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Thursday, June 27, 2019

Farr v Kendrick, 2019 WL 2568843 (D. Arizona, 2019)[Mexico] [Federal & State Judicial Remedies] [Grave risk of harm] [Petition denied]

In Farr v Kendrick, 2019 WL 2568843 (D. Arizona, 2019) the district court denied the fathers petition for return.
At the outset the court noted that ICARA proceedings must be conducted on an expedited basis and should, at least as an aspirational matter, be completed within six weeks of when the petition was filed. See, e.g., Lops v. Lops, 140 F.3d 927, 944 (11th Cir. 1998). In recognition of these challenges, the Ninth Circuit has stated that district courts should “‘use the speediest procedures’” available when adjudicating ICARA claims. Holder, 392 F.3d at 1023 . Given this backdrop, the Court concluded it was not required to strictly comply with the Federal Rules of Civil Procedure or the Federal Rules of Evidence when conducting the proceedings in this case. The Court utilized procedures that were, in its view, best suited to achieve a fair, expeditious, and just outcome.

 In 2007, Father and Mother met in Texas. At the time, Mother had a five-year-old child (Z.A.K.) from a previous relationship. In 2009, Mother became pregnant with Father’s child. However, by the time the child (a boy named K.M.K.F.) was born in December 2009, the couple had separated, with Father living in Mexico and Mother living in the United States. In 2011, Father was hospitalized in Texas due to drug-induced “psychosis,” which was caused, at least in part, by Father’s recurrent use of illegal hallucinogenic drugs.  Following this incident, Father became more religious. Father’s increasing religious devotion resulted in tension between Father and certain members of his family all of whom came to view Father’s methods for disciplining the Children (which were e rooted, in part, in Father’s religious beliefs) as abusive and inappropriate. At some point in 2012, Mother and Father began living together in Texas with K.M.K.F. In May 2014, Father and Mother got married in Texas. In February 2015, the Children were born in Texas. In August 2015, Mother, Father, Z.A.K., K.M.K.F, and the Children moved to Mexico so Father could pursue a job opportunity with a company owned by his sister. In October 2016, Mother took a trip to Texas to visit family members. During this trip, Father had a second “psychosis” episode that required medical care.  In January 2017, Mother and Father separated and began living in different residences in Mexico. Following the separation, Mother and Father shared joint custody of the Children. In July 2017, Father filed for divorce from Mother in Mexico. In April 2018, Mother filed a criminal complaint (Exhibit 94) against Father with Mexican law enforcement authorities, which resulted in the entry of a protective order against Father. Among other things, Mother asserted in this complaint that “violence physical, emotional and economic [had been] exerted on me by” Father. In June 2018, the protective order was dissolved and Father was allowed to continue exercising custody of K.M.K.F.  On August 11, 2018, Mother left Mexico with the Children and began living with the Children in Lake Havasu City, Arizona. K.M.K.F remained in Mexico living with Father. In September 2018, a Mexican court entered a divorce decree that dissolved Father’s and Mother’s marriage. In October 2018, Father married a new wife, Alejandra Rodriguez, in Mexico.

The district court found that the United States was the children’s habitual residence. The first step in the analysis is to assess whether Mother and Father “had a settled intention to abandon the United States as the children’s habitual residence in favor of [Mexico].” Holder, 392 F.3d at 1016. “Mother and Father did not have a shared, settled intent to abandon the United States as their habitual residence. The evidence pointed overwhelmingly toward the conclusion that the move to Mexico was temporary and provisional., The Ninth Circuit’s decision in Murphy supports the conclusion that there was no settled intent to abandon the United States as a habitual residence under these circumstances. 764 F.3d at 1147-48. Because Father and Mother lacked a shared, settled intent to abandon the United States as their habitual residence, the Court proceeded to the second step of the analysis, which is to “ask[ ] whether there has been sufficient acclimatization of the child to trump this intent.” Murphy, 764 F.3d at 1150. In general, the concept of acclimatization reflects the principle that, “given enough time and positive experience, a child’s life may become so firmly embedded in the new country as to make it habitually resident even though there [may] be lingering parental intentions to the contrary.” Mozes, 239 F.3d at 1078. The Ninth Circuit has cautioned, however, that “ ‘courts should be slow to infer [acclimatization],’ both because the inquiry is fraught with difficulty, and because readily inferring abandonment would circumvent the purposes of the Convention.” Murphy, 764 F.3d at 1152-53 . Here, the question of acclimatization wasn't close. The Children were less than a year old at the time they moved to Mexico and were only three years old when they returned to the United States. They did not speak Spanish and were not enrolled in school when in Mexico. The Ninth Circuit has emphasized that it would be “practically impossible” for “a newborn child, who is entirely dependent on its parents, to acclimatize independent of the immediate home environment of the parents.” Holder, 392 F.3d at 1020-21. This rule precludes any suggestion that the Children somehow acclimatized to life in Mexico as toddlers. 
The Court noted that Article 13(b) of the Convention provides that a wrongfully-removed child need not be returned to his or her country of habitual residence if “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 Ninth Circuit has emphasized that the grave-risk exception must be “drawn very narrowly” and “is not a license for a court in the abducted-to country to speculate on where the child would be happiest.” Gaudin, 415 F.3d at 1035, 1036  “Rather, the question is whether the child would suffer ‘serious abuse’ that is ‘a great deal more than minimal.” Additionally, “because the Hague Convention provides only a provisional, short-term remedy in order to permit long-term custody proceedings to take place in the home jurisdiction, the grave-risk inquiry should be concerned only with the degree of harm that could occur in the immediate future.”  The Court concluded that mother met her burden of clearly and convincingly proving its applicability. In reaching this conclusion, the Court acknowledged there are multiple pieces of evidence that suggested Father was a loving and committed parent who did not resort to violence when angry and , Father’s past “psychosis” incidents were not terribly concerning, he’s was drug-free since 2016 and his commitment to his sobriety and children appeared to be sincere.

Nevertheless, the evidence concerning Father’s administration of corporal punishment was deeply troubling and led the Court to conclude the grave-risk exception was been satisfied. As for frequency, Mother testified that Father would spank the Children (who were between 0-3 years old during their time in Mexico) on a daily basis and would spank K.M.K.F. (who was under 10 years old) up to three times per day. Although Father gave slightly lower estimates, he still acknowledged that he was administering physical punishment many times each week. As for the manner of administration, Father initially used sections of PVC pipe and wooden dowels and later began using color-coded plastic rulers (whose colors correspond with different “sins”). The punishment was usually administered behind closed doors, with the child’s pants pulled down. During one episode, Father spanked K.M.K.F. more than 20 times. Finally, as for the risk of injury, the Children were spanked so hard that, on at least five occasions, they sustained bruises and visible raised, red marks. Father admitted that he administered an average of more than one set of spankings each day over a period of three years, which suggested he wasn't reserving punishment for major transgressions, and Mother provided testimony (which Father didn't dispute) that Father would punish the Children for bathroom “accidents,” which hardly constitutes misbehavior. The Children were very young at the time these punishments were being administered. In one of the photos depicting visible bruising, Mother estimated the child was only 20 months old. The Court questioned whether a child of this tender age can comprehend why he is being punished. Finally, although Father’s use of a ruler wasnot per se unlawful  the repeated infliction of bruises and other visible marks suggested Father exceeded the scope of reasonable discipline , causing bruising, although he denied intending to leave bruises).
Here, it was unlikely the Children would suffer grievous bodily injury if returned to Father’s care, although the multiple past instances of bruising were re troubling and unacceptable, there is a difference between bruises and more serious injuries. Additionally, although it seemed intuitively correct that exposing a child to excessive corporal punishment that is (or borders on) child abuse can't be good for the child’s psychological health, there was no expert testimony presented in this case that touched upon how the Children’s psychological health would be affected if they were returned to Father’s custody for a short period of time necessary to complete Mexican custodial proceedings (which, under Gaudin, appeared to be the only relevant timeframe). Nevertheless, the bottom line was that returning the Children to Father would create a virtual certainty the Children would be exposed to conduct that likely constituted child abuse under the law of most states. In the Court’s view, and in the absence of any case specifically holding otherwise, that simply had to constitute “a grave risk that ... would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Cf. Simcox v. Simcox, 511 F.3d 594, 605 (6th Cir. 2007) (although “there is no clear answer” to the “difficult question [of] precisely what level [of abuse] will expose the child to a ‘grave risk’ of harm,” most “courts that have confronted abusive situations tend to refuse to order the return of the children, at least where the abuse could be characterized as very serious”).