USA – CA – Hurtado – 1997 (Return ordered) HURTADO v RUIZ The mother brought the child to California. The father applied to have the child returned to Mexico. The mother did not have any legal representation in court. It appeared that the mother was very poor and most likely could not afford adequate legal representation. The father was represented by Mr. Hilton and his services were Pro Bono.
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Hurtado v Ruiz (CA 1997)Santa Clara County No FL 065202
18 International Abduction [US 1997]
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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA
BEFORE THE HONORABLE JAMES W. STEWART, JUDGE
DEPARTMENT NUMBER 119
In Re Matter of: )
CUAUHTEMOC I. HURTADO, )
PLAINTIFF, )
vs ) CASE NO: FL065202
MARIA C.G. RUIZ, )
DEFENDANT. )
_____________________________)
REPORTER’S TRANSCRIPT OF PROCEEDINGS
HELD ON 10 Apr 1997
APPEARANCES:
FOR THE PLAINTIFF: WILLIAM M. HILTON,
Attorney at Law
FOR THE DEFENDANT: IN PROPRIA PERSONA
ALSO PRESENT: JANET MURPHY HEIM
Deputy District Attorney
Special Appearance Pursuant
to Family Code
Sections 3130-3134
OFFICIAL COURT REPORTER: JEANIE E. CAYABAN, CSR
#140920
SAN JOSE, CALIFORNIA 10 Apr 1997
PROCEEDINGS:
THE COURT: Good afternoon, ladies and gentlemen. In
the special set matter of Hurtado and Ruiz.
MS. HEIM: Good afternoon, your Honor. Janet Murphy
Heim appearing as central authority designee and friend of
the Court pursuant to Family Code Sections 3130 to 3134.
THE COURT: Good afternoon.
MR. HILTON: I’m Bill Hilton. I’m appearing at the
request of the National Center of Missing Exploited
Children, the pro bono counsel for Mr. Hurtado. I’ve been
working with the District Attorney’s Office on this
particular case.
THE COURT: I need to get Mr. and Mrs. Hurtado in front
of me. If you folks would come forward.
MS. HEIM: Also the mother is here, your Honor, Maria
Ruiz.
THE COURT: If she could come forward, please. Do we
have a file in this matter’
THE CLERK: Yes, your Honor.
THE COURT: Is an interpreter necessary?
MS. HEIM: Yes. Mr. Hurtado does not speak English. I
don’t know how comfortable Ms. Ruiz feels. We do have
another interpreter coming, I’m informed.
THE COURT: Are you the interpreter for Mr. Hurtado?
THE INTERPRETER: Yes.
THE COURT: We can at least at this point swear the —
we might as well wait for just a moment. Where is the other
interpreter coming from?
THE INTERPRETER: She went to park “he car and should
be coming in any moment.
THE COURT: Why doesn’t everybody take a seat and let
me have some time to read the papers here.
Are the interpreters in this matter certified so they
do not need to be sworn?
THE INTERPRETER: Yes, your Honor.
MR. HILTON: An argument has been raised since the
filling, so I serve this on the mother and I would like to
leave a copy with the Court.
THE COURT: I see words in here that would — just a
moment. I see some work in the file that would seem to have
earmarks of your computer, Mr. Hilton, but has the District
Attorney’s —
MR. HILTON: I was helping with the drafting
of the documents, your Honor. Those are the — I mean, once
that were submitted to Ms. Heim, were looked over and
reviewed, then changes were made as appropriate.
MS. HEIM: Yes, your Honor, and then the other
document or documents that I prepared. Also, your Honor, my
investigator, Melanie Headrick, who will be here shortly
with the child, interviewed a number of people with regard
to this case with regard to the allegations that were made
and so on, and I have here her reports, which I had given a
copy to both Mr. Hilton and to Ms. Ruiz. I would like to
file those with the Court and we request that they be
sealed.
