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Friday, August 2, 2013

In re D.T.J.2013 WL 3866636 (S.D.N.Y.) [Hungary] [Passport] [Counsel for Child] [Intervention] [Well Settled] [Age & Maturity] [Grave Risk of Harm] [Petition Denied]

In re D.T.J.2013 WL 3866636 (S.D.N.Y.) Petitioner Gyula Janos Jakubik petitioned the Court for the return of his daughter, D.T.J., to Hungary, pursuant to the Hague Convention. She was brought to the United States by her mother, Respondent Eva Schmirer, on September 6, 2011. On June 14, 2013, Jakubik filed the petition, along with an application for emergency relief in the form of an Order to Show Cause. That Order, which the Court issued that day, directed the United States Marshals Service to take D.T.J.'s and Schmirer's passposts into custody for safekeeping by the Court. The Court appointed counsel for D.T.J. and granted, over Petitioner's objection, D.T.J.'s motion to intervene as a party to the case. (2013 WL 3465857 (S.D.N.Y. July 9, 2013)). At that trial, the Court heard testimony from D.T.J., whom the Court interviewed at length, with D.T.J. under oath, in the Court's robing room, having been provided with proposed questions from the parties, ex parte, in advance. The Court's interview with D.T.J. was conducted in the presence of counsel; and counsel were given the opportunity before the interview ended to propose supplemental questions to the Court.

The Court found that Jakubik and Schmirer met in 1996, at the ages of 20 and 19, respectively; they became cohabitants and life partners. On August 11, 1998, D.T.J. was born to them in Kistarcsa, Hungary. For the next six years, D.T.J. and her parents lived together in Valko, Hungary. During the time the couple was living together, Jakubik was physically and verbally abusive to Schmirer, both in and out of the presence of D.T.J. The evidence established that Jakubik engaged in a pattern of serious physical and verbal abuse of Schmirer during the time they were a couple, including hitting and punching her, as well as threatening to kill her on repeated occasions. The Court found Schmirer's testimony credible and compelling on this point. The couple separated in 2004. On August 11, 2005, D.T.J.'s D.T.J. was living with Schmirer. Laszlo Paolo-Jakubik came to take D.T.J. to celebrate her birthday and refused to allow D.T.J. to exit the car, grabbing her by the arm and hand and drove off. Schmirer brought a proceeding in Hungarian court to have D.T.J. returned to her custody. On June 22, 2006, the Municipal Court of Salgotarjan, Hungary granted custody to Schmirer. Jakubik was given visitation rights For the next five years, D.T.J. lived with Schmirer in Karancsaija. Schmirer. In 2007, Jakubik married Adrienn Viczian, and in 2008, the two gave birth to another daughter, Bogolarka. On September 6, 2011, Schmirer and D.T.J. left Hungary and traveled to the United States. Upon their arrival in New York, D.T.J. and Schmirer moved in with Katalin O'Toole in Haverstraw, New York, which is located in Rockland County.

The district court found that Petitioner made out a prima facie case by a preponderance of the evidence. DJT was born in Hungary and lived there until age 13, thus meeting the definition of a "habitual resident" of Hungary. Schmirer brought D.T.J. to the United States without the knowledge or consent of Jakubik, and that, according to the custody order of the Municipal Court of Salgotarjan, Jakubik was to have visitation rights every other week. D.T.J.'s abduction by Schmirer, therefore, was in violation of Jakubik's custody rights under the Convention.

