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Sunday, January 12, 2020

Blancarte v. Santamaria, 2020 WL 38932 ( E.D. Michigan, 2020) [Mexico][Grave Risk of harm] Petition granted]

In Blancarte v. Santamaria, 2020 WL 38932 ( E.D. Michigan, 2020) Petitioner alleged that in January 2019, Respondent wrongfully removed Petitioner and Respondent’s two daughters, ages 9 and 10, from Mexico to the United States The Court ordered that the two children be returned to Mexico.

Before January 2019, Petitioner and Respondent lived in Mexico with their two minor children. Respondent describes their living situation as fraught with conflict, anger, and violence. In January 2019, Respondent took the parties’ two minor children and moved to Michigan.  After locating the children in Michigan, Petitioner filed an initial complaint in this Court on July 12, 2019. On October 29, 2019, the Court dismissed the case without prejudice for failure to serve Respondent. On October 30, 2019, Petitioner filed a second complaint for the immediate return of the two children to Mexico pursuant to the Hague Convention and its implementing statutes.

Respondent did not contest any element of the Petitioner’s prima facie case. Petitioner met his burden. Respondent raised three affirmative defenses under the Hague Convention: there is a grave risk of harm to the children if they are ordered to return to Mexico, the children have acclimated to living in Michigan, and they object to being returned to Mexico. The Court held that Respondent had not met her evidentiary burden with respect to her first and third defenses. Respondent’s second defense failed as a matter of law.

Article 13(b) of the Hague Convention provides that a court may decline to order the return of a child if there is a “grave risk that [their] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” 42 U.S.C. § 11603(e)(2)(A) provides that this defense must be shown by clear and convincing evidence.

Respondent made the following allegations related to abuse:• The children have witnessed the Petitioner act violently toward their stepbrother. • Petitioner forcibly shaved Respondent’s son’s head, physically abused him, and forced him out of the marital home.• Petitioner refused to feed the two minor children when Respondent was traveling for business. • Petitioner violently and aggressively brushed their oldest daughter’s mouth, using soap as toothpaste, as he forcibly undertook this act with her toothbrush. • The petitioner physically and sexually abused Respondent. She alleges there is a restraining order issued in Mexico preventing the Petitioner from approaching or being in the presence of the Respondent or their daughters.

In Respondent’s initial filings, she also included psychological reports of the two children from October 14, 2019. The reports, prepared by a Mexican provider following video teleconferencing appointments with the children, concluded that they each suffered from “posttraumatic stress disorder, depression, anxiety, and general fear, caused by living in an environment with the paternal figure that was as psychologically violent as it was physically.”

The Court found Respondent's allegations of the Petitioner’s violence towards her credible and concerning. Testimony regarding the alleged violence towards Respondent’s son revealed that Petitioner did not forcibly shave his head, but instead took Respondent’s son to a barber to have his head shaved in connection with requirements for participation on a sports team. However, testimony showed that Petitioner physically assaulted Respondent’s son, forced him to stay in a shower against his will, and banished him from the parties’ home. Respondent conceded, however, “the minor children have not been physically assaulted”, nor have the daughters directly witnessed the physical abuse of their brother or mother. Testimony from the parties’ oldest daughter revealed that on one occasion, Petitioner poked her tongue with a toothbrush. The Court heard no evidence relating to food deprivation. These factual conclusions were confirmed by the Guardian Ad Litem’s report. Respondent presented no evidence beyond the initial mental health reports of any psychological harm to the children. Respondent did not call as a witness the psychologists who performed the evaluation; nor did she call any other mental health expert.

The Court observed that in Friedrich v. Friedrich, the Sixth Circuit noted that a grave risk of harm could exist in only two situations: First,...when return of the child puts the child in imminent danger prior to the resolution of the custody dispute—e.g., returning the child to a zone of war, famine, or disease. Second, . . . in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, maybe incapable or unwilling to give the child adequate protection. 78 F.3d 1060, 1069 (6th Cir. 1996).

The first Friedrich situation did not apply. The children’s residence in Mexico was “in a lovely, family-friendly neighborhood.” The children “attend school, play and do activities.” “Their neighborhood was nowhere near the ‘warzone’ or ‘place of famine’ the Friedrich court contemplates.” Respondent did not contest this characterization.

Respondent did not provide evidence sufficient to satisfy the second Friedrich situation. In Simcox v. Simcox, the Sixth Circuit analyzed when abuse could rise to the level of a grave risk of harm. 511 F.3d 594 (6th Cir. 2007). The court emphasized that grave risk of harm analysis focuses on “the time period between repatriation and the determination of custody by the courts in the child’s homeland.” The court separated abuse cases into three categories: First, there are cases in which the abuse is relatively minor. In such cases, it is unlikely that the risk of harm caused by return of the child will rise to the level of a ‘grave risk’ or otherwise place the child in an ‘intolerable situation’...In these cases, undertakings designed to protect the child are largely irrelevant; since the Article 13b threshold has not been met, the court has no discretion to refuse to order return, with or without undertakings. Second, at the other end of the spectrum, there are cases in which the risk of harm is clearly grave, such as whether there is credible evidence of sexual abuse, other similarly grave physical or psychological abuse, death threats, or serious neglect. . . . In these cases, undertakings will likely be insufficient to ameliorate the risk of harm, given the difficulty of enforcement and the likelihood that a serially abusive petitioner will not be deterred by a foreign court’s orders...Third, there are those cases that fall somewhere in the middle, where abuse is substantially more than minor but is less obviously intolerable. Whether, in these cases, the return of the child would subject it to a ‘grave risk’ of harm or otherwise place it in an ‘intolerable situation’ is a fact-intensive inquiry that depends on careful consideration of several factors, including the nature and frequency of the abuse, the likelihood of its recurrence, and whether there are any enforceable undertakings that would sufficiently ameliorate the risk of harm to the child caused by its return. Even in this middle category, undertakings should be adopted only where the court satisfies itself that the parties are likely to be particularly appropriate. Id. at 607-08.