THE COURT: They’ll be filed with the Court and ordered
sealed.
Ms. Heim: Thank you, your Honor.
THE COURT: Why don’t I take a minute here while we
swear the parties and so on and I’d like to take a look at
the file, if I might.
THE CLERK: Would both parties stand and raise their
right hand.
(Whereupon, CUAUHTEMOC I. HURTADO and MARIA C.G. RUIZ were
sworn to tell The truth, the whole truth and nothing but the
truth.)
THE COURT: Ms. HeIM, Mr. Hilton, which one of you would
rather proceed first?
MR. HILTON: Your Honor, we have in court Mr. Sergio
E. Casanueva Requart and Ms. Esther Larios from the Counsel
of Mexico.
THE COURT: Okay
MR. HILTON: Your Honor, This is an actJon under the
International Child Abduction treaty 42 United States Code
et. seq.
The child was removed from Mexico approximately
February of 1996 without the consent of the father, as
prayed in the petition, whatnot, but make it clear an action
was filed — I think it was January the 1st. Documents in
this case were filed in January of 1997 so the action was
filed within one year.
The data we have before the Court, I believe, raises a
prima facie case and that Mexico was the habitual residence
of the child at the time of the removal, that the father had
the right of custody in the Mexican law at the time of
removal and that his pleading of that is filed with this
court, that there was no consent given by the father at the
time or since then. Accordingly, we have a prima facie case
that the convention requirements have been met and the
opposition to that will be presented by the mother of the
child, who is Conception Garcia Ruiz, whatever issues does
the Court — I’m not clear about what her opposition will
be, so I’m not totally prepared to argue it until I find out
what it is, but I’d say at this point that I have a prima
facie case.
THE COURT: But you’re requesting and what the District
Attorney’s office is requesting is the child be placed in
the physical custody of the father and returned to the
country of Mexico?
MR. HILTON: Yes, your Honor. And if the Court believes
that there’s any need for special treatment, we’re willing
to deal with the undertaking to make sure the child is
returned safely, if that’s an issue. For example, if — I’m
illustrating this — if there was some allegation that the
father was somewhat hurtful to the child, the Court could
require that the child be returned to the social services
agency in Mexico and that agency then do the proper
investigation. And we have been talking with Council of
Mexico and he advises us there is the organization DIF. DIF
is available if that is required. If it’s not required, of
course we wouldn’t use it if there’s no need, but if there
are special circumstances, this Court does have the
authority.
I was recently at a conference in Holland concerning
this where the issue of undertakings were discussed and they
were generally approved with some restrictions that they be
narrowly used, used only for the purpose of bringing the
child safely to the country of habitual residence if there
was a question about any form of harm to the child or even
if there wasn’t but the Court was concerned. The Court could
formulate proper undertakings that could be put into place.
For example, we show that DIF would be ready to pick
up the child to Mexico. What would be outside of the ‘limit,
for example, would be that he would have to provide housing
and attorney’s fees in Mexico for the child — I mean for
the mother. I mean, that would be outside of the range of
the Court’s powers under an undertaking because that becomes
a little bit more. Trying to order a Mexican Court to compel
them to do something, it’s not something this Court can do,
but to properly protect the child while the whole system is
in process is a proper way to handle it.
Does that answer the Court’s question?
THE COURT: Yes.
MR. HILTON: Thank you.
THE COURT: Ms. Heim, do you want to add anything? Then
I’ll hear from the mother.
MS. HEIM: Your Honor, I believe that Mr. Hilton has
pretty well summarized the people’s concerns. I would like
to point out, of course, that I’m not here representing
either party but just here as central authority designee,
friend of the Court. And, you know, I agree with Mr. Hilton
that at this point, we have shown by a preponderence of the
evidence that a prima facie case is made and that in that
case the showing that we’ve made does call for the mandatory
return and we have, of course, the ability to work out any
arrangements, should the Court find that that’s necessary,
for the safe return of the child.
