between the petitioner and Jennifer, contact he has prevented prior to the filing of this action, while Mero pursues a custody ruling in Ecuador or in the United States, as the case may be.
BACKGROUND
Briefly stated, the underlying facts are as follows. Mero and Prieto, both Ecuadorian, were married in Ecaudor on April 4, 1998. Prieto is a legal resident of the United States, having lived here for 18 years, but not a United States citizen. Mero is a citizen of and resident in Ecuador. Their daughter, Jennifer, was born in New York on April 19, 2000. She is a United States citizen, but not a citizen of Ecuador. At the time Jennifer was born, Mero was living in the United States without the proper documentation.
Mero went to Ecuador with Jennifer on October 23, 2005, hoping to arrange for permanent residency in the United States. At that time, she expected and intended to return to the United States with Jennifer. See Tr. 98:18-99:16. On March 29, 2005, Mero learned that she would not be granted a new visa because she had been in the United States illegally. Indeed, she learned that she would not be permitted to return to the United States for ten years. She says that after she learned this news, she and Prieto agreed that she and Jennifer would stay in Ecuador, with Mero's older children from a former relationship, and that it was their mutual intent that Jennifer would live there with her. Prieto disagrees, saying that he never agreed to Jennifer's permanent residence in Ecuador and that New York was and is her habitual residence.
On April 21, 2005, Jennifer returned to the United States in the company of Prieto's niece. Prior to Jennifer's departure, Mero was required by Ecuadorean law to sign a document allowing Jennifer, a minor, to leave Ecuador. Ex. K. The document states that Jennifer would leave on April 21, but does not specify a return date. Mero says it was intended to be a short visit only, planned on the basis of Prieto's request for a brief visit because he missed Jennifer. Prieto says Jennifer was returning to New York permanently because this is where she lives, and because she needed medical attention. He bought Jennifer a round trip ticket, with a return date of June 2005, but says that he did that because a round trip ticket was cheaper than a one-way, not because they intended for Jennifer to return to Ecuador to live.
In November 2005, Prieto filed a divorce action in New York. He claimed that Mero was served with all of the papers, but did not respond. She says she never received service of any papers and that Prieto lied in his factual allegations in the divorce papers, which she later obtained copies of. A default judgment was entered in the divorce on March 6, 2006, granting the divorce and giving Prieto custody and Mero unspecified visitation rights. The divorce and custody "decree were vacated on October 22, 2007. Pet. Mem. in Supp. at 9-10.
Mero claims that ever since Jennifer traveled from Ecuador to New York in April 2005, Prieto has kept Jennifer from all contact with Mero, and that she has spoken to her daughter on only two occasions, when Prieto was absent. Mero says that her efforts to contact Jennifer throughout this period were frustrated by Prieto's frequent changing of his phone number and his refusal to allow contact. Prieto does not offer any reasonable explanation for why Jennifer has not visited her mother in two years. Mero says that, on August 29, 2006, she got a call from Jennifer's babysitter, who told her that Prieto was in Ecuador trying to get remarried, and that Jennifer was desperate to talk to her mother. Mero and Jennifer did talk and, according to Mero, Jennifer begged to come back to Ecuador.
On September 13, 2006, Mero applied for help in Ecuador under the Hague Convention that governs international custody disputes. On December 13, 2006, Mero started a custody proceeding in Ecuador, which is apparently still pending. Mero states that on June 1, 2007, she got a call from an acquaintance of Prieto's, who told her that he was planning on moving to the Dominican Republic and taking Jennifer with him. On July 2, 2007, this action was started with an Order to Show Cause why Jennifer should not be removed from her father's physical custody and placed in protective custody until the action is resolved. Judge Bianco denied that relief, but ordered that Jennifer's travel documents be surrendered. On July 6, 2007, Judge Bianco had another hearing. Prieto attended pro se and surrendered Jennifer's passport. He was given time to get counsel, and counsel entered an appearance on August 1, 2007, filing an Answer on August 6, 2007. On August 6, Judge Bianco held a telephone conference and scheduled a hearing for August 21, but on August 13, the matter was referred to the undersigned.
