Vasquez v Colores,--- F.3d ----, 2011 WL 3366380 (8th Cir.(Minn.))[Mexico] [Grave Risk of Harm] [Evidence]

In Vasquez v Colores,--- F.3d ----, 2011 WL 3366380 (8th Cir.(Minn.)) Dr. Carlos Colores Vasquez filed a petition to return his twenty-two-month-old daughter, I.R.C., to Mexico. Stephanie Colores, Dr. Colores's estranged wife and mother of I.R.C., opposed the petition. The district court entered an order granting the petition. Ms. Colores appealed, arguing that the district court erred in denying her motion for a continuance and in excluding the testimony of two witnesses. The Eighth Circuit affirmed.

The Court observed that the Article 13(b) exception, on which Ms. Colores relied, applies if the party opposing the petition establishes by clear and convincing evidence that "there is 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." It indicated that it has recognized two types of grave risk that are cognizable under Article 13(b): cases in which a child is sent to a zone of war, famine, or disease and those involving serious abuse or neglect. (Citing Silverman v. Silverman, 338 F.3d 886, 900 (8th Cir.2003).

Ms. Colores, an American citizen, and Dr. Colores married in Minnesota in the summer of 2007 and moved to Mexico. Their daughter, I.R.C., was born in December 2008. In early May 2010, Ms. Colores left Mexico with I.R.C. and traveled to South Carolina, where her mother was vacationing. The three returned to her mother's home in Minnesota in late May. Dr. Colores filed his petition for emergency ex parte relief under the Convention on August 23, 2010. The district court granted that petition two days later. Ms. Colores sought a continuance, claiming that she needed more time to obtain additional information from the United States Embassy in Mexico City and security footage from the gated community in which she and Dr. Colores had lived. Dr. Colores objected to the continuance, arguing that Ms. Colores had failed to demonstrate that the information was material to the petition. The district court denied the motion for a continuance, and the parties commenced the first of three evidentiary hearings on September 1. The parties agreed that I.R.C. was a habitual resident of Mexico and that her removal was wrongful because Dr. Colores did not consent and I.R.C. did not have a valid passport.

Ms. Colores claimed that the Article 13(b) exception applied and thus the district court was not obligated to return I.R.C. to Mexico. Over the course of the hearings, she sought to establish that Dr. Colores's anger problems and history of abuse posed a grave risk of physical or psychological harm that satisfied the Article 13(b) exception. She testified that Dr. Colores had abused I.R.C. by shaking her head forcefully six to ten times a month, head-butting her two to three times a month, or hitting her on the back with his fist. Barbara Jo Gangl, Ms. Colores's mother, testified that she had witnessed Dr. Colores shake I.R.C.'s head forcefully and pull her hair. Following Ms. Colores's testimony, she sought to elicit testimony from John Gangl, her stepfather. She proffered that he would corroborate her account of Dr. Colores's episodes of rage by recounting a telephone conversation in which Dr. Colores allegedly lashed out at Gangl after he complained about Dr. Colores's refusal to pick up Barbara Jo from the airport when she visited. The district court inquired whether Gangl had witnessed Dr. Colores in a rage in the presence of I.R.C. and was told that he had not. The district court concluded that the proffered testimony was not relevant and excluded it. Ms. Colores also sought to elicit expert testimony from Dr. Jeffrey L. Edleson, Professor and Director of Research at the School of Social Work at the University of Minnesota and the Director of the Minnesota Center against Violence and Abuse. On September 7, 2010, when Ms. Colores first broached the topic of calling Dr. Edleson with the district court, he was unavailable to appear because he had been hospitalized. When questioned, counsel for Ms. Colores could not provide the court with more information why Dr. Edleson had been hospitalized or when he might be available. As part of her offer of proof, Ms. Colores recounted Dr. Edleson's expertise in the area of domestic violence and referred to a study, funded by the National Institute of Justice, the research arm of the U.S. Department of Justice, that addressed "the risk of harm to children in the context of domestic violence against parents and children in [Hague Convention cases]." At the time, the study was unpublished and not subject to peer review. Dr. Colores objected to the proposed testimony, noting that the witness had not been disclosed previously and had not examined I.R.C. or interviewed either of her parents. Dr. Colores argued that the proffer consisted of a generalized summary of phenomena associated with domestic abuse and was irrelevant to the specific issues at issue in the proceedings. Dr. Colores also maintained that such testimony would not shed light on the specific claims Ms. Colores made, but would only extend the proceedings and thereby exacerbate his financial hardship. The district court excluded
Dr. Edleson's testimony, concluding that it was unreliable and irrelevant.

