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Saturday, August 10, 2013

Acosta v Acosta--- F.3d ----, 2013 WL 3970239 (C.A.8 (Minn.)) [Peru][Grave Risk of Harm] [Expert opinion] [Petition Denied]

In Acosta v Acosta--- F.3d ----, 2013 WL 3970239 (C.A.8 (Minn.)) Ricardo Acosta filed a petition in Minnesota seeking the return of his children to Peru. The district court denied Ricardo's petition, finding that although the children's mother, Anne Acosta , had wrongfully retained the children in the United States, returning the children to Peru would expose them to a grave risk of harm.

On appel Ricardo challenged the district court's credibility determinations but did not otherwise dispute its findings of fact. Ricardo, a Peruvian citizen, married Anne, a United States citizen, in Minnesota in November 2002. After their wedding, the couple made their home in the United States. Anne gave birth to the couple's first child, M.A.A., in February 2003. In the summer of 2006, the Acostas moved to Lima, Peru, where Anne began working at the Roosevelt School. Anne gave birth to the couple's second child, E.T.A., in August 2007. During their marriage, Ricardo verbally abused Anne in the children's presence. He told her that she looked like a "hippopotamus" and called her a "fucking bitch." He also lost his temper and became violent. On one occasion, Ricardo became angry with M.A.A. for talking back and pushed him down onto a bed. On another occasion in 2008 or 2009, Ricardo was driving with Anne and the children when a taxi cut them off. Ricardo forced the taxi to a stop, struck the taxi driver, and shattered the taxi's windshield with a theft-deterrent tool used to lock the family car's steering wheel.

While living in Peru, M.A.A. attended the Roosevelt School. The principal at the Roosevelt School, testified that M.A.A. exhibited significant behavior problems, including telling his teachers that he wanted to kill himself. The principal testified that M.A.A.'s behavior problems were the third most severe she had seen in her nineteen years of teaching. M.A.A. was referred to therapy but ceased attending after only two or three sessions because Ricardo felt that the family could not afford it and believed, based on his own experiences, that therapy was ineffective.

By late 2010, the couple's relationship had deteriorated. They were seeing a  counselor and sleeping in separate rooms. Anne testified that she was afraid of Ricardo  and unhappy in her marriage. In November 2010, the couple agreed that Anne and the  children would go to Minnesota to be with Anne's family over the holidays. Anne's parents urged Ricardo to join the family for the holidays, but he remained in  Peru. Anne and the children left on December 23, 2010, and were scheduled to return
to Peru on February 16, 2011. Anne’s father Stephen noticed that M.A.A. had violent outbursts, wet his bed at night, and said he wished he were dead. Stephen testified that M.A.A. had since enrolled in therapy and that his behavior had improved.

By early February 2011, Anne had told Ricardo that she wanted a divorce and that  she and the children would not be returning to Peru. Anne and her brother, Jeffrey  Campbell (Jeffrey), traveled to Peru on February 11, 2011, to gather her and the  children's belongings from the apartment she and Ricardo had shared. Anne and Jeffrey asked two of Anne's coworkers-Elizabeth Norton LeBoo and Jacob Johansen to accompany them. Anne, Jeffrey, LeBoo, and Johansen arrived at the apartment on
February 13, 2011. Anne called Ricardo from the apartment and told him that she was packing her things. Ricardo reacted badly, telling Anne and Jeffrey that he loved his family and that he was going to kill himself. Ricardo thereafter arrived at the apartment building in a rage, crashing his car into a pole and smashing a window of the taxi waiting for Anne and the others. To prevent Ricardo from entering the apartment, Jeffrey and Johansen tried to hold the apartment door shut. Ricardo kicked it to pieces and forced his way inside. After entering the apartment, Ricardo began throwing items at Anne. Thereafter, he grabbed a knife from the kitchen and chased the men while Anne and LeBoo retreated to a back room. Ricardo chased Johansen outside, where he cut Johansen's leg with the knife. Ricardo returned to the apartment, where he brandished the knife towards Jeffrey, who had backed into a corner. Jeffrey testified that he had begged for his life, believing Ricardo was going to kill him. Jeffrey described Ricardo's appearance as looking like "an enraged doppelganger."
Returning his focus to Anne, Ricardo forced his way into the room where she and LeBoo had hidden. Ricardo then first battered LeBoo and then Anne, notwithstanding the arrival of the police, who stood passively by until finally taking action to restrain Ricardo. Following the melee, Anne and her companions took an ambulance to a hospital, where she and Johansen received stitches for the injuries they had suffered at Ricardo's hands. The district court found that in the midst of the melee Ricardo had placed a cell phone call to Susan, in which "[i]n a profanity-laced tirade, he threatened to kill Susan Campbell, Stephen Campbell, Jeffrey Campbell, Anne, and Anne's sister."That evening, Ricardo called Harrington and said that he was going to come to the Roosevelt School and kill Anne with a knife. The following day, Ricardo or someone acting at his direction attempted to gain access to LeBoo's residence.

