Filed 5/8/14 Cardenas v. Alcantar CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.



                                                       COPY

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                         (Sutter)
                                                            ----




KARLA RIVERA CARDENAS,                                                                       C071984

                   Appellant,                                                  (Super. Ct. No. CVFL121260)

         v.

GUILLERMO FLORES ALCANTAR,

                   Respondent.




         This appeal arises out of the trial court’s denial of a petition filed by plaintiff Karla
Rivera Cardenas (mother) under the Hague Convention on the Civil Aspects of
International Child Abduction (The Hague Convention or the Convention) for the return
of her three-year-old son Leosandro from Sutter County to Mexico. In the United States,
the Convention is implemented by the International Child Abduction Remedies Act (Act)
(42 U.S.C. § 11601 et seq.; see Mozes v. Mozes (9th Cir. 2001) 239 F.3d 1067, 1069
(Mozes).)


                                                             1
       The trial court found that mother, as the petitioner party, failed to show that the
boy had been removed by father from his country of “habitual residence” -- i.e., Mexico -
- by defendant Guillermo Flores Alcantar (father), and denied mother’s petition. Having
concluded that mother failed to sustain her burden to establish that Leosandro’s habitual
residence was Mexico, the court also expressly declined to make any finding or
determination of Leosandro’s country of habitual residence.
       On appeal, mother contends the trial court abused its discretion in refusing to
determine whether Mexico or California was Leosandro’s habitual residence. She also
contends the evidence does not support an implied finding that California was
Leosandro’s habitual residence at the time he was taken from Mexico, nor does it support
an implied finding that Leosandro was taken from Mexico with mother’s permission.
       Because we find that mother did not meet her burden of proving that Leosandro’s
habitual residence is in Mexico and because nothing in the trial court’s ruling implies that
Leosandro is a habitual resident of California or that Leosandro was taken from Mexico
with mother’s permission, we affirm the judgment.

                                FACTS AND PROCEEDINGS
       Father and mother were married in June 2008 in Mazatlan, Sinaloa, Mexico.
Father is a Mexican-born citizen of the United States; mother is a citizen of Mexico and
has a permit allowing her to work in the United States. Although we include this
information for the sake of clarity, we note that “[t]he spirit of the Convention is to
minimize nationality or citizenship as a factor in determining whether a child should be
returned to one country or remain in another[, . . . and] courts should abstain from
allowing considerations of citizenship or nationality to affect determinations of habitual
residence.” (J. Garbolino, International Child Custody Cases: Handling Hague
Convention Cases in U.S. Courts (3d ed. 2000) § 4.4, p. 94.)




                                              2
       After their marriage, the parties lived together in Sutter County for about six
months. Mother, pregnant with Leosandro, returned to Mexico and Leosandro was born
there in May 2009. Leosandro was both registered as a Mexican citizen living in
Mazatlan and as the child of an American born abroad.
       For the first 10 months of his life, Leosandro lived with both parents in Mazatlan.
The three then moved together to Woodland, California, and lived there for eight months,
through November 2010. The family then returned to Mazatlan and lived there for nine
months, until August 2011.
       In August 2011, with mother’s written permission, father took Leosandro to
Robbins, in Sutter County. Mother’s written authorization, good for a period of 182 days
(six months), states that Leosandro may leave the country, on vacations, accompanied by
his father.
       Mother alleges that, one month later, in September 2011, the parties separated as
husband and wife.
       In mid-January 2012, within the six-month window of travel authorized by
mother, father and Leosandro returned from Sutter County to Mazatlan. Father hoped to
fix his differences with mother. He found an apartment, contacted mother, and delivered
Leosandro to mother; mother and Leosandro took a vacation. When they returned, father
and mother met to discuss divorce terms, but they could not reach an agreement as to
custody of Leosandro. The child was with them at the meeting, and father took
Leosandro back to his apartment. Father alleges the parties separated around this time.
       A day or two later, on February 2, father decided to take Leosandro back to
California. He did not tell mother of his plans, and he did not contact mother for a
month.
       Father returned with Leosandro to Sutter County, where father’s brother and
mother also live, and initiated marital dissolution proceedings. In the dissolution
proceedings, father seeks sole legal and physical custody of Leosandro.

