Guatemalan toddler kidnapping illustrates ancient maxim, "hard cases make bad law"

U.S. relies on legal technicalities to dodge heartbreaking issues

"This is one of those unfortunate cases in which it is a hardship upon the plaintiff to be without a remedy, but by that consideration we ought not to be influenced. Hard cases, it has been observed, are apt to introduce bad law" - Winterbottom v. Wright (1842).

In the merry old England of the mid-19th century, Mr. Winterbottom was a mail carrier. He was hired by the local postmaster to drive a mail carriage pulled by horses as he went about his rounds. The postmaster, in turn, had hired a man named Wright to maintain the fleet of carriages in good running order. One day, while Winterbottom was out on his route, the carriage disintegrated and "collapsed upon the common way, throwing plaintiff to the ground with great force and violence, all because defendant Wright negligently failed to perform his duty." The mail carrier sued for his injuries. Think of the case as a forerunner of modern-day car accident litigation, with which the court dockets are clogged in many Anglo-American jurisdictions.

Winterbottom was badly hurt, and the court felt sorry for him. But there was nothing the judge could do, and so he lost. Under controlling legal principles of the time, Wright was answerable only to the person with whom he had a direct contract - in this instance, the postmaster, not third parties such as Winterbottom who had been hired to drive the mail carriages. The law has long since changed, of course, and now in some countries all kinds of things can get you sued. But the maxim of the mail carriage case endures. Even though we may not like the result, abstract concepts favoring policies over persons often prevail.

Then there are those really hard cases which involve much more than decrepit waggons. What, for instance, if your child was snatched from your doorstep when you turned your back for a moment? What if two or three years later, you found out he or she had been sold by professional kidnappers, and was now living in another country with new adoptive parents? What if that country told your country, "sorry, we don't have to return your child, because there was no treaty in force between us covering international kidnappings when he/she was stolen"? What if the other country was the United States of America?

That's the nightmare with which Loyda Rodriguez has been living since Nov. 3, 2006.

San Miguel Petapa, Guatemala
In the hardscrabble town of San Miguel Petapa, south of Guatemala City, the avarice of one changed the lives of several that afternoon more than five years ago. Some say the clock is ticking away on Loyda's hopes of being reunited with her child. But the U.S. State Dept. says nothing can be done.

Anyeli Hernandez Rodriguez was born October 1, 2004, the second child of Loyda, a house wife, and her bricklayer husband, Dayner Orlando Hernandez. They struggled to make a living and to take care of their children, in a desperately poor nation which must contend with international drug cartels trying to convert Guatemala into a warehouse for U.S.-bound narcotics.

On the day in question Loyda and Anyeli, then two, were entering the family home when Loyda was distracted for a few moments and left the child briefly unattended. A stranger, a woman, arrived by taxi, snatched Anyeli and drove off. Loyda has not seen her since, and may well never see her again.

After navigating her way unaided through the torturous and at times uncaring Guatemalan legal system for months, Loyda finally got officials to take action. She eventually learned that a team of professional kidnappers had stolen Anyeli and sold her to a local adoption agency. Anyeli remained in Guatemala until Dec. 9, 2008, but Loyda didn't know that at the time. The only thing Loyda knew was that she wanted her daughter back.

Little Anyeli, by then four, was taken to the United States after a two year residency at the adoption agency. She was adopted by Timothy and Jennifer Monahan of Liberty, Mo., who had no knowledge of her past. Liberty is a quaint, historic town located just minutes north of Kansas City, Missouri, a sprawling metropolis which straddles the Kansas-Missouri state line. I was born in Kansas City and I lived most of my life in the area. It's a friendly, but perhaps curious, end-up spot for a two year old snatched from far away San Miguel Petapa. Anyeli is now seven and a half, has a new name and knows nothing of her former life. It's unlikely that she would understand much Spanish.

The devil is in the details, they say, and nowhere is that more true than in legal matters. Loyda Rodriguez reported to local police that her daughter was kidnapped in November 2006, which of course is exactly what happened. At the time, the U.S. and Guatemala had not yet signed an international treaty known as the Hague Abduction Convention. The two nations eventually approved it on Jan. 1, 2008, 14 months later. In a terse diplomatic communique, the State Department notified Guatemala yesterday that since no treaty was in force when Anyeli was snatched, the United States is not required to repatriate her. Guatemala's Foreign Ministry confirmed receipt of the rejection note last night. Guatemala is litigating the adoption issue on Loyda's behalf, after a judge there issued an order last year directing that Anyeli be returned.

A Guatemalan activist disagrees with the State Department's position, and claims the U.S. is required under other international law to return victims of human trafficking or kidnapping which have occurred within the previous five years. Claudia Hernandez of the Survivors Foundation, a human rights group that's trying to help Loyda, told the Associated Press, "Unfortunately, the kidnapping case was filed with the girl's original abduction date in 2006 when the U.S. and Guatemala did not have an agreement (rather than in December 2008, when she was actually removed from the country). We've been seeking a law firm in the United States that would take this to court, and sadly we're losing hope. Time is running out; the five-year window is nearly up," Hernandez said.

By all accounts the Monahans are loving, devoted parents, absolutely committed to the welfare of their adopted daughter. They have not addressed the press directly about this unhappy case, and have understandably asked that their privacy be respected. A public relations firm they hired last year to speak for them has said that they "will continue to advocate for the safety and best interests of their legally adopted child." While the quoted statement is true in the strictest technical sense, it begs the ultimate issue. The adoption of Anyeli Hernandez Rodriguez was in full accord with Missouri statutes, but it was based upon a criminal act - a kidnapping - as well as critical documents forged in Guatemala. In many other contexts, involving stakes far less significant than the ones presented in this dispute, the law would readily attempt to correct and reverse a decision which was based upon such blatant, admitted fraud. One might ask why it should hesitate to do so here.

Some argue that this case should be closed and forgotten. Anyeli, or whatever her new American name is, knows nothing of Guatemala or of her birth mother. Her life will be far better, her education superior, her opportunities almost unlimited, in Liberty. Returning her to the bitter impoverishment of a war torn Central American nation facing myriad problems, to a land whose language she no longer recognizes, where so many ominous dark clouds loom on the horizon, would be cruel and selfish, they contend.

But far to the south, in the hardscrabble town of San Miguel Petapa, Loyda Rodriguez waits and prays for Anyeli's return. And who in her position would not do exactly the same?

Guatemalan mom to ask U.S. court to help return girl adopted by Liberty couple