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In re Application of Duran-Peralta

United States District Court, S.D. New York

December 22, 2017

IN RE THE APPLICATION OF JUANA LIVIA DURAN-PERALTA, Plaintiff/Petitioner,
v.
JOHNNY ANTONIO LUNA, Defendant/Respondent.

          OPINION AND ORDER

          JED S. RAKOFF, U.S.D.J.

         Petitioner Juana Livia Duran-Peralta, a resident and citizen of the Dominican Republic, brought this action against respondent Johnny Antonio Luna, a resident and citizen of the United States, seeking the return of the parties' minor child ("IM") from the United States to the Dominican Republic under the Civil Aspects of International Child Abduction (the "Hague Convention") and the International Child Abduction Remedies Act ("ICARA"), 22 U.S.C. § 9001 et seq. (2000). See Complaint, ECF No. 1; Amended Complaint, ECF No. 12. IM was born in the Dominican Republic on August 5, 2015. On October 12, 2015, respondent took IM to the United States. Respondent has kept IM in the United States since then despite petitioner's appeals that respondent return IM to the Dominican Republic, which culminated in this lawsuit. Familiarity with all prior proceedings is here presumed.

         On May 9, 2017, petitioner moved for summary judgment, ECF No. 31, but included only a barebones, ten-sentence Rule 56.1 Statement, see ECF No. 32. In support of his opposition to this motion, respondent submitted a declaration attesting to facts never before raised in these proceedings but creating a genuine dispute of material fact. See Declaration of Johnny Antonio Luna ("Luna Decl."), ECF No. 34-4. On August 29, 2017, the Court held an evidentiary hearing that became, without opposition, a bench trial on petitioner's claims. See Transcript dated Aug. 29, 2017 ("Tr.") at 9:7-10. Both petitioner and respondent testified and were provided with an opportunity to present witness testimony and documentary evidence.

         Following this hearing/trial, the Court invited the parties to submit proposed findings of fact and conclusions of law and response briefing. See Tr. at 138:15-139:10. While some facts were undisputed, determination of many of the material facts turned on the Court's assessment of the witnesses' credibility, including the Court's examination of their demeanor. Based on these assessments and the submitted written and oral evidence, the Court makes the following findings of fact and conclusions of law.

         Factual Background

         The parties offer strikingly different accounts of their relationship. According to petitioner, she and respondent were romantically involved for several years, during which time she became pregnant with IM. Respondent, on the other hand, claims that petitioner served as a surrogate for him and his wife and that he and petitioner were never romantically involved.[1] As detailed below, the Court found the testimony of petitioner considerably more credible than that of respondent and those who testified on his behalf.[2]

         According to respondent, after he and his wife decided to look for a surrogate in the Dominican Republic, see Tr. 105:22-106:13, he was put in touch with petitioner, who agreed be their surrogate in exchange for respondent's assistance in bringing her and her 13-year old daughter to the United States, id. at 111:9-15, 113:4-7, 119:4-7, 122:22-123:1, 125:18-126:3 (Luna). Respondent alleged that petitioner "offered herself to [him] . . . many times, not only one time. Many times, " id. at 125:15-16, assuring him that she would get pregnant, id. at 108:17-19. Respondent testified that he and petitioner had sex only one time, as a result of which respondent became pregnant with IM. Id. at 109:14-23 (Luna). Respondent also suggested that he never socialized with petitioner before she became pregnant, id. at 103:1-3 (Luna), but this contention is contradicted by his later testimony that, during that time, he sometimes saw petitioner at the home of another woman, id. at 108:11-22.

         In addition to the belatedness with which respondent raised his entire "surrogate" story and the many contradictions in respondent's testimony, the Court finds significant that there was no written surrogacy agreement, see id. at 112:15-24 (Luna); that respondent made no effort to help petitioner come to the United States, see id. at 123:2-12 (Luna) (he "wanted to do [his] part" of the alleged bargain but did not); that respondent did not tell his wife that he slept with the alleged potential surrogates until after his deposition in this case, see id. at 120:1-7, 120:23-121:11, 121:24-122:21 (Luna); and that respondent is currently seeking custody of another young child he fathered with a woman living in the Dominican Republic, whom he does not allege served as a surrogate for him and his wife, see Plaintiff's Proposed Findings of Fact and Conclusions of Law Ex. A ("Luna Dep.") 'at 25:1-20, ECF No. 44. Furthermore, respondent's claim that petitioner bore IM as a surrogate for respondent and his wife was not corroborated by any other evidence, and petitioner credibly denied that respondent had ever asked her whether she would be willing to have a child that she would give up to him and to his wife in the United States. Tr. 30:10-14 (Duran-Peralta).

         The Court accordingly finds the following facts based largely on petitioner's testimony. Petitioner, the mother of IM, lives with her eldest daughter in Santo Domingo in the Dominican Republic, where she has lived her entire life. Id. at 10:13-17 (Duran-Peralta). Respondent was also born in Santo Domingo. Id. at 37:20-21 (Duran-Peralta); id. at 106:9-10 (Luna). He currently lives in the United States with his wife, to whom he has been married for about ten years. Id. at 105:16-21, 106:2-4 (Luna). Respondent has five children in addition to IM: a ten-year old child by his wife, three children (aged ten, fourteen or fifteen, and twenty-three) by three different women who live in the United States, and a one-year old child whose mother lives in the Dominican Republic. Luna Dep. at 22-25, 44-47.