The parties attempted to arrive at a settlement of the matter, but were unable to do so, and a hearing was held on October 25 and 29, 2007, using video conferencing to hear the testimony of Ms. Mero and her attorney, who are in Ecuador. Mr. Prieto appeared in person, with counsel.
DISCUSSION
The parties agree that resolution of this dispute is governed by the Hague Convention on the Civil Aspects of International Child Abduction, implemented by the International Child Abduction Remedies Act (ICARA), 42 U.S.C. § 11601 et seq. The Second Circuit has laid out the framework under which a district court must examine a Hague Convention petition when the other country in question, here Ecuador, is a signatory to the Hague Convention. See Blondin v. Dubois, 189 F.3d 240, 245-46 (2d Cir.1999); Gitter v. Gitter, 396 F.3d 124 (2d Cir.2005). The court can decide only the merits of the abduction claim, and has no authority to determine the underlying custody dispute. See Blondin, 189 F.3d at 245^6. Here, Mero specifies that she is not seeking an award of custody, which this court has no power to grant, but an order returning Jennifer to Ecuador, where her custody will be decided by Ecuadorian courts.
To state a prima facie case under the Hague Convention, the petitioner must demonstrate, by a preponderance of the evidence, that:
1) the child was "habitually resident" in one country, here Ecuador, and has been removed or retained in another country, here, the United States;
2) the removal or retention was in breach of the rights of the petitioner under the laws of the country in which the child was habitually resident and was therefor "wrongful;"
3) and the petitioner was exercising her custodial rights at the time of the removal or retention. See Gitter, 396 F.3d at 130-31 (citing 42 U.S.C. § 11603(e)(1)(A)).
Habitual residence: As noted supra, the first thing that Mero must prove is that, prior to June 2005, Jennifer's habitual residence was Ecuador. In Gitter, the Second Circuit established a new standard for determining the habitual residence of a child under the Hague Convention: "First, the court should inquire into the shared intent of those entitled to fix the child's residence... at the latest time that their intent was shared. In making this determination the court should look, as always in determining intent, at actions as well as declarations.... Second, the court should inquire whether the evidence unequivocally points to the conclusion that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents' latest shared intent." Id. at 134.
The parents' intentions are of key importance to a determination of the child's habitual residence and the court should pay "close attention" to them. See id. at 131-32. Thus, the first step in acquiring a new habitual residence, here arguably Ecuador, is "forming a settled intention to abandon the one left behind," focusing on the intent of "the person or persons entitled to fix the place of the child's residence," usually the parents. Id. at 132. Where, as here, the parents have come to disagree on the child's habitual residence, it becomes the court's task "to determine the intentions of the parents as of the last time that their intentions were shared." Id. at 133.
Mero claims that the last intent that she and Mero shared regarding Jennifer was that the child should remain in Ecuador with her mother. She argues that although Jennifer's move to Ecuador was originally intended to be temporary, its permanence was settled by both of her parents during the course of events, and that, in March 2005, Prieto asked only that Jennifer come for a visit, not return permanently to the United States. See Pet. Mem. in Supp., 11-12. Prieto, on the other hand, claims that he never intended for Jennifer to live in Ecuador, only to accompany Mero to Ecuador while Mero sought a visa and then return to the United States whether Mero could return or not. Mero points to the return ticket that Prieto bought for Jennifer in April 2005, with a return date of June 2005, as proof that he intended for Jennifer to return to Ecuador, but he says that he bought a return ticket only because it was cheaper than a one-way. See Ex. F. While the purchase of that round trip ticket does provide some support for Mero's position, other evidence supports Prieto's position that Jennifer was always expected to return to the United States, inter alia, that Jennifer and Mero did not take all of their belongings to Ecuador and that Mero told Jennifer's pediatrician that she would be back in two months.
