In Colchester v Lazaro, --- F.4th ----, 2021 WL
4929601 (9th Cir., 2021) the child’s
father sought the return of the child to Spain. The mother argued that
returning the child to her father, who she alleged had abused both her and her
baby, would present a grave risk of psychological or physical harm to the
child, and a defense under Article 13(b) of the Convention applied. The
district court granted the petition for the return. The Fifth Circuit held
that the district court abused its discretion in denying Lazaro’s application
for a meaningful psychological examination of S.L.C. which resulted in actual
and substantial prejudice to Lazaro, since there was a reasonable probability
that ordering the exam would have changed the result at trial. The court’s
denial of that examination therefore constituted reversible error. It vacated
the order and remanded the matter to the district court for appointment of a psychologist
and a new trial
The Court pointed out that
the Hague Convention’s central operating feature is the return remedy. Where a
parent files a petition for return alleging that a child under the age of 16
was wrongfully removed or retained within the last year, “the country to which
the child has been brought must ‘order the return of the child forthwith,’
unless certain exceptions apply.” Among those exceptions is the “grave risk”
defense: Article 13(b) of the Convention provides that “the judicial ...
authority ... is not bound to order the return of the child if the person ...
which opposes its return establishes that ... there is a grave risk that his or
her return would expose the child to physical or psychological harm or would
otherwise place the child in an intolerable situation.” Convention, art. 13(b),
19 I.L.M. at 1502. This “grave risk” defense reflects the proposition that “the
remedy of return ... is inappropriate when the abductor is a primary caretaker
who is seeking to protect herself and the children from the other parent’s
violence.” A respondent parent can establish a grave risk
of harm from abuse “where the petitioning parent had actually abused,
threatened to abuse, or inspired fear in the children in question.” Ermini v.
Vittori, 758 F.3d 153, 164 (2d Cir. 2014). Spousal violence may also
“establish a grave risk of harm to the child, particularly when it occurs in
the presence of the child.” The grave risk exception is narrowly drawn. ICARA
requires that a respondent must establish the Article 13(b) grave risk defense
by clear and convincing evidence. And even when the respondent establishes that
a grave risk of harm exists, the court may still order the child’s return if it
determines there are ameliorative measures that would “allow both the return of
the child[ ] to [his or her] home country and [the child’s] protection from
harm.”
S.L.C. was the now-six-year-old, U.S.-citizen daughter of
Appellant Jewel Lazaro, who resided in or around Seattle, WA, and Appellee Seth
Colchester, who resided in or around Barcelona, Spain. In January 2020,
Colchester was given sole custody of S.L.C. by a Spanish court sitting in
Barcelona. Lazaro, who lacked the resources to live in Spain fulltime, was
visiting Colchester and S.L.C. in April 2020, as the COVID-19 pandemic erupted.
According to Lazaro’s testimony at the bench trial below, during that visit
Colchester often “screamed at and acted aggressively toward both her and
S.L.C.” Lazaro testified about several specific instances of alleged abuse that
occurred at the time, including: • Colchester grabbing S.L.C. by the arm and
throwing her down the hallway, leading S.L.C. to cry and hide in her room with
Lazaro;• Colchester screaming at S.L.C. to “get downstairs, before I kick you
downstairs” and then kicking S.L.C. down the stairs; • Colchester screaming at
S.L.C. on various occasions for things like not folding his laundry, and
sticking his finger in her face and making her cry;
More generally, Lazaro also alleged that Colchester repeatedly
screamed at five-year-old S.L.C. and compelled S.L.C. to do various chores,
including his dishes and laundry. Following these incidents, Lazaro absconded
with S.L.C. After fleeing Colchester’s home, she falsely told local Spanish
police that she had legal custody of S.L.C. She also hired a Spanish forensic
psychologist, Dr. Alicia Romero Fernandez, who conducted a preliminary
examination of S.L.C. for approximately 90-minute via Skype and through a
translator. After Lazaro was unable to find anywhere to stay in Spain because
of the COVID-19 lockdown, she and S.L.C. fled to the United States using a
passport for S.L.C. that Lazaro had previously claimed to have lost. Colchester
then filed a Hague Convention application in Spanish court, filed a criminal
complaint against Lazaro in Spain, and applied to the governments of Spain and
the United States for S.L.C.’s return. The Spanish court eventually
issued a warrant, based on an order declaring that Spain was S.L.C.’s habitual
residence and that Lazaro’s removal of S.L.C. to the United States was wrongful
under the Convention. Lazaro and S.L.C.
eventually made it to Washington State.
