Escaf v. Rodriguez , 52 F. App'x 207 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
AMALIN HAZBUN ESCAF, 
Plaintiff-Appellee,
v.  No. 02-1487
ISIDORO RODRIGUEZ,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CA-01-1926-A)
Argued: October 29, 2002
Decided: December 11, 2002
Before WILKINS, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
COUNSEL: Isidoro Rodriguez, THE RODRIGUEZ LAW FIRM,
Alexandria, Virginia, for Appellant. Patrick Hanley Stiehm, STIEHM
LAW OFFICE, Alexandria, Virginia, for Appellee. ON BRIEF: Ste-
phen J. Cullen, MILES & STOCKBRIDGE, P.C., Towson, Maryland,
for Appellee.
2 ESCAF v. RODRIGUEZ
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
This case is brought under the Hague Convention on the Civil
Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No.
11,670, 19 I.L.M. 1501 (Hague Convention). Isidoro Rodriguez
appeals the district court’s order requiring (pursuant to the Hague
Convention) the return of his thirteen-year-old son, Isidoro, to Colom-
bia, Isidoro’s country of habitual residence and the residence of his
mother. We affirm.
I.
Amalin Hazbun Escaf (Hazbun), a Colombian citizen, married Isi-
doro Rodriguez (Rodriguez), a U.S. citizen, in Colombia in 1988.
They lived in Barranquilla, Colombia after the marriage. In 1989 the
couple had a son, Isidoro Rodriguez Hazbun (Isidoro), and Isidoro has
joint Colombian-U.S. citizenship. Hazbun and Rodriguez divorced in
1997, and both continued to live in Barranquilla. Rodriguez claims
that he and Hazbun had an initial oral agreement providing that Isi-
doro would split his time evenly between his parents; Hazbun dis-
putes this. In August 1997 a Colombian family court approved a
different custody agreement entered into between Hazbun and Rodri-
guez. The court-approved agreement provided that Isidoro would live
primarily with his mother, but would spend every other weekend with
his father.
Rodriguez returned to the United States in January 2000, taking up
residence in Virginia. Later in 2000 Isidoro spent summer and Christ-
mas vacations with Rodriguez in the United States. After Isidoro
returned to the United States for a visit during the summer of 2001,
Rodriguez filed (in Isidoro’s name) a petition for a change of custody
in the Fairfax County, Virginia, Juvenile and Domestic Relations
Court. Rodriguez then sent a facsimile transmission to Hazbun, telling
ESCAF v. RODRIGUEZ 3
her that Isidoro would be staying in the United States and would not
be returning to Colombia. Included in the transmission to Hazbun was
(1) a letter from Isidoro to his mother, saying that he wanted to stay
with his father and (2) a copy of the petition for change of custody.
In August 2001 Hazbun filed a Hague Convention Return Applica-
tion with the Colombian Civil Authority, seeking Isidoro’s return to
Colombia under the Hague Convention. In December 2001 Hazbun
sued Rodriguez in federal court in the Eastern District of Virginia,
asking for an order requiring Isidoro’s immediate return to Colombia
under the Hague Convention and its implementing legislation, 42
U.S.C.A. § 11601 et seq. (West 1995 & Supp. 2002).
Rodriguez filed a motion to dismiss Hazbun’s complaint, raising
several issues that were thoroughly considered by the district court.
First, the district court rejected Rodriguez’s argument that it lacked
subject matter jurisdiction, concluding that jurisdiction was proper
under 42 U.S.C.A. § 11603(a). Second, the district court rejected
Rodriguez’s argument that Isidoro was an indispensable party in the
federal lawsuit and that the failure to join him was grounds for dis-
missal. Because a Hague Convention proceeding deals with the rights
of those claiming custody, Hazbun and Rodriguez in this case, the
court determined that it could afford complete relief to the parties
without joining Isidoro. The court thus concluded that Isidoro was not
an indispensable party, although the court was careful to note that his
rights and wishes could be taken in account. Third, the district court
rejected Rodriguez’s arguments that it should abstain from deciding
the Hague Convention case while a state custody proceeding was
pending. The court determined that Younger v. Harris, 401 U.S. 37(1971), did not require it to abstain. The court noted that Younger
calls for federal courts to abstain from decision when (1) a concurrent
state proceeding is pending, (2) an important state interest is impli-
cated, and (3) the parties may seek review of their federal claims in
state court. The court concluded that Rodriguez’s argument failed on
the second Younger requirement because Hague Convention cases
implicate only the international movement of children, which is a fed-
eral, rather than a state, interest. The district court also declined to
abstain based on Colorado River Water Conservation District v.
United States, 424 U.S. 800 (1976), which applies only when ongoing
federal and state proceedings are parallel. Because the federal and
4 ESCAF v. RODRIGUEZ
state proceedings here do not involve the same parties and issues, the
court concluded that they are not parallel and that Colorado River
does not apply.
After denying Rodriguez’s motion to dismiss, the district court held
a bench trial to determine whether Isidoro had been "wrongfully
removed or retained in" the United States, a country that is a party to
the Hague Convention. In its final opinion, which set forth findings
of fact and conclusions of law, the district court found that Colombia
was Isidoro’s habitual residence and that he had been wrongfully
retained in the United States. The court then considered and rejected
possible defenses to Hazbun’s claim that Isidoro should be returned
to Colombia. First, the district court determined that Rodriguez had
not presented clear and convincing evidence that Isidoro would be at
grave risk if he returned to Colombia. Second, the court determined
that Isidoro — who said that his preference was to remain in the
United States for now, but that later he wanted to spend equal time
in the United States and Colombia — was not of a sufficient age and
maturity for his views to be given conclusive weight. The district
court ultimately concluded that the Hague Convention and 42
U.S.C.A. § 11603 et seq. required that Isidoro be returned to Colom-
bia forthwith, and an order to that effect was entered. After Rodriguez
was unsuccessful in his efforts in this court and in the Supreme Court
to obtain a stay pending appeal, Isidoro was returned to Colombia on
June 11, 2002, pursuant to the district court’s order.
II.
Rodriguez appeals, challenging the district court’s decision that Isi-
doro is not an indispensable party, its refusal to abstain, and its deter-
mination that Rodriguez did not establish a defense under the Hague
Convention. Rodriguez also asserts that the proceedings in district
court violated his parental rights and Isidoro’s due process rights.
The district court noted that this case arises from "an exceptionally
difficult situation" for Isidoro and for the parties. We agree. Accord-
ingly, we have carefully considered the briefs, the joint appendix, and
the oral arguments. We conclude that the proceedings in district court
did not violate either Rodriguez’s or Isidoro’s rights. As to the other
issues, we affirm on the reasoning of the district court. See Hazbun
ESCAF v. RODRIGUEZ 5
v. Rodriguez, 191 F. Supp. 2d 685 (E.D. Va. 2002) (opinion denying
motions to dismiss); Hazbun v. Rodriguez, 200 F. Supp. 2d 603 (E.D.
Va. 2002) (memorandum opinion containing findings of fact and con-
clusions of law).
AFFIRMED