Julio Ortiz v. Zulima Martinez

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-2048
JULIO C. ORTIZ,
Plaintiff-Appellant,
v.
ZULIMA J. MARTINEZ,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:12-cv-03634 — Virginia M. Kendall, Judge.
____________________
ARGUED APRIL 21, 2015 — DECIDED JUNE 15, 2015
____________________
Before EASTERBROOK and RIPPLE, Circuit Judges, and
REAGAN, District Judge. *
RIPPLE, Circuit Judge. Julio C. Ortiz filed a petition under
the Hague Convention on the Civil Aspects of International
Child Abduction (“Hague Convention” or “Convention”),
* The Honorable Michael J. Reagan, Chief Judge for the Southern
District of Illinois, sitting by designation.
2 No. 14-2048
seeking the return of his two minor children, L.O. and A.O.,
to Mexico City. The children are currently residing in Chica-
go with Zulima J. Martinez, their mother and the defendant
in this action. At trial, the district court denied Mr. Ortiz’s
petition. Although it found that Ms. Martinez had wrongful-
ly removed the children from Mexico, the court nonetheless
determined that an exception to the Convention’s mandato-
ry-return rule applied with respect to each child. Mr. Ortiz
timely appealed. For the reasons set forth in this opinion, we
affirm the judgment of the district court.
I
BACKGROUND
Mr. Ortiz and Ms. Martinez are the parents of two minor
children, A.O., a seven-year-old girl, and L.O, a sixteen-year-
old boy. Prior to August 2011, Mr. Ortiz and Ms. Martinez
lived together with their two children in Mexico City. In Au-
gust 2011, the couple and their two children travelled to Chi-
cago to visit Ms. Martinez’s parents and siblings, all of
whom lived in the Chicago area. The couple purchased
round-trip tickets, with Mr. Ortiz scheduled to return to
Mexico on August 13 and Ms. Martinez and the children
scheduled to return on August 20.
Mr. Ortiz returned to Mexico on his scheduled departure
date. Ms. Martinez and the children, however, did not.
When contacted by Mr. Ortiz, Ms. Martinez informed him
that she and the children would not be returning to Mexico.
She accused Mr. Ortiz of sexually molesting A.O. and told
him that she was keeping the children in the United States
for A.O.’s safety.
No. 14-2048 3
After attempting, unsuccessfully, to convince Ms. Mar-
tinez to return to Mexico with their children, Mr. Ortiz filed
this action in the district court in May 2012, under the Hague
Convention, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S.
89, seeking the return of their two children to Mexico City
for a determination of his custody rights. Ms. Martinez an-
swered the petition, submitting that Mr. Ortiz had failed to
establish that the children had been wrongfully removed.
She also asserted three affirmative defenses. First, she assert-
ed that Mr. Ortiz had acquiesced to her retention of the chil-
dren in the United States, thereby permitting the district
court to deny return of their children pursuant to Article
13(a) of the Convention. Second, invoking Article 13(b) of
the Convention, she submitted that the children faced a
grave risk of harm if returned to Mexico based on
Mr. Ortiz’s prior sexual abuse of A.O. and prior emotional
abuse of L.O. 1 Finally, invoking Article 20 of the Convention,
she asserted that return of the children to Mexico was im-
proper “because it would contravene the laws of the State of
Illinois, the United States Constitution, and fundamental
principles of human rights to return the children to their
abusing father.” 2
Because the case involved allegations of sexual abuse, at-
torneys for both parties agreed that the court should appoint
a psychologist to evaluate the children. At the parties’ joint
suggestion, the court appointed Dr. Hector S. Machabanski,
1Ms. Martinez alleged that Mr. Ortiz “caused psychological harm to L.O.
directly, by being emotionally abusive to [her], and by sexually and psy-
chologically abusing A.O.” R.17 at 14.
