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Thursday, August 15, 2013

Mlynarski v. Pawezka, --- F.Supp.2d ----, 2013 WL 1150310 (D. Mass, 2013) [Poland] [Grave Risk of Harm] [Petition Granted]

 In Mlynarski v. Pawezka, --- F.Supp.2d ----, 2013 WL 1150310 (D. Mass, 2013) Petitioner filed a motion for an order to return his minor son to Poland after Respondent removed him and brought him to Massachusetts. Petitioner and Respondent were the biological parents of A.M., who was born on April 2, 2007. Although Petitioner and Respondent were never married, they resided in the same home in Poland, in the later stages of Respondent's pregnancy and until August 2, 2007, when Respondent left with A.M. and moved in with her aunt in the same town. Respondent testified that before she "escaped" from the residence (Petitioner's parents' house), Petitioner held her captive in the basement where she was only able to eat the eggs and jam stored there. She also testified that during these several months Petitioner verbally and physically abused her and sexually abused the infant A.M.

Within months of leaving the residence, Respondent sought child support through the Polish court and began receiving approximately $100 per month. In or around February of 2008, however, a custody dispute arose. Petitioner filed an action to regulate his contact with A.M., while Respondent, represented by counsel, countersued to terminate Petitioners parental rights. In August of 2008, the Polish court received a psychological report from the Diagnostic and Consultation Family Center, which had conducted evaluations of Petitioner and Respondent at the court's request. he report indicated that, while Respondent was socially and emotionally immature, suffered from extreme helplessness, and made decisions regarding A.M. based on her emotions rather than his developmental needs, she fulfilled her duties as a mother and had a great bond with As to Petitioner, the report stated that he could control his behavior but that he did not perceive, understand, or take responsibility for his own mistakes; the report also indicated that Petitioner had a high self-evaluation. The report concluded that, because of Respondents "low level of social and emotional maturity" and her resulting inability to "fully understand the minors needs," Petitioners contact with A.M. was "indispensable." However, considering Petitioners own "low level of social maturity" and "susceptibility to taking psychoactive substances," the report recommended that Petitioners visits with A.M. be facilitated in a controlled environment accompanied by the presence of a supervising court monitor. On February 19, 2009, after Respondent withdrew her request to terminate Petitioner's parental rights, the Polish court granted Petitioner supervised visitation with A.M. at specified dates and times. Following that order, the parties continued their ongoing legal battle over their respective rights. Petitioner continued to seek the enforcement of the order regulating his contact with A.M., while Respondent continued her efforts to limit Petitioner's parental authority.

In July of 2009, Respondent, after claiming that her intention was to bring A.M. to the United States for a short holiday visit, received permission from the Polish court to obtain a passport for him. In March of 2010, after learning that Respondent applied for a permanent immigrant visa for A.M. as a child of a United States citizen—Respondent had become a United States citizen when, as a thirteen-year-old and living here, her father became a citizen—Petitioner sought to reverse the court's decision. On March 15, 2010, the Polish court—concerned that there was a "high probability" that A.M. would stay in the United States permanently without Petitioner's consent—issued an order prohibiting Respondent from taking A.M. outside Poland until at least the completion of the court proceedings. Despite that order, Respondent left with A.M. and brought him to the United States on April 4, 2010. On March 23, 2011, Petitioner initiated the present action seeking A.M.'s return to Poland.

Respondent, appealed the Polish court order prohibiting her from leaving Poland and traveling with A.M. to the United States. On June 16, 2011, the Court of Appeals in Poland denied Respondents appeal, citing Petitioners interest in maintaining ties with his son; the court found that both parents "are entitled to parental authority over [A.M.] and each of them is obliged and also entitled to exercising the same."

