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.

Suarez v Castrillo, 2011 WL 2669198 (D.Colo.) [Venezuela] [Availability of Hague Convention as a Remedy]

In Suarez v Castrillo, 2011 WL 2669198 (D.Colo.) Petitioner and Respondent were the parents of three minor children. On or about June 29, 2011, Ms. Suarez filed a Petition For Enforcement of Child Custody Decree in the Colorado District Court for Arapahoe County. That Petition alleged that the parties were subject to a 2003 divorce and custody decree from a court in Venezuela that gave Ms. Suarez legal custody of the children. The Petition recited that the children resided with Ms. Suarez pursuant to that decree, first in Venezuela and, upon Ms. Suarez's move in September 2007, in Alberta, Canada. Ms. Suarez alleged that she and Mr. Castrillo reached an agreement by which the children would temporarily reside with Mr. Castrillo in Colorado for one school year, and then be returned to Canada. Ms. Suarez alleges that that agreement had now expired, but Mr. Castrillo refused to return the children to Canada.

The District Court observed that Ms. Suarez's proceeding in Arapahoe County invoked C.R.S.14-13-101 et seq., Colorado's implementation of the Uniform Child Custody Jurisdiction Enforcement Act. Part 3 of that Act incorporates the principles of the Hague Convention on the Civil Aspects of International Child Abduction, done at the Hague on October 25, 1980. The statute provides that Colorado courts "shall recognize and enforce a child-custody determination of a court of another state," including foreign nations, and allows those courts to "grant any relief normally available under the law of this state to enforce a registered child-custody determination made by a court of another state." Upon a properly-supported petition by a parent claiming custodial rights over a child, the state court is required to hold an expedited hearing and direct that the petitioning parent "take immediate physical custody of the child" unless the respondent parent demonstrates certain specific facts calling the validity of the custody order into question.

On July 5, 2011, Mr. Castrillo filed a Notice of Removal pursuant to 28 U.S.C. s 1446, removing the action from the Colorado District Court to this Court. Mr. Castrillo contended that this Court had original jurisdiction over the proceeding pursuant to 28 U.S.C. 1441, insofar as this action "involves a federal question," although Mr. Castrillo did not specifically identify the source of that question. He noted that Ms. Suarez's petition uses terms that are "used only in matters pursuant to the Hague Convention," that Ms. Suarez had previously filed a request with Canadian authorities under the Hague Convention, and thus, apparently concluded that this action "arises under the Hague Convention."

The District Court held that on its face, Ms. Suarez's petition did not invoke a federal question. Her claims arose exclusively under Colorado statutory law; she did not invoke any provisions of the federal International Child Abduction Remedies Act ("ICARA"), 42 U.S.C. s 11601, either directly or inferentially. The fact that she used terminology consistent with the Hague Convention (and, for that matter, with ICARA) was of no significance, insofar as Colorado's UCCJEA is expressly cognizant of
the Hague Convention, and incorporates by reference certain aspects of that treaty. Ms. Suarez could have asserted a claim under ICARA either in lieu of or in addition to her claims under Colorado's UCCJEA, see 2 U.S.C. s 11603(a) (conferring concurrent jurisdiction on state and federal courts over ICARA claims), but for whatever reason, Ms. Suarez elected to pursue only those remedies that Colorado provides. Accordingly, the face of her pleading did not invoke any federal question. Mr. Castrillo's citation to Matter of Mahmoud, 1997 WL 43542 (E.D.N.Y.1997) (unpublished), was inapposite. There, the petitioning parent had filed an ICARA claim in state court, which the respondent parent sought to remove to federal court. Thus, the Court found that Ms. Suarez's claim arose purely under state law and was not preempted by federal law. Accordingly, Mr. Castrillo failed to carry his burden of demonstrating that the Court possessed subject-matter jurisdiction over the action and it was remanded to the Colorado District Court for Arapahoe County pursuant to 28 U.S.C. 1447(c).

