In Gil- Leyva, v. Leslie, 2019 WL 2651093 (Tenth Cir.,
2019) (unpublished) the Court affirmed the district court determination which granted the
petition for return.
Ms.
Leslie, a U.S. citizen, and Mr. Gil-Leyva, a Canadian citizen, met in Colorado
in late 2007 and began cohabiting there in March 2008. Ms. Leslie and Mr.
Gil-Leyva never formally married. About September 2009, they relocated to
Alberta, Canada, where their
children, H.M.G. and H.F.G., were born. Ms. Leslie testified that she
lived in Canada like a “human trafficking victim.”. She testified that she
endured physical abuse, occasionally in front of the children, and that she
witnessed Mr. Gil-Leyva abuse alcohol, marijuana, and prescription narcotics.
Regarding the children, she testified that Mr. Gil-Leyva spanked them, got
angry and threw objects in their vicinity, and neglected their basic needs when
left alone with them. She further testified that Mr. Gil-Leyva allowed unsafe
living conditions, with non-child-resistant bottles of prescription narcotics,
power tools, deconstructed machine parts, solvents, and other hazardous items
lying in the home, some of which the children played with. And, she testified
about noxious fumes in the home from Mr. Gil-Leyva cooking solvents, pennies,
and vehicle parts in the kitchen. Mr. Gil-Leyva disputes many of these
allegations.
In May 2016, Ms. Leslie convinced Mr.
Gil-Leyva to give his consent for the children’s passports so they could visit
her ailing mother for a week and a half. About a week after arriving in
Colorado, however, Ms. Leslie informed Mr. Gil-Leyva that she intended to stay
beyond the agreed-upon date. Then, in October 2016, Ms. Leslie told Mr.
Gil-Leyva that she would not return to Canada with the children. Mr. Gil-Leyva booked
a flight to Colorado, hoping
to discuss the parties’ relationship in person. Ms. Leslie, in turn, obtained a
protection order against Mr. Gil-Leyva which restricted him to
supervised visitation with the children. She then initiated state-court
proceedings seeking full custody of the children. On
June 9, 2017, Mr. Gil-Leyva filed this pro se action in federal district court,
seeking an order returning H.M.G. and H.F.G. to Canada under the Hague
Convention and the ICARA.
With
the parties’ agreement, a magistrate judge presided over the entire case. On
April 17, 2018, the magistrate judge issued a written order granting Mr.
Gil-Leyva’s request to return H.M.G. and H.F.G. to Canada. Ms. Leslie timely
appealed and requested a stay of the order under Rule 62(c) of the Federal Rules of Civil Procedure. The judge
granted the motion and stayed the order pending resolution of the appeal.
Leslie
and Gil-Leyva agreed that Ms. Leslie had since May 2016 wrongfully retained
their two minor children, H.M.G. and H.F.G., in the United States and outside
Canada, the children’s country of habitual residence. Ms. Leslie raised two
issues on appeal. First, she argued that the magistrate judge abused her
discretion in permitting Mr. Gil-Leyva to appear telephonically at the January
10, 2018, evidentiary hearing after denying his Rule 43(a) motion to testify in that fashion.
Second, she contended the magistrate judge erred in determining that H.M.G. and
H.F.G. do not face a “grave risk” of harm if returned to Canada.
The Tenth Circuit observed that under Rule 43(a), a district court may allow remote
testimony only “[f]or good cause in compelling circumstances and with
appropriate safeguards.” Fed. R. Civ. P. 43(a). Mere
inconvenience doesn’t satisfy this standard. In general, the rule contemplates
situations where a witness cannot appear in person “for unexpected reasons,
such as accident or illness[.]” Other reasons “must be approached cautiously.” In this case, Mr. Gil-Leyva requested
permission to testify remotely because he “resides in British Columbia, Canada,
and currently lacks the financial means to travel to Colorado for the hearing.”
The magistrate judge denied this request, explaining that, as a pro se
litigant, “the logistics of an evidentiary hearing mandate that he appears in
person ... to litigate his case. There was no error in this result, given that
financial hardship isn’t the type of “unexpected reason []” that is “typically
required in a showing of good cause for telephonic testimony.” See Eller, 739 F.3d at 478. Nevertheless, at the hearing, the judge
permitted Mr. Gil-Leyva to appear telephonically, overruling Ms. Leslie’s
objection to the testimony’s reliability. The judge made no express finding
that good cause justified departing from her prior ruling; she stated only that
“[t]he hearing is set for today, and it will go forward.” The Court rejected Ms.
Leslie contention that this unexplained departure constituted an abuse of discretion.
