Acosta v Acosta, 2012 WL 2178982 (D.Minn.) [Peru] [Grave Risk of Harm]

In Acosta v Acosta, 2012 WL 2178982 (D.Minn.) Ricardo Acosta ("Ricardo") petitioned for the return of his two minor children M.A.A. and E.T.A. to Peru. Ricardo appeared telephonically from Peru. Ricardo was a citizen and resident of Peru. Anne Acosta the Respondent was citizen of the United States. She resided in Minnesota. Stephen and Susan Campbell were Anne's parents, and the grandparents of M.A.A. and E.T.A. Ricardo and Anne were the parents of two children: M.A.A., born February 6, 2003, and E.T.A., born August 23, 2007. On November 26, 2002, Ricardo and Anne were married in Ramsey County, Minnesota. From November 2002 to July 2006, Anne and Ricardo lived together in the United States in the states of Minnesota and Wisconsin. M.A.A. was born in the United States on February 6, 2003. In July 2006, Anne, Ricardo, and M.A.A. moved to Lima, Peru. On August 23, 2007, E.T.A. was born in Lima, Peru, and resided there with her family. While in Peru, Anne worked as a teacher at el Colegio de Franklin Delano Roosevelt (the "Roosevelt School"). Ricardo was briefly employed there as well, but more recently worked at the Lima airport.

Anne testified that Ricardo was verbally abusive towards her throughout their marriage. She testified that on at least one occasion Ricardo called her a "hippo" in the presence of M.A.A. and a "bitch" in the presence of E.T.A. Anne also testified that, prior to February 2011, Ricardo experienced several outbursts of violence which involved or were witnessed by his children. Specifically, she testified that Ricardo pushed M.A.A. down onto a bed for insubordination. She further testified that in about 2008 or 2009, Ricardo was driving the family car when he was cut off by a taxi. She testified that Ricardo: used the family car to force the taxi to a stop alongside the road's median, exited the car and assaulted the taxi driver, and broke the taxi's windshield with a theft-deterrent tool used to lock the family car's steering wheel, all observed by M.A.A. and E.T .A., who were passengers in the family car.

In November 2010, Anne told Ricardo she was going to Minnesota for the holidays with M.A.A. and E.T.A. In prior years, Ricardo, Anne, and the children had all visited the United States together for the Christmas-New Year's holiday season. Stephen Campbell offered to purchase Ricardo an air ticket to visit the United States again that year, but Ricardo refused despite Stephen Campbell's urging. Anne had purchased airline tickets paid for by her father for her and the children to leave Peru for the United States on December 23, 2010 and return on February 16, 2011.  After Anne, M.A.A., and E.T.A. left for Minnesota, Ricardo could not reach them by telephone over the holiday period. Anne, Susan Campbell, and Stephen Campbell would not return Ricardo's calls, would offer excuses why the children could not talk, or would not answer the phone.

Sometime in early February 2011, Anne informed Ricardo that she would seek a divorce and that M.A.A. and E.T.A. would not return to Peru on February 16, 2011 as planned. Anne made plans to return to Peru from February 11, 2011 to February 16, 2011 to retrieve her and her children's possessions. On February 11, 2011, Anne, accompanied by her brother Jeffrey Campbell, arrived in Lima. Concerned for their safety, Anne and Jeffrey Campbell asked several people to go with them to the apartment she previously shared with Ricardo. Elizabeth Norton LeBoo, Anne's colleague at the Roosevelt School, and Jacob Johansen, an acquaintance of Anne from a prior master's degree program that was also employed by the Roosevelt School, volunteered to assist. On February 13, 2011, accompanied by Jeffrey Campbell, Leboo, and Johansen, Anne returned to the Acosta apartment. While at the apartment, Anne telephoned Ricardo to tell him she was removing clothing and toys. They each testified Ricardo returned to the apartment, crashing his car into a pole outside. Ricardo then broke a window on the taxi they had taken to the apartment and which was awaiting their return. Jeffrey Campbell and Johansen held the door of the apartment shut as Ricardo tried to enter the apartment. Ricardo kicked the door to pieces and forced his way into the home. Ricardo began throwing items at Anne. Ricardo then grabbed a knife and chased the men while the women hid in a backroom. Ricardo chased Johansen outside where Ricardo cut Johansen's leg with the knife. Ricardo returned to the apartment and eventually forced his way into the backroom where he first battered LeBoo and then Anne. Police arrived and, after passively watching the events for some time, restrained Ricardo.

