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Friday, January 1, 2021

Rubio v Castro, --- Fed.Appx. ----, 2020 WL 2311897 (2d Cir.,2020)[Ecuador] [grave risk of harm][ ameliorative measures insufficient] [Petition denied]


In Rubio v Castro, --- Fed.Appx. ----, 2020 WL 2311897 (2d Cir.,2020) (Not selected for publication)  Respondent-Appellant Olga Katerine Veintimilla Castro (“Castro”) appealed from the memorandum decision and order of the District Court granting the petition of Petitioner-Appellee Segundo Melchor Valles Rubio (“Valles”) for the repatriation of his and Castro’s son, B.V., to Ecuador. 

The Second Circuit reviewed the district court’s interpretation of the Convention de novo and its factual determinations for clear error.” Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir. 2013). “

The Court observed that as is relevant here, a respondent can contest repatriation by establishing by clear and convincing evidence, 22 U.S.C. § 9003(e)(2)(A), that “there is a grave risk” that repatriation of the child “would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation,” Hague Convention, art. 13(b). Even if the repatriation poses a grave risk of harm, however, “the district court is not necessarily bound to allow the child to remain with the abducting parent.” Blondin v. Dubois, 189 F.3d 240, 246 n.4 (2d Cir. 1999). Rather, a “federal district court retains, and should use when appropriate, the discretion to return a child, despite the existence of a defense, if return would further the aims of the Convention.” It has  explained that “[i]n cases of serious abuse, before a court may deny repatriation on the ground that a grave risk of harm exists under Article 13(b), it must examine the full range of options that might make possible the safe return of a child to the home country.” Blondin v. Dubois, 238 F.3d 153, 163 n.11 (2d Cir. 2001); see also Saada v. Golan, 930 F.3d 533, 539 (2d Cir. 2019) (explaining that the district court must “take into account any ameliorative measures (by the parents and by the authorities of the state having jurisdiction over the question of custody) that can reduce whatever risk might otherwise be associated with a child’s repatriation.” 


The district court concluded that, though evidence of Valles’s physical and psychological abuse of B.V. established that B.V. faced a grave risk of harm if returned to Valles’s custody, ameliorative measures such as litigation in Ecuadorian courts were sufficient to protect B.V., and it therefore granted Valles’s petition for B.V.’s return. The Court rejected Valles argument that Castro failed to meet her burden to show a grave risk of harm to B.V.. The district court found clear and convincing evidence of physical and emotional abuse, including, inter alia, four beatings with a belt, one beating with a stick, frequent verbal abuse, using B.V. as cover to transport firearms in Valles’s car, and handing B.V. a loaded firearm while making threatening comments. Nevertheless, in light of the protective measures set out in the JSU and the record of Castro’s successful litigation in Ecuadorian courts, it could not conclude that the district court abused its discretion in ordering B.V.’s repatriation. The JSU provides for weekly visits between B.V. and Castro’s family, daily conversations by video or telephone between Castro and B.V., and restrictions on B.V.’s access to firearms, including prohibitions on the presence of any firearms where B.V. resides. Castro failed to establish on appeal that these measures were  inadequate to protect B.V., nor had she shown why she could not avail herself of the Ecuadorian courts or the equitable power of the district court to enforce ameliorative measures for the protection of B.V.

  The Second Circuit agreed with Castro, however, that the district court too quickly discounted her argument that she would not return to Ecuador with B.V., and that the efficacy of any protective measures would need to be assessed in light of her absence. This Court has instructed that “[i]n cases of serious abuse, before a court may deny repatriation on the ground that a grave risk of harm exists under Article 13(b) [of the Hague Convention], it must examine the full range of options that might make possible the safe return of a child to the home country.” Blondin, 238 F.3d at 163 n.11. Where repatriation would return a child to the sole physical custody of their abuser, a district court does not properly weigh the safety of the child if it fails to examine the full range of ameliorative measures, including those that are enforceable when the respondent parent has chosen not to return. Here, however, the district court did not simply order repatriation without any ameliorative measures. Rather, the district court ordered the parties to negotiate the terms of the repatriation, and report back to the court on the terms on which they had agreed. In response to that order, the parties filed the JSU, providing ameliorative measures for B.V.’s repatriation to Valles’s custody in Ecuador. Castro  failed to show that these measures or the protection of the Ecuadorian courts were inadequate, even if she remained in the United States; nor did she petition the district court to amend the terms of the JSU. Accordingly, even if the district court failed to specifically examine the enforceability of ameliorative measures in light of Castro’s decision not to return to Ecuador, it could not conclude that the ameliorative measures currently in place were insufficient to mitigate the risk of harm to B.V., such that B.V.’s repatriation was an abuse of discretion.


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