In Broca v. Giron, 2012 WL 7660123 (E.D.N.Y.) on
November 30, 2011, petitioner Jose Leonides Varillas Broca ("petitioner") filed
a petition under the Hague Convention alleging that his wife, respondent Mirna
Mariana Gil Geron ("respondent"), wrongfully removed their three children from
Mexico, and asking the Court for an order that the children be repatriated to
Mexico. Petitioner was a Mexican citizen, and lived in Cardenas, Tabasco,
Mexico. Respondent was also a Mexican citizen, and currently lived in Brooklyn,
New York. The three children were all citizens of Mexico, but had been in the
United States since July of 2010. Although initially petitioner brought this
action regarding all three children, the oldest child had since turned sixteen
and was therefore no longer subject to the Hague Convention.
On July 16, 2012, the Honorable Sterling Johnson referred the matter to a
Magistrate to hold an evidentiary hearing and issue a Report and Recommendation.
The Magistrate concluded that: (1) petitioner established a prima facie case for
repatriation of his two children under the Hague Convention; (2) the children
were not well settled in New York to an extent precluding repatriation under the
Hague Convention; (3) respondent had not established that the grave risk of harm
exception to repatriation applies; and (4) the mature child defense did not
apply to prevent repatriation in this case. He recommended that this Court grant
petitioner's petition for
repatriation of his two children to Mexico, the country of their habitual
residence.
Petitioner and respondent were married in April of 1995 and began living
together in Cardenar after their religious wedding ceremony on June 3, 1995.
They had three children together, J.V. ("oldest child"), M.V. ("middle
child"), and J.V. ("youngest child"), and the youngest two children were
subjects of this action..The middle child was born on December 3, 1997, and was
currently fourteen years old. The youngest child was born on October 16, 2002,
and was currently nine years old. All three children were born in Mexico and
were Mexican citizens. The middle child and youngest child attended school in
Cardenas, and the middle child received very high marks. Petitioner and
respondent lived together in their family home until February 2010. One night
that month, petitioner and respondent had a fight. Tr. at 83:22-85:3;
123:21-125:14. According to respondent, petitioner had locked her out of the
house, and that she entered the house through a window and got into bed. She
says that petitioner accused her of cheating and told her she had to be examined
by a doctor, and when she refused, he "began jerking [her] around." Petitioner
confirms that he told respondent that she had to be examined by a doctor to see
if she had sexual relations with someone else, but denies yelling at
her.According to the middle child, her parents' fighting woke her up that night.
After the fight, respondent took the middle child and youngest child and went to
her mother's house. Respondent stayed with the two younger children at her
mother's home until July of that year. Between February of 2010 and July of
2010, petitioner saw the children on
weekends and tried to stay involved in their lives. Respondent testified
that during this time, she would sometimes run into petitioner on the street in
their small town, that he would become violent and jerk her around on the
street, and that he once forcibly tried to pull her onto his motorbike. In late
July of 2010, she took the children out of Mexico, without telling petitioner or
asking his permission. They traveled to Brooklyn to live with respondent's other
sister, Gabriela, in New York City.
Petitioner denied having abused respondent or the children He did admit to
having had at least one fight with respondent that turned physically violent.
Respondent, on the other hand, claimed that petitioner abused her for nearly the
entire duration of their marriage. She stated that when she was pregnant with
the youngest child in 2002, petitioner kicked her and she fell down. She claimed
that in the years 2008 and 2009, petitioner hit her often and was getting very
violent. Respondent went to Mexico City to stay with her father four or five
times during this period of time because she felt safe in her father's home.
Respondent also claimed that petitioner was controlling and verbally abusive to
her. Respondent's mother testified that she had seen bruises on respondent
during her marriage to petitioner. According to the middle child, in Mexico,
"[my parents] were fighting all the time and they like punched each other or hit
and they yell at each other." She saw her father hit her mother, and "[l]ike he
kick her or he like grab her by the hand and like throw her away." Respondent
and the middle child both recounted an incident, occurring when the middle child
was six or seven, wherein petitioner hit the middle child on the bottom with a
broom. The middle child testified to another incident when petitioner hit her on
the bottom with a belt. In her deposition, entered into evidence, respondent
described a third incident with the middle child, wherein petitioner dragged her
by the arm into the house. Respondent was not aware of any where petitioner
abused the youngest child.