Ricardo's version of the events was entirely different. He testified that it was Anne and her friends that broke doors in his house and "provoked" him. Ricardo testified that Anne attacked him and then Jeffrey Campbell pushed him down and kicked him. Ricardo testified that he did not hurt or attack Anne or LeBoo. He also testified that they took $15,000.00 from the apartment. The court found that Ricardo's version of the events of February 13, 2011 was not credible. His story was inconsistent and evolved as questioning proceeded. The Court found that the testimony of LeBoo was highly credible and the testimony of Jeffrey Campbell was also highly credible. He testified that after Ricardo arrived at the apartment, Ricardo grabbed a knife from the kitchen counter and chased Johansen outside the apartment. Jeffrey Campbell then went to look for Anne and LeBoo. While looking for Anne and LeBoo, Jeffrey Campbell was corned in a hallway by Ricardo, holding out a knife. Jeffrey Campbell testified that Ricardo looked like "an enraged doppelganger" of his former self. Cornered in the
hallway, with Ricardo waving a large kitchen knife, Jeffrey Campbell begged Ricardo to spare his life. Ultimately, Ricardo did. As a result of the incident, Anne sustained injuries, including cuts to her hand requiring stitches and bruises. In the midst of the melee at the apartment, Ricardo called Susan Campbell's cell phone. In a profanity-laced tirade, he threatened to kill Susan Campbell, Stephen Campbell, Jeffrey Campbell, Anne, and Anne's sister.

After leaving the apartment, Ricardo went to the police station while Anne, Jeffrey Campbell, Johansen, and LeBoo went to the hospital and U.S. Embassy before arriving at the police station. At the police station, Ricardo was accompanied by several of his relatives. LeBoo and Jeffrey Campbell testified that the police did not appear to take their version of the events seriously. Jeffrey Campbell testified that the Lima police would not allow Anne and her supporters to leave the station because of concerns about their identification cards. Jeffrey Campbell testified they were eventually released
when he offered cash to an officer as advised by his Peruvian attorney. Afterwards, a police report was issued that stated Ricardo had seen Anne and "her lover" embracing.

After the incident, Ricardo called Rachel Metcalf Harrington, the principal at the Roosevelt School, and threatened to come to the Roosevelt School and kill Anne with a knife. Harrington, testifying telephonically from Peru, stated Ricardo had appeared in television interviews near school property where he has blamed school officials for his problems with obtaining custody of his children. Harrington and the school staff assess the threat posed by Ricardo as serious and have implemented an emergency protocol should he violate the ban on his presence on school property.

In the weeks after Anne's return from Peru, Ricardo made numerous calls to Stephen Campbell and Susan Campbell. He left threatening voicemails. In one voicemail he states, "I'll kill your kids, because she's [Anne is] taking my babies away. And, I promise you, your daughter is going to be killed because she is taking my kids away." He also spoke over the phone to both Stephen Campbell and Susan Campbell. In one live conversation with Susan Campbell, Ricardo threatened to kill M.A.A., E.T.A., and then himself.

On February 16, 2011, Anne met with officers from the Ramsey County Sheriff's Department, and a warrant was issued for Ricardo's arrest on February 18, 2011.  On March 2, 2011, Ricardo initiated an action for custody of M.A.A. and E.T.A. before a Peruvian court in Lima. On March 10, 2011, Anne filed a Petition for Dissolution of Marriage, in which she sought custody of M.A.A. and E.T.A., in Minnesota state court in Ramsey County. On November 3, 2011, that Petition was dismissed for lack of jurisdiction. In May 2011, Ricardo traveled to Miami, Florida. Upon arrival, Ricardo was arrested. Id. He was eventually extradited to Minnesota. On September 1, 2011, Ricardo pled guilty in Ramsey County, Minnesota to making terroristic threats in violation of Minn .Stat. s 609.713. After his guilty plea, Ricardo returned to Peru to serve his probation. Visitation with M.A.A. and E.T.A. was arranged by use of the video-conferencing software Skype. The Skype visitation, however, stopped after one visit. Ricardo testified that he stopped the visitation because he preferred to explain what was occurring between him and Anne to his children in person.

While living in Peru, M.A.A. was enrolled in school at the Roosevelt School. Teachers at the Roosevelt School noted M.A.A. had behavioral problems. Harrington testified that M .A.A. told teachers he wanted to kill himself and he was referred to therapy. M.A.A. stopped therapy after two or three sessions because Ricardo felt the family could not afford it and because Ricardo felt, based on his own experiences, that therapy was ineffective. Harrington testified that in her nineteen years of experience as an educator, the severity of M.A.A.'s behavior problems stood out as one of the three most exceptional cases out of the thousands of students she has observed. Stephen Campbell testified that after M.A.A. arrived in the United States in December 2010, Stephen Campbell noticed M.A.A. would have violent outbursts, wet his bed at night, and said he wished he were dead. Stephen Campbell further testified that M.A.A. was now in therapy and his demeanor has improved and bed-wetting abated.

Dr. Jeffrey Edleson testified as an expert witness on behalf of Respondents. Dr. Edleson held a Ph.D. from the University of Wisconsin-Madison School of Social Work, and was a tenured professor at the University of Minnesota-Twin Cities School of Social Work. He testified that Ricardo's history of violence in the presence of others, escalation of violence, threats of suicide, and estrangement from his children were factors indicating a high risk of harm to M.A.A. and E.T.A were they to return to Peru. Dr. Edleson further testified that M.A.A.'s antisocial behavior was consistent with
exposure to domestic violence. RTX052-009 (noting a child's exposure to domestic violence correlates with antisocial behavior, anxiety, depression, and temperament problems). Dr. Edleson testified he believed M.A.A. to be exhibiting signs of depression.

