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Thursday, February 27, 2014

Larrategui v. Laborde, 2014 WL 128048 (E.D.Cal.) [Argentina] [Grave Risk of Harm] [Petition Denied]

In Larrategui v. Laborde, 2014 WL 128048 (E.D.Cal.) Petitioner Daniel Carlos Chiramberro Larrategui  and Respondent Valeria Eguiguren Laborde ("Respondent") were both born in Argentina. They met and began dating in 1996 and began cohabitating in 1997. S.C. was born in Argentina in December 1999. In or about 2002, Petitioner and Respondent separated when S.C. was two years old. When the parties separated, S.C. resided primarily with Respondent, but Petitioner frequently spent time with S.C. When S.C. was about two to three years old, she was diagnosed with Developmental Dysphasia. In Argentina, through the Hospital Aleman, S.C. was under the care of numerous physicians and mental health professionals, including Dr. Hernan Amartino ("Dr.Amartino"). In Argentina, S.C. was attending Colegio Bilingue Armonia, a school that integrates students with Special Education Needs.  In 2006, Respondent began discussing with Petitioner the possibility of S.C. relocating to the United States in the spring of 2007. In 2007, Respondent moved to the United States from Argentina. She was currently married and had a son of approximately three and a half years old. When Respondent left to the United States, Petitioner cared for S.C. Child custody proceedings occurred in Argentina beginning in 2007. In 2010, an Argentina court granted Petitioner full custody of S.C. Beginning in 2009, S.C. began experiencing emotional outbursts. In November 2012, through an Argentina court order, Respondent was allowed to bring S.C. to the United States from December 13, 2012, until January 29, 2013. S.C. did not return to Argentina by January 29, 2013. S.C. was currently enrolled at Monte Vista Middle School, a public school in San Joaquin County. In the United States, S.C. was evaluated by Dr. Crawford in 2012 and then again in 2013. Dr. Crawford determined that S.C. "runs the risk of psychotic breakdown, and if not supported adequately is in danger of developing a Borderline Personality Disorder." The Kaiser Permanente medical group diagnosed S.C. with Borderline Intellectual Functioning and a mood disorder.  S.C. was currently attending weekly therapy sessions.

Respondent did not dispute that S.C. was a habitual resident of Argentina and was being wrongfully retained in the United States, but she argued that S.C. should not be returned because S.C. was in grave risk of physical and psychological
harm because S.C. had serious medical and mental health needs and the resources in
place in Argentina, including Petitioner's understanding of S.C.'s needs, were
gravely inadequate to provide the necessary care to S.C.

The district court observed that a parent may establish a grave risk to
defeat or delay the return of a child "by showing that it would disrupt an ongoing
course of medical treatment and severely impact the child's health. But the parent
would have to provide clear and convincing evidence both (1) of the child's
serious medical needs and (2) of the home country's inability to provide the
necessary care." Cuellar v. Joyce, 596 F.3d at 511.

          Unlike the district court's finding in Cuellar (i.e., that the child
suffered of "ataxia," which was based on testimony and written statements made by
an unidentified physician, a professor, and a registered nurse), here, there was
substantial and credible evidence to show that S.C. had Borderline Intellectual
Functioning and a mood disorder that may develop into a more serious condition,
including a Borderline Personality Disorder. Furthermore, there was evidence that
there was an ongoing course of medical treatment. Accordingly, the Court found by
clear and convincing evidence that S.C. had serious medical needs. It also found that there was was  insufficient evidence that S.C. could not receive the medical care she requires in Argentina. At best, the evidence demonstrated that S.C.'s medical care in the United States may be better than that provided to her in Argentina. Regardless,
the comparison of whether one country's medical opportunities are better than
another's does not constitute a grave risk of harm as contemplated by the drafters
of the Hague Convention nor is it within the purview of 42 U.S.C. s 11603. Accordingly, Respondent failed to prove by clear and convincing evidence that S.C.'s home country was unable to provide the necessary care and, therefore, no grave risk of harm if S.C. was returned to Argentina.

The Court granted the Petition and imposed narrowly focused undertakings to ensure that S.C. received the necessary medical treatments and ensured that Respondent was allowed access to and visitation with S.C. See Kufner, 480 F.Supp.2d at 516 (adopting similar undertakings to ensure that the children received medical care and the respondent was allowed to visit the children).

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