Schmirer and D.T.J. both argued that D.T.J. was well-settled in her new environment, and that returning her to Hungary for custody proceedings would be harmful and disruptive. The Court observed that the petition was filed in the United States more than a year after D.T.J.'s wrongful removal and that the Article 12 "settled" defense was available. The "settled" defense allows courts to examine the child's present situation and circumstances if more than a year has passed since his or her removal. Article 12 does not define the term "settled." However, courts have interpreted it to ask whether "the child is in fact settled in or connected to the new environment so that, at least inferentially, return would be disruptive with likely harmful effects." In Re Lozano, 806 F.Supp.2d 197, 230 (S.D.N.Y.2011). Although there is no exhaustive list of the factors that are to be considered in assessing the "settled" defense, they include: the age of the child; the stability of the child's residence in the new environment; whether the child attends school or day care consistently; whether the child attends a religious establishment] regularly; the stability of the respondent's employment; and whether the child has friends and relatives in the new area. In Re Koc, 181 F.Supp.2d at 152;accord Lozano, 697 F.3d at 57; Matovski, 2007 WL 2600862, at *13; Reyes Olguin v. Cruz Santana, No. 03 CV 6299(JG), 2005 WL 67094, at *8 (E.D.N.Y. Jan. 13, 2005).

The court discussed each of the factors. Age - D.T.J. was just a few weeks shy of 15 years old. The Court found that this first factor, that of age, supported D.T .J.'s "settled" defense. Stability of Environment- By all accounts, D.T.J.'s environment in the United States was a stable and happy one. This finding went far in bolstering Respondent's and D.T.J.'s "settled" defense. School Attendance - D.T.J.'s testimony about school was overwhelmingly positive. This factor, too, strongly supported a finding that D.T.J. was "settled" here. Friends and Relatives - D.T.J. testified to being extremely close with her relatives in the United States. This factor, also strongly supported the "settled" defense. Respondent's Employment - Schmirer was not employed in the United States, nor was any member of the household in which D.T.J. lived. That fact, viewed in isolation, undercut D.T.J.'s and Schmirer's claim that D.T.J. was "settled." At the same time, there was evidence of continuing financial support for D.T.J. from means other than presently earned income. The evidence at trial established that Schmirer and D.T.J. were supported financially by John and Katalin O'Toole. Schmirer's lack of employment or income undercut the "settled" defense but was mitigated somewhat by the financial assistance provided to Schmirer and D.T.J. by the O'Tooles. This factor pointed in conflicting directions as to the "settled" defense.

Immigration status - Both Schmirer and D.T.J. were living as undocumented persons in the United States. The consequences of this status presented an obstacle to Schmirer and D.T.J.'s ability to demonstrate that D.T.J. was well-settled in the United States. The Court observed that the Second Circuit has squarely held that lack of legal immigration status does not preclude a court from finding that the "settled" defense has been established. See Lozano, 697 F.3d at 56 ("[I]mmigration status should only be one of many factors courts take into account when deciding if a child is settled within the meaning of Article 12.... [I]n any given case, the weight to be ascribed to a child's immigration status will necessarily vary."); see also Broca v. Giron, No. 13-1014-cv, 2013 WL 3745985, at *1 (2d Cir. July 18, 2013) ("The ['well-settled'] test is a 'fact-specific multi-factor' test, in which no factor, including immigration status, is dispositive."). The factors to be considered when assessing the relative weight that should be given to a child's immigration status include "the likelihood that the child will be able to acquire legal status or otherwise remain in the United States, the child's age, and the extent to which the child will be harmed by her inability to receive certain government benefits." Lozano, 697 F.3d at 57. On this subject, the Court had the benefit of hearing testimony from a professor of law at New York Law School specializing in immigration law. Her testimony confirmed that there were potential avenues by which D.T.J. could normalize her status. On balance, D.T.J.'s immigration status unavoidably pointed against a finding that she "settled." However, notwithstanding this factor, balancing all of the foregoing "settled" factors, the Court was persuaded-overwhelmingly-that D.T.J. had met this affirmative defense by a preponderance of the evidence. Applying the multi-factor test, even without lawful status she was "well-settled" in the United States. See Broca, 2013 WL 3745985, at *1; Lozano, 697 F.3d at 56; Demaj, 2012 WL 476168, at *4.