At the close of the evidentiary hearing the court determined that the children were wrongfully retained in the United States, as contemplated by the Hague Convention, and that no other affirmative defenses applied. The sole issue before the Court was whether the affirmative defense in Article 13(b) of the Hague Convention applied. The Court observed that under Article 13(b), the Court is not bound to order the return of either M.A.A. or E.T.A. if "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." . A "grave risk" of physical or psychological harm requires an assessment of whether the child will face "immediate and substantial risk of an intolerable situation" if returned to his or her country of habitual residence. Nunez-Escudero, 58 F.3d at 377.To prevail on an Article 13(b) defense, there must be evidence of a grave risk of harm to each child, not solely to a parent or some other third party. Hague Convention art. 13(b); see also Nunez-Escudero, 58 F.3d at 378 ("[Respondent] must present clear and convincing evidence that the return of the child to [his country of habitual residence] would subject him to a grave risk of harm...."); Charalambous v. Charalambous, 627 F.3d 462, 468 (1st Cir.2010) ("The relevant inquiry is not whether there would be a grave risk of harm to [the child's mother] if she returned to [the country of habitual residence]; rather, the grave risk inquiry goes to the children.") However, where spousal abuse evinces a propensity towards violence and is accompanied by other risk factors specific to the child, a grave risk of harm to a child may be found. Baran v. Beaty, 526 F .3d 1340, 1346 (11th Cir.2008) (upholding finding of grave risk to child where Petitioner physically and verbally abused Respondent in addition to threatening to harm child, berating Respondent for hours in presence of child on one occasion, and handling child irresponsibly while drunk); Van De Sande v. Van De Sande, 431 F.3d 567, 570 (7th Cir.2005) (reversing trial court's finding of no grave risk where evidence showed Petitioner had a propensity for violence based on history of spousal abuse and Petitioner beat and insulted Respondent in presence of children); Walsh v. Walsh, 221 F.3d 204, 220 (1^st Cir.2000) (finding grave risk where Petitioner had a history of disobeying court orders, had an "uncontrollably violent temper," had battered his other children, fought people younger than he, and based on the recognition of social science literature and law that spousal abuse is linked to physical and psychological injury to children). In determining whether a grave risk of harm to a child exists, courts may consider the environment to which the child would be returning. Nunez-Escudero, 58 F.3d at 377. In so doing, a court may consider both the resources in the country for dealing with domestic violence and the people awaiting the child. There is no requirement under the Hague Convention that a child actually have been previously harmed physically or psychologically; rather, the relevant inquiry is whether returning the child to the country of his habitual residence would present a grave risk of such harm or otherwise place him in an intolerable situation. Baran, 526 F.3d at 1346.

The district court found that grave risk of harm was proven by clear and convincing evidence and denied his petition. Ricardo had an explosive temper and propensity to maintain a state of violent rage. The breaking of a taxi windshield and assault incident in 2008 or 2009 and the February 13, 2011 apartment melee demonstrated that Ricardo, once enraged, will engage in acts of violence that are severe and not limited to his spouse. The severity of Ricardo's temper was underlined by his beating and threats to Anne but even more remarkably by his use of a weapon on Johansen, a man he had never previously met and did not believe to be his wife's lover; his beating of his wife's colleague LeBoo; and his highly specific threats towards Anne, her family members, and his own children. Ricardo's violent outbursts were not only severe, but they were of a lasting duration. After leaving the police station on February 13, 2011, he or someone acting at his direction attempted to gain access to LeBoo's residence. He also called the Roosevelt School and made highly specific threats. For weeks after the February 13, 2011 incident, he continued to make threatening phone calls to Stephen and Susan Campbell.. The circumstances to which M.A.A. and E.T.A. would return in Peru posed a grave risk of physical harm to them. What appeared to incite Ricardo's violence was the prospect of losing custody of his children. The evidence showed Ricardo did not have the emotional fortitude to acknowledge custody of his children may ultimately be with Anne. Dr. Edelson identified five high risk factors for future severe child abuse, including homicide. All were present in this case including threats by Ricardo to kill himself and his children. The Court was concerned about the police response were Anne, M.A.A., or E.T.A. to be in future physical danger from Ricardo. In light of the local police officers' slow response on February 13, 2011, the requirement to be paid cash prior to allowing the release of Anne and her friends from the police station where they had gone to report a crime, the filing of a false police report, and Ricardo's apparent influence over certain officers, the risk of harm to Anne, M.A.A., E.T.A. was exacerbated. The court found that a grave risk of physical harm to M.A.A. and E.T.A. existed should they be returned to Peru, and a grave risk of psychological harm was also present for M.A.A. and E.T.A. M.A.A. exhibited some behavior indicative of psychological harm.