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Thursday, December 29, 2016

Cisneros v Lopez, 2016 WL 7428197 (D. Nev., 2016)[Mexico] [Grave Risk of Harm] [Petition denied]

In Cisneros v Lopez,  2016 WL 7428197 (D. Nev., 2016)  Petitioner, Respondent, and their daughters, AVES  who was nine years old and AIES who was two years old were all Mexican citizens. Respondent and the children left Mexico for the United States on March 17, 2015. Petitioner initiated the case in the district court on January 12, 2016. The Magistrate Judge found that Petitioner met his burden of establishing his case-in-chief for the return but given the clear and convincing evidence of physical and psychological abuse, that returning the children to Mexico would pose a grave risk to their physical and psychological well-being, and recommend that the petition for return be denied. Respondent testified regarding domestic violence. AVES also testified that she saw Petitioner hit Respondent, causing her nose to bleed on two occasions; that when they were on a family camping trip, Petitioner threatened to kill her, AIES, and Respondent; that she was afraid of her father; that she was afraid of the dark and that she had nightmares “[a]bout my dad killing my mom.” When asked whether she feels safe living in Mexico, AVES testified that “I’m scared that my dad [sic] kill my mom.” AVES objected to being returned to Mexico and wanted to stay in the United States. Respondent’s witness Dr. Norman Roitman, an expert in psychiatry testified that AVES maturity level was advanced beyond her chronological age by one or two years, to age ten or eleven. Based on his evaluation, Dr. Roitman diagnosed AVES with post-traumatic stress disorder (“PTSD”) and adjustment disorder with anxiety and depression. Dr. Roitman stated that AVES “has a close anxious bond with her mother, has separation anxiety that’s separate and apart from the PTSD, and separation from her mother could constitute the beginning of a significant psychiatric injury.” He further testified that separating AVES from her mother could result in “posttraumatic reinjury.” Dr. Roitman’s opinions were uncontroverted and were the only evidence before the court on whether returning AVES to Mexico would cause her PTSD to worsen. The Magistrate judge found that Respondent presented evidence of domestic violence directed at her by Petitioner over the course of their nine-year relationship, including physical and emotional abuse. There was some evidence of physical abuse against AVES. Respondent presented uncontroverted evidence that Petitioner caused significant psychological harm to AVES, as well as specific evidence of potential harm that AVES would suffer if she returned to Mexico. Dr. Roitman concluded AVES should not be returned to her father.  Based on Dr. Roitman’s uncontroverted expert opinion testimony, the court found there was a grave risk that return would subject AVES to psychological harm. In addition, there was evidence that returning her to Mexico would expose her to grave risk of physical harm due to escalating domestic abuse. There was evidence that the day before Respondent left home with the children, Petitioner hit AVES in the face, causing her lip to split, and that Petitioner threatened to kill both of the children. The court found that in addition to the risk of psychological harm, there was a grave risk that return would expose AVES to physical harm. Given that Respondent has established the grave-risk defense as to AVES, the court recommended that the petition be denied as to AIES as well, citing Miltiadous v. Tetervak, 686 F. Supp. 2d 544, 556 (E.D. Pa. 2010) (declining to separate siblings and finding that the younger sibling who was not suffering from PTSD would be exposed to the same grave risk of harm as the older sibling suffering from PTSD).

Saturday, December 24, 2016

Hernandez v Cardoso, --- F.3d ----, 2016 WL 7404767 (7th Cir., 2016) [Mexico] [Grave Risk of Harm Defense] [Petition denied]

          In Hernandez v Cardoso, --- F.3d ----, 2016 WL 7404767 (7th Cir., 2016) the Seventh Circuit affirmed an order of the district court which denied the father’s petition for return of the parties child to Mexico. The parties were both citizens of Mexico who resided in Mexico until December 15, 2014 and were the parents of  A.E., born in 2008, and M.S., born in 2002. Cardoso claimed to have left Mexico with A.E. and M.S. in December of 2014 to escape abuse from Hernandez and protect the children. In August  2015, Cardoso agreed returned M.S. to Hernandez. On December 18, 2015, Hernandez filed a Petition for Return. The District Court found that Cardoso testified credibly that Hernandez would hit her in the presence of A.E. with the intention of having A.E. witness the abuse of his mother. It observed a significant change in the demeanor of A.E. when the child discussed Hernandez, the domestic violence and the possible return to Hernandez’s custody. The District Court found that Cardoso and AE’s testimony about the domestic violence provided clear and convincing evidence that there was a grave risk of physical or psychological harm to A.E. if he was returned to Hernandez’s custody.