                                             3
       A few months later, mother filed the instant petition under the Hague Convention
for the return of Leosandro to Mexico. As pertinent to this appeal, mother’s petition
asserted that, under Mexican law, mother had a right to custody of Leosandro and,
because Leosandro was born in Mexico and resided in Mexico prior to being removed by
father to the United States, Leosandro was a habitual resident of Mexico. Indeed, mother
alleged, the parties had also agreed at some point in the past that all three would make
their home in Mexico and mother exercised custody over and cared for Leosandro his
entire life prior to his removal by father. Elsewhere in her petition, mother admitted that
when father went to the United States for work, he would take Leosandro with him for
“the specific purpose of promoting family bonding[.]” Finally, mother alleged, father
and father’s mother (Leosandro’s grandmother, Hermelinda Flores) came to mother’s
home and took Leosandro from her by stealth. When mother protested, father reacted by
violently throwing mother to the ground.
       The trial court here conducted an ex parte hearing on mother’s petition, and set the
matter for further hearing. It issued an order to show cause regarding child custody and
visitation and, at the hearing on its order, took judicial notice of father’s dissolution
petition and heard testimony from both parties. Father also filed a declaration in response
to the petition (which is not in the record on appeal).
       The evidentiary hearing on mother’s petition was not reported, but a settled
statement later certified by the trial court summarized the testimony of the three
witnesses: father, mother, and Flores.
       According to the settled statement, mother testified that the parties agreed in
August 2011 that father could take Leosandro to California. After father and Leosandro
returned to Mexico in mid-January 2012, Leosandro lived with mother for two weeks.
On February 2, father and Flores came “unexpectedly” to mother’s home and, while
mother was briefly in another room, Flores took Leosandro from the house. When
mother tried to pursue them, father pushed her, threw her to the wall, and she fell to the

                                               4
ground. Mother delayed reporting the event to police for nearly a month, because she
thought father would bring Leosandro back to her.
       Father testified he asked mother to sign the August 2011 authorization allowing
him to take Leosandro to California because he believed he would need it to take the
child out of Mexico. They had discussed Leosandro staying with father in California
while mother had training in Mexico for three months. After he returned, the parties met
to discuss their divorce; the child was with them. At the end of the meeting, mother
asked father to “take care of the child for her,” so father took Leosandro back to father’s
apartment. A day or so later, he decided to take the child back to California.
       Flores testified she lives in Sutter County. Father spoke with Flores about wanting
to raise Leosandro in the United States. Flores traveled to Mexico with father and
Leosandro in January 2012. After mother dropped Leosandro off at father’s apartment,
they (father, Leosandro, and Flores) left for California.
       The trial court denied mother’s petition. Its written findings and order after
hearing state: “The court finds that there have been varying versions of the events
offered by the various witnesses as it relates to the removal of the child from Mexico. [¶]
. . . [¶] The court finds that Petitioner’s testimony was not credible. [¶] . . . [¶] The court
finds that the moving party, Petitioner, has not met the burden of proof by a
preponderance of the evidence and therefore the burden to prove habitual residence has
not been met. Inasmuch as the burden has not been met, the court declines to make a
finding or order as to the child’s country of habitual residence.” Beneath this, the judge
handwrote: “Court finds the moving party is required to prove by a preponderance of
evidence that the child was removed or retained from the place of habitual residence.
The moving party did not [meet] this burden.”