Colchester filed the Hague Convention proceeding on July 20, 2020
in Snohomish County Superior Court, seeking S.L.C.’s return under the
Convention and ICARA. On
October 25, 2020, Lazaro’s counsel accepted service of the Hague Convention
petition and removed this action to the Western District of Washington.
After Colchester belatedly requested expedited proceedings in
mid-January, the district court held a status conference on January 27, 2021.
Lazaro filed a pre-conference memorandum setting forth two limited discovery
requests: a psychological examination of S.L.C. and limited document requests. At
the conference, the court questioned why a psychological exam was required,
since Dr. Romero had already examined S.L.C. in April 2020 by video. Lazaro’s
counsel explained that the prior exam was a relatively short “initial
screening” conducted through an interpreter and that the psychologist
recommended a more extensive examination. Counsel explained that it would be
difficult to continue working with the Spanish psychologist, not just because
of the challenges posed by conducting an effective examination through a
translator, but also because the nine-hour time difference would complicate
efforts to complete the necessary exams and trial preparation on the expedited
schedule Colchester had requested. Counsel argued that it was necessary to
conduct an exam informed by the case law applicable in the district court,
which Dr. Romero had not considered. Counsel explained that such psychological
exams of children are routine in Convention cases and that Lazaro would develop
reliable evidence that S.L.C. suffered psychological harm from Colchester’s
alleged abuse of her and Lazaro, which would be “critical” to establishing the
affirmative defense that S.L.C. faced a grave risk of psychological harm from
living with Colchester. In support, Lazaro cited a recent Convention case in
the Western District of Washington in which the judge declined to find that a
grave risk of harm to the child existed, despite crediting the respondent
mother’s allegations of severe domestic violence, because no psychological
expert testified about the “potential for psychological harm to children in
cases of spousal abuse.” Consequently, counsel argued that “we can’t rely
solely on witness testimony, and the relatively cursory Spanish evaluation, to
prove grave risk by clear and convincing evidence.” The Court then ruled,
without explanation and even though there had been no discovery, that “we’re
going to have no more discovery. I’m not going to order the evaluation to take
place.” The court then set a four-day bench trial for February 22, 2021.
The bench
trial, conducted over videoconference, started three weeks later. Lazaro
attempted to present evidence of alleged domestic violence through fact witness
testimony, medical records, and the testimony of Dr. Romero (the Spanish psychologist
who had conducted a preliminary examination of S.L.C. over videoconference in
April 2020). On the first morning of trial, the district court denied Lazaro’s
offer for S.L.C. to testify in whatever manner the court deemed appropriate, such
as in camera and ex parte. The court thus precluded the testimony
of the person with the most personal knowledge of whether S.L.C. had been
abused, namely, S.L.C. herself.
At trial, Lazaro alleged other instances of Colchester abusing her and S.L.C.
beyond those said to have occurred during her spring 2020 visit to Colchester’s
Barcelona home (as previously referenced). These included: Throwing a bowl of
soup at Lazaro’s head, leaving a bruise; Keeping Lazaro and S.L.C. “under [his] control
financially ... ma[king] her beg him on a weekly basis just for money for
food;” Kicking Lazaro in the
stomach when she was three-months pregnant with S.L.C. and forcing her to sleep
in the closet; Punching and screaming at Lazaro when she was seven-months
pregnant, after she sat in the driver’s seat of his car, then throwing her to
the ground, dragging her through the gravel, and leaving her on the side of the
road for hours; Hitting Lazaro in the head with S.L.C.’s bag, in front of
S.L.C.; Smashing Lazaro’s
guitar, in front of S.L.C., after Colchester’s associate told him that Lazaro
was out with a friend;
Shoving Lazaro into walls, on numerous occasions, in front of S.L.C.; Slapping
Lazaro and ripping S.L.C. away, when she was breastfeeding S.L.C. rather than
paying attention to Colchester; Throwing S.L.C. out of a first-floor kitchen
window, after screaming at her about breakfast dishes, then locking S.L.C.
outside until dinnertime without giving her food. Some of these incidents were
corroborated with contemporaneous evidence, including text and photo messages
exchanged with Colchester, emails to domestic violence organizations, and an
audio recording, as well as testimony from cross examination of Colchester’s
mother.
Dr. Romero
testified at trial as a psychological expert in forensic evaluation of
children. Her opinions were based entirely on her spring 2020 evaluation of
S.L.C. Dr. Romero testified that she concluded there was “the possibility that
[S.L.C.] [wa]s being abused by her father” because she “verbalized that she was
scared of her father and that she had suffered physical abuse at the hand of
the father.” She further testified that she did “not detect[ ] any indication
that [S.L.C.] had been manipulated,” and that she did not discern that Lazaro
was affected by any “pathology.” Finally, she testified as to the developmental
risks that are created when an abusive parent obtains sole custody of a child.