The Court also held that D.T.J. was of a sufficient age and maturity that the Court should take into account her "considered objection to returning." A court may refuse repatriation "solely on th[at] basis." see Broca, 2013 WL 867276, at *9-10; Matovski, 2007 WL 2600862, at *9; de Silva, 481 F.3d at 1286. The Court viewed D.T.J. as reasonably mature for an almost 15 year-old. The Court perceived noticeable areas of emotional immaturity. For example, D.T.J.'s answers in certain instances revealed a willingness to make sweeping, absolute statements, and a degree of dogged refusal to reexamine conclusions she had drawn or statements she had made. That said, the vast majority of the evidence revealed D.T.J. to be a mature, thoughtful child with age-appropriate analytic skills and assessments of reality. D.T.J.'s maturity was particularly evident with respect to two topics. First, D.T.J.'s articulation of her reasons for wanting to stay in the United States was rational and reasoned. Her comments demonstrated that a mature and considered line of thinking had led her to this conclusion, and reflected a practical, sober sensibility. D.T.J. explained that she preferred the United States because her emotional and tangible needs are being met here, whereas they were not being met in Hungary. Her reasons for not wanting to go back, she stated, were "[n]ot because of this case" but because "it's better here." She demonstrated that she feels safe and secure in the United States, and that she sees a brighter future here for herself. The second revealing example of her emotional maturity came during D.T.J.'s discussion of her immigration status. D.T.J. demonstrated quite bluntly that she was aware of the challenges presented by her immigration status should she remain in the United States. She was able to enumerate some of these challenges, and demonstrated a mature sequence of reactions. The Court found that D.T.J. had successfully made out an Article 13 affirmative defense. This defense independently justified denial of the Petition.

Schmrer and D.T.J. argued that, should D.T.J. return to Hungary, she would be at grave risk of harm, as defined by Article 13(b) of the Convention. They argued, D.T.J. would incur psychological damage, occasioned by her proximity to a violent and abusive father; and be at risk of sexual abuse at the hands of her father. The district court found that D.T.J. would suffer great psychological trauma should she be repatriated so as to be in proximity and contact with her father. The evidence at trial
convincingly showed that Jakubik could be a brutal, violent, jealous and possessive man. It established that, while Schmirer resided in Hungary, Jakubik repeatedly engaged in horrific acts of violence towards Schmirer. The Court described these acts in its opinion, which occurred in the presence of D.T.J. During all of these incidents, Schmirer testified, D.T.J. was present. D.T.J., who was very young, recalled only some of those incidents.

