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Thursday, May 2, 2013

Broca v. Giron, 2012 WL 7660123 (E.D.N.Y.) [Mexico] [Grave Risk of Harm] [Age and Maturity]

 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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