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Saturday, December 30, 2017

Davies v Davies, 2017 WL 6616691 {2d Cir., 2017)[French St. Martin] [Grave Risk of Harm] [Petition denied]

          In Davies v Davies, 2017 WL 6616691 {2d Cir., 2017) the Second Circuit affirmed a judgement which denied the fathers petition for repatriation of his five-year-old son K.D. to French St. Martin. 

          In July 2016, K.D.’s mother, Respondent-Appellee Sally K. Davies, removed K.D. from French St. Martin to New York after suffering years of psychological abuse and increasingly violent behavior from Mr. Davies, much of which occurred in the presence of K.D. Mr. Davies’s uncontrollable anger and abusive behavior was often directed at K.D. Based on documentary evidence and testimony from Ms. Davies, Mr. Davies, nine other fact witnesses, and five expert witnesses the District Court denied Mr. Davies’s petition for repatriation of K.D. See Davies v. Davies, No. 16-cv-6542, 2017 WL 361556, at *1–17 (S.D.N.Y. Jan. 25, 2017). There was no dispute that Mr. Davies set forth a prima facie case. The principal issue on appeal was whether Ms. Davies satisfied her burden of proving, by clear and convincing evidence, that one of the four narrow exceptions to the Convention’s repatriation provision applied: that the return of K.D. to French St. Martin would expose him to a “grave risk” of “physical or psychological harm or otherwise place [him] in an intolerable situation” under Article 13(b) of the Convention. 

  The Second Circuit pointed out that on appeal, Mr. Davies challenged several of the district court’s factual findings, which “[w]e must accept ... unless we have a definite and firm conviction that a mistake has been committed.” Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir. 2013) It  owes” particularly strong deference where the district court premises its findings on credibility determinations.” Mathie v. Fries, 121 F.3d 808, 812 (2d Cir. 1997). Therefore, “when a trial judge’s finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.” Anderson v. Bessemer City, 470 U.S. 564, 575 (1985). Having carefully examined the record, it concluded that the district court’s factual findings challenged by Mr. Davies are not erroneous, much less clearly erroneous.

  It concluded that the district court’s findings of fact were not clearly erroneous, including its findings (i) that K.D. was subjected to severe and persistent psychological abuse by Mr. Davies, and (ii) that this abuse would continue if K.D. returned to French St. Martin.

        The Court explained that under Article 13(b)’s grave-risk-of-harm exception to repatriation, “[t]he potential harm to the child must be severe, and the level of risk and danger required to trigger this exception has consistently been held to be very high.” Souratgar, 720 F.3d at 103 “This grave risk exception is to be interpreted narrowly,” a rule that the district court was “acutely aware of.”  It has held that Article 13(b) relief could be granted if repatriation posed a grave risk of causing unavoidable psychological harm to the child,” and “[e]vidence of prior spousal abuse, though not directed at the child, can support the grave risk of harm defense, as could a showing of the child’s exposure to such abuse.” Souratgar, 720 F.3d at 104. But spousal abuse is relevant under Article 13(b) only if it “seriously endangers the child,” and the “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 grave risk inquiry “involves not only the magnitude of the potential harm but also the probability that the harm will materialize.”  These [are] fact-intensive cases,” and “at one end of the spectrum are those situations where repatriation might cause inconvenience or hardship ... [and] at the other end of the spectrum are those situations in which the child faces a real risk of being hurt, physically or psychologically, as a result of repatriation,” Blondin, 238 F.3d at 162. It concluded that this appeal presented circumstances that fell at the latter end of the spectrum. 

           Reviewing de novo the district court’s application of Article 13(b) to its well-supported factual determinations, it affirmed its decision to deny the petition for repatriation because returning K.D. to French St. Martin would, by clear and convincing evidence, expose him to a grave risk of psychological harm. Based on Mr. Davies’s psychological abuse of not only K.D., but also of Ms. Davies in K.D.’s presence, it found no error in the district court’s conclusions as to the magnitude of the potential psychological harm to K.D.––“severe”––and the probability of that harm materializing if he returned to French St. Martin––“a near certainty.” This conclusion was not based on “[s]poradic or isolated incidents,” or “conjecture and speculation” of abuse, rather, as the district court explained, it was premised on “overwhelming evidence of Mr. Davies’s extreme violence and uncontrollable anger, as well as his psychological abuse of Ms. Davies over many years, much of which was witnessed by K.D., and the fact that Mr. Davies frequently screamed and yelled at K.D. for no legitimate reason.” Like the district court, it found alarming Mr. Davies’s escalation of violence immediately prior to the departure of K.D. and his increasingly hostile threats since then. If K.D. returned and Mr. Davies were to follow through on his threat “that there was no amount of money that he would take to exact his revenge on [Ms. Davies],”–and there was clear and convincing evidence that he would––there is no doubt K.D. would suffer grave psychological harm.
  It found no error in the district court’s conclusion that there were no ameliorative measures that would protect K.D. from harm if he returned to French St. Martin. See Blondin, 238 F.3d at 163 n.11 (“[B]efore a court may deny repatriation on the ground that a grave risk of harm exists under Article 13(b), it must examine the full range of options that might make possible the safe return of a child to the home country.”). The district court heard testimony from four expert witnesses concerning the protections afforded to victims of domestic violence (children and spouses) under French St. Martin’s legal system. Moreover, the district court was in the best position to evaluate Mr. Davies’s credibility about abiding by certain ameliorative measures (such as a stay-away order), which was marred by (i) his deceit and manipulation of the legal system in French St. Martin, (ii) his untruthfulness and unwillingness to accept responsibility for his actions while testifying, and (iii) his escalating threats toward Ms. Davies even after their separation. The day before Ms. Davies and K.D. left French St. Martin, Mr. Davies told her that he would rather take all their money, burn it, and kill himself than resolve their dispute “through the courts.” It declined to disturb the district court’s careful and thorough evaluation of the ameliorative measures.