The Seventh Circuit observed that Cardoso did not dispute that Hernandez established a prima facie case for wrongful removal. However, Article 13(b) provides that “when there is a grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation, the automatic return required by the Convention should not go forward.” Norinder v. Fuentes, 657 F.3d 526, 533 (7th Cir. 2011). The District Court found that both Hernandez and Cardoso used physical discipline of the children. Hernandez testified that he would spank the children with an open hand and described Cardoso’s physical discipline as “more harsh” because she would pull her daughter’s hair and “really fight with her.” Cardoso testified that she would spank the children with her hand or with a shoe. She objected to the way Hernandez disciplined the children because it was “too much” and he would “hit them very hard” with a belt. The District Court questioned A.E. in camera during the evidentiary hearing. A.E. testified that Hernandez would hit him with a belt if he misbehaved “really bad.” He further testified that he saw Hernandez hit Cardoso with a belt and with his hands and saw him give Cardoso a black eye. A.E. said he was “a little bit” afraid of Hernandez.  The District Judge determined that Cardoso’s testimony that Hernandez abused her repeatedly and in the presence of the children was credible, despite the fact that she allowed her daughter to return to Mexico to live with Hernandez and provided inconsistent testimony about whether Hernandez knew she would leave Mexico with the children. Cardoso’s testimony about the abuse was corroborated by A.E., who testified of Hernandez’s physical abuse toward Cardoso and himself. With the deference given to the District Court, the Court found there was no error in the lower court’s credibility determination.  A district court’s credibility findings are ‘binding on appeal unless the [court] has chosen to credit exceedingly improbable testimony.   Moreover, the District Court’s application of the facts in this case to the Article 13(b) “grave risk” standard was appropriate. “[R]epeated physical and psychological abuse of a child’s mother by the child’s father, in the presence of the child (especially a very young child, as in this case), is likely to create a risk of psychological harm to the child.” Khan v. Fatima, 680 F.3d 781, 787 (7th Cir. 2012). The District Court recognized it had to consider “risk in the father’s behavior toward the mother in the child’s presence” in its analysis. Id. The Court having found the factual findings made by the district court supported the conclusion that there was a “grave risk” of physical or psychological harm to A.E. if he was returned to Hernandez’s custody.

Pennacchia v Hayes, --- Fed.Appx. ----, 2016 WL 7367848 (9th Cir.,2016)[Italy] Habitual Residence] [Petition denied]

          In Pennacchia v Hayes, --- Fed.Appx. ----, 2016 WL 7367848 (9th Cir., 2016) the Ninth Circuit affirmed a judgment which denied Danilo Pennacchia’s petition for return of his minor child to Italy. In observing that the dispute centered around the habitual residence of the child the court pointed out that to determine a child’s habitual residence, they first look for the last shared, settled intent of the parents.  It explained that the district court concluded SAPH’s habitual residence was the United States, and that in doing so, the court applied the correct legal standard by focusing on the shared, settled intent of the parents. The district court acknowledged that the parents’ testimony differed concerning their intentions at the time they left the United States, but found Pennacchia’s “testimony lacked credibility and evidence to support his position.” The Ninth Circuit indicated that it gives heavy deference to factual determinations such as which witnesses to believe and which documents corroborate the most credible version of disputed testimony. The district court found Pennacchia agreed to and signed several documents, that supported the mother’s testimony and evidenced the parties’ initial agreement that “their living arrangement in Italy was conditional and ‘a trial period.’ It held that the district court did not err when it concluded that, for both parents, “the settled intention was for SAPH’s habitual residence to be the United States.

The Ninth Circuit indicated that for SAPH’s habitual residence to change, “the agreement between the parents and the circumstances surrounding it must enable the court to infer a shared intent to abandon the previous habitual residence.” Mozes, 239 F.3d at 1081. Although it is possible for a child’s contacts standing alone to be sufficient for a change of habitual residence, in view of ‘the absence of settled parental intent, [we] should be slow to infer from such contacts that an earlier habitual residence has been abandoned.’ To infer abandonment of a habitual residence by acclimatization, the ‘objective facts [must] point unequivocally to [the child’s] ordinary or habitual residence being in [the new country].’  It indicated that SAPH had significant contacts in Italy, but the district court did not find a shared parental intent to abandon her habitual residence in the United States or that the objective facts pointed unequivocally to a change in SAPH’s habitual residence. Pennacchia did not meet his burden on acclimatization, and therefore, the district court did not err by concluding SAPH’s habitual residence under the 1980 Hague Convention remains the United States.