The broader legal context in which this case arose reinforced this conclusion.
The Hague Convention provides that “[t]he judicial ... authorities of
Contracting States shall act expeditiously in proceedings for the return of
children.” (T.I.A.S. No. 11,670, Art. 11) This means “a district court has a
substantial degree of discretion in determining the procedures necessary to
resolve a petition filed pursuant to the Convention and ICARA.” West v. Dobrev, 735 F.3d 921, 929 (10th Cir. 2013). In this context, nothing
requires a court even to hold an evidentiary hearing. A court that does
hold a hearing has some latitude to deviate from ordinary rules of procedure
that might delay a final resolution. The Court also rejected the argument that
the magistrate judge committed reversible error in failing to implement
“appropriate safeguards” to ensure the reliability of Mr. Gil-Leyva’s remote
testimony.
The
sole issue on appeal was whether Ms. Leslie had established an affirmative
defense (or “exception”) to the children’s repatriation to Canada. Ms. Leslie
pressed a single defense on appeal: that she demonstrated by clear and
convincing evidence a “grave risk” that the children’s return to Canada would
expose them to “physical or psychological harm or otherwise place the[m] ... in
an intolerable situation.” See T.I.A.S. No. 11,670, Art. 13(b); 22 U.S.C. § 9001(e)(2)(A). As the
term implies, a “grave risk” means the “potential harm to the child must be
severe, and the level of risk and danger ... very high.” West, 735 F.3d at 931 (quoting Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir. 2013)). To
satisfy her burden, Ms. Leslie testified that Mr. Gil-Leyva physically abused
her and the children when they lived with him and that he negligently cared for
the children and allowed unsafe living conditions in the home. The magistrate
judge recited these allegations and found them insufficient to establish by
clear and convincing evidence a grave risk of harm to the children. The Tenth
Circuit agreed.
The magistrate judge recited
Ms. Leslie’s testimony that Mr. Gil-Leyva “slapped” and “shoved” her several
times and once “choked her with his hands,” causing her to break a blood vessel
in her eye and bruise on her neck. Though this testimony was deeply concerning,
and undeniably would figure in any Canadian custody proceedings, spousal abuse
is relevant for Article 13(b) purposes only if it “seriously endangers” the
child. See Khan v. Fatima, 680 F.3d 781, 787 (7th Cir. 2012). Evidence of a “clear and
long history of spousal abuse” may suffice to show a propensity for child
abuse, see Walsh v. Walsh, 221 F.3d 204, 220 (1st Cir. 2000), but isolated incidents of
abuse generally demonstrate a risk of harm only to the spouse. At a minimum,
the spouse must “draw a connection” showing that the risk such abuse poses to
her “constitute[s] a grave risk to the children.” See Charalambous v. Charalambous, 627 F.3d 462, 468 (1st Cir. 2010). Ms.
Leslie failed to do so in this case.
Addressing
physical abuse of the children, the magistrate judge recited Ms. Leslie’s
testimony that Mr. Gil-Leyva spanked H.F.G. “only once” and H.M.G. six times
“with an open hand,” leaving “marks” on their “bare bottoms.” Certainly, a
parent who is “in the habit of striking the children,” even for disciplinary
purposes, might pose a grave risk of harm to them. See Ermini v. Vittori, 758 F.3d 153, 165 (2d Cir. 2014). But the
described spankings, though again perhaps a subject for any Canadian custody
proceedings, did not suffice to show a grave risk of harm. Cf. Simcox v. Simcox, 511 F.3d 594, 608–09 (6th Cir. 2007)
(considering it a “close question” that even “repeated beatings, hair pulling,
ear pulling, and belt-whipping” established a grave risk of harm). Likewise,
though Ms. Leslie testified that Mr. Gil-Leyva would occasionally “get angry
and throw things around,” she allowed that he “never hit the children with
those items.” And she proffered no evidence that Mr. Gil-Leyva’s erratic
behavior would constitute a credible threat to the children’s safety upon their
return.
On
appeal, Ms. Leslie argued that the children were at grave risk of psychological
damage from Mr. Gil-Leyva’s violent behavior, even if that behavior posed no
grave risk of physical harm to them. Though she may develop this theory in
Canadian court, the record in this case provided no support for it. Ms. Leslie alleged that the children
will suffer from “[w]itnessing a pattern of violence between” her and Mr.