Judge v Williams, 2011 WL 3100346 (E.D.N.C.) [Ireland] [Rights of Custody]

In Judge v Williams, 2011 WL 3100346 (E.D.N.C.) Petitioner Brian Anthony Judge filed a Verified Petition Under Hague Convention seeking the return of his minor child, E.L.W.J. ( "Child") to the Republic of Ireland. In an order filed on July 20, 2011, the court found, pursuant to 42 U.S.C. 11604 and North Carolina General Statute s 50A-31, that E.L.W.J. was imminently likely to be removed from the state by her mother, Respondent Rebecca Lynn Williams, if not taken into immediate custody pending the court's ultimate disposition of the Hague Petition. Accordingly, the court ordered that a warrant be issued directing the United States Marshal to take physical custody of E.L.W.J. and deliver her to the court for a hearing on the Hague Petition set for July 21,2011, at 4 p.m. The court ordered that the Marshal could, if necessary, deliver E.L.W.J. into the custody of Petitioner pending the hearing.

The matter came on for hearing on July 21, 2011. Petitioner was present with his attorney, Jennifer Lyday, and E.L.W.J. Respondent was present, without an attorney. The undersigned asked Respondent if she was prepared to go forward without an attorney, and Respondent answered yes. Both Petitioner and Respondent testified, and introduced evidence. Based on the testimony and evidence at the hearing and the Verified Hague Petition and Verified Application, the found that E.L.W.J. was born in the Republic of Ireland on May 4, 2007. Petitioner was E.L .W.J.'s father, and Respondent was E.L.W.J.'s mother. Petitioner and Respondent have never married. On January 26, 2010, Petitioner and Respondent executed a statutory guardianship declaration which granted Petitioner joint guardianship of E.L.W.J. under Irish Law pursuant to Section 4(2) of the Children Act of 1997. From E.L.W.J.'s birth until July 2009, Petitioner lived with the Child and raised the Child with Respondent. Both Petitioner and Respondent lived with the Child again from January 2010 until June 2010. From July 2009 to January 2010 and again from June 2010 until the events giving rise to the filing of the Hague Petition, Petitioner spent time with the Child every Wednesday and Saturday. The Child spent the night with Petitioner every other Saturday. E.L.W.J. lived in Ireland from her birth until March 2011. She was enrolled in a Montessori classes for the school term of September 2010-June 2010. In January 2011, Respondent told Petitioner that she would like to visit the United States to see her sister, and that she would like to take E.L.W.J. with her. Petitioner refused to sign a passport application for E.L.W.J. Petitioner averred that Respondent nevertheless obtained a United States passport for E.L.W.J. without his knowledge or consent. On the passport application, Respondent stated she would be using the passport to travel to the United States for six weeks. The passport was issued on March 3, 2011. On Wednesday, March 16, 2011, Petitioner spent time with E.L.W .J. during his regularly-scheduled access time. Respondent told him at the conclusion of the access time that she was planning on taking a trip over the upcoming weekend so Petitioner would not have his regularly-scheduled Saturday access time. On March 19, 2011, Petitioner sent Respondent a text message asking to speak with E.L.W.J. Respondent replied that Petitioner would be able to speak with E.L.W.J. on Monday. On March 22, 2011, Respondent emailed Petitioner telling him she was "gone for good." She told Petitioner it was in the best interest for her, E.L.W.J., and her older child to be away from Petitioner. She warned Petitioner not to come looking for her because he would never find her. Petitioner reported Respondent's taking of E.L.W.J. to the local police. He filed an application with the Irish Central Authority, the office designated by Ireland to administer its responsibilities under the Hague Convention. Petitioner thereafter filed for sole custody of E.L.W.J. He testified that the Irish District Court for the Dublin Metropolitan District served Respondent in the United States with notice of the hearing on the application. Respondent did not attend the hearing. The Irish District Court granted Petitioner sole interim custody of E.L.W.J. and scheduled another hearing on September 29, 2011. Respondent testified she did not feel E.L.W.J. was safe in Petitioner's custody. She testified that in the past Petitioner allowed E.L.W.J. to insert an object in her nostrils, necessitating a visit to the emergency room, and blamed the incident on E.L.W.J.'s older half-sister. She also testified that Petitioner had, on one occasion, locked E.L.W.J. and her half-sister in a sitting room for hours. In June 2010, he took painkillers that did not belong to him and was impaired. She also testified that E.L.W.J.'s half-sister was a witness to Petitioner physically assaulting Respondent on one occasion, and that Petitioner broke Respondent's arm while on a vacation in Spain. Respondent also testified that Petitioner spoke to E.L.W.J.'s half-sister about topics which were inappropriate. She introduced into evidence email correspondence between herself and Petitioner, wherein each accused the other of drug use and inappropriate behavior. Respondent testified that Petitioner had not, however, ever harmed E.L.W.J. Respondent also testified that separating E.L.W.J. from her half-sister would result in psychological harm to both children.