2 Id. at 15–16.
4 No. 14-2048
a psychologist with experience in working with children, as
an expert in the case. The district court defined Dr. Macha-
banski’s role as follows:
The role of the Rule 706 Expert shall be
to evaluate the minor children in this case and
to review any related materials; to prepare a
report on the allegations raised in Respond-
ent’s Second and Third Affirmative Defenses;
and prepare any further reports or assistance
as the Court may direct.[3]
In February 2013, Ms. Martinez filed a motion to amend
her answer in order to add a fourth affirmative defense. In-
voking Article 13’s so-called “wishes of the child” exception,
Ms. Martinez asserted that L.O. had expressed a desire to
remain in the United States and that, given his age and ma-
turity, the court should consider his wishes.
Mr. Ortiz opposed the motion. He submitted that
Ms. Martinez’s attempt to raise the defense was untimely
and that to allow it would prejudice his ability to prepare for
trial, which at that point was less than one month away. Fur-
ther, he noted that Dr. Machabanski had just completed his
last session with the children and that his evaluation had not
included a specific assessment of L.O.’s ability to make ma-
ture decisions about where to live.
In May 2013, the district court held a three-day hearing
on Mr. Ortiz’s petition. It heard testimony from Ms. Mar-
tinez, Mr. Ortiz, and members of their extended family. The
3 R.21 at 1; see Fed. R. Evid. 706.
No. 14-2048 5
court also conducted in camera interviews with L.O. and
A.O. and received the expert report and testimony of
Dr. Machabanski.
During the hearing, the district court heard substantial
evidence indicating that Mr. Ortiz had sexually abused A.O.
Ms. Martinez testified that she had witnessed Mr. Ortiz in-
appropriately touching their daughter in her vaginal area
and had frequently observed signs of such abuse. The dis-
trict court summarized her testimony as follows:
[Martinez] testified about her relation-
ship with Ortiz and the sexual abuse of A.O.
that she witnessed. She stated that the abuse of
A.O. was the basis for her decision to flee to
the United States and described what occurred
between the abuse and the actual travel to Chi-
cago. Shortly after A.O. was born, [Martinez]
noticed that A.O. had repeated rashes in the
vaginal area. She took her to a doctor as a baby
but had been told it was likely diaper rash and
was prescribed a cream. After the doctor’s visit
[Martinez] stopped giving A.O. any dairy
products in order to eliminate dairy as a poten-
tial source of the rashes. Then the rashes began
to reappear in the summer of 2010.
[Martinez] first witnessed what she per-
ceived to be inappropriate contact between
Ortiz and their daughter A.O. when A.O. was
three years old. Ortiz regularly bathed A.O. on
the weekends, starting in late spring or sum-
mer of 2010. [Martinez] had noticed that A.O.
was happy and cooperative during the week
6 No. 14-2048
but that on the weekends she would become
anxious and not want to shower. In the second
or third week of August 2010, [Martinez] twice
entered the bathroom when Ortiz was bathing
A.O. In the first instance, she discovered A.O.
naked and against the wall and Ortiz on his
knees, naked, in front of her. The shower was
not falling on A.O. and Ortiz was touching her
with his right hand between her legs, without
soap or a towel. Ortiz was very surprised when
[Martinez] opened the door. [Martinez] was in
shock and took A.O. away to her room imme-
diately but did not confront Ortiz. Initially,
[Martinez] did not think that Ortiz could have
done this and testified that it was difficult to
accept. A week later, when Ortiz told A.O. it
was time to shower, [Martinez] perceived that
A.O. looked to her for help, with her finger
over her mouth, and [Martinez] nodded to her.
After A.O. went into the shower with her fa-
ther, [Martinez] followed into the bathroom
immediately and overheard A.O. telling her fa-
ther not to touch her private area anymore.
[Martinez] immediately took A.O. from the
shower again.