Gil-Leyva. But she simultaneously claimed that she either cannot or will not
return to Canada. Presumably, that “removes any risk of the children witnessing
any future abusive acts” against her. See Charalambous, 627 F.3d at 469. Moreover, though repatriation may cause
“unavoidable psychological harm” to children exposed to spousal abuse in the
past, see Souratgar, 720 F.3d at 104, Ms. Leslie testified that the only abuse the
children ever witnessed was Mr. Gil-Leyva occasionally slapping her on her
“back side very hard,” Though it was debatable that such contact would trigger
grave psychological harm upon the children’s return to Canada, any such
argument rests on speculation. See Souratgar, 720 F.3d at 104. Notably, neither party requested a
psychological evaluation of the children to assess the effects of any of Mr.
Gil-Leyva’s past abuse. The same issue arose with Ms. Leslie’s argument that
the children would suffer psychological harm from Mr. Gil-Leyva spanking them
or throwing things at them. Ms. Leslie adduced no expert testimony or evidence
that the children suffered emotionally in the past or that they would
unavoidably suffer from spanking or thrown objects in the future.
The
magistrate judge recited Ms. Leslie’s testimony regarding Mr. Gil-Leyva’s
negligence in caring for the children and allowing unsafe living conditions in
the home. This included testimony that Mr. Gil-Leyva left non-child-resistant
bottles of prescription medications “within reach of the children”; that his
prescription usage made his behavior “pretty manic”; that, on the “less than
five” occasions Ms. Leslie left him alone with the children, he neglected to
change their diapers; that once, he fell into a “narcotic induced sleep” during
which he was “completely unaware” of the children’s needs; that he sometimes “put a child
in the front seat” of his work van and once “used a tie-down strap in the back
of the van for a child seat”; that he made soap and shoes and disassembled
sewing machines, leaving their parts “all over the house” along with other
dangerous items, including “[p]ower tools, solvents, screws, nails, glues,
[and] choking hazards,” some of which the children occasionally played with;
and that “it was not abnormal” for him to “leave power tools plugged in.” Ms.
Leslie further testified—though the judge didn’t expressly address—that Mr.
Gil-Leyva cooked solvents, pennies, and vehicle parts, producing fumes that
made the home “noxious” and “uninhabitable.” Though the judge considered Ms.
Leslie’s description of the home as being an “environment which may not be safe
or healthy for children,” she found significant the absence of evidence that
the children had suffered any harm when they lived with Mr. Gil-Leyva. (finding
this “indicative that the conditions may not have been as terrible as
alleged”). The Tenth Circuit agreed. If the children suffered no harm from Mr.
Gil-Leyva’s alleged negligence when they were younger and more vulnerable, it
could not see how they face a grave risk of harm now. And while past harm is not
required to establish a grave risk of future harm, it is probative of whether
the children will suffer upon returning to the same circumstances. See Baran v. Beaty, 526 F.3d 1340, 1346 (11th Cir. 2008).
Ms. Leslie countered that a
greater risk of harm now existed because she would not be in the home to
“safeguard the Children,” for example, from playing with plugged-in power tools
or open bottles of medications. Ms. Leslie did not demonstrate by clear and
convincing evidence that these dangers present so grave and credible a threat
that the children cannot safely return to Canada without her protection. See
Friedrich v. Friedrich, 78 F.3d 1060, 1068 (6th Cir. 1996) (“The
person opposing the child’s return must show that the risk to the child is
grave, not merely serious.”) The circumstances in which Mr. Gil-Leyva lives are
not ideal for children, but the grave-risk defense “may not be used as a
vehicle to litigate (or relitigate) the child’s best interests.” Danaipour v. McLarey, 286 F.3d 1, 14 (1st Cir. 2002). These are
matters for child-custody proceedings in the proper forum—here, Canada.
Because Ms. Leslie failed to clearly and convincingly establish an
Article 13(b) defense to repatriation, H.F.G. and H.M.G. had to be “promptly
returned” to Canada. See 22 U.S.C. § 9001(a)(4). The
magistrate judge entered an order accordingly but clarified in dicta that she
was only ordering the children’s return to Canada, not to Mr. Gil-Leyva’s home.
She added that, as Canadian law permits, Ms. Leslie may take certain actions to
oppose the children’s return to Mr. Gil-Leyva’s home; for example, Ms. Leslie
may accompany the children back to Canada and reside with them, separate from
Mr. Gil-Leyva, while litigating their custody in the appropriate Canadian
court. Ms. Leslie argued that these suggestions amounted to unworkable
“undertakings” which fail to guarantee the children’s safety. This argument was
misguided. Absent a predicate finding that the children faced a grave risk of
harm in Mr. Gil-Leyva’s home, the judge had no obligation to craft workable
undertakings to “ameliorate the ... harm.” See Baran, 526 F.3d at 1352. Instead, the judge was required to order the
children’s unconditional return to Canada, which she did.