                                              5
                                       DISCUSSION
                                              I
                       Legal Principals and the Standard of Review
       The Hague Convention is designed to secure “international cooperation regarding
the return of a child wrongfully taken by a parent from one country to another . . . .”
(Mendoza v. Miranda (C.D. Cal. 2007) 525 F.Supp.2d 1182, 1189; see Mozes, supra, 239
F.3d at p. 1069; see also Abbott v. Abbott (2010) 560 U.S. 1 [176 L.Ed.2d 789].) Both
the United States and Mexico are parties to the Convention. (Bardales v. Duarte (2010)
181 Cal.App.4th 1262, 1270, fn. 7.)
       Under the Convention, a person claiming a child has been wrongfully removed or
retained may file a petition in an appropriate court where the child is located requesting
the child’s return. (42 U.S.C. § 11603(b); Bardales v. Duarte, supra, 181 Cal.App.4th at
p. 1270.) State and federal courts have concurrent jurisdiction over actions arising under
the Convention. (42 U.S.C. § 11603(a), (d); Chafin v. Chafin (2013) __ U.S. __ [185
L.Ed.2d 1, 8-9]. )
       “The Hague Convention seeks to deter parents from abducting their children
across national borders by limiting the main incentive for international abduction—the
forum shopping of custody disputes. [Citation.] A court that receives a petition under
the Hague Convention may not resolve the question of who, as between the parents, is
best suited to have custody of the child. [Citation.] With a few narrow exceptions, the
court must return the abducted child to its country of habitual residence so that the courts
of that country can determine custody.” (Italics added; Cuellar v. Joyce (9th Cir. 2010)
596 F.3d 505, 508.)
       The retention of a child is “wrongful” under Article 3 of the Convention where:




                                             6
        “a) it is in breach of rights of custody attributed to a person, an institution or any
other body, either jointly or alone, under the law of the State in which the child was
habitually resident immediately before the removal or retention; and
        “b) at the time of removal or retention those rights were actually exercised, either-
jointly or alone, or would have been so exercised but for the removal or retention.”
(Mozes, supra, 239 F.3d at p. 1070.)
        Title 42 United States Code section 11603, subdivision (e)(1) provides in pertinent
part:
        “A petitioner . . . shall establish by a preponderance of the evidence--
        “(A) in the case of an action for the return of a child, that the child has been
wrongfully removed or retained within the meaning of the Convention.”
        Therefore, it is the petitioner’s burden to establish a “wrongful” removal or
rentention by a preponderance of the evidence. (In re Marriage of Forrest and Eaddy
(2006) 144 Cal.App.4th 1202, 1211.)
        “Thus, 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.” (Gitter v.
Gitter (2nd Cir. 2005) 396 F.3d 124, 130-131; accord, Mota v. Rivera Castillo (2nd Cir.
2012) 692 F.3d 108, 112; Friedrich v. Friedrich (6th Cir. 1993) 983 F.2d 1396, 1400.)

                                               II

                                     The Petition at Issue

        Here, mother’s petition alleged she was entitled to the return of Leosandro because
Leosandro’s habitual residence was in Mexico immediately before father removed
Leosandro to the United States on February 2, 2012; mother had a right to custody of


                                                7
Leosandro under Mexican law; and mother was exercising her custodial rights at the time
of the removal.
       The trial court concluded that mother had failed to prove by a preponderance of
the evidence that Mexico was Leosandro’s habitual residence. Specifically, the trial court
ordered:
       “a. the court finds that there have been varying versions of the events offered by
the various witnesses as it relates to the removal of the child from Mexico.
       “b. The court finds that Petitioner’s testimony was not credible.
       “c. The court finds that the moving party, Petitioner has not met the burden of
proof by a preponderance of the evidence and therefore the burden to prove habitual
residence has not been met. Inasmuch as the burden has not been met, the court declines
to make a finding or order as to the child’s country of habitual residence.”
       Below these orders, the trial court wrote in longhand, “Court finds the moving
party is required to prove by a preponderance of evidence that the child was removed or
retained from the place of habitual residence. The moving party did not [meet] this
burden.”
       As earlier noted, mother contends that the court erred in not determining whether
Mexico or the United States was the place of the child’s habitual residence and that the
trial court was required to do so.
       In support of her argument, mother points to the critical nature of the
determination of the place of the child’s habitual residence, relying heavily on the Ninth
Circuit’s holding in Mozes where the court said, “A court applying [the Article 3
provisions] must . . . answer a series of four questions: (1) When did the removal or
retention take place? (2) Immediately prior to the removal or retention, in which state
was the child habitually resident? (3) Did the removal or retention breach the rights of
custody attributed to the petitioner under the law of the habitual residence? (4) Was the
petitioner exercising those rights?” (Mozes, supra, 239 F.3d at p. 1070.)

