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Sunday, January 20, 2019

Leonard v Lentz, --- Fed.Appx. ----, 2019 WL 181185 (Mem) (8th Cir., 2019)[Turkey][Grave risk of harm][Petition denied]

         In Leonard v Lentz, --- Fed.Appx. ----, 2019 WL 181185 (Mem) (8th Cir., 2019) Ozgur Leonard, a dual citizen of Turkey and the United States, claimed that Rachel Lentz, a United States citizen, had wrongfully removed the couple’s three minor children, I.Y.L., E.M.L., and S.M.L, to the United States, and he sought the return of the children to the Republic of Turkey. Lentz denied having taken any wrongful action. As an affirmative defense, she asserted, inter alia, that E.M.L., who had been born with End Stage Renal Disease and needed a kidney transplant, required a much more advanced treatment facility and medical team than Turkey could provide; and that returning the children to Turkey would create a grave risk that they would suffer some physical or psychological harm, or place them in an intolerable situation.

          The district court concluded that Leonard had established a prima facie case for wrongful removal.. The district court further determined, however, that Lentz had established the grave risk exception to removal, finding, as relevant, that the evidence, particularly testimony provided by E.M.L.’s doctors at the University of Iowa Health Care (UIHC), showed that ordering E.M.L. to be returned at that time would pose a grave risk to her physical health, and that E.M.L. would need to remain in close proximity to UIHC for the duration of her post-transplant recovery. Accordingly, the court denied Leonard’s request to return the children to Turkey. Just weeks after E.M.L. received a kidney transplant from Lentz, Leonard asked the court to reconsider its decision and, as relevant, to “order the return of the [c]hildren contingent on a future medical ‘release’ by [E.M.L’s nephrologist] stating [she was] satisfied that E.M.L’s further care [could] be provided in Turkey.” The district court found that the issue of whether E.M.L. could be returned to Turkey post-transplant was not ripe for consideration.

          The Eighth Circuit affirmed the judgement. It rejected Leonards argument that, inter alia, that the district court improperly denied his request to return the children to Turkey because the transplant had already occurred and because there was no evidence before the district court demonstrating that Turkish medical facilities were unable to provide adequate post-transplant care. It agreed that the issue was not ripe for consideration, as the record contained neither evidence that E.M.L. had reached the point in her recovery where her medical team was prepared to release her nor evidence establishing the point at which post-transplant return to Turkey would be safe for E.M.L. See Parrish v. Dayton, 761 F.3d 873, 875 (8th Cir. 2014) (ripeness is reviewed de novo; “[a] claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all”).