Anne returned to the United States on February 15, 2011. In the weeks following the altercation at the apartment, Ricardo called Stephen and Susan numerous times,  leaving threatening voicemails, in one of which he stated, "I'll kill your kids because  she's taking my babies away. And, I promise you, your daughter is going to be killed because she is taking my kids away."In a live conversation with Susan, Ricardo threatened to kill M.A.A., E.T.A., and himself.

Shortly after returning from Peru, Anne met with officers from the Ramsey County Sheriff's Department, following which a warrant was issued for Ricardo's arrest. In early March 2011, Ricardo initiated a custody action for the children in Peru. In May 2011, Ricardo traveled to Miami, Florida, where he was arrested on the  Minnesota warrant. Ricardo was then extradited to Minnesota, where he pleaded guilty  to making terroristic threats. Ricardo returned to Peru to serve his probation. Ricardo was allowed to visit with his children via video conference, which he did on only one occasion.

Ricardo filed this action in February 2012. Stephen and Susan moved to dismiss Ricardo's claim against them under Federal Rule of Civil Procedure 12(b)(6). During the evidentiary hearing on these matters, the district court heard testimony  from several witnesses, including Ricardo, Anne, Stephen, Jeffrey, Susan, LeBoo, and Harrington. The district court also heard testimony from Dr. Jeffrey Edleson, a professor at the School of Social Work at the University of Minnesota and who was the founding director of the Minnesota Center Against Violence and Abuse. Over Ricardo's objection, Dr. Edleson testified that several factors indicated that returning the children to Peru would expose them to a high risk of harm. Specifically, Dr. Edleson cited: 1) Ricardo's history of violence; 2) the escalating severity of Ricardo's violent acts, including his assault of Anne in the presence of others on February 13, 2011; 3) Ricardo's threats to kill Anne and her family, including E.T.A. and M.A.A.; 4) Ricardo's threat to commit suicide; and 5) Ricardo's estrangement from Anne. Dr. Edleson also testified that M.A.A.'s behavioral problems were consistent with exposure to domestic violence and that he believed M .A.A. to be exhibiting signs of depression.

At the close of evidence the district court granted Stephen and Susan's motion to dismiss, found that the children had been wrongfully retained in the United States, and ruled that Anne had failed to prove her Article 20 affirmative defense by clear and convincing evidence. In its subsequent findings of fact and conclusions of law, however, the district court found that the children would face a grave risk of physical and psychological harm if they were returned to Peru, and it thus denied Ricardo's petition.


The Eighth Circuit Court of Appeals affirmed. It observed that Federal Rule of Evidence 702 governs the admissibility of expert testimony. It provides: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. 

It rejected Ricardo’s argument that the district court abused its discretion in admitting Dr. Edleson's testimony because the testimony was uncorroborated and generic in nature and because it relied on facts in controversy. Generally such a challenge goes to the credibility of the expert testimony, rather than its admissibility. Only if the expert's opinion is so fundamentally unsupported that it can offer no assistance to the jury must such testimony be excluded." The court found that the factual basis for Dr. Edleson's testimony was sufficient. In preparation for his court appearance, Dr. Edleson interviewed Anne and M.A.A. and reviewed a myriad of documents and evidence, including the following: treatment summaries from M.A.A.'s therapist, summaries of Ricardo's supervised visitation with the children, notes from school teachers about the children's behavior, various court filings, and the threatening voice messages Ricardo left for Susan. As to Ricardo's concern that Dr. Edleson's opinions reflected only Anne's side of the story, Dr. Edleson clearly stated the factual basis for his opinions and was subjected to cross-examination on this issue. Ricardo failed to identify any specific facts that he believed were uncorroborated, and the factual basis for Dr. Edleson's opinions found ample support in the testimony of Anne, Jeffrey, Susan, Stephen, Harrington, and LeBoo. Dr. Edleson's testimony was not generic; he applied his expertise to the specific facts of this case when he opined that several factors indicated that returning the children to Peru would subject them to a high risk of harm. Accordingly, the district court did not abuse its discretion by admitting the testimony.