The court finds it likely, based on the testimony of the parents and the other evidence, that Mero and Prieto had no fixed intention as to what they would do if Mero could not obtain papers, that the last shared intention as to Jennifer's habitual residence was that it would be New York, and that Mero fully intended to return to New York with Jennifer once her immigration issues were resolved. When, in late March 2005, those plans were no longer viable, Mero argues that their new shared intention was that Jennifer should become habitually resident in Ecuador, but the court finds insufficient support for that position. Prieto did testify that just after he found out that Mero's visa was denied, he told Mero to stay in Ecuador and that he had to stay in the United States, but would "always be sending you from here anything you might need," and that he could "always go to Ecuador to visit." Tr. 166:10-15. While that testimony supports Mero's position, Prieto also testified that Mero told him that Jennifer was not doing well in Ecuador and needed to return to the United States so that she could eat better and feel better, and Mero did give her permission for Jennifer to travel to the United States. See Tr. 166:22-167:3. Whatever the intentions or the understanding of her parents, Jennifer left for New York on April 21, 2005 in the company of Prieto's niece, who apparently had prior plans to travel here. That departure occurred three weeks after Mero learned that she could not return to the United States for ten years. As earlier noted, Mero argues that she was sending Jennifer for a short visit with Prieto, while he argues that they agreed that Jennifer would return here to live.
The conflicting testimony leads to the conclusion that after Mero's visa was denied in March 2005, the parents' intentions diverged, with Mero expecting Jennifer to return to Ecuador and Prieto planning to keep her in New York. Based on their prior shared intent, New York was Jennifer's habitual residence, Ecuador having been her temporary residence while the family awaited a decision on the visa application. The court cannot, on the conflicting testimony and the contradictory evidence, determine that Mero and Prieto, after the denial of Mero's visa in March 2005, intended that Jennifer's new habitual residence would be Ecuador, and Mero has not established that intent by a preponderance of the evidence.
However, "parental intent cannot alone establish a child's habitual residence." Gitter, 396 F.3d at 133. The court must also consider whether, "notwithstanding the intent of those entitled to fix the child's habitual residence, the evidence points unequivocally to the conclusion that the child has become acclimatized to his new surroundings and that his habitual residence has consequently shifted." Gitter, 396 F.3d at 133 (emphasis added). Gitter warns, however, that courts "should be `slow to infer' that the child's acclimatization trumps the parents' shared intent.... Permitting evidence of acclimatization to trump evidence of earlier parental agreement could `open children to harmful manipulation when one parent seeks to foster residential attachments during what was intended to be a temporary visit.'" 397 F.3d at 134. Nonetheless, a child's acclimatization can be so "complete that serious harm to the child can be expected to result from compelling his return to the family's intended residence." Id.
Mero argues that in the case of young children, the location of the child's primary caretaker, here Mero, is an important consideration in determining whether the child has become settled in a new location so as to establish that location as her new habitual residence. Pet. Mem. [DE 30] at 19-20 (citing Paz v. Paz, 169 F. Supp. 2d 254, 258-59 (S.D.N.Y.2001); Kijowska v. Haines, 463 F.3d 583, 587 (7th Cir.2006)). While that may be a consideration, it is not the primary or only one. Another Eastern District of New York court has noted that other factors considered by courts are the age of the child, the stability of the child's residence in the new environment, whether the child attends school or day care regularly, the stability of the mother's employment, and whether the child has friends and relatives in the new area. Koc v. Koc, 181 F. Supp. 2d 136, 152-53 (E.D.N.Y.2001).
Other courts have looked to the length of time that the child has been in the new environment. See, e.g., Wojcik v. Wojcik, 959 F. Supp. 413 (E.D.Mich.1997). Where a geographical change has occurred, habitual residence "is determined more by a state of being than by any specific period of time; technically, habitual residence can be established after only one day as long as there is some evidence that the child has become `settled' into the location in question." Brooke v. Willis, 907 F. Supp. 57, 61 (S.D.N.Y.1995).
Here, Jennifer was in Ecuador from October 23, 2004 to April 21, 2005, a period of six months, living during that period with her mother, her primary caretaker. She lived with Mero's family and with her half and step siblings and spoke Spanish. She did not attend school, according to Mero because Prieto did not send a copy of Jennifer's birth certificate. Mero states that Jennifer did engage in play activities with children her own age, but no specific names or other details are given. Pet. Mem. in Supp. [30] at 6-7. Nor does the record reflect detail about the relevance of Mero's employment, a factor looked to by some courts.
Prieto argues, generally, that Gitter establishes that "a condition of acquiring a new habitual residence is leaving the old one behind," and that neither Mero nor Jennifer can be said to have done so. See Resp. Mem. in Opp. [31] at 9, ¶ 13. He argues that factors indicating that Jennifer did not leave New York behind and "settle in Ecuador" include the facts that most of her belongings were still in New York, she did not attend school, and that even Mero had no intention of settling permanently in Ecuador. See id. ¶¶ 15-17.
The court agrees that there is no showing that Mero thought of making Ecuador her and Jennifer's new habitual residence when they went there in October 2004. Indeed, the testimony and other evidence demonstrate that she fully intended to return to New York with Jennifer when she received her new visa and continued to hope, for a short time after the visa was denied, that Prieto would find a lawyer to help her to appeal the adverse decision. And, although the evidence suggests that Jennifer lived comfortably in Ecuador with her mother for six months, it does not point "unequivocally to the conclusion that the child has become acclimatized to [her] new surroundings and that [her] habitual residence has consequently shifted." Gitter, 396 F.3d at 133 (emphasis added). Nor is there any evidence that Jennifer's acclimatization was so "complete that serious harm to the child can be expected to result from compelling [her] return to the family's intended residence." Id. Under these circumstances, the court finds that Jennifer did not acquire Ecuador as her new habitual residence.
The court thus concludes that when Mero and Jennifer went to Ecuador in October 2004, Jennifer's habitual residence was the United States, and that the last shared intent of the parents was that Ms. Mero would obtain a visa and return to the United States with Jennifer. Unfortunately for Mero, things did not turn out that way, and she learned that no visa would be forthcoming in the near future. That does not mean, however, that the denial of the visa changed the shared intent of the parents to an intent that Jennifer live permanently in Ecuador with her mother. After Mero's visa was denied, it is evident that Prieto's intent was that Jennifer return to live in the United States and that Mero's intent was that Jennifer remain with her in Ecuador. In other words, the intent of the parents diverged. Although the court also finds that Mero believed that Jennifer was going to the United States in April 2005 only for a visit, and that Prieto would allow Jennifer to return to Ecuador, that belief, and whatever deception Prieto engaged in, are sadly irrelevant to the questions of habitual residence and shared intent. The court finds that the intention of the parents as of the last time it was shared was that Jennifer, along with Mero, would live in the United States.
This case is complicated, of course, by Mero's undocumented status in the United States and her inability to return to this country with Jennifer or even to visit Jennifer here. It is also complicated by Prieto's cruel efforts to keep Jennifer from her mother by preventing even phone conversations and his devious machinations to obtain a divorce in New York. Although the court deplores Prieto's behavior in this regard, the outcome of the petition under the applicable law is that Jennifer's habitual residence was the United States, that the last shared intention of her parents was that she live in the United States, and there has been an insufficient showing that she acquired Ecuador as her new habitual residence. Based on these findings, the court need not examine the factors of wrongful retention or custodial rights, but recommends that the petition be denied.
OBJECTIONS
A copy of this Report and Recommendation is being sent to counsel for all parties by electronic filing on the date below. Any objections to this Report and Recommendation must be electronically filed within 10 days. Failure to file objections within this period waives the right to appeal the District Court's Order. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72; Beverly v. Walker, 118 F.3d 900, 902 (2d Cir. 1997); Savoie v. Merchants Bank, 84 F.3d 52, 60 (2d Cir.1996).
NOTES
[1] Petitioner also objected to Magistrate Judge Wall's application of the law to the facts. (R & Rat 2-3.)
[2] Petitioner had also submitted a pre-trial memorandum.
[3] The Court notes that at both the October and April hearings, the witnesses testified with the aid of a Spanish interpreter.
[4] Because Magistrate Judge Wall found that petitioner had failed to demonstrate the requisite intent under the first prong of the Gitter test, he did not reach the second or third prongs, which are related to the petitioner's custody rights. (R & R at 11.)
[5] Pursuant to Gitter, Magistrate Judge Wall also analyzed Jennifer's "acclimatization" to Ecuador in the course of determining her habitual residence. However, Mero did not object to Magistrate Judge Wall's holding that Jennifer had failed to meet the standard for acclimatization. Thus, the Court has reviewed this portion of the R & R for clear error and, as set forth infra, finds no such error. In any event, even if the Court were to review this issue de novo, the Court would reach the same conclusion.
[6] As a threshold matter, therefore, the Court rejects Mero's argument in the R & R objections that the parents' intent in October 2004 is irrelevant to the petition. As stated supra, the determination of habitual residence is a fact-intensive inquiry, and the parties' intent at the time of the October 2004 trip provides key context for the parties' intent at the time of the April 2005 trip, especially because the two trips took place less than six months apart. In any event, as the Court explains infra, although Magistrate Judge Wall found that the parties last shared an intent regarding Jennifer's residence at the time of the October 2004 trip, the Court finds that Mero and Prieto also shared such intent at the time of the April 2005 trip. Specifically, the Court finds that at the time of the April 2005 trip, petitioner and respondent jointly intended Jennifer to reside in the United States. Thus, petitioner's objection on the grounds that Magistrate Judge Wall should not have focused on the October 2004 trip is effectively moot.
[7] In her written submission subsequent to the April hearing, Mero attempted to call Prieto's credibility into question by pointing out that certain of Prieto's testimony at the October hearing was inconsistent with this and other testimony at the April hearing. (See Respondent's Letter, dated May 7, 2008, at 6 and n. 7.) As a threshold matter, and as the Second Circuit recently confirmed, "seemingly inconsistent testimony need not render a witness not credible." United States v. Iodice, 525 F.3d 179, 186 (2d Cir.2008) ("The different details identified by lodice do not appear to be inconsistent with each other, and to the extent that one views them as such, the District Court did not commit clear error in nonetheless crediting McCarthy's testimony.") (citing Mathie v. Fries, 121 F.3d 808, 811-12 (2d Cir. 1997)). Moreover, despite any purported inconsistencies with respondent's testimony in October, Prieto's testimony regarding his and Mero's intent at the time of the October 2004 trip is as the Court sets forth infra corroborated by Mero's testimony, as well as by the documentary evidence in this case. Indeed, in the course of its review, the Court has carefully considered all of the purported inconsistencies in Prieto's testimony and in the context of the entire record, including the documentary evidence concludes that respondent was credible in his overall assertion that he and Mero never intended Jennifer's habitual residence to be Ecuador at the time of the April 2005 trip.
[8] The Court is aware that at the April hearing, Mero's testimony on this critical point was drastically different even though she was asked virtually the same questions as at the October hearing. For instance, at the April hearing, the following colloquies took place during cross-examination by respondent's counsel:
Q: And at the time you left New York to go to Ecuador for this reason, you fully expected you would be returning to New York. Correct?
A: I didn't know what was going to happen; was I going to get the visa or not.
* * * * * *
Q: But in terms of your returning to New
York, did you intend to return to New York in October 2004 when you left for Ecuador? Did you intend to return to New York?
A: No, because I didn't know what was going to happen.
(Apr. T.47,49.)
Despite this testimony, however, Mero essentially conceded in the R & R objections that her intention at the time of the October 2004 trip was to return to the United States with Jennifer. Specifically, petitioner stated that "[a]s a factual matter, there is no dispute that Ms. Mero's intentions changed after she arrived in Ecuador" and that the "visa denial changed Ms. Mero's intent for Jennifer's habitual residence." (R & R objections, dated March 25, 2008, at 8.) By asserting that Mero's intent changed, petitioner clearly implies that she originally intended as Magistrate Judge Wall held to return to the United States with Jennifer. In any event, as explained infra, even assuming arguendo that Mero and Prieto did not share an intent as of October 2004, the Court's de novo review of the evidence reveals that the parties shared such an intent at the time of the April 2005 trip and, therefore, their intent at the time of the October 2004 trip is not dispositive under Gitter.
[9] The Court is aware that this particular conclusion is inconsistent with Magistrate Judge Wall's finding that at the time of the April 2005 trip, "it is evident that Prieto's intent was that Jennifer return to live in the United States and that Mero's intent was that Jennifer remain with her in Ecuador. In other words, the intent of the parents diverged." (R & R at 10.) Clearly the parties' intentions with respect to Jennifer's residence are divergent at present. However, Magistrate Judge Wall did not specifically point to evidence demonstrating that at the time of the April 2005 trip, Mero intended Jennifer to live in Ecuador. In fact, as set forth infra, the record actually contains preponderant evidence of Mero's arid Prieto's continued agreement, at the time of the April 2005 trip, that Jennifer live in the United States including evidence, such as Jennifer's medical records, that was developed more extensively by counsel at the April hearing than at the October hearing.
[10] The Court has noted Mero's repeated emphasis on a particular response Prieto provided at the October hearing that, according to petitioner, not only contradicts Prieto's testimony on this point at the April hearing, but respondent's position with respect to the petition overall. Specifically, petitioner points to the following exchange during respondent's direct examination by his attorney:
Q: But once you discovered that [Mero's] request had been denied, what did you say to her?
A: Well, so I said, well so I said, well, stay there. Stay there, because I have to stay here and I will always be sending you from here anything you might need. And I could always go to Ecuador to visit.
(Oct. T. 166.) As Magistrate Judge Wall held, this testimony is susceptible of the interpretation that Prieto was telling Mero that she and Jennifer could remain permanently in Ecuador. However, the Court finds that this testimony is highly ambiguous and, therefore, of little probative value. On its face, the testimony does not specify whether Prieto was telling Mero alone to remain in Ecuador, or whether he was referring both to Mero and Jennifer. Moreover, Prieto's testimony immediately following this colloquy suggests that petitioner's interpretation takes respondent's remarks out of context:
Q: And did you discuss Jennifer at that time?
A: Well, because when three months went by, and I would call frequently because I would call every day because I wanted to know how Jennifer was doing because I love her very much, in the same way that she loves her, you understand. So she tells me that the baby doesn't feel good. She doesn't eat. She doesn't feel like eating. So it's better to send her over there [to the United States]. Over there, she has everything....
(Oct. T. 166-67.) This additional testimony suggests, in keeping both with Prieto's testimony at the April hearing and the documentary evidence set forth infra, that Mero agreed to send Jennifer back to the United States permanently.
[11] The Court rejects petitioner's attempt to discount the importance of the authorization by testifying that it was merely a standard form and, therefore, that she failed to weigh the significance of the authorization's lack of a return date to Ecuador. Even assuming arguendo that petitioner has testified accurately regarding her understanding of the authorization's language, the authorization still fails at the very least to support Mero's assertion that she and Prieto had agreed that Jennifer would reside in Ecuador. Specifically, in light of Mero's burden of proof, and given that this authorization is the sole piece of documentary evidence whose express purpose was to establish the parameters of the April 2005 trip, its failure to support Mero's version of events weighs strongly against granting the petition. Further, the Court is aware that Mero's stepfather Antonio Washington an attorney in Ecuador testified that he had prepared an earlier draft of the authorization with a time restriction, and that Prieto forced Washington to use the form authorization with the "not defined" language instead. (Apr. T.77, 79.) Even assuming arguendo that such an earlier draft would evince Mero's intention for Jennifer to return to Ecuador to live, Washington has been unable to produce a copy of this purported earlier draft and the Court finds that this testimony is unsubstantiated and unreliable in light of the entire record.
[12] Clearly, therefore, the Court rejects Mero's argument in the R & R objections that Jennifer's health was not "considered by the parties in forming their intent in April 2005." (R & R objections at 3.) In fact, the Court notes that one of Mero's primary arguments underlying the petition actually corroborates the fact that Jennifer's health was a crucial consideration. In particular, petitioner repeatedly argues that she would never have intentionally sent Jennifer to live in the United States after the death of her son. However, her son died of an illness in Ecuador. Thus, her son's death could just as easily have been a factor strongly militating in favor of sending Jennifer to the United States for medical care.
[13] The Court notes that it does not assess herein that this weight loss was or was not medically significant. Rather, the relevant inquiry is whether Mero, as Prieto asserts, intentionally sent Jennifer to reside in the United States for health reasons. Thus, the Court merely holds that Jennifer's sickly appearance as substantiated by the medical records described above ("Washed out, subdued, pale lips are prominent. + nearly 1 lb of weight loss since last evaluated here 10/04") supports this assertion.
[14] The Court has considered the remaining pieces of documentary evidence in this case the round-trip tickets Prieto bought Jennifer both for the October 2004 and April 2005 trips and finds that the tickets are not probative of either party's account of events. Mero claims that Prieto purchased a round-trip ticket for the October 2004 trip merely because it was cheaper (Apr. T. 15-16), and Prieto claims that he purchased a round-trip ticket For the April 2005 trip For the same reason (Apr. T.95.) Thus, even assuming arguendo that the Court may infer Prieto's intentions with respect to Jennifer's residence from his purchasing her a round-trip ticket for the October 2004 trip to Ecuador, the Court makes an analogous inference from his purchasing her a round-trip ticket "for the April 2005 trip to the United States and applies the same financial caveat to each purchase. Because the Court finds that the evidence suggests that the round-trip tickets were (or could have been) utilized on these occasions simply because they were cheaper than one-way tickets, the Court also finds that the tickets are not dispositive (or even highly probative) of the intent of the parties at the time. Instead, the Court finds the above-referenced testimony and evidence to be much more compelling evidence of intent.
[15] In particular, the sole piece of evidence Mero proffers in support of the petition other than her own, uncorroborated testimony and the fact that her son had died is her status as Jennifer's primary caretaker. Indeed, petitioner objects to the R & R on the grounds that Magistrate Judge Wall did not take this status into account in analyzing the parties' shared intent, but merely in analyzing Jennifer's acclimatization to Ecuador. As a threshold matter, the Court has carefully reviewed the R & R, and nowhere does it indicate that Magistrate Judge Wall failed to consider Mero's status as Jennifer's caretaker in analyzing the intent issue. In any event, the Court agrees with petitioner that this status is relevant, and has taken it into account in its de novo review of the question of shared intent. However, in light of the significant evidence demonstrating that Mero and Prieto intended Jennifer to reside in the United States at the time of the April 2005 trip, discussed supra, the simple fact that petitioner was Jennifer's caretaker is insufficient for Mero to meet her burden of proof.
[16] Mero's claim that she learned on July 31, 2005 about Prieto's purported plan never to return Jennifer is especially dubious in light of the fact that, according to petitioner, respondent visited petitioner for fifteen days at that time and they had a "very good" visit. (Apr. T.25.)