Duran-Peralta v Luna, 2017 WL 6596632(S.D. N.Y., 2017)[Dominican Republic] [Habitual Residence][Consent]

In Duran-Peralta v Luna, 2017 WL 6596632(S.D. N.Y., 2017) the district court granted the Petition of Juana Livia Duran-Peralta, a resident and citizen of the Dominican Republic, seeking the return of the parties’ minor child (“IM”) to the Dominican Republic.

IM was born in the Dominican Republic on August 5, 2015. On October 12, 2015, respondent took IM to the United States. Respondent has kept IM in the United States since then despite petitioner’s appeals that respondent return IM to the Dominican Republic, which culminated in this lawsuit. According to petitioner, she and respondent were romantically involved for several years, during which time she became pregnant with IM. Respondent claimed that petitioner served as a surrogate for him and his wife and that he and petitioner were never romantically involved. The Court found the testimony of petitioner considerably more credible than that of respondent and those who testified on his behalf.
          The Court found the petitioner mother of IM, lived with her eldest daughter in Santo Domingo in the Dominican Republic, where she lived her entire life. Respondent was also born in Santo Domingo. He lived in the United States with his wife, to whom he had been married for about ten years. Respondent had five children in addition to IM. Petitioner and respondent met in 2012, when he would stop by the “exchange house” next to where she worked, and shortly thereafter began a romantic and sexual relationship. When she became pregnant, petitioner quit her job and respondent financially supported her. In June 2015, respondent rented a house for petitioner in anticipation of IM’s birth. IM was born in the Dominican Republic on August 5, 2015.

IM had medical problems after her birth, including neurological complications from a knotted umbilical cord and a skin condition called scabiasis. Respondent told petitioner that he did not want IM to go to doctors in Santo Domingo, and the parties discussed the possibility of seeking medical treatment for IM in the United States. Respondent told petitioner that his sister, who is a doctor, would see IM in New York. Accordingly, in September, petitioner signed what she understood to be an authorization permitting respondent to bring IM to the United States. This “authorization” most likely was an application for an American passport, which petitioner and respondent filled out at the law office of Justina Echavarria. In October 2015, respondent visited the Dominican Republic again. When he returned to the United States, on October 12, 2015, he brought IM with him. Petitioner believed that respondent was taking IM to the United States for just two months for the sole purpose of receiving medical treatment and that he would return her to the Dominican Republic in December. In November 2015, respondent returned to the Dominican Republic (without IM) and told petitioner that he needed a new authorization to take IM to doctors in the United States. Petitioner and respondent made another visit to Justina Echavarria’s law office on November 5, 2015 and signed a document that petitioner believed authorized respondent to seek medical treatment for IM in the United States but in fact provided that petitioner waived her maternal rights over IM (the “Release”). While IM was in the United States, petitioner “was communicating constantly with” respondent. She inquired about the status of the doctors’ visits and asked respondent to send pictures and videos of IM, which he did. She also “constantly” sent “him messages asking him why [he] didn’t bring the girl back.” Respondent provided various reasons for why he could not bring IM back, such as that “he didn’t have any money to travel back to Santo Domingo, [or] that he had too much work.” Respondent has never returned to the Dominican Republic with IM. Petitioner filed the instant action on October 11, 2016.

          The district court noted that Courts in the Second Circuit use the following approach in determining a child’s state of habitual residence: First, the court should inquire into the shared intent of those entitled to fix the child’s residence (usually the parents) at the latest time that their intent was shared. In making this determination the court should look, as always in determining intent, at actions as well as declarations. Normally the shared intent of the parents should control the habitual residence of the child. Second, the court should inquire whether the evidence unequivocally points to the conclusion that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents’ latest shared intent.

In determining IM’s habitual residence, the preliminary question the Court had to resolve was whether petitioner’s signing the Release demonstrated that she intended IM to remain in the United States permanently. The Court had little doubt that petitioner did not, in signing the Release, anticipate, let alone intend, that respondent would retain IM in the United States permanently. The two-page, as-signed Release provided that, “I [petitioner] want to declare further that I waive all of my rights over the girl; and declare, that this is in the best interest of the girl.” The Release further provided that petitioner “designate[s] [respondent] Johnny Antonio Luna as a qualified and adequate adult competent to perform any proceedings to retain the girl if [her] rights as mother are terminated.” The Release also identified Luna’s address in New York State.