The District Court granted the petition. It noted that "Habitual residence" is not defined by the Hague Convention. Miller, 240 F.3d at 400. The Fourth Circuit has concluded, however, that "there is no real distinction between ordinary residence and habitual residence." A court must make a fact-specific inquiry on a case-by-case basis to determine a child's customary residence prior to the removal or retention. In undertaking this inquiry, the court uses a two-part framework. Maxwell v. Maxwell, 588 F.3d 245, 251 (4th Cir.2009). The court first examines whether the parents shared a settled intention to abandon the former country of residence. The court then examines the extent of the child's acclimatization to the new country of residence. Under the framework set forth in Maxwell, E.L.W.J.'s habitual residence was the Republic of Ireland. First, there was no shared parental intent to abandon the Republic of Ireland as E.L.W.J .'s habitual residence. Second, there was no indication that the short four months E.L.W.J. has spent in the United States rendered her so acclimatized to her life in this country that the court "can say with confidence that [E.L.W.J.'s] relative attachments to the two countries have changed to the point where requiring return to the original forum would now be tantamount to taking the child out of the family life and social environment in which [her] life has developed." Petitioner had "custody rights" as to E.L.W.J. as they are defined under the Hague Convention and Irish law. The Hague Convention defines "rights of custody" as including "rights relating to the care of the person of the child, and in particular, the right to determine the child's residence." Convention, art. 5. The Eleventh Circuit, in examining Irish law, has observed that "guardianship" under Irish law " 'concerns matters of overriding seminal importance to a child's upbringing' " and " 'the duty to ensure that a child is properly cared for and that decisions relating to the child are made with his or her best interests at heart.' " Hanley v. Roy, 485 F.3d 641, 646 (11th Cir.2007). The Eleventh Circuit concluded that guardianship rights under Irish law "necessarily involve 'the care of the person of the child' within the meaning of the [Hague] Convention." The district court similarly concluded that joint guardianship under Irish law is a right of custody within the meaning of the Hague Convention. Additionally, it was undisputable that Petitioner had "custody rights" as to E.L.W.J. after June 29, 2011, when the Irish District Court awarded him interim sole custody of the child. Respondent's removal of E.L.W.J. from Ireland was in breach of Petitioner's custody rights. Petitioner's custody rights--by virtue of his joint guardianship of E.L.W.J.--included the right to make decisions of overriding seminal importance to E.L.W.J.'s upbringing. The nation where E.L.W.J. is reared is a matter of overriding seminal importance to E.L.W.J.'s upbringing, and Petitioner had the

right to take part in that decision. Moreover, Respondent's retention of E.L.W.J.

in the United States after the Irish District Court awarded Petitioner interim

sole custody of the child was in breach of Petitioner's custody rights. Petitioner was exercising his custody rights at the time of the E.L.W.J.'s removal from Ireland and retention in the United States. Courts "will 'liberally find "exercise" whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child.' " Bader v. Kramer, 484 F.3d 666, 671 (4th Cir.2007)(quoting Friedrich v. Friedrich, 78 F.3d 1060, 1065 (6th Cir.1996) ("Friedrich II "). The Fourth Circuit has explained that under this approach: " 'a person [who] has valid custody rights to a child under the law of the country of the child's habitual residence ... cannot fail to 'exercise those custody rights under the Hague Convention short of acts that constitute clear and

unequivocal abandonment of the child." Here, Petitioner had been active part in E.L.W.J.'s life from her birth until she was removed from Ireland.

The court found that Petitioner established, by preponderance of the evidence, a prima facie case under the Hague Convention. It next found that the Respondent had not met her burden in establishing the "grave risk of harm" affirmative defense. Petitioner had never harmed E.L.W.J. nor was there any suggestion that he would harm her. Nor was there evidence of a sustained pattern of physical abuse and/or propensity for violent abuse. Moreover, there was no evidence that E.L.W J.'s separation from her half-sister would result in the type of severe psychological harm envisioned by the affirmative defense. See Freier v. Freier, 969 F.Supp. 436, 443 (E.D.Mich.1996)(finding that a child's separation from her mother and two half-siblings did not establish the "grave risk" defense because "this sort of adjustment problem common in the relocation of most children is not enough"). Finally, Respondent had not shown, by clear and convincing evidence, that returning E.L.J.W. to Ireland would subject her to an intolerable situation.