On cross examination, Dr. Romero acknowledged that there were limitations to
her opinion, including that she was not able to do an in-person evaluation and
that she was unable to spend time alone with S.L.C.,and explained that they
were due to the need to respond to the “emergency situation” presented by
Lazaro’s flight from Colchester’s alleged abuse and the COVID-19 lockdown
measures in place at the time of her examination.
The
district court issued a five-page order the day after the trial concluded. The
order begins by noting that it was undisputed that Lazaro’s removal of S.L.C.
from Spain was unlawful under the Convention and that S.L.C.’s habitual
residence (not challenged on appeal) was Spain and Lazaro had not presented
clear and convincing evidence that returning S.L.C. to Colchester’s custody in
Spain would subject her to a grave risk of physical or psychological harm. The
Court ordered that S.L.C. be returned to Spain, provided that Colchester must
facilitate “daily electronic communications” between S.L.C. and Lazaro, and
that Lazaro be permitted supervised visits with S.L.C., limited to two days per
month. The district court’s order did not
discuss any of the testimony or evidence regarding Colchester’s alleged abuse.
In lieu of setting forth its own findings of fact, the order stated that the
court “adopts and incorporates paragraphs one through ten and thirteen of Mr.
Colchester’s proposed findings of fact and conclusions of law.” Colchester’s ¶ 10 did not address any
of the evidence Lazaro presented during the trial. Instead, ¶ 10 stated that
“[m]any of the allegations of domestic violence and ‘drug trafficking’ that Ms.
Lazaro has raised to attempt to use this ‘grave risk’ exception ... were raised
and rejected” in prior U.S. and Spanish courts. The only three paragraphs
drafted by the court itself did not address the substance of Lazaro’s grave
risk defense.
Lazaro’s allegations that
Colchester had abused both S.L.C. and herself formed the core of her Article
13(b) defense that returning S.L.C. to live with Colchester in Spain would
subject S.L.C. to a grave risk of physical or psychological harm. Lazaro
therefore argued to the district court at the pre-trial conference that
credible testimony from a psychological expert who had examined S.L.C. would be
essential to her case, and she sought an order permitting the necessary
examination. The district court nonetheless denied her application, apparently
because Lazaro could put on Dr. Romero, a Spanish psychologist who had
interviewed S.L.C. over videoconference and through an interpreter for
90-minutes, even though, as Lazaro argued, Dr. Romero’s brief interview was no substitute
for an in-depth interview by a psychological expert. (The court also rejected
Lazaro’s offer for the judge to hear from S.L.C. herself, either on the stand
or in camera and ex parte.) But after the trial, the district
court indicated that it viewed Dr. Romero’s testimony as not credible because
her opinion was based on an inadequate examination, the very reason Lazaro had
sought a new exam before trial. The court subsequently held that Lazaro had
failed to present clear and convincing evidence to establish her Article 13(b)
defense.
Lazaro argued on appeal that the district court’s refusal to
permit an in-depth psychological examination rendered the bench trial unfair. The
Ninth Circuit agreed. It noted that Psychological evidence is
particularly important in cases like this one, where the respondent (usually
the mother) alleges that she fled with her children because the petitioner
(usually the father) had abused her and/or her children. In these cases,
psychological evidence can be important both because it can help the court
determine whether the alleged abuse occurred and because it can aid the court
in assessing the effect any abuse had on the child’s psychological health. Courts hearing Convention petitions thus routinely
grant requests to order psychological examinations of children and credit
testimony of psychological experts.
The Seventh Circuit held in Khan v. Fatima that it was reversible error
for a district court to refuse a respondent mother’s request for a
psychological evaluation of her child where there was credible evidence that
the petitioning father had physically and psychologically abused her in the
child’s presence. 680 F.3d at
787–88. “The failure to allow psychological evidence,” along with
inadequate findings of fact, made “the evidentiary hearing ... inadequate.”.
The Court held
that as a threshold
matter, the district court did not provide a reasoned decision when it denied
Lazaro’s application for a psychological examination of S.L.C. The district court’s brief remarks were just
one-sentence questions during argument, and when the court announced its
decision, it provided no reasons. It impliedly misstated the record, by saying
that “[w]e’re going to have no more discovery” when no discovery at all
had yet taken place in this action. The transcript reflects no discussion of
whether the parties could conduct limited discovery before an expedited trial,
whether Lazaro’s proposed expert could conduct a psychological examination in
the time allotted, or whether Colchester was entitled to his delayed request
for expedition. It held that the district court’s wholesale denial of discovery
in general and of the psychological examination in particular was unreