In Quinn v. Quin, 2019 WL
1460928, (W.D. Missouri, 2019) on February 2, 2019, Petitioner filed
her Verified Complaint for the return of her son L.R.Q. Petitioner and
Respondent were the biological parents of the Child, who was born in Japan in
April 2014. Petitioner resided in Tokyo, Japan. Respondent resided in Mount
Vernon, Missouri. Petitioner and the Child came to the United States to visit
Respondent in August 2018. On October 15, 2018, Petitioner returned to Japan
without the Child for a medical procedure. At that time, Respondent agreed to
send the Child back to Japan on November 6, 2018; however, Respondent failed to
return the Child to Petitioner in Japan on November 6, 2018, and at any point
thereafter.
On February 28, 2019, Respondent filed
his Answer and Affirmative Defenses to the Verified Complaint. Respondent alleged in his Answer and
Affirmative Defenses that if the Child were sent back to Japan at this time, it
would “create a grave risk that would expose [the Child] to physical or
psychological harm or otherwise place the child in an intolerable situation due
to Petitioner’s history of abuse and instability” and “Petitioner’s extensive
history and frequency of mental illness, and her need for ongoing treatment.”
Petitioner
presented evidence through Petitioner’s medical records, Petitioner’s
testimony, and Respondent’s testimony that Petitioner and Respondent were
married in Japan on September 5, 2014. Respondent had recently indicated to
Petitioner that he intended to file for divorce. Petitioner and Respondent
lived together in Japan from September 2013 through May 2018; thereafter,
Respondent returned to the United States. Petitioner and Respondent were the
biological parents of the Child, who was born in Japan in April 2014.
Petitioner currently resided in Tokyo, Japan. Respondent currently resided in
Mount Vernon, Missouri. Petitioner and the Child came to the United States to
visit Respondent in August 2018. On October 15, 2018, Petitioner returned to
Japan without the Child to seek medical treatment. At that time, Respondent
agreed to send the Child back to Japan; however, Respondent failed to return
the Child to Petitioner in Japan. As to Respondent’s Affirmative Defenses,
evidence was presented through Petitioner’s medical records, Petitioner’s
testimony, and Respondent’s testimony that beginning in April of 2015, and to as recently
as November 24, 2017, Petitioner was hospitalized voluntarily and involuntarily
to inpatient psychiatric facilities during the following dates: April 6, 2015
to April 13, 2015, April 24, 2015 to
June 11, 2015, July 24, 2015 to August
6, 2015, August 20, 2015 to September 4, 2015, October 23, 2015 to October 26,
2015, July 18, 2016 to August 4, 2016, August 12, 2016 to
August 31, 2016, September 12, 2016 to November 4, 2016, and from October 21, 2017 to
November 24, 2017 she was involuntarily admitted for 34 days after Petitioner
“was talking to herself,” and during an argument with her husband, Petitioner
threw “food and backpacks, etc. at her husband and started banging on her own
chest...and called the police.” Petitioner’s mother advised police to “admit
her to the hospital...I am afraid of her.” Upon hospitalization, Petitioner was
kept in isolation for the first 16 days, kept in waist restraints for the first
9 days, and kept in both waist and arm restraints for the first 4 days.
In
response to Respondent’s Affirmative Defenses, Petitioner testified that her
current treating physician was Dr. Nakanishi. Dr. Nakanishi was aware of
Petitioner’s bipolar disorder and history of
hospitalizations. Petitioner began seeing Dr. Nakanishi in January 2018, and
she had appointments with Dr. Nakanishi every three weeks. Dr. Nakanishi
provided a note, dated February 27, 2019, that Petitioner can care for her
child despite her bipolar diagnosis.
The Court Pointed out that to succeed on a “grave risk”
defense, Respondent must prove by clear and convincing evidence that “there is
a grave risk that [the Child’s] return would expose the child to physical or
psychological harm or otherwise place the child in an intolerable situation.”
Convention, art. 13(b). “The gravity of a risk involves not only the
probability of harm, but also the magnitude of the harm if the probability
materializes.” Acosta v. Acosta, 725 F.3d 868, 876 (8th Cir. 2013). Article
13(b) recognizes two types of grave risk: (1) cases where a child is sent to a
war zone or zone of famine or disease; or (2) cases involving serious abuse or
neglect. Vasquez v. Colores, 648 F.3d 648, 650 (8th Cir. 2011). The party
seeking to invoke the exception must show that the grave risk of harm is more
than what would normally be expected when taking a child away from a parent and
giving the child to another parent. Nunez v. Escudero v. Tice-Menely, 58 F.3d 374, 377 (8th Cir. 1995). To ensure
that the child is adequately protected, the Article 13b inquiry must encompass
some evaluation of the people and circumstances awaiting that child in the
country of his habitual residence. See also Currier v. Currier, 845 F. Supp. 916, 923 (D.N.H. Mar. 16, 1994) (to
determine grave risk, the court must evaluate the surroundings of the habitual
residence and basic personal qualities of those located there).
The Court indicated that it had minimal
medical records concerning Petitioner’s visits with Dr. Nakanishi or any
medical records after Petitioner’s discharge from the NTT Medical Center in
November 2017. The Court was missing the crucial medical records of Petitioner
for the most recent eighteen months. Before the Court can determine whether
Petitioner presented a grave risk of danger to the Child, the Court had to review
Petitioner’s medical records after her discharge from the NTT Medical Center to
present date. The Hague Convention contemplates resolution of Hague Convention
petitions within six weeks of their filing. See Convention art. 11).
Here, while the Court understood the expeditious nature of Hague Convention
petitions, the Court had to review Petitioner’s recent medical history to
determine if the grave risk exception applied.
The
Court found that good cause existed to extend the determination on the merits
of this matter. After
careful consideration of the evidence, the Court required Petitioner’s mental
health records beginning January 2018 through present date before the Court could
determine whether the grave risk exception would apply to prevent the Child’s
return to his habitual residence. Accordingly, Respondent’s request to
bifurcate the trial and produce additional evidence was granted and Petitioner was
ordered to provide the Court and Respondent with her medical records, or a
sufficient summary, from November 2017 to present date;
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