Hurtado v Ruiz (CA 1997) Santa Clara County No FL 065202 18 International Abduction [US 1997] =========================================================== 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