Dr. Evan Stark, who the court permitted to testify as an expert in
domestic violence, testified at the hearing about the impact of domestic
violence on women and on children who witness their mother's abuse. Dr. Stark
concluded to a high degree of certainty that there was domestic violence in
respondent's life, and that petitioner was coercive and controlling of
respondent. He also testified about the general harms to children who observe a
parent being abused, explaining that there are direct effects (including direct
physical exposure and being involved in the violence) and indirect effects
(including psychological disturbance). He explained that in order to conclude
that the children in this case had suffered any psychological harm, he would
need to perform a psychological assessment of the children. Dr. Stark, however,
did not perform a psychological assessment of either child. Dr. Stark opined
that the children face extreme risk if they were to be returned to Mexico to
live with petitioner. When asked whether they would face risks if they lived in
Mexico City with their mother, Dr.
Stark opined that "the risk [the children would face] would be largely a
function of the willingness of the authorities to limit access of [petitioner]
and it would be largely a function of the risk that [respondent] would face."
Dr. Stark's prescription for what can be done to reduce the harm the children
have already suffered from witnessing domestic violence is that: [the children
should be sent] a strong message that tells them that no one has a right to do
what was done to them or to expose them to what they were exposed to and that
their mother's decision to put her own safety and their safety before their
network of contacts and relationships with loved ones and family members is a
decision that we respect and endorse. He characterized respondent's removal of
the children from Mexico as "the single-most healthy act that could have been
taken."
Respondent did not appear to make any arguments respecting petitioner's
prima facie case and appeared to urge this Court to focus on the affirmative
defenses respondent raises. The children lived their entire lives in their
family home in Mexico, and had been living in the United States for only two
years since their
removal. These facts alone were sufficient to establish that the
children's habitual residence under the Hague Convention was Mexico. Petitioner
established that removal of the children was in breach of his custody rights. He
submitted evidence of Mexican law showing that he and respondent had joint
custodial rights by virtue of being the children's parents, and that those
custodial rights can only be terminated by judicial action. Petitioner also
established that he was exercising his custody rights at the time of removal. At
the time respondent removed the children from Mexico, the children had been
living with respondent and her mother for approximately five months. During this
time, the children spent weekends with petitioner, and he remained involved in
their schooling. The Magistrate concluded that petitioner has proven by a
preponderance of the evidence the Mexico was the habitual residence of the
children, that petitioner had rights of custody, and that respondent removed the
children from Mexico in breach of petitioner's custody rights. Therefore,
petitioner raised a prima facie case of wrongful removal under the Hague
Convention.
Respondent argued that petitioner has physically and psychologically
abused her and the children, and that the children should remain in New York
where they are attending school, receiving superior health care and education to
that which they received in Mexico, and happily living in a circle of extended
family. Under Article 13(b) of the Hague Convention, "a court may decline to
repatriate a child if the party opposing repatriation establishes by clear and
convincing evidence that repatriation would create a grave risk of physical or
psychological harm to the child." Blondin IV, 238 F.3d at 157. The harms a child
may experience if repatriated can be considered on a spectrum. Id. at 162.At one
end are "those situations where repatriation might cause inconvenience or
hardship, eliminate certain educational or economic opportunities, or not
comport with the child's preferences."Id. These situations do not constitute
grave risk of harm under the Hague Convention. At the other end of the spectrum
are "those situations in which a child faces a real risk of being hurt,
physically or psychologically, as a result of repatriation." These situations do
constitute grave risk of harm under the Hague Convention. If a court concludes
that a child faces grave risk of harm, before it can decline to order
repatriation, the court must determine whether there are any ameliorative
measures that could be taken to reduce this risk and enable a child to return
safely to his home country. Id. In fact, the Second Circuit has instructed that
a finding of grave risk of harm, without consideration of ameliorative measures,
is not sufficient to deny repatriation. The grave risk analysis must be based
upon the "specific facts presented in th[e] case."Id. at 163 n. 12.A court may
consider as non-dispositive factors whether the children are settled into their
new environment, and whether the children have views on repatriation, taking
into account the children's age and degree of maturity. Reyes Olguin v. Cruz
Santana (Olguin II), No. 03-CV-6288, 2005 WL 67094, at *8 (E.D.N.Y. Jan. 13,
2005).