THE COURT: Ms. Garcia, do you want to address the
Court on this issue and say anything to the Court about what
I should do?
MS. RUIZ: About what you just talked about, I would
like to say that some of the things that he had said in the
papers that he sent me, he lied a lot. Because in Mexico
it’s different because you’re so young. I remember in the
papers it said when I was young, he abused me, but I kept
quiet because he took me always whatever happened for
something and he took me always. I am so quiet. I talk to
her (sic) father alone. He ask me a lot of questions then.
Are you a virgin when he touch you for the first time? I
said yes. He believed me. He tried to give me money. He
tried to give me money again. And I was so confused.
My family, they didn’t lie. They don’t accept this. So
I kept quiet and worked hard for my daughter when my mom
take care of my daughter. The first time when I came to
California, I left my daughter with my MOM. After I’m done
with my child, talk to her (sic) mother — his mother and my
mother, the — I mean, like they want to take care of my
daughter and I send the money and the toys. I got my pearls.
I send the money. I call my mom. My mother came 1990 when my
brother have leukemia. She left my daughter with her (sic)
mother — with his mother and she told, okay, maybe I go
there about six months. I don’t know. Depend. He said, you
know, doesn’t matter. He take care about her.
I believe after when I saw the birth certificate of my
daughter, they put me 19 year old. I was 16 year old. When I
know everything, I got a hard time. I talk to my mom and she
goes, you cannot do nothing, miha. They have the power. They
do whatever he wants.
I know a lot of things about the family. That why they
talk to me always. You go see if you say something. Let’s
see if you can say something. You know what is going to
happen. I say okay. So I left my daughter with my mom three
days, the weekends with her (sic) mother — with his mother
and the week with my mother.
When my daughter started like kindergarten, she came
with her (sic) mother, he go to school, she go in the
weekend with my mom, but they never told me she was sick.
She was alone with a different families. They never told me.
Even his mother — I mean their grandmother, she was —
she’s single. I don’t know what she do. She work. She go
wherever she work. But she take my daughter with her. I got
my witness; they told me she took my daughter with her.
Sometimes when I came I remember in February, 1996,
she goes to the bathroom; she showed me something. She show
me something in underwears. I was so crying and crying and
ask him (sic) and she don’t say nothing. So with a face like
that and she goes, no, nothing, mom, MOM. Like she worry
something. That’s why I never — I’m trying to take to the
park, to the — you know, give the good time for her, forget
everything. Sometimes in the nights, she saying, oh, you
know, mom, I remember and she look like this. No, nothing,
nothing. Forget I said what, Diana? She want to say me
something but she worried about something. Maybe they — I
don’t know — they took her.
So this is in my — I’m no opposite if they want
Diana. For me that’s okay. It’s okay. But I worry about who
gonna take care about her. Everybody’s free. Everybody’s
single. Everybody, they don’t care about my daughter. They
let her go like two blocks by herself in the bikes. A lot of
cars came. They don’t care. When I go to Mexico about eight
o’clock, nine o’clock at night, nobody knows where is Diana.
So I kept on quiet because I know the people. That’s why I
never talk to them. But I try one time talk to him. He knows
me. I try to talk to him. C’mon, let’s talk about Diana. He
goes, I got nothing to talk about Diana. He says six year
ago. I say it doesn’t matter. I was on the phone. I gave
toys, everything. You guys told me everything’s okay. You
always lie to me. Even when I call to Mexico, they never
told me the truth how is Diana. She was sick. They never
told me because they worry maybe she gonna come. So, no,
it’s okay. No, it’s okay. I’m suspect. When I call one time,
somebody hurt Diana because I listen when she was crying. I
say, where is Diana? Oh, no, she’s not here. Her (sic)
sister — his sister, she say no, she’s not here, she go to
the other city. And I say, oh, yeah? I believe she’s there.