         Petitioner and respondent met in 2012, when he would stop by the "exchange house" next to where she worked, see Tr. 99:23-24 (Luna), and shortly thereafter began a romantic and sexual relationship. IcL at 10:20-11:2, 11:7-23 (Duran-Peralta). They stopped seeing each other at some point in 2013 but resumed their sexual relationship in or around October 2014. Id. at 12:7-13:22. Throughout their relationship, petitioner knew that respondent was married in the United States. Id. at 16:4-6. While respondent was in the United States, he and petitioner sometimes exchanged affectionate text messages. See, e.g., id. at 126:20-21 (Luna) ("[W]e're going to see each other soon. I can't wait to get there."); Id. at 127:13 ("Love, tell me what you want to --"); id. at 128:4-6 ("I remember that when you spoke, I was looking at you with desire. I wanted to eat you up.").[3]

         When she became pregnant, petitioner quit her job and respondent financially supported her. Id. at 33:15-17 (Duran-Peralta). In June 2015, respondent rented a house for petitioner in anticipation of IM's birth. Id. at 17:12-18:1, 33:9-11 (Duran-Peralta); id. at 111:9-12 (Luna). IM was born in the Dominican Republic on August 5, 2015. Id. at 17:3-4; Defendant's Proposed Findings of Fact and Conclusions of Law ("Def. Br.") at 3 ¶ 25, ECF No. 45. Respondent was not in the Dominican Republic when IM was born but he visited her there for several days about a week after she was born. IcL at 18:13-19:2 (Duran-Peralta) .

         IM had medical problems after her birth, including neurological complications from a knotted umbilical cord and a skin condition called scabiasis. Id. at 19:20-20:6 (Duran-Peralta). Respondent told petitioner that he did not want IM to go to doctors m Santo Domingo, id. at 21:9-13, and the parties discussed the possibility of seeking medical treatment for IM in the United States, id-at 20:14-17 (Duran-Peralta); see also JUANA0043 (petitioner asking respondent whether he looked into the "doctor thing") (August 19, 2015 text message). Respondent told petitioner that his sister, who is a doctor, would see IM in New York. Id. at 20:25-21:1 (Duran-Peralta); see also JUANA00045 (respondent telling petitioner that he would send IM's sleep schedule to his sister) (September 5, 2015 text messages).[4] Accordingly, in September, petitioner signed what she understood to be an authorization permitting respondent to bring IM to the United States. Tr. 38:12-15. This "authorization" most likely was an application for an American passport, which petitioner and respondent filled out at the law office of Justina Echavarria. Id. at 61:14-16 (J. Echavarria).

         In October 2015, respondent visited the Dominican Republic again. When he returned to the United States, on October 12, 2015, he brought IM with him. Tr. 21:18-20 (Duran-Peralta); see also Def. Br. at 5 ¶ 44. Petitioner believed that respondent was taking IM to the United States for just two months for the sole purpose of receiving medical treatment and that he would return her to the Dominican Republic in December. See id. at 20:23-21:25.

         In November 2015, respondent returned to the Dominican Republic (without IM) and told petitioner that he needed a new authorization to take IM to doctors in the United States. Id. at 22:6-12. Petitioner and respondent made another visit to Justina Echavarria's law office on November 5, 2015 and signed a document that petitioner believed authorized respondent to seek medical treatment for IM in the United States but in fact provided that petitioner waived her maternal rights over IM (the "Release").

         While IM was in the United States, petitioner "was communicating constantly with" respondent. Id. at 24:19. She inquired about the status of the doctors' visits and asked respondent to send pictures and videos of IM, which he did. See, e.g., JUANA00048-50 (text messages dated October 17-20, 2015); JUANA00054 (text messages dated November 18-20, 2015). She also "constantly" sent "him messages asking him why [he] didn't bring the girl back." Id. at 24:19-23; see also JUANA0060 (text mess.age dated December 26, 2015); JUANA00065 (text message dated December 27, 2015). Respondent provided various reasons for why he could not bring IM back, such as that "he didn't have any money to travel back to Santo Domingo, [or] that he had too much work." Id. at 25:4-5. Respondent has never returned to the Dominican Republic with IM. See id. at 24:14-16. Petitioner filed the instant action on October 11, 2016. See Complaint, ECF No. 1.

         Legal Analysis

         The Hague Convention, to which both the United States and the Dominican Republic are signatories, [5] was enacted "'to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence.'" Gitter v. Gitter, 396 F.3d 124, 129 (2d Cir. 2005) (quoting Hague Convention, Preamble, 51 Fed. Reg. at 10, 498). The Convention "places at the head of its objectives the restoration of the status quo, by means of the prompt return of children wrongfully removed to or retained in any Contracting State." Gitter, 396 F.3d at 130 (internal quotation omitted); see also Hague Convention, art. 1 ("The objects of the . . . Convention are: (a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and (b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States."). ICARA implements the Hague Convention. See Ozaltin v. Ozaltm, 708 F.3d 355, 359-360 (2d Cir. 2013). Significantly, "[t]he Convention and [ICARA] empower courts in the United States to determine only rights under the Convention and not the merits of any underlying child custody claims." 22 U.S.C. § 9001(b)(4).

         "[I]n 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 or retained in a different State, " and that the removal or retention was "wrongful" because "(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 removal or retention." Gitter, 396 F.3d at 130-131.[6] A petitioner must make these showings by a preponderance of the evidence. 22 U.S.C. § 9003(e)(1).

         With respect to the first prong, the Hague Convention does not itself provide any definition of "habitually resident." Gitter, 396 F.3d at 134. Courts in the Second Circuit use the following approach in ...


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