There was no question but that (1) A.M. was a habitual resident of Poland at the time of his removal, (2) Petitioner had "rights of custody" at the time, and (3) was actually exercising those rights.
Respondent claimed that there would be a grave risk of physical and psychological harm to A.M. were he to be returned to Poland. The court observed that a "grave risk" means a "more than serious" risk; Respondent claimed that Petitioner "sexualized" A.M. from the time of his birth in April of 2007 until she moved out of Petitioners home in August of that year. Respondent submitted photographs Petitioner allegedly took of A.M.'s genitals when he was only several months old as well as a brief video (taken by Respondent) showing Petitioner, wearing one of Respondents dresses, gently swinging A.M. in his arms. Respondent also testified that Petitioner would suck on A.M.'s penis when he cried in order to calm him, claiming this to be a Native American practice. She testified as well that Petitioner, when they resided together, often was under the influence of drugs when he cared for A.M. and, as a result, posed a risk to his safety. The court pointed out that the First Circuit has held that sexual abuse by a parent is an example of an Article 13(b) defense justifying non-return. Danaipour, 286 F.3d at 16. Drug use, under certain circumstances, also may qualify as grave-risk conduct. The evidence proffered by Respondent with regard to Petitioner's drug use includes her own testimony and the psychological report provided to the Polish court. The report indicated that Petitioner had a "susceptibility to taking psychoactive substances," smoked marijuana occasionally, but had ceased doing so in August of 2007 when asked by Respondent. The court credited that evidence accordingly. Respondent's allegations of sexual abuse, on the other hand, were far less persuasive. There was no mention of such abuse in the psychological report issued to the Polish court. Granted, Respondent testified that she was reluctant to bring this to the attention of the psychologist, but nonetheless the fact remains that no such information is contained in the report. Second, certain of Petitioner's photographs of A.M. while an infant, although questionable, do not amount, in the court's opinion, to sexual "abuse." Third, the allegations of Petitioner's engaging in what he described as a "Native American" practice, if practice it be, are disturbing but nonetheless vague and uncorroborated; had Respondent been as concerned about this at the time as she is presently, it was curious that she did not insist on sharing that information with the investigating psychologist. Most importantly, Respondent did not testify to or set forth any probative evidence to support her contention that, were A.M. to return to Poland, he would "certainly be at risk for more of the same type of abuse."

Respondent argued the court should consider the "well-settled" doctrine in the context of her grave risk argument. In support, Respondent cited Blondin v. Dubois, 238 F.3d 153, 164 (2d Cir.2001), which held that a court may consider evidence that the child is "so deeply rooted in the United States" that there would be a grave risk of psychological harm if the child were to be returned to the home country. The First Circuit, however, in a ruling which is binding on the court, had chosen to "disregard the arguments that grave risk of harm may be established by the mere fact that removal would unsettle the children who have now settled in the United States." Walsh, 221 F.3d at 222 n. 14. "That," the First Circuit stated, "is an inevitable consequence of removal."

Respondent's one remaining justification to remain in the United States was her concern that the Polish court system is ill-prepared to protect A.M. In support, Respondent cited a report prepared by the United States Department of State that discusses Poland's problems with domestic violence against women and low conviction rates in cases involving incidents of child abuse. This was evidence of the weakest sort. The court was not convinced that the report sufficiently demonstrated that the Polish court system was incapable of enforcing its visitation orders or of protecting A.M. from abuse during the pendency of the parties' dispute.

Respondent asserted that Petitioner "acquiesced" to A.M.'s living in the United States by his complete lack of communication or even an attempt to communicate with [Respondent], the child, or any member of [Respondents] extended family here in the United States. Respondent claimed that even though Petitioner had her relatives contact information in the United States and her own email addresses, he made no effort to contact them. Respondent's argument was not persuasive. Even if her assertions were true, a lack of communication, by itself, is not sufficient to establish that it was Petitioners subjective intent to acquiesce to A.M.'s living in the United States. Even if credited, Petitioners lack of communication was at best an ambiguous indication of his intention to allow A.M. to permanently reside in the United States.

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