Ermani v Vittori, --- F.3d ----, 2014 WL 3056360 (C.A.2) [Italy] [Grave Risk of Harm] [Petition Denied]

In Ermani v Vittori, --- F.3d ----, 2014 WL 3056360 (C.A.2) the Second Circuit held that the psychological and physical harm arising from separating a child from autism therapy  can be sufficiently grave to trigger the Convention’s exceptions, and affirmed the denial of the appellant's petition. It also held as a matter of first impression, the district court's decision to  deny the petition without prejudice to renewal was error, and amended the judgment to deny the petition with prejudice.

Emiliano Ermini and Viviana Vittori were Italian citizens. They were married in 2011. The couple had two children: Emanuele, who was 10, and Daniele, who was 9. Daniele was autistic. In the midst of a  custody dispute, Ermini petitioned the district court pursuant to the Hague Convention seeking the return to Italy of his two sons, who were then, and today remain, in the United States.  Ermini filed his petition in August of 2012, and the district court conducted a bench trial in January of 2013. The district court found that the family had moved to the United States in August of 2011 in connection with its longstanding efforts to find appropriate treatment for Daniele, who had been diagnosed with autism in March of 2008, and the couple sought unsuccessfully to find adequate Applied Behavioral Analysis ("ABA") therapy for Daniele in Italy. In Spring of 2010, in Italy, they met Dr. Giuseppina Feingold, an Italian-speaking doctor with a practice in Suffern, New York.  In August of 2010, they traveled to New York so that Dr. Feingold could more fully assess and begin treating Daniele.  The parents were impressed with the treatment options presented by Dr. Feingold, and began to plan a move to Suffern, at first for a period of two-three years, but with the potential of a permanent relocation in mind, depending on the success of Daniele's treatment.  The family returned to New York in August of 2011, and promptly signed a one-year lease on a house.  The children were enrolled in public schools, and Daniele's therapy began soon after. The parents put their home in Italy on the market, prepared to open a business in the United States, and made arrangements to send their belongings here.  Ermini, who had remained employed in Italy, traveled back and forth between the United States and Italy. During a December of 2011 return to America, a "violent altercation" occurred, with Ermini physically abusing Vittori in the kitchen of their Suffern, New York home. During this altercation Ermini had, among other acts, hit Vittori's head against a kitchen cabinet, and attempted to "suffocate" and "strangle" her.  The district court determined this incident was part of a history of physical violence by Ermini.  The court found that Ermini "expresses anger verbally and physically," had hit Vittori at least ten times during the course of their relationship, and was "in the habit of striking the children."   In response to the December of 2011 incident,  Vittori obtained a temporary order of protection from the Suffern Court of Justice for herself and the children . The order, among other things, granted her temporary custody of the children through May 9, 2012. 

    Ermini returned to Italy and instituted divorce proceedings.  Vittori went
back to Italy for those proceedings in April of 2012, by which time the children's
American visas had expired.   In September of 2012, Ermini petitioned an Italian court in Velletri for an order directing Vittori to return with the children to Italy.  The court in
Velletri granted Ermini's petition, ordering Vittori to return with the children, and making various rulings granting shared parental authority between Ermini and Vittori and assigning visitation rights.   In April of 2013 the Court of Appeals in Rome issued an order vacating several provisions of the Velletri court's order. The Court of Appeals granted Vittori exclusive custody of the children, did not require her to return to Italy with the children, and explicitly fashioned its order to comport with the orders of protection issued in the United States arising from the December of 2011 domestic abuse incident.  

