14-2189-cv
Taveras v. Morales
                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                   SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 15th day of May, two thousand fifteen.

PRESENT: PIERRE N. LEVAL,
                     GERARD E. LYNCH,
                     CHRISTOPHER F. DRONEY,
                                    Circuit Judges.

———————————————————————

INOCENCIA HERRERA TAVERAS, acting on behalf
of an infant child, L.A.H.,

                                    Petitioner-Appellant,

                          v.                                           No.    14-2189-cv


JOSE ALONZO MORALES,


                                    Respondent - Appellee.

———————————————————————

FOR PETITIONER-APPELLANT:                  CHRIS W. HAAF (Richard Min, Camhi & Min
                                           LLC, New York, NY, of counsel), Kilpatrick
                                           Townsend & Stockton LLP, Winston-Salem, NC.


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FOR RESPONDENT-APPELLEE:                   JOHN EMMETT MURPHY (Lauren W.
                                           Mitchell, of counsel), King & Spalding LLP, New
                                           York, NY.

       Appeal from the United States District Court for the Southern District of New

York (Ronnie Abrams, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the order of the district court is AFFIRMED.

       Petitioner-appellant Inocencia Herrera Taveras appeals from a May 16, 2014 order

of the district court denying her petition for return of her minor child, L.A.H., to Spain

pursuant to the Hague Convention on the Civil Aspects of International Child Abduction,

Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89 (the “Hague Convention”), and its

implementing statute, the International Child Abduction Remedies Act, 22 U.S.C.

§§ 9001 et seq. (“ICARA”). We assume the parties’ familiarity with the underlying facts

and the procedural history of the case.

       Taveras argues that the district court erred in determining that she had filed her

petition more than a year after L.A.H. was first wrongfully retained in the United States

by her father, respondent-appellee Jose Alonzo Morales. The significance of that

determination is that under the Hague Convention, if Taveras petitioned for the return of

L.A.H. within a year after the wrongful retention of L.A.H. began, the district court was

mandated to return the child to Spain in the absence of certain narrow affirmative

defenses. If the petition was not filed within that period, and if L.A.H. was “now settled”

in the United States, the district court had discretion whether to order her return. See

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Hague Convention, art. 12. The district court ruled that Taveras’s petition was filed more

than a year after the wrongful retention of L.A.H. began, that L.A.H. was “now settled” in

the United States, and that it was in the best interests of L.A.H. that she be allowed to

remain here, and therefore declined to order that L.A.H. be returned to Spain. Taveras

does not challenge on appeal the district court’s finding that L.A.H. was settled in the

United States, or its exercise of its discretion not to return her to Spain; she argues only

that the district court erred in determining when L.A.H. was first wrongfully retained, that

she filed her petition within a year of the correct date, and that the “now settled” defense

was therefore not available to Morales.

       We review the district court’s interpretation of the Hague Convention de novo, and

its factual determinations under a deferential “clearly erroneous” standard, accepting the

district court’s findings of fact “unless we have a definite and firm conviction that a

mistake has been committed.” Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir. 2013) (internal

quotation marks omitted).

       Taveras argues that the district court applied the wrong legal standard in

determining when the wrongful retention began, because it should have required a “clear

and unequivocal” communication by Taveras to Morales that she did not consent to

L.A.H.’s continued stay in the United States as a prerequisite to finding that Morales’s

retention of L.A.H. had become wrongful. See Appellant’s Br. 14.

       We need not decide here whether the formulation urged by Taveras is in fact the

correct standard for determining when wrongful retention begins. Assuming arguendo

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that such a standard applies, the district court determined that it was met here, finding that

Taveras had “made her demand [for the return of L.A.H.] sufficiently clear to [Morales]”

by the end of summer 2012, and that Morales’s retention of L.A.H. beyond that period

was therefore wrongful. Taveras v. Morales, 22 F. Supp. 3d 219, 235 (S.D.N.Y. 2014).

Acknowledging that where “one parent fails to inform the other parent that she does not

consent to the child’s stay beyond a particular date, it would be difficult to say that

retention beyond that date is wrongful,” the district court distinguished the situation at bar

as “not such a case.” Id. Cf. Karkkainen v. Kovalchuk, 445 F.3d 280, 290-91 (3d Cir.

2006) (holding that district court had clearly erred in finding that petitioner had not made

an unequivocal demand for the child to be returned, while declining to decide whether

such a demand is required for wrongful retention to begin under the Convention).

       That finding was far from clearly erroneous. To the contrary, the court based it on:

(1) Taveras’s testimony that she spoke to Morales “[m]any a time during the months of

August and September [2012],” Joint App’x 222, and (2) her “unequivocal[]” testimony,

Taveras, 22 F. Supp. 3d at 235, that she did not consent to L.A.H.’s stay beyond the end

of summer 2012, Joint App’x 317-318. The court also referenced Morales’s testimony

that, during that same period, Taveras “continued insisting” that he send L.A.H. back to

her. Joint App’x 676; see Taveras, 22 F. Supp. 3d at 235 n.17. We see no reason to

disturb the court’s finding in the face of that evidence.




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      We have considered Taveras’s remaining arguments and conclude that they are

without merit. Accordingly, we AFFIRM the order of the district court.


                                FOR THE COURT:
                                CATHERINE O’HAGAN WOLFE, Clerk of Court




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