Pliego v Hayes, 2016 WL 7048693 (6th Cir., 2016) [Turkey] [Grave Risk of Harm] [Attorneys Fees] [Petition Granted]

In Pliego v Hayes, 2016 WL 7048693 (6th Cir., 2016) the state of habitual residence was Turkey, where the Petitioner father was assigned as a Spanish diplomat. The mother removed the child to the United States twice, and twice was ordered by the district court to return the child to Turkey.( Pliego v. Hayes, 86 F.Supp.3d 678, 696–97 (W.D. Ky. 2015) (“Pliego I”); Pliego v. Hayes, No. 5:15–CV–00146, 2015 WL 4464173, at *7 (W.D. Ky. July 21, 2015) (“Pliego II”). During the second proceeding, Pliego took steps for his diplomatic immunity to be waived, which would be necessary for Turkish courts to adjudicate the child’s permanent custody if his second ICARA petition was successful and the child was returned to Turkey. The Spanish Embassy sent diplomatic notes to Turkish authorities waiving Pliego’s immunity from jurisdiction and execution with regard to the custody case. The mother appealed the second return order, arguing that there was a grave risk of an “intolerable situation” because the father’s diplomatic status undermined the ability of the Turkish courts to properly adjudicate custody.

As an initial matter, the Sixth Circuit held that the case was not moot. By appealing Pliego II, Hayes was asking in effect for a “re-return” order instructing that the child be brought back from Turkey to the United States. Such a re-return order may be difficult to enforce, but this alone does not render an ICARA case moot, Chafin v. Chafin, ––– U.S. ––––, 133 S.Ct. 1017, 1023–26, 185 L.Ed.2d 1 (2013). The essential facts have not changed since Hayes’s appeal of Pliego II. The child was still in Turkey. An exit ban still prevented either parent from taking him outside of that country. Turkish courts were still adjudicating the underlying custody dispute. Accordingly, this case was not moot.

The Sixth Circuit held that the treaty phrase “intolerable situation,” under the second prong under Article 13(b) can encompass situations where the courts of the state of habitual residence are practically or legally unable to adjudicate custody. However, that was not the case here because, as found by the district court, the waiver by the Spanish government of the father’s diplomatic immunity sufficiently permitted the Turkish courts to adjudicate custody. The Sixth Circuit held that Hayes failed to establish an “intolerable situation” under the facts of this case, and review of the facts was for clear error. Simcox v. Simcox, 511 F.3d 594, 601 (6th Cir. 2007). None of the district court’s findings of fact were clearly erroneous, and they clearly established that Turkish courts could properly adjudicate the underlying custody dispute and protect the child.

          The Sixth Circuit rejected Pliego’s requests for an award of attorneys’ fees and costs incurring during this appeal. It noted that Article 26 of the Hague Abduction Convention provides that “[u]pon ordering the return of a child ... the judicial or administrative authorities may, where appropriate, direct the person who removed or retained the child, ... to pay necessary expenses incurred by or on behalf of the applicant.” The ICARA provision implementing this language provides that “[a]ny court ordering the return of the child pursuant to an action brought under [ICARA] shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner.” 22 U.S.C. § 9007(b)(3) (2012). The Court held that  these provisions apply only to courts “ordering the return of the child.” Thus, this provision did not apply to it, which was not a court ordering the return of the child but was a court affirming another court’s order to return the child. This interpretation was supported by the decisions of sister circuits that have addressed the issue. Hollis v. O’Driscoll, 739 F.3d 108, 113 (2d Cir. 2014); West v. Dobrev, 735 F.3d 921, 933 n.9 (10th Cir. 2013). However, it did not reach the issue of whether the district court that ordered the child’s return in Pliego II may, upon separate motion, award fees incurred on this appeal.

Ochoa v Suarez, 2016 WL 6956609 (W.D. Mich, 2016)[Mexico] [Age & maturity defense][Petition denied]

In Ochoa v Suarez, 2016 WL 6956609 (W.D. Mich, 2016) Petitioner, Rosario Ramos Ochoa, a citizen of Mexico, filed a Petition seeking the return of her two minor children, MV and GV, to Mexico, their habitual residence. After the Court adopted the Magistrate Judge’s partial Report and Recommendation, which concluded that Petitioner met her burden of establishing a prima facie case for the return of MV and GV under the Convention the issues remaining for decision were whether the grave risk and age and maturity exceptions or defenses under Article 13 of the Convention applied.

          On August 2, 2016, after a hearing, a Magistrate Judge issued a report in which she concluded that Respondent failed to establish the grave risk exception by clear and convincing evidence. However, the magistrate judge concluded that MV and GV were of sufficient age and maturity for their wishes to be taken into account. Petitioner filed an Objection to the Report and recommendation, arguing that the Court should reject the magistrate judge’s recommendation that the Court deny the Petition on the basis that the age and maturity exception applies.  The Court observed that pursuant to 28 U.S.C. § 636(b), upon receiving an objection to a report and recommendation, the district judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” After conducting a de novo review of the report and recommendation, Petitioner’s Objection, and the pertinent portions of the record, the Court concluded that it should be adopted and denied the petition for return.