The Court noted that Simcox court found the facts, in that case, to fall in the third, middle category. There, the father beat the children physically and abused the children’s mother in their presence. A psychologist found that the children suffered from Post-Traumatic Stress Disorder. The court emphasized that the Hague Convention “was never intended to be used as a vehicle to return children to abusive situations. ..[T]he Convention’s mandate of return ‘gives way before the primary interest of any person in not being exposed to physical or psychological danger.” Ultimately, the court found that “we cannot say, however, that the risk here is so grave that undertakings must be dismissed out-of-hand.” It remanded the case to the district court to determine what conditions could mitigate the grave risk of harm.

The Court found the abuse, in this case, to fall into Simcox’ first, “minor” category. The evidence, although serious, presented significantly less risk of harm to the children than did the evidence in Simcox. There, the children experienced direct physical abuse and witnessed the abuse of their mother. The court called the application of the grave risk defense to those facts “a close question.” Its determination relied on the serious nature of the abuse, its “extreme frequency,” the reasonable likelihood it would continue, and the likely exacerbation of the children’s PTSD upon return. Id. at 608-09. Here, Petitioner had not physically abused his children, nor had the children directly witnessed abuse of their mother or brother. Moreover, testimony portrayed the abuse as discrete incidents over a period of years. While Petitioner’s history of angry outbursts and violence towards Respondent and his stepson was concerning, it was not enough to show a grave risk of harm to the parties’ minor children. See Whallon v. Lynn, 230 F.3d 450, 460 (1st Cir. 2000) (physical abuse of spouse, when not also directed at child, insufficient to trigger grave risk exception in absence of allegations of physical or psychological abuse toward child); Aly v. Aden, No. 12–1960, 2013 WL 593420, at *17–18 (D. Minn. Feb. 14, 2013) (four minor instances of domestic violence against spouse, only one of which was witnessed by child, insufficient to establish grave risk of harm); Fernandez v. Bailey, 2010 WL 3522134, at *2–3 (E.D. Mo. Sept. 1, 2010) (emotional, psychological, and physical abuse of spouse insufficient to establish grave risk when petitioner was not violent, abusive, or neglectful to the children).

Moreover, beyond a passing of the Petitioner’s ability to “purchase” courts in Mexico, Respondent had not argued that Mexican courts are “incapable or unwilling to give the child[ren] adequate protection.”

Respondent’s second affirmative defense failed as a matter of law. Article 12 of the Hague Convention provides that if a proceeding is commenced more than one year after the removal of a child and the child has become settled in their new environment, a court need not order the child’s return. These proceedings commenced less than one year after removal, and the defense did not apply.

Article 13 of the Hague Convention provides that a court may consider a child’s objection to returning if the child “has attained an age and degree of maturity at which it is appropriate to take account of [their] views.” 42 U.S.C. § 11603(e)(2)(B) provides that Respondent must show the children’s objection by a preponderance of the evidence. A child’s objection is different from a child’s wishes, as would be considered in a custody hearing. Neumann v. Neumann, 310 F.Supp.3d 823, 835 (E.D. Mich. 2018). An objection may require a child to set forth particularized reasons why they object as opposed to a mere general opposition to return. Yang v. Tsui, 499 F.3d 259, 279 (3d Cir. 2007). This Court had previously considered the objections of children as young as eight. See Raijmakers-Eghaghe v. Haro, 131 F. Supp. 2d 953, 957-58 (E.D. Mich. 2001) (finding that Hague Convention imposes no age limit on defense and eight-year old’s views may be considered).

The Court heard testimony in chambers, and on the record, from the parties’ older daughter, after which the Court determined that she had the level of maturity required to understand the proceedings and to provide meaningful testimony. She explained that she liked attending school in Michigan more than in Mexico because her classmates in Mexico would make fun of her for wearing glasses. She said that her father was often angry, and she would prefer to live with her mother. When asked where she would prefer to live, she said she would prefer to live in Michigan because she feels she will be “more successful” here than in Mexico. The child’s testimony did not rise to the level of objection required. Her opinions about her school, friends, parents, and future success all demonstrated a preference of a ten-year-old child for staying one place over another; however, a comparative preference of this nature lacks the particularity required to satisfy the narrow affirmative defense under Article 13. The Court found the child’s testimony to be more akin to a child’s wishes that could play a role in a custody hearing, than the particularized objections required under the Hague Convention, Yang v. Tsui, 499 F.3d at 279. See, e.g., Haimdas v. Haimdas, 720 F. Supp. 2d 183, 206 (E.D.N.Y. 2010) (finding an articulation of a comparative preference for climate, education, and recreational activities insufficient to invoke affirmative defense).

Because Petitioner had met his prima facie case and Respondent had not shown an affirmative defense, the Court ordered the children’s return to Mexico.

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