The Eighth Circuit observed that a grave risk of harm may exist in cases involving "serious abuse or neglect." Vasquez v. Colores, 648 F.3d 648, 650 (8th Cir.2011). Ricardo argueds that the facts of this case do not support a finding of a grave risk of harm and that the district court abused its discretion by failing to order "undertakings."

The district court found that Ricardo's violent temper and inability to cope with the prospect of losing custody of the children would expose the children to a grave risk of  harm were they returned to Peru. It found that "it is highly probable that Ricardo will  react with violence, threats, or other verbal abuse towards the children, Anne, or  others." Ricardo contended that this finding was erroneous because the majority of his violent conduct was in response to Anne's abduction of the children. Although it did not condone Anne's decision to retain the children in Minnesota without Ricardo's consent,

her conduct in doing so did not preclude it from considering Ricardo's violent response at the apartment. Ricardo's rage continued unabated for at least a week after  the altercation, during which he made multiple threats to kill Anne and her family. Ricardo's violent behavior when cut off by a taxi demonstrated his inability to control his temper in circumstances much less provocative than those that existed during the incident at the apartment. Although there was little evidence that Ricardo physically abused the children, the lack of such evidence did not necessarily render Article 13b inapplicable. See Baran v. Beaty, 526 F.3d 1340, 1346 (11th Cir.2008). The proper focus under Article 13b is whether returning the children to Peru would expose them to a grave risk of harm. The evidence presented to the district court supported its finding that Ricardo's inability to control his temper outbursts presents a significant danger that he would act irrationally towards himself and his children. Ricardo's assault of the taxi driver in his children's presence, his verbal abuse of Anne in their presence, and his shoving of M.A.A. demonstrate that Ricardo was either unwilling or unable to shield the children from his rage. His telephonically expressed threats to kill the children and then himself were further evidence of his extremely unstable nature. A written description of those telephone calls did not begin to convey the chilling intensity of Ricardo's rage that the recorded calls themselves communicated. Given Ricardo's violent temper and his disregard for protecting the children from its consequences, "it would be irresponsible to think the risk to the children less than grave."

The Court rejected Ricardo’s argument that finding a grave risk of harm based on the above-described facts would allow courts to refuse to return a child whenever there is any indication of domestic violence, no matter how slight. "The gravity of a risk involves not only the probability of harm, but also the magnitude of the harm if the probability materializes." The probability that Ricardo will lose his temper and harm the children should they be returned to Peru for a custody determination was high, for as the district court found, "The evidence shows that Ricardo does not have the emotional fortitude to acknowledge custody of his children may ultimately be with Anne." Ricardo's testimony and voice messages indicated that he wanted the children returned to his care. A Peruvian court's order to the contrary likely could cause Ricardo to become violent and harm the children. Dr. Edleson's testimony that there was a high risk that Ricardo would abuse the children in the future, including the possibility of homicide, further supported this determination. These facts distinguish this case from those in which courts have declined to find a grave risk of harm.

The Court rejected Ricardo’s argument that the district court abused this discretion when it declined to return the children to Peru because "undertakings," or conditions on the children's return, would ameliorate any risk of harm. When a grave risk of harm to a child exists as a result of a violent parent, courts have been reluctant to rely on undertakings to protect the child. As the petitioner proffering the undertaking, Ricardo bears the burden of proof. Ricardo did not make a specific proposal for appropriate undertakings before the district court. Ricardo's attack on Anne and LeBoo in the presence of the police indicated that any undertaking ordered by a foreign court might well not deter him from engaging in violence towards the children or others if confronted with a temper-igniting situation Given these circumstances, the district court did not abuse its discretion in declining to return the children to Peru.