Sabria v Perez, 2016 WL 7155744 (D. Oregon, 2016)[Mexico][ Habitual Residence] [Petition denied]

          In Sabria v Perez, 2016 WL 7155744 (D. Oregon, 2016) Plaintiff Anita Castro Sarabia (“Castro”) filed a complaint requesting the court order the return of KMRC, her seven-year-old son with defendant Bulmaro Ruiz Perez (“Ruiz”), to Mexico. The district court found that the United States was the child's habitual residence and dismissed the complaint. It found that in 2008, Castro and Ruiz met in Albany, Oregon. They lived together for a few months before separating. Castro gave birth to KMRC in April 2009.  In 2011 Castro had Ruiz’s permission to travel for seven months to Mexico, Castro’s native land. However, she and the child remained there for four years,  until he was retained in the United States in 2015, by Ruiz, after a visit to Oregon. The Court pointed out that a young child may acquire a new habitual residence in one of two ways: (1) through the parents’ shared settled intention to abandon the initial habitual residence; or (2) if “the objective facts point unequivocally to a person’s ordinary or habitual residence being in a particular place.” Mozes, 239 F.3d at 1076. Neither had occurred here. The district court found that Castro made the unilateral decision to change KMRC’s country of habitual residence from the United States to Mexico. Ruiz never consented or acquiesced to that change. Ruiz always firmly wished for KMRC to return to live in the United States. The Court's reading of Mozes, along with practically no evidence of KMRC’s acclimatization in Mexico, led it to conclude that Castro failed to meet her burden of demonstrating Mexico was KMRC’s country of habitual residence.

Thomas v Orion, 2016 WL 7046564 (M.D. Florida, 2016)[Canada] [Grave Risk of Harm][Petition denied]

In Thomas v Orion, 2016 WL 7046564 (M.D. Florida, 2016) Thomas filed a Petition against Jean Marceau Orion on June 9, 2016, seeking the return to Canada of the Parties’ three children, JMO, who was 12 years old and was born in 2004 in Miami, Florida; SRO who was 10 years old and was born in 2005 in Fort Myers, Florida; and MWO who was 9 years old and was born in 2007 in Fort Myers, Florida, and lived in Canada since 2008 with Thomas. She alleged Orion wrongfully retained the Children in Lehigh Acres, Florida, after a visit on June 28, 2015, when they did not return as agreed in August 2015. Orion was married and living with his wife and the Children in Lehigh Acres, Florida. The Children were enrolled in the Lee County School System and did not wish to be returned to Canada. Orion asserted he kept the Children in Florida because of a DPG report from 2013 and the statements made by the Children that they were physically abused. He also had concerns about the comments made by MWO that he sometimes went hungry.  The testimony presented at the hearing established that since July 2008 the Children attended school, went to church, and lived with Thomas in Canada. Orion sent child support payments to Thomas in Canada and traveled to Canada to visit with the Children on a yearly basis. The Children had not returned to the United States between 2008 and June 2015. There was an agreed upon date—August 2015—for the Children to return to Canada. The Court found by a preponderance of the evidence that the Children were habitual residents of Canada at the time they came to Florida and Orion retained them past the agreed upon date of return. The Court concluded that Thomas has established a prima facie case for return. However, it denied the petition finding that evidence presented at the hearing established that returning the Children to Canada and Thomas would expose them to grave physical or psychological harm. The last report submitted by DPG established the Children's’ living conditions were deplorable. The floors were filthy, dried food stuck to the walls, the refrigerator door was open to the point the inside was no longer cool, and there was very little food inside. MWO reported that he was hungry at school because he did not get any breakfast and noted that he only had cereal for supper the night before. MWO was physically hit by his oldest half-brother, DD. MWO also reported that Thomas hit him with a hair brush on his hand and back. Thomas admitted that her estranged husband Bonomo also hit the Children. The Children reported that Bonomo would sometimes have the oldest child, JMO, and/or DD hit the younger children while he watched. In 2008, DD reported to school authorities that Thomas stuffed socks into his mouth as a form of punishment. Further, Thomas admitted instructing the Children to keep quiet and not to report any physical abuse they received or any meals they missed. Given the abuse suffered by the Children at the hands of Thomas and Bonomo, the lack of food, the uncleanliness of the living environment, and Thomas’ proclivity to attach herself to men she did not know well, the Court found by clear and convincing evidence there was a grave risk of physical or psychological harm that would be caused by returning the Children to Canada. The Court denied the petition.