In Ortiz v. Martinez, --- F.3d ---- (7th Cir., 2015) 2015 WL 3650649 Mr. Ortiz and Ms. Martinez were the parents of two minor children, A.O., a seven-year-old girl, and L.O, a sixteen-year-old boy. Prior to August 2011, Mr. Ortiz and Ms. Martinez lived together with their two children in Mexico City. In August 2011, the couple and their two children traveled to Chicago to visit Ms. Martinez's parents and siblings, all of whom lived in the Chicago area. The couple purchased round-trip tickets, with Mr. Ortiz scheduled to return to Mexico on August 13 and Ms. Martinez and the children scheduled to return on August 20. Mr. Ortiz returned to Mexico on his scheduled departure date. Ms. Martinez and the children, however, did not. When contacted by Mr. Ortiz, Ms. Martinez informed him that she and the children would not be returning to Mexico. She accused Mr. Ortiz of sexually molesting A.O. and told him that she was keeping the children in the United States for A.O.'s safety.
Mr. Ortiz filed action in the district court in May 2012 .Because the case involved allegations of sexual abuse, attorneys for both parties agreed that the court should appoint a psychologist to evaluate the children. In May 2013, the district court held a hearing. The court conducted in camera interviews with L.O. and A.O. and received the experts report and testimony. During the hearing, the district court heard substantial evidence indicating that Mr. Ortiz had sexually abused A.O. Ms. Martinez testified that she had witnessed Mr. Ortiz inappropriately touching their daughter in her vaginal area and had frequently observed signs of such abuse. A.O. corroborated her testimony during her in camera interview, explaining, with words and gestures, how her father had put his finger in her vaginal area while the two were showering. Dr. Machabanski further substantiated these allegations. At trial, Dr. Machabanski testified that A.O. exhibited behavior consistent with having suffered sexual abuse. As detailed in his report, A.O. also exhibited strong negative emotions toward her father through her playtime behavior. Based on these and other factors, Dr. Machabanski testified that, in his “professional opinion, [A.O.] was telling the truth.”5In August 2013, the district court issued a written order denying Mr. Ortiz's petition. The court determined that Ms. Martinez had presented sufficient evidence to establish the “grave risk” defense under Article 13(b). The court credited Ms. Martinez's evidence that Mr. Ortiz previously had molested A.O. and, based on that abuse, determined that A.O. would face a grave risk of similar harm by her father if returned to Mexico. The district court independently found that L.O. was old enough and mature enough such that his desire to remain in the United States should be credited. Based on these findings, the district court denied Mr. Ortiz's petition. The Seventh Circuit affirmed. It rejected Mr. Ortiz contention that the district court erred in finding that he had sexually abused A.O. and thus that she faced a grave risk of harm if returned to Mexico. It observed that the Convention's mandatory-return rule is subject to the affirmative defense of grave risk: [T]he judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that—... b there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. Hague Convention, art. 13(b). Sexual abuse constitutes a “grave risk” of physical or psychological harm. Similarly, sexual abuse, particularly by a custodial parent, is a well-recognized example of an “intolerable situation” within the meaning of this exception. The party opposing the return of a child has the burden of establishing this exception by clear and convincing evidence. 22 U.S.C. § 9003(e)(2)(A).
Mr. Ortiz contended that the finding was based on unreliable evidence and thus was clearly erroneous. The Circuit Court of Appeals found that the district court explicitly acknowledged that Ms. Martinez had to meet the demanding “clear and convincing” standard. The evidence of sexual abuse was substantial and sufficient to meet that standard. During her testimony, Ms. Martinez described, in detail, how she had seen Mr. Ortiz molesting A.O. in the shower and how, on a separate occasion, she had overheard A.O. tell her father, while the two were showering, not to touch her private areas anymore. This testimony was consistent with A.O.'s description of events during her in camera interview. Finally, in his expert testimony and report, Dr. Machabanski opined (1) that A.O. exhibited behavior consistent with having suffered sexual abuse; (2) that she exhibited strong negative emotions toward her father through her playtime behavior; and (3) that, in his “professional opinion, she was telling the truth.”
The Seventh Circuit found that the district court did not commit clear error. As the Supreme Court has noted, the clear error standard “demands even greater deference to” a district court's factual findings “[w]hen [those] findings are based on determinations regarding the credibility of witnesses.” Anderson v. City of Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). As a practical matter, this means that such findings “can virtually never be clear error,” unless premised on testimony that is “internally inconsistent,” facially implausible, or “contradicted by extrinsic evidence.” In other words, a district court's credibility findings are “binding on appeal unless the [court] has chosen to credit exceedingly improbable testimony.” Discrepancies arising from impeachment, inconsistent prior statements, or the existence of a motive do not render witness testimony legally incredible.” None of Mr. Ortiz's contentions were sufficient to render the evidence credited by the district court “legally incredible.” Consequently, it concluded that the district court did not clearly err in finding that Mr. Ortiz had sexually abused A.O. Because Ms. Martinez's presented sufficient evidence to establish the “grave risk” exception, the district court properly denied Mr. Ortiz's petition.
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