The Magistrate observed that in cases where respondents have established
this defense, courts "have focused on evidence of a sustained pattern of
physical abuse and/or a propensity for violent abuse." Laguna v. Avila, No.
07-CV-5136, 2008 WL 1986253, *8 (E.D.N.Y. May 7, 2008) (collecting cases).
Evidence of sporadic or isolated incidents of abuse, or incidents aimed at
persons other than the child at issue is typically not sufficient to establish
grave risk of harm. In this case, there was no sustained pattern of physical
violence against the children. The middle child testified to two incidents of
physical abuse from her father, when he hit her on the bottom with a broom and a
belt. According to respondent, the middle child was six or seven when the broom
incident occurred, and petitioner said that he was trying to discipline the
child. There was no evidence presented that petitioner had ever physically
abused the youngest child. This evidence certainly does not show a sustained
pattern of physical abuse of the children. The evidence did establish that
petitioner abused respondent. Respondent testified to physical abuse that began
early on in their relationship. The middle child verified that her parents were
"fighting all the time and they like punched each other or hit and they yell at
each other" and that she saw her father kick and grab her mother. Although some
courts have found that a child witnessing extreme abuse may suffer psychological
harms sufficient to invoke the grave risk of harm defense, the evidence did not
support such a finding here. When asked whether she had any fears about
returning to Mexico, the middle child responded that she was afraid people would
talk about her. If she returned to Mexico, she would not want to live with her
father anymore because she doesn't "want anything to happen again." Although she
did not elaborate, I infer that she does not want her parents to fight. DDr.
Stark's testimony merely confirmed that the relationship between petitioner and
respondent was abusive, and that, generally speaking, children are negatively
impacted by witnessing one parent abuse the other. Dr. Stark interviewed
respondent for four hours, but spent very little time with the two children. He
agreed that in order to conclude that the children had suffered serious
psychological harms, a psychological assessment would need to be done on the
children. Nevertheless, without conducting such an assessment, he gave his
opinion of the harm caused to the children, and the risks they faced upon return
to Mexico. He characterized the harms suffered by the children as "serious,"
from having been "exposed and repeatedly exposed to [petitioner's] abuse of
[respondent]." Dr. Stark's opinions were easily distinguished from expert
testimony that has been found to support denial of repatriation based on grave
risk of harm. First, Dr. Stark's testimony about the general risks of harm to
children witnessing a parent's abuse did not establish that these harms actually
occurred in this case. See Blondin IV, 238 F.3d at 163 n. 12 (explaining that
the grave risk of harm exception requires a close examination of the particular
facts relating to the child at issue). Indeed, Dr. Stark testified that,
although he did not perform a psychological assessment of the children, "[he]
didn't observe and [respondent] did not report to [him] that the children had
suffered any extreme psychological harms." Second, unlike cases where courts
have denied repatriation based on children observing a parent's abuse, Dr. Stark
did not conclude that the children would suffer trauma solely as a function of
their return to Mexico. See Blondin IV, 238 F.3d at 166 (affirming district
court's application of the grave risk of harm defense where the district court
concluded that the mere return of a child to her home country would trigger
post-traumatic stress disorder); Elyashiv v. Elyashiv, 353 F.Supp.2d 394, 408
(E.D.N.Y.2005) (children witnessed physical abuse of a parent, and mere return
to their home country would trigger post-traumatic stress disorder). The
evidence does not establish that the children have suffered extreme harm, or
would suffer a grave risk of harm if repatriated. Respondent bases her argument
on several cases where courts in other Circuits found grave risk of harm based
on a child's observation of one parent's abuse of the other parent. In these
cases, however, the evidence established that the conduct of the violent parent
was extreme. In this case, the admissible evidence shows that petitioner was
physically and emotionally abusive to respondent on a number of occasions, and
that the physical abuse involved, at most, kicking and hitting. There is no
evidence that petitioner was uncontrollably violent or threatened anyone's life.