The district court found that Daniele had "significantly progressed" with his therapy in the United States.  He was engaged in a Comprehensive Application of Behavioral Analysis to Schooling ("CABAS") program in Stony Point, New York, which, according to Vittori's expert, Dr. Carole Fiorile, offered the best ABA curriculum then available to autistic children. The program involved one-on-one instruction with an educational team, including a special educational teacher, an occupational therapist, a speech and language therapist, several classroom assistants, and a full-time one-on-one teaching assistant.   The district court noted that Dr. Fiorile had stated that Daniele required such a program to continue to make meaningful progress in, among other things, cognition, language, and social and emotional skills. Dr. Fiorile had also testified that while the United States has over 4,000 board certified ABA practitioners, there were, to her knowledge, fewer than twenty in Italy.   The district court, weighing Dr. Fiorile's opinion about the CABAS program, concluded that separating [Daniele] from  the CABAS program ... would put him in an intolerable situation due to the grave  risk of deterioration of his condition and denial of needed rehabilitation. The district court found that Daniele and Emanuele have a close, loving relationship, and that the children and Vittori had overstayed their visas and had applications for renewal pending. The district court held that Ermini had proved by a preponderance of the evidence: (1) that the children were habitual residents of Italy, and were being retained in the United States by Vittori; (2) that the retention was in breach of Ermini's custody rights under the law of Italy; and (3) that Ermini was exercising those rights at the time of the children's retention in the United States. The district court ruled in Vittori's favor that return to Italy posed a "grave risk" of harm to Daniele, pursuant to Hague Convention, Article 13(b), which precludes repatriation of a child where there "is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." The record, according to the district court, established that, because Daniele was severely autistic, he would face a grave risk of harm if he had to return to Italy, as the return would "severely disrupt and impair his development. The court further concluded that Daniele would face "significant regression" if his CABAS program was interrupted and held that the predicted deterioration in Daniele's cognition, social skills and self-care if Daniele was separated from the CABAS program ... constitutes psychological and physical harm sufficient to establish the 'grave risk of harm' affirmative defense . The court also determined that because Emanuele and Daniele had a loving and close relationship, separation would be harmful to both siblings, and that avoiding such a separation met the requirements of the Hague Convention.  The court denied Ermini's petition for return to Italy as to both children, but did so "without prejudice to renewal if [Daniele] is no longer able
to participate in the CABAS program and the Italian court system issues a final
order requiring the return of the children to Italy."

The Second Circuit observed that the district court found that the children's habitual residence was Italy, since the parents' last shared intention was to move the family to the United States only for a period of two-three years, and potentially to stay permanently if Daniele's therapy was successful. The Court of Appeals  stressed that the period of time of a move is not the only relevant factor in the analysis. It noted that  sister signatories have clarified that a habitual residence may be established even when a move is for a "limited period" and indeed "indefinit[e]." It emphasized that the time period attached to a move is but one factor in determining, in a fact-intensive manner, what the settled intent among the parents was in making the move. It believed that the issue at hand was, at the very least, a closer call than it was framed as being by the district court. In this case, the family's move, though indefinite, was not "of a trial nature" or for a "trial period" as in Gitter, nor was akin to a summer sojourn; the move indeed evinces a good degree of "settled purpose" and continuity. As the district court found, Ermini and Vittori leased a house in the United States and put their house in Italy on the market; enrolled the children in school and extracurricular activities in the United States; planned to open a business in the United States; prepared to move all of their belongings to the United States; and shifted Daniele's all-important medical care and treatment to the United States.  This was a move shared in the parents' minds not only as one of duration, stretching into years, but also formed with an understanding that the duration could become permanent if Daniele's treatment was succeeding.  The facts found by the district court established, at a minimum, that the family intended to shift the locus of their family life to the United States for a span of years. And, given these circumstances, the Court stated “...we are left uncomfortable with the district court's conclusion that the family's habitual residence did not change.” Nor, was it clear that Vittori breached Ermini's custody rights. However, because other grounds existed to affirm the district court's denial of Ermini's petition, it did not determine this issue.
                                       