She goes, no, she’s not here. So, I feel like some things
happened.
So I keep on quiet and I go to Mexico to talk to my
family, to talk to my neighbors. They told me everything
about Diana. Even the first night when she sleep with me,
she got like an infection and she goes crying and crying. I
say, what’s happened to you? She goes, something. She goes
like this. I say, Diana, what’s happened to you? And she was
real sad like this. She never talk to me. That’s why I’m
trying to talk to him. He never listen to me because they
have a power. They think I don’t because I’m poor. They
don’t talk to me. I don’t know why.
So I think — I don’t care about my first, my begin. I
was virgin. I was young but now I’m older. I’m 26. But they
lie either in the birth certificate of my daughter. I got my
purse over there. They put me 19 year old. I was 16 when I
got pregnant. So his father, he was a nice guy. He give me
suggestion what I have to do, where I go. Maria, continue
your school, your high school. And I continue one year
after. And when I decide came to United States when my
brother — my relatives, my families, that’s — I told you
already. I left my daughter with his mother and my mother
but they know. I mean, when my mom go back, everything’s
different. Even they don’t let Diana see my mom. That’s why.
But I got pregnant. I tried to talk to them. They never
listen to me. Even the family told me, oh, really? They go
like this. Are you pregnant? Are you pregnant, Maria? Are
you pregnant? Let’s get an abortion. I say no, na-ah. They
live in that city about two hours. She told me a lot of
times: You know what? He never gonna love you. No? I was so
sad about the things because I worry about my family, too.
And then when I come, I know a lot of things about the
family. That’s why I’m scared about this man, about this
family. So if Diana has to go to Mexico, I’m trying to
understand, but I want you guys know who is this men. That’s
it. He even has the history with the other ladies that he
do the same thing, yeah. I got my witness, too.
THE COURT: I want you to translate. I’m going to ask
the translator to translate the question that I ask because
I don’t want there to be any mistake about what I’m asking.
From documents presented to the Court, I believe that
you stated that when you became pregnant with Diana that
this was based on force as opposed to consent; is that true?
MS. RUIZ: Yeah.
THE COURT: All right. Thank you.
I would like to hear at this point from Mr. Hurtado
and ask if he has anything he would like to say to the
Court.
THE INTERPRETER: Yes.
THE COURT: Go ahead.
THE INTERPRETER: Good afternoon. First of all, I would
like to clarify there was never force, no — she was never
obligated to have sexual relations. If that had been force,
there would have been sexuall violation even if both of us
were very young. I was 19 years old. She was almost 17.
There were certain sexual attraction between us. I attribute
that to sexual attraction and somewhat to the inexperience.
I’d ‘like to emphasize that there never was an abuse nor
force or moral sins. It was consent from her.
In regards to the baby, it was never denied she was
the mother since she left her when she was approximately six
months old. Since then, I always took care of her. She never
provided her anything for education or financially. During
the eight years that she lived with me, the mother, she
never sent her any money or clothing or anything. At the
same token, the little girl, she would go to the
grandmother’s house every weekend. For that I have
witnesses. Also, it was never denied to the child to speak
to her mother on the phone. That’s a fact that she has done
during the year with me. That now when she brought her over,
she never allowed her to speak to me. That’s why she was
crying. And three times she was able to speak to me and my
mother. She would cry because she wanted to go back because
she was with a person she didn’t know in a strange country
and without friends. What she used to do is cry a lot
because she missed her family.
From that time, she tried to hide her, changing her
telephone number and changing her address. I went to
Mexican. We have a justice trial and to have an
investigation in all the concepts in order for me to keep
the little girl with me in Mexico if the law decided that
way. That’s it.
THE COURT: Was that hearing in Mexico after the mother
had taken the child to the United States?
THE INTERPRETER: Yes.
THE COURT: All right. Thank you. Anything further that
you wish to add?