In considering whether Schmirer and D.T.J. had established this defense, the Court was mindful that the relevant issue was whether the evidence established a grave risk to D.T.J., who was never physically assaulted by Jakubik. It pointed out that the law is clear that "[e]vidence of ... incidents aimed at persons other than the child at issue, have not been found sufficient to support application of the 'grave risk' exception." Laguna, 2008 WL 1986253, at *8; accord Souratgar, 2013 WL 2631375, at *4 ("Spousal abuse ... is only relevant under Article 13(b) if it seriously endangers the child. The Article 13(b) inquiry is not whether repatriation would place the respondent parent's safety at grave risk, but whether so doing would subject the child to a grave risk of physical or psychological harm.... )The Court was also mindful that the incidents chronicled all occurred prior to the point in 2006 when the Hungarian Court in Salgotarjan made its custody determination. However, the evidence at trial revealed that Jakubik maintained a torrent of verbal abuse towards D.T.J. Since her arrival in the United States, Jakubik and D.T.J. had remained in contact via Facebook, and voluminous evidence of their Facebook communications since mid-2012 was admitted at trial. This evidence revealed a series of diatribes by Jakubik towards D.T.J., both in Facebook messages to her personally and in "wall postings" to which she and other users had access. On May 4, 2012, for example, Jakubik wrote to D.T.J.: It's your mother who doesn't care about you because taking you there was for her own good and not yours. But Interpol will be looking for you soon, because what your mother did was a crime, ...Once you are home, we will have a talk!.... [T]ell her to come back to her senses and put you on a plane because I will have her imprisoned if I have to. In an October 2, 2012 conversation, Jakubik taunted D.T.J., "I will put your dickhead mother where she belongs because I made a vow at my father's grave.:) ... So when your Mom comes home, the same thing will happen as I wrote before. (She will die like a bum under a gate and no one will give a crap about her)." As recently as a few weeks earlier, Jakubik told D.T.J. that "Your fucking mother wanted to raise you to be a whore." Jakubik's Facebook "wall postings" consisted of similarly profane invective. In one post, he stated: I am telling the entire lousy (Schmirer) family that you, rotten scums cannot hide; Uncle Gyula will find you and then you will get yours. You took my daughter away to suck [cocks] like a pig, I hope you know what sucking means (rotten scums). Jakubik's communications and postings also contained substantial anti-Semitic invective, notable given that D.T.J. was of partially Jewish ancestry on her mother's side. One such posting rails: I should fuck and impregnate all those dick-waving dogs, who sit in the Parliament pissing away assets belonging to me and to millions of other patriots. These Jewish henchmen don't balk at anything, when they rob our sweet homeland. They want secrecy? I would give it to them: about 2 meter deep in horizontal position; you cock-sucker Romanian-Gypsy Orban scum, why don't you ruin your fucking bitch mother and your lousy Jewish henchmen lackeys? You will be very much fucked because of this. D.T.J.'s testimony clearly revealed deep distress at Jakubik's abusive writings. She testified that returning to Hungary and to contact with her father would be traumatic for her. D.T.J. stated on more than one occasion during her testimony that she had very real fears about her father killing her mother. She voiced fear that "[m]aybe if we have to go back to Hungary, I think he will do it."D.T.J. remembered that Jakubik had said that "[h]e would put handcuffs on everybody in the family and he would shoot them in the head."D.T.J. also expressed distress at her father's anti-Semitic writings. It was clear to the Court that D.T.J. had been deeply wounded by her father's verbal assaults on her mother and her mother's family, with whom she identified. Dr. Rand, consistent with this, described D.T.J. as having recounted the incidents of her father's past violence "with a flat affect." This, he stated, was "suggestive of a dissociative process which serves as a psychological defense, a way of avoiding experiencing the full psychological impact of that which she fears-namely harm or death to her mother, proximity to her father if she were returned to Hungary, and the destruction of her happy and hopeful life in New York. Such dissociation was consistent with the presentation of victims of trauma." Considering all the evidence, the Court found, by clear and convincing evidence, that repatriating D.T.J. to Hungary, and to proximity with her father, would severely damage D.T.J.'s psychological and emotional state. A return to Hungary, and to proximity with her abusive and volatile father, would be deeply traumatic for D.T.J. Dr. Rand forcefully confirmed this finding. He credibly opined that "[p]utting [D.T.J.] back in Hungary in proximity of [her] relationship [with her father] ... would lead to a ... severe downturn in her psychological functioning" and would be "emotionally severely harmful to her." The Court carefully considered whether there were "any ameliorative measures (by the parent and by the authorities of the state having jurisdiction over the question of custody) that can reduce whatever risk might otherwise be associated with [the] child's repatriation" here, Blondin II, 189 F.3d at 248, thus protecting the child while also preserving the jurisdiction of the Hungarian court. Because the return to Hungary itself and proximity to Jakubik himself presented a grave psychological risk to D.T.J., the Court did not find that such measures existed here.

The Court also considered whether, despite these affirmative defenses having been established, the Court should exercise its discretion to repatriate D.T.J. nonetheless. See Laguna, 2008 WL 1986253, at *12 ("A court retains the discretion to return a child to his home country, regardless of any other determination, if return would further the aims of the Convention."). The Court saw no reason to do
so. The equities, on balance, favored heeding D.T.J.'s desire to remain in the United States. Notably, there was no sign that Schmirer's removal of D.T.J., although unlawful, was motivated by a desire to "remov[e] D.T.J. to [a] jurisdiction[ ] more favorable to [her] custody claims." Gitter v. Gitter, 396 F.3d 124, 129 (2d Cir.2005).