[17] The Court is aware of an additional factual dispute between petitioner and respondent regarding his alleged attempts to limit Mero's communication with Jennifer since the April 2005 trip. Clearly any breakdown in communication between Jennifer and her mother is disconcerting to the Court. As a threshold matter, however, the record does not clearly demonstrate that Prieto is responsible for such a breakdown. In particular, although Mero contends that Prieto changed his phone numbers in order to elude contact with Mero, petitioner admitted at the April hearing that she has never written to Jennifer in the United States, even though petitioner knew the address where Jennifer lived. (Apr. T.69.) Indeed Jennifer's failure even to receive presents or birthday cards from her mother, (Apr. T.97), belies petitioner's claim that she was attempting to stay in contact with her daughter In any event, even if the lack of contact is respondent's fault, this fact would not alter the Court's factual and legal conclusions regarding the key issue in this case: the parties' intent at the time of the April 2005 trip.
[18] Mero claims that she could not send Jennifer to school in Ecuador because Prieto had lost Jennifer's birth certificate. However, even assuming arguendo that petitioner's testimony is accurate, Prieto's losing the birth certificate does not justify Mero's failure to enroll Jennifer in school: Mero was able to procure a copy of Jennifer's birth certificate in order to initiate the instant litigation. (Apr. T.30.)
[19] The Court notes that pursuant to Article 12 of the Hague Convention, if a court determines that a child has been wrongfully retained, but the petition is filed more than one year after the date of the wrongful retention, the Court must order the child's return "unless it is demonstrated that the child is now settled in its new environment." Matovski v. Matovski, No. 06 Civ. 4259, 2007 WL 2600862, at *8, 2007 U.S. Dist. LEXIS 65519, at *22 (S.D.N.Y. Aug. 31, 2007) (quoting Hague Convention art. 12). Here, Mero did not file the petition until over two years after the date of Jennifer's purportedly wrongful retention (April 21, 2005). As a threshold matter, although petitioner argues that the Court should apply the doctrine of equitable tolling to prevent the application of Article 12 in this case, (see Petitioner's Post-Trial Memorandum of Law at 29), some courts have found that equitable tolling does not apply in this context. See, e.g., Matovski, 2007 WL 2600862, at *12, 2007 U.S. Dist. LEXIS 65519, at *35 ("Because the denial of a petition pursuant to Article 12 is discretionary, equitable tolling is unnecessary to deter an abductor from concealing the whereabouts of a wrongfully removed or retained child. Equitable tolling would be inconsistent with the Convention's careful balancing of interests and this Court concludes it has no application to Article 12."). Nevertheless, even assuming arguendo that equitable tolling does apply, the Court finds that petitioner was not diligent during the lengthy period of time between the date of the allegedly wrongful retention and the date the petition was filed. For instance, Mero did not attempt to obtain a copy of Jennifer's birth certificate, which is a prerequisite for beginning litigation related to Jennifer's retention in the United States, until October 2005 approximately six months after the April 2005 trip. (Petitioner's Post-Trial Memorandum of Law at 30.) As stated supra, petitioner has provided inconsistent testimony regarding the time at which she purportedly learned that Prieto did not intend to return Jennifer. However, the petition states that Mero learned of this intention in June 2005 (four months prior to Mero's attempt to obtain the birth certificate), and petitioner testified that although it was not "final," Prieto informed her on July 31, 2005 that he did not intend to return Jennifer (three months prior to Mero's attempt to obtain the birth certificate). Under these circumstances, the Court finds that any alleged ambiguity in respondent's intentions does not justify the delay in obtaining the birth certificate and, therefore, equitable tolling is unwarranted. In any event, in applying Article 12 to this case, and assuming arguendo that the retention was wrongful which it was not the Court would not be required to order Jennifer's return to Ecuador if she were well-settled here. In fact, the evidence shows indisputably that Jennifer is extremely well-settled with her father. Specifically, in the years that she has lived in the United States since the April 2005 trip, Jennifer has been healthy (Apr. T.87), attends school and church (Apr. T.95), and participates in organized after-school activities (Apr. T.95). Thus, Article 12 provides an independent grounds for rejecting the petition.