[Martinez] did not talk to anyone about
the incidents and admitted at trial that she did
not do so because she was ashamed and had
difficulty comprehending it herself. She pro-
hibited Ortiz from showering with A.O. and
assumed that she had solved the problem, but
A.O. continued to have vaginal rashes. She
No. 14-2048 7
asked her daughter about the rashes a few
weeks later and her daughter said that her fa-
ther had touched her again. [Martinez] con-
cluded that it must be happening during the
night and therefore she began to sleep between
Ortiz and their daughter’s crib which was lo-
cated in the same room. In December 2010,
[Martinez] asked Ortiz for a separation that she
be permitted to take the kids to the United
States. He stated that she should leave alone
and leave the children with him until things
were stable in the United States at which point
he would send them. Ortiz held the family’s
passports at his office. [Martinez] would re-
peatedly ask him to give them to her but he did
not bring them back from the office. [Martinez]
did not go to the police or the other authorities
because she believed that given her husband’s
connections with law enforcement officials
through the law classes he had taken and
through his job, her allegations would either
not be respected or Ortiz would pay the cor-
rupt authorities to keep the allegations silent.[4]
A.O. corroborated this testimony during her in camera
interview, explaining, with words and gestures, how her fa-
ther had put his finger in her vaginal area while the two
were showering. Dr. Machabanski further substantiated
these allegations. At trial, Dr. Machabanski testified that
4 R.72 at 4–6 (footnote omitted) (citations omitted).
8 No. 14-2048
A.O. exhibited behavior consistent with having suffered
sexual abuse. As detailed in his report, A.O. also exhibited
strong negative emotions toward her father through her
playtime behavior. Based on these and other factors,
Dr. Machabanski testified that, in his “professional opinion,
[A.O.] was telling the truth.” 5
In August 2013, the district court issued a written order
denying Mr. Ortiz’s petition. Although it determined that
Ms. Martinez had wrongfully removed the children, the
court nonetheless concluded that an exception to the Con-
vention’s mandatory-return rule applied for each child. With
respect to A.O., the court determined that Ms. Martinez had
presented sufficient evidence to establish the “grave risk”
defense under Article 13(b). The court credited Ms. Mar-
tinez’s evidence that Mr. Ortiz previously had molested A.O.
and, based on that abuse, determined that A.O. would face a
grave risk of similar harm by her father if returned to Mexi-
co. The court explained the reasoning for its credibility find-
ings as follows:
The Court finds A.O. to be a bright and
credible young girl. She looked directly at the
Court, responded to questions without fabrica-
tion to basic inquiries regarding pets, colors,
and relationships, and generally acted coopera-
tively and spontaneously as opposed to a child
who has been coached to use certain terms, ex-
pressions, or statements. The Court has consid-
erable expertise in the area of interviewing mi-
5 R.76 at 10.
No. 14-2048 9
nor victims of sexual abuse and did not find
any indicators that would suggest fear of tell-
ing the truth to the Court or of coached testi-
mony. Of considerable merit is A.O.’s descrip-
tion of the personal hiding place that she
would run to after abuse—a place not men-
tioned by any other individual in the case
which corroborates that the actions took place
and she sought a place of solace afterward.
….
Finally [Martinez] testified in a credible
manner also and used terms that were different
than the terms used by her minor daughter.
She was most credible when asked about her
reasons for not reporting the abuse to the au-
thorities in Mexico when she was there. It was
clear to her that since her husband held a posi-
tion of authority that she would not be be-
lieved and that she would actually be placing
the children in greater harm if she could not be
the one to get them out of the abusive relation-
ship. Her testimony regarding how her hus-
band maintained the passports at work so that
she could not act on her own, and then how
she placated him to finally allow the trip to the
United States is consistent with the timing of
the reporting and with her sister’s testimony.
….
Given the testimony supporting a find-
ing of grave risk to A.O., the Court is also high-
10 No. 14-2048
ly concerned with the potential for furtherance
of the risk if the Court were to order the chil-
dren returned to Mexico for custody. [Mar-
tinez], who has no funds and no job of her own
and whose family resides in the United States,
would almost certainly not have the means to
reside independently from Ortiz while custody
was determined.[6]
The district court’s decision with regard to L.O. was
slightly more complicated. The court started its analysis by
denying Ms. Martinez’s motion to amend her answer. In do-
ing so, the court ruled that “consideration of the wishes of
the child [was] not an appropriate affirmative defense” un-
der the Hague Convention. 7 Rather, according to the court,
the “wishes of the child” was a “consideration” and an “ex-
ception” under the Convention, which the court had “inde-
pendent authority” to consider. 8 Invoking this authority, the
district court independently found that L.O. was old enough
and mature enough such that his desire to remain in the
United States should be credited. Based on these findings,
the district court denied Mr. Ortiz’s petition.