Even if the Court were to conclude that the children faced a grave risk of
harm from return to the custody of their father, this Court would need to
consider the options for repatriation that might reduce that risk. Blondin IV,
238 F.3d at 163 n. 11. Here, the record indicated that there were arrangements
available to the family that could ameliorate that risk. When asked about the
risks the children would face if they were to return to Mexico with their mother
while living in Mexico City, Dr. Stark opined that "the risk would be a function
of the willingness of the authorities to limit [petitioner's] access to his
wife." Respondent did not argue that these ameliorative options are foreclosed
by nature of Mexican law, or that she has already exhausted the possible ways
she could live away from petitioner, but remain in Mexico with the children. She
argues merely that, based on Dr. Stark's opinion, "she will not be safe if she
returns to Mexico," Respondent's own testimony, however, indicated that she felt
safe in Mexico City with her father. The evidence indicated that it was possible
for respondent and the children to live safely in Mexico City, and presumably
for respondent to negotiate visitation with petitioner or seek a judicial decree
of divorce and/or a change in custodial arrangement from the Mexican courts.
Respondent testified that "in [Mexico] no one pays attention to women who are
abused. On other occasions when [abuse] has happened, I had wanted to bring
charges. But unfortunately sexism is very rampant in Mexico." She also testified
that after the incident in February of 2010, she and petitioner went to court
and were told that they should "work things out for the sake of [the] children."
There was no evidence that respondent has sought any other help from authorities
or social resources, nor that she has attempted to initiate divorce
proceedings.Therefore, because the evidence did not support a finding of grave
risk of harm to the children and there wereoptions for the safe return of the
children to Mexico, the Court could not deny repatriation based on the grave
risk of harm exception under Article 13(b) of the Hague Convention.
Respondent argues that petitioner instituted these proceedings more than
one year after the children were removed from Mexico, and that the children are
well settled in the United States.. The evidence establishes that petitioner
instituted these proceedings more than one year after respondent removed the
children from Mexico. The children had been in the country for two years but
moved four times. The family never had its own residence. Respondent worked
several waitressing jobs since she came to New York, and did not pay taxes on
her wages. She was here illegally, as were the children. The middle child spent
the first twelve years of her life in Mexico, and had only been in the United
States for the last two years. Although the youngest child has spent a larger
portion of his life here because he was only nine years old, he was struggling
with English and not doing well in school. These factors, taken together,
indicated that the children were not well settled within the meaning of the
Hague Convention.
Respondent argued that the middle child objected to her return to Mexico,
and that she was of sufficient maturity that this Court should take her
objection into account. The middle child, who testified with an impressive
command of the English language even though she knew no English when she came
here two years ago,
impressed the Court as intelligent and well-spoken. It found her testimony
compelling and very credible, and believed that she gave honest answers about
why she wanted to stay in the United States. Her reasons for objecting to her
return, however, did not provide a basis for the Court to deny repatriation. She
testified about the problems in her family when asked specifically about them,
but when asked what she did not like about Mexico, she responded that she did
not like the people because she lived in a small town and the people were
talking about her all the time. When asked what she likes about life away from
Mexico, she said that she liked Texas "because it's pretty," and that she likes
New York because of the tall buildings, her friends, and her family. When asked
why she did not want to return to Mexico she responded, "Because I made friends
here and I'm more comfortable here."Id. at 183:14-15.She elaborated that she is
more comfortable here because her family is here. When asked if she had any
worries or fears if she were to go back to Mexico, she responded, "[t]hat I
don't-when I grow up I don't be a lawyer." When asked if she was afraid of
anything in Mexico, she responded, "[j]ust that people are going to talk about
me. The middle child also testified that she wants to stay in the United States
because she will get a better education and have a chance to be a lawyer. These
reasons expressed "a
well-adjustment to life in the United States and a simple preference for
the luxuries of living in New York," which is not sufficient to establish the
mature
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