On September 14, 2010, the district court entered an order granting Dr. Colores's petition. It did not find credible Ms. Colores's allegations that there was a grave risk that I.R.C. would be exposed to physical or psychological harm or otherwise be placed in an intolerable situation if she were returned to Mexico. It cited findings of a pediatric neurologist who had examined I.R.C. at the district court's request and who opined, based on his examination and on I.R.C.'s normal, age-appropriate neurological development, that there was no evidence of any neurologic injury. The district court also found that Ms. Colores had never reported any injury and had been willing to leave I.R.C. with Dr. Colores for ten days when she returned to the United States to attend a funeral.

The Court of Appeals pointed out that Ms. Colores's motion for a continuance was based on her claim that she needed to gather evidence that was located in Mexico. According to Ms. Colores, the evidence consisted of witness statements and videotapes from surveillance cameras of the gated community in which she and Dr. Colores had lived, as well as a copy of a report she had allegedly filed with the U.S. Embassy documenting Dr. Colores's abuse of herself and of I.R.C. Dr. Colores contended that Ms. Colores failed to establish that the evidence she sought was material and that the district court appropriately denied the motion in light of the prejudice Dr. Colores suffered from continued delay and the primacy placed on expediency in Convention proceedings. Given the underlying circumstances and the professed goal of expediency in Convention proceedings, the Court of Appeals agreed that the district court did not abuse its discretion in denying the motion.

The Court also observed that a district court enjoys wide discretion in ruling on the admissibility of proffered evidence, and evidentiary rulings should only be overturned if there was a clear and prejudicial abuse of discretion. To warrant reversal, an error must affect a substantial right of the objecting party, and the burden of showing prejudice rests on that party. Ms. Colores maintained that her stepfather's testimony would have corroborated her account of Dr. Colores's rage and anger. The incident at the heart of the proffer occurred in December 2008, when Gangl and Dr. Colores argued on the telephone after Dr. Colores refused to pick up Barbara Jo from the airport when she came to visit and instead asked that she take a cab to the house. After hearing the details of the phone conversation and determining that Gangl was not physically present with I.R.C. when it occurred, the district court concluded that the proffered testimony was not relevant and excluded it. The Court of Appeals held that at best, the proffered testimony repeated Ms. Colores's account of her husband's behavior on the night of the telephone call. But I .R.C. was not implicated in the particulars of the phone call, and Gangl's proffered testimony would have been cumulative of prior testimony from Ms. Colores and her mother. Accordingly, it could not say that the district court abused its discretion in excluding this testimony.

Ms. Colores argued that the district court abused its discretion in excluding testimony from Dr. Edleson. Federal Rule of Evidence 702 governs the admission of expert testimony and requires that the district court function as a gatekeeper to "ensure that any and all scientific testimony or evidence is not only relevant, but reliable." (Citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993). "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue," an expert may testify in the form of an opinion or otherwise so long as "(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." Fed.R.Evid. 702.

The Court held that it did not have to determine whether Dr. Edleson's testimony was unreliable because the report that would have served as its basis had not yet been published or peer-reviewed, because it concluded that the district court did not abuse its discretion in excluding the testimony as irrelevant after finding that Dr. Edleson had not interviewed either of the parties or I.R.C. The district court concluded that Dr. Edleson's testimony would not have directly aided the fact-finder in sorting out whether abuse had occurred and, if so, what effect it had on I.R.C. It emphasized that there was little physical evidence of abuse or mistreatment and that the veracity of the allegations of abuse turned primarily on the credibility of the parties' testimony. Questions of admissibility "are not to be measured by what we may have done were we the district court," but whether its evidentiary decisions constitute "a clear abuse of discretion." Dunn v. Nexgrill Indus., Inc., 636 F.3d 1049, 1057 (8th Cir.2011). Ms. Colores did not demonstrate that excluding the testimony was so prejudicial as to require reversal. She did not contend that Dr. Edleson had concluded that Ms. Colores or I.R.C. had been abused or that I.R.C. faced a grave risk of harm if she were returned to Mexico. So far as the district court was aware, Ms. Colores did not contend that Dr. Edleson had formed any opinion as to I.R.C. It concluded that the exclusion of Dr. Edleson's testimony did not warrant reversal.