Shortly thereafter, Mr. Ortiz filed a motion for a new tri-
al, asserting that the district court’s findings were against the
manifest weight of the evidence. Specifically, he submitted
that the evidence of sexual abuse in the case lacked credibil-
6 R.72 at 20–22 (footnote omitted).
7 Id. at 23 n.3.
8 Id.
No. 14-2048 11
ity and thus that Ms. Martinez had failed to sustain her bur-
den of proof with respect to her grave risk defense.
The district court denied the motion. In doing so, it again
considered and rejected Mr. Ortiz’s various credibility ar-
guments:
Here, the court conducted a three-day
evidentiary hearing. Petitioner challenges the
sufficiency of the evidence weighed by the
court, arguing that the Respondent failed to of-
fer documentary or physical evidence of sexual
abuse. However, one does not have to provide
documentary or physical evidence of sexual
abuse when there is testimony that is corrobo-
rated by multiple witnesses. See Sylvester v.
SOS Children's Villages Illinois, Inc., 453 F.3d
900, 903 (7th Cir. 2006).
[The court reviews the evidence of
abuse.]
The Petitioner claims that the Respond-
ent remained in the same home as Petitioner
after she witnessed the alleged abuse, and that
such “self-serving statements tell a story that
strains credulity.” Petitioner also accuses Re-
spondent of having sufficient time to coerce
A.O. into falsely testifying about the alleged
abuse. The record supports the unique form of
manipulation inflicted upon the Respondent
by holding the family’s passports and not al-
lowing her to flee or to report to public officials
with who he was uniquely affiliated. This
12 No. 14-2048
unique manipulation is more than adequately
addressed in the record and explains any delay
in reporting the abuse which was done imme-
diately upon arrival in a safe place. As the fact
finder, the Court properly weighed the evi-
dence and credibility of the witnesses and
found that the children would face a grave risk
of harm if ordered to return to Mexico. Peti-
tioner has failed to present any new facts or
law to change the Court’s holding.[9]
Mr. Ortiz now appeals. 10
II
DISCUSSION
On appeal, Mr. Ortiz challenges only the district court’s
ruling with respect to A.O. 11 In particular, he contends that
9 R.86 at 5–7 (record citations omitted).
10The district court’s jurisdiction was premised on 22 U.S.C. § 9003(a)
and 28 U.S.C. § 1331. Our jurisdiction is secure under 28 U.S.C. § 1291.
11 Originally, Mr. Ortiz also challenged the district court’s ruling with
regard to L.O. In particular, he asserted that the wishes-of-the-child ex-
ception was an affirmative defense and that the district court had erred
by raising and deciding that defense on its own initiative.
By the time of oral argument, however, L.O. was ten days away from
his sixteenth birthday (May 1, 2015). Because the Hague Convention
“cease[s] to apply when [a] child attains the age of 16 years,” Hague
Convention, art. 4, Oct. 25, 1980, T.I.A.S. No. 11,670, we asked the parties
at oral argument to submit supplemental briefs addressing the issue of
whether L.O.’s upcoming birthday would render his portion of the case
moot. On May 5, 2015, Mr. Ortiz filed a motion in this court seeking “to
(continued...)
No. 14-2048 13
the district court erred in finding that he had sexually
abused A.O. and thus that she faced a grave risk of harm if
returned to Mexico. We review the district court’s factual
findings for clear error and its conclusion that those facts es-
tablish a grave risk of harm de novo. See Norinder v. Fuentes,
657 F.3d 526, 533 (7th Cir. 2011). Under the clear error stand-
ard, we will not overturn the district court’s factual findings
unless, after reviewing all the evidence, we are “left with [a]
definite and firm conviction that a mistake has been
[made].” Graber v. Clarke, 763 F.3d 888, 894 (7th Cir. 2014) (in-
ternal quotation marks omitted).