          The court concluded that although respondent credibly testified that she did not read the Release, there was evidence that she might have understood its import. Before petitioner signed the Release, someone from the Echavarrias’ law firm asked Ramon Antonio Gilminjete, an attorney and notary, to notarize the document. Gilminjete, who was perhaps the only one of respondent’s witness whom the Court found half-way credible, testified that he has known petitioner since she was born. When Gilminjete arrived at the office, he read the document immediately and asked petitioner “if she knew what she was signing, what she was about to sign, because she hadn’t signed it yet,” and she responded that she knew what she was signing, Gilminjete told her “it says that she is giving away the custody of the child to the father,” and that it was “too strong.”. Respondent again told him that “she knew what she was doing.” Nonetheless, Gilminjete took the document with him to his office “to maybe give her the opportunity to think it through.”. Petitioner called him “the next day or two days later” to tell him that he could give the document to respondent. Gilminjete then returned the Release to the Echavarrias’ office, which sent the document to get an apostille from the ministry in the Dominican Republic (which is akin to a verification).However, even assuming arguendo that, contrary to her testimony at trial, petitioner was aware that the Release waived her maternal rights - either because she read the document or because Gilminjete informed her of the document’s terms - the evidence still did not support a finding that petitioner ever intended IM to live in the United States. Rather, petitioner was told, and believed, that she was signing the Release so that IM could be seen by doctors in the United States. There was no evidence that petitioner actually “understood” her execution of the Release as consent to IM’s living with respondent in the United States. The Release did not explicitly provide that IM would live in New York. It was silent on IM’s future residence. The Release could be read as implying that IM will live in the United States, but there was no evidence that petitioner drew this inference. Petitioner was not represented by counsel when she signed the Release, Gimlinjete may have explained to petitioner that by signing the Release, she gave custody to respondent, but he apparently did not actually explain to her that the practical effect of her waiving custody would be that respondent would take IM to the United States. There was abundant evidence, on the other hand, that petitioner signed the Release so that respondent could take IM to doctors in the United States and that respondent represented to her that he would bring IM back to the Dominican Republic in December. In addition to petitioner’s testimony, the parties’ text message communications while IM was in the United States confirm that petitioner believed that respondent had taken IM to the United States temporarily to visit doctors.
          The Court next found that the Dominican Republic was IM’s habitual residence at the time of her removal. The parties shared an initial intent that IM reside in the Dominican Republic. In the years preceding IM’s birth, the Dominican Republic was the site of the parties’ relationship. There was no evidence that petitioner even once visited respondent in the United States. When petitioner became pregnant, respondent financially supported her in the Dominican Republic, including by paying the rent on her house in Santo Domingo. Therefore, there was sufficient evidence to conclude that the parties shared an intent that the Dominican Republic be IM’s habitual residence.

          The shared intent of the parents is not dispositive of a child’s habitual residence,” and “[a] court must additionally examine the evidence to determine if it unequivocally points to the child having acclimatized.” Gitter, 396 F.3d at 135. But the Court finds that IM was “acclimatized” to the Dominican Republic at the time of her removal See Ovalle v. Perez, 681 F. App’x 777, 784 (11th Cir. 2017). Here, prior to IM’s entry into the United States, she had never lived anywhere other than the Dominican Republic. The Court found that petitioner has established her claim under the Hague Convention and that there were no defenses. 

Marcoski v Rath, --- Fed.Appx. ----, 2017 WL 6604247 (11th Cir.,2017)[Czech Republic] [Habitual Residence] [Petition granted]

          In Marcoski v Rath, --- Fed.Appx. ----, 2017 WL 6604247 (11th Cir.,2017) Veronika Marcoski, L.N.R.’s mother, appealed the district court’s judgment ordering that L.N.R. be returned to the Czech Republic, where he was born. The district court adopted the report and recommendation issued by the magistrate judge. It found that Mr. Rath and Ms. Marcoski were “in a committed relationship with a shared intent for the foreseeable future to live with L.N.R. in the Czech Republic.”  

         The Eleventh Circuit affirmed. It noted that Ms. Marcoski challenged some of the district court’s underlying factual findings and contended that certain evidence established that L.N.R.’s “habitual residence” was not in the Czech Republic. The district court found that Mr. Rath was “credible and [Ms. Marcoski was] not credible,” and provided detailed reasons for its view of the evidence on important disputed issues, including whether they were living together. While Ms. Marcoski was correct that the district court clearly erred in two of its factual findings, those errors related to subsidiary historical facts and did not change the fact that substantial evidence supported the district court’s ultimate finding regarding shared intent. That is, any error made by the district court “was harmless because there was plenty of other evidence proving the same [ultimate] fact.” Bobo v. Tenn. Valley Auth., 855 F.3d 1294, 1300 (11th Cir. 2017). In sum, the Eleventh Circuit saw no basis for setting aside the district court’s credibility assessments and factual findings. Ms. Marcoski presented an interpretation of the evidence that could have allowed the district court to find in her favor, but “[w]here there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Anderson, 470 U.S. at 574.