                                             8
       We appreciate the critical nature of the finding of habitual residence. As can be
seen from the Mozes court’s discussion, a court cannot answer the question of whether
the removal or retention breached rights of custody except against the backdrop of the
laws of the place of habitual residence.
       But mother gleans from this a requirement that under a Hague Convention petition
the court must, in all circumstances, make a finding of the child’s habitual residence
irrespective of the statutory burden of proof mandated by 42 U.S.C. section 11603(e)(1).
Mother does not acknowledge the provisions of section 11603(e)(1) except to agree that
mother had the burden of establishing that Leosandro’s taking was wrongful. Mother
makes no argument as to why the statute must, for some reason, be ignored.
       We note that in Mozes and in the other cases cited to us, that the trial court had
made a finding of habitual residence during the trial proceedings and the issue on appeal
was whether that finding was supported by the evidence. No case has been cited to us,
nor are we aware of any, that supports a conclusion that the trial court is required to make
a finding of habitual evidence without regard to petitioner’s burden to prove the
allegations necessary to the petition by a preponderance of the evidence.
       We further note that mother has not argued here that the court erred because the
evidence was sufficient to compel a finding that Mexico was Leosandro’s habitual
residence. We have not been asked to decide that question.
       Mother also argues that the trial court was required to make a finding that
Leosandro was a habitual resident of Mexico or of California because to do otherwise
implies that he is a habitual resident of California and that his taking by his father was
with mother’s permission.
       Citing Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42
(Fladeboe), mother enlists the doctrine of implied findings to support her argument that
the court’s ruling implied that California was Leosandro’s place of habitual residence and



                                              9
that his taking was with mother’s permission. Mother’s reliance on the doctrine of
implied findings is misplaced.
       “The doctrine of implied findings requires the appellate court to infer the trial
court made all factual findings necessary to support the judgment. [Citation.] The
doctrine is a natural and logical corollary to three fundamental principles of appellate
review: (1) a judgment is presumed correct; (2) all intendments and presumptions are
indulged in favor of correctness; and (3) the appellant bears the burden of providing an
adequate record affirmatively proving error. [Citations.]” (Fladeboe, supra, at p. 58.)
       Mother cites the doctrine for other than what it is and asks us to infer, not those
findings necessary to support the judgment, but instead “findings” outside the judgment.
That is not the function of the doctrine of implied findings.
       While the trial court’s order could have been clearer, explaining for instance the
testimony that it did not find credible, we cannot read such “implied” findings into the
trial court’s ruling. That ruling was straightforward, at least on the question of habitual
residence: mother’s evidence was insufficient to carry her burden of proving by a
preponderance of the evidence that Leosandro’s habitual residence was in Mexico. There
is no finding there, implied or otherwise, that Leosandro’s habitual residence is California
or that mother gave Leosandro’s father permission to take him to the United States. We
recognize that in this case, and no doubt in the great majority of cases, the dispute lies
between only two possible places of habitual residence. But the finding that petitioner
has not proven one of the two does not constitute a finding that the child is a habitual
resident of the other.
       Mother’s proof on the petition having failed, the trial court made no error in
denying her petition.




                                             10
                                      DISPOSITION
      The order denying mother’s Hague Convention petition is affirmed. Father is
awarded his costs on appeal. (California Rules of Court, rule 8.278 subdivision (a)(2).)



                                                       HULL                 , Acting P. J.



We concur:



      DUARTE               , J.



      HOCH                 , J.




                                            11