           The Second Circuit agreed with the district court that the risk of harm Daniele faced if removed from his therapy and returned to Italy was grave enough to meet the Hague Convention's standards. It also held, contrary to the district court, that
Ermini's history of domestic violence towards Vittori and the children was itself
sufficient to establish the Hague Convention's "grave risk" of harm defense. The Court observed that it has stressed that a grave risk of harm exists when repatriation would make the child face a real risk of being hurt, physically or psychologically. The potential harm "must be severe," and there must be a "probability that the harm will materialize." Souratgar v. Lee, 720 F.3d 96,103 (2d Cir.2013). Domestic violence can satisfy the defense when the respondent shows by clear and convincing evidence a "sustained pattern of physical abuse and/or a propensity for violent abuse." . And it had  concluded that a "grave risk" of harm from abuse had been established where the petitioning parent had actually abused, threatened to abuse, or inspired fear in the children in question. Spousal violence, in certain circumstances, can also establish a grave risk of harm to the child, particularly when it occurs in the presence of the child. It has allso been careful to note that sporadic or isolated incidents of physical discipline directed at the child, or some limited incidents aimed at persons other than the child, even if witnessed by the child, have not been found to constitute a grave risk.

    The district court found that Ermini "expresse[d] anger verbally and physically," and that he struck Vittori and frequently hit the children. The district court determined that Ermini was "in the habit of striking the children." The district court construed some of the hitting as disciplinary, but it did not, and could not, conclude that the hitting was "sporadic or isolated." The court also found that Vittori testified credibly that Ermini "had hit her at least 10 times during the course of their relationship."  On the question of abuse, the district court's findings about the "violent altercation" in the kitchen of their Suffern residence on December 28, 2011 were particularly troubling.  The court credited both Vittori's account of having her head "shoved" into the kitchen cabinets while Ermini attempted to "suffocate" and "strangle" her, and Emanuele's parallel account of the events, which both he and Daniele observed. The district court also credited Emanuele's testimony that he generally feared his father.  The Second Circuit believed that these findings by the district court manifestly established that Ermini engaged in a "sustained pattern of physical abuse," directed at Vittori and the children: Vittori was repeatedly struck; as were the children, whom Ermini was "in the habit" of hitting; and Emanuele testified to being fearful of his father on the basis of this physical and verbal abuse. These findings evinced a "propensity" for violence and physical abuse and a resulting fear in the children. It therefore held that the facts found by the district court were sufficient to meet the Hague Convention's requirement, by clear and convincing evidence, that the children faced a "grave risk" of harm because of Ermini's physical abuse.

   The district court also held that Daniele faced a grave risk of harm if removed from his current therapy and returned to Italy.  In light of its factual findings it held that the district court's conclusion of law was correct. The Court noted that Article 13(b) explicitly lists "psychological" harm and "physical" harm as appropriate harms for triggering the Convention's affirmative defenses, both of which are implicated by a developmental disorder such as autism. And it held that the facts as found by the district court lend themselves straightforwardly to the conclusion that the risk of harm was grave.   First, the district court's findings established there was a probability that the harm would materialize.  Second, the court's finding that Daniele would lose the ability to develop cognitive, emotional, and relational skills, and potentially lead an independent life, if removed from his current therapy and repatriated, establishes harm of a "severe" magnitude manifestly sufficient to satisfy the exception. Considering the unrebutted testimony before the district court concerning the risk of harm Daniele faced if he were returned to Italy, there was no reason to disturb its factual findings.   Moreover, in light of the children's close relationship to each other, and, significantly, the conclusion it reached with respect to abuse, it determined as well that it was not error for the district court to decline to separate the children.

The Second Circuit observed that by denying the petition without prejudice to renewal, the district court allowed the parties to call upon future events and engage in prospective modifications in light of changed facts in precisely the way the Convention intended to prohibit. As the Explanatory Report shows, the Convention is concerned with events at a particular moment: it either requires return or, in light of the risks of harm or other circumstances, it does not. Once a determination properly applying the Convention to the facts at hand has been made, all other issues leave the realm of the treaty's domain. The Convention is not, and cannot be, a treaty to enforce
future foreign custody orders, nor to predict future harms or their dissipation. It concluded that the Convention did not permit denial of the petition without prejudice.