“The Hague Convention is an anti-abduction treaty.”
Redmond v. Redmond, 724 F.3d 729, 739 (7th Cir. 2013). It was
designed “to deter parents from absconding with their chil-
dren and crossing international borders in the hopes of ob-
taining a favorable custody determination in a friendlier ju-
risdiction.” Walker v. Walker, 701 F.3d 1110, 1116 (7th Cir.
2012). To this end, the Convention employs a “remedy of re-
turn,” Khan v. Fatima, 680 F.3d 781, 783 (7th Cir. 2012) (inter-
nal quotation marks omitted), which “entitles a person
whose child has wrongfully been removed to the United
States in violation of the Convention to petition for return of
the child to the child’s country of ‘habitual residence,’” Nor-
inder, 657 F.3d at 529. A court’s role in enforcing the Conven-
tion is not to settle a custody dispute between the parties,
(...continued)
voluntarily dismiss that portion of his appeal related to the return of L.O.
as moot.” App. R. 32 at 2. We grant Mr. Ortiz’s request and therefore do
not consider this issue further.
14 No. 14-2048
“but rather to restore the status quo prior to any wrongful
removal or retention.” Redmond, 724 F.3d at 739.
The Convention’s mandatory-return rule is subject to
several narrowly drawn exceptions. One such exception is
the affirmative defense of grave risk:
[T]he judicial or administrative authority of the
requested State is not bound to order the re-
turn of the child if the person, institution or
other body which opposes its return establish-
es that—
…
b there is a grave risk that his or her return
would expose the child to physical or psycho-
logical harm or otherwise place the child in an
intolerable situation.
Hague Convention, art. 13(b), Oct. 25, 1980, T.I.A.S. No.
11,670. Sexual abuse most certainly constitutes a “grave risk”
of physical or psychological harm. Similarly, sexual abuse,
particularly by a custodial parent, is a well-recognized ex-
ample of an “intolerable situation” within the meaning of
this exception. See In re Application of Adan, 437 F.3d 381, 395
(3d Cir. 2006); Danaipour v. McLarey, 286 F.3d 1, 16 (1st Cir.
2002); U.S. Dep’t of State, Hague International Child Abduc-
tion Convention; Text and Legal Analysis, 51 Fed. Reg.
10,494, 10,510 (Mar. 26, 1986). The party opposing the return
of a child has the burden of establishing this exception by
clear and convincing evidence. 22 U.S.C. § 9003(e)(2)(A).
Mr. Ortiz does not contest the district court’s legal con-
clusion that the sexual abuse of which he is accused consti-
tutes a “grave risk” under the Convention. Rather, he chal-
No. 14-2048 15
lenges only whether the district court’s factual determination
that he sexually abused his daughter meets the “clear and
convincing” standard. Specifically, he contends that this
finding was based on unreliable evidence and thus was
clearly erroneous. In response, Ms. Martinez submits that
the evidence of record amply supports the district court’s
factual findings and that Mr. Ortiz’s credibility arguments
are insufficient to establish clear error.
