The parties have two children – ages 5 and 4. They had been living with their Mother, the Petitioner, in Ciudad Juarez, Mexico since the parties’ separation. They visited with their Father, the Respondent, in El Paso, Texas on occasion. Respondent retained the children in Texas on July 28, 2021. He had picked them up to bring them to Texas for medical appointments, and chose to not return them as planned because their appearance indicated to him that they were being neglected. The children were both special needs, and were not in school at the time of the retention because the school required the Petitioner Mother to attend with them to help them with their special needs, and she was unable to do so. The 5-year-old son was diagnosed with autism spectrum disorder and had been undergoing treatment in Juarez with a neurologist and speech and behavioral therapist, but his last appointment was on February 13, 2020 because of COVID. The 4-year-old daughter was not receiving any treatment for her special needs. Respondent Father indicated that post-separation, he observed a physical and cognitive decline in the children while in their Mother’s care. After their retention, they began attending school and were placed in special education classes. Further medical appointments indicated that the children were not current on their vaccinations and that the son needed glasses and the daughter needed hearing aids. They also had dental complications and infections. The Father claims that the children, when visiting, lacked hygiene, and had soil marks on their clothing. The children had been toilet trained, but apparently were using diapers while in Petitioner’s care. Finally, the Father indicated that the children’s behaviors after retention indicated to him that the children had been physically abused, and were reacting in a manner that indicated they feared they would be physically punished when, for example, spilling a beverage. He also had received anonymous texts around August 2021 indicating that the children had been sexually abused, and that Petitioner, upon learning of it, allowed it to continue in exchange for money. Upon a physical in Texas, the physician contacted the El Paso CPS.
This case is one of the few where the Respondent satisfied the high burden of clear and convincing evidence that returning the children would violate human rights, under Article 20 of the Hague Abduction Convention. He specifically argued that the children were not afforded the fundamental right to a special education free of charge to meet their specific needs thereby impacting their fundamental freedoms in the future. The court indicated that the Universal Declaration of Human Rights provides a right to education. The Individuals with Disabilities Education Act establishes a right to “free appropriate public education” for disabled children. The Texas Constitution provides for an “efficient system of public free schools.” Brown v. Board of Education indicated that compulsory attendance recognizes that education is important to a democratic society and one of our most basic public responsibilities. The law in Mexico does provide for special education, but it required the Petitioner to be present so the children could attend school, and she had to work. This effectively denied the children the fundamental right to an education. This utterly shocks the conscience. Respondent also demonstrated that returning the children would place them in a grave risk.