MS. HEIM: Your Honor, I really don’t believe that
there has been established any kind of danger to the child
by the testimony that we have here. Obviously, we have a
one-on-one situation, both parents obviously having concerns
and accusations against each over, but I don’t believe that
anything has risen to the level of proof that’s necessary to
establish a 13(B) defense, which is proof by clear and
convincing evidence that the return of the child would be
harmful to the child.
THE COURT: Matter submitted?
MS. HEIM: Submitted, your Honor.
MR. HILTON: Submitted, your Honor.
MS. RUIZ: (Defendant nods her head.)
THE COURT: The Court is convinced that this Court is
mandated by law to return the child to Mexico and I’m going
to order that the child be returned.
The Court is going to indicate that there are some
things that I find that would lead me to believe that there
should be an undertaking and the child upon return to Mexico
City should be taken to the social service agency DIF at
least for their investigation.
I think it is true that the mother is from a very poor
family in Mexico. I think based on what I’ve seen in the
papers before me, she is, for circumstances in the United
States, poor. I think the father is from a very well-to-do
family in Mexico. I believe that the mother was a minor when
the child was conceived and the father was, at least by our
laws, an adult, was not a child. That the child was
conceived under circumstances that while, at least, not
totally consensual but that does not make out a case that
Mexico should not handle this matter.
It’s clear to me that the mother, while credible on
some things, stole the child from Mexico improperly, brought
the child to the United States, brought Diana to the United
States, and this Court cannot step in in countenance to that
kind of conduct, although I know the mother does not — I do
not know that she would not be able to get some funds to go
to Mexico City and seek any kind of legal proceedings there.
I’m going to ask that the representative from the consulate
see that — because of the things that I do find in the
case, I just want them to look at the situation, make sure
that the child is safe, has a good home and is properly
cared for.
I do not find that the mother has credibly stated
anything to me that would lead me to believe that the father
wishes to harm the child or is not capable of taking care of
the child. I think it’s likely that his relatives will take
care of the child a great deal, but I think within extended
hispanic families, that’s traditionall and that’s going to
be my order.
MR. HILTON: Yes, your Honor. I have consulted with the
consulate officials and we believe we will have this set up
with the DIF, which is actually in, I believe, the State of
Michoaca and they have said they have contact with the DIF
in Michoaca and they’re prepared to lend or provide whatever
services are required.
THE COURT: I’m sorry. Will not be in Mexico City but
the State of Michoaca?
MR. HILTON: That’s right, State of Michoaca.
THE COURT: Court has some knowledge of the State of
Michoaca.
MR. HILTON: Is that order forthwith, your Honor?
THE COURT: The order is forthwith. The Court is
mandated to return the child to Mexico.
MR. HILTON: We have a proposed order, your Honor.
THE COURT: I’ll sign it. I cannot imagine why I need
to put in here that the peace officer has the authority to
search the premises of the child.
MS. HEIM: You certainly can strike that.
THE COURT: Thank you very much.
MS. HEIM: Thank you, your Honor.
(End of Proceedings)
STATE OF CALIFORNIA )
) ss.
COUNTY OF SANTA CLARA )
In Re Matter of Hurtado vs Ruiz, Case# FL065202
Hearing Date: 10 Apr 1997
I, JEANIE E. CAYABAN, OFFICIAL COURT REPORTER DO
HEREBY CERTIFY: THAT I AM THE REPORTER, DULY APPOINTED AND
SWORN, WHO REPORTED THE ABOVE AND FOREGOING PROCEEDINGS AT
TIME AND PLACE THEREIN STATED;
THAT I REPORTED THE SAID PROCEEDINGS; AND THAT
FOREGOING PAGES ARE FULL, TRUE, COMPLETE AND CORRECT TO THE
BEST OF MY ABILITY.
/s/ Jeanie E Cayaban 09 May 1997
JEANIE E. CAYABAW,
C.S.R. #10920