We agree with Ms. Martinez. In making its determina-
tion, the district court explicitly acknowledged that
Ms. Martinez had to meet the demanding “clear and con-
vincing” standard. Here, the evidence of sexual abuse was
substantial and certainly sufficient to meet that exacting
standard. During her testimony, Ms. Martinez described, in
detail, how she had seen Mr. Ortiz molesting A.O. in the
shower and how, on a separate occasion, she had overheard
A.O. tell her father, while the two were showering, not to
touch her private areas anymore. This testimony was con-
sistent with A.O.’s description of events during her in cam-
era interview. Finally, in his expert testimony and report,
Dr. Machabanski opined (1) that A.O. exhibited behavior
consistent with having suffered sexual abuse; (2) that she
exhibited strong negative emotions toward her father
through her playtime behavior; and (3) that, in his “profes-
sional opinion, she was telling the truth.” 12
Mr. Ortiz nonetheless contends that the evidence is so
lacking in credibility that the court’s decision to credit it
amounts to clear error. He contends, for example, that
12 R.76 at 10.
16 No. 14-2048
Ms. Martinez’s testimony is uncorroborated, that her true
motive for fleeing to the United States was because she had
discovered that he was having an affair and that she had
“brainwashed and coached A.O.” on what to say during her
in camera interview. 13 He also attacks Dr. Machabanski’s tes-
timony as “unreliable,” asserting that it was “based upon
insufficient facts and data.” 14
The district court, however, heard and rejected these ar-
guments and, in doing so, certainly did not commit clear er-
ror. As the Supreme Court has noted, the clear error stand-
ard “demands even greater deference to” a district court’s
factual findings “[w]hen [those] findings are based on de-
terminations regarding the credibility of witnesses.” Ander-
son v. City of Bessemer City, 470 U.S. 564, 575 (1985). As a
practical matter, this means that such findings “can virtually
never be clear error,” unless premised on testimony that is
“internally inconsistent,” facially implausible, or “contra-
dicted by extrinsic evidence.” Id.; accord Kanter v. Comm’r,
590 F.3d 410, 417–18 (7th Cir. 2009). In other words, a district
court’s credibility findings are “binding on appeal unless the
[court] has chosen to credit exceedingly improbable testimo-
ny.” United States v. Warner, 498 F.3d 666, 678 (7th Cir. 2007)
13 Appellant’s Br. 14. Mr. Ortiz’s attempts to undermine the in camera
statements of his daughter were matters to be weighed by the trial judge.
The trial judge was on solid ground in rejecting those efforts and accept-
ing the daughter’s statements.
14 Id. at 15–16. Mr. Ortiz does not contend that the district court erred by
admitting Dr. Machabanski’s testimony. Rather, he merely submits that
the court “should have credited [Dr. Machabanski’s] findings very scant-
ly.” Id. at 16.
No. 14-2048 17
(emphasis in original) (internal quotation marks omitted).
“Discrepancies arising from impeachment, inconsistent prior
statements, or the existence of a motive do not render wit-
ness testimony legally incredible.” Whitehead v. Bond, 680
F.3d 919, 926 (7th Cir. 2012) (internal quotation marks omit-
ted).
Mr. Ortiz’s various credibility arguments fail under this
exacting standard. The district court carefully considered all
of these arguments. It heard the witnesses’ testimony and
evaluated their credibility first hand. None of Mr. Ortiz’s
contentions are sufficient to render the evidence credited by
the district court “legally incredible.” See id. 15 Consequently,
we conclude that the district court did not clearly err in find-
ing that Mr. Ortiz had sexually abused A.O. Because
Ms. Martinez’s presented sufficient evidence to establish the
15 See also United States v. Taylor, 701 F.3d 1166, 1174 (7th Cir. 2012) (“To
find a witness’s testimony to be incredible as a matter of law, it must
have been physically impossible for the witness to have observed that
which he claims occurred, or impossible under the laws of nature for the
occurrence to have taken place at all.” (internal quotation marks omit-
ted)); United States v. Freeman, 691 F.3d 893, 900 (7th Cir. 2012) (“Testi-
mony is not incredible as a matter of law only because the witness may
have been impeached by certain discrepancies in her story, by prior in-
consistent statements, or by the existence of a motive to provide evidence
favorable to the government.” (alterations omitted) (internal quotation
marks omitted)); United States v. Calabrese, 572 F.3d 362, 369 (7th Cir.
2009) (noting that “relatively minor inconsistencies” in a witness’s testi-
mony are incapable “of rendering [that] testimony legally incredible”);
United States v. Jensen, 169 F.3d 1044, 1047 (7th Cir. 1999) (“Witnesses are
not incredible as a matter of law simply because they have been im-
peached on trivial, irrelevant matters.”).
18 No. 14-2048
“grave risk” exception, the district court properly denied
Mr. Ortiz’s petition.
Conclusion
The judgment of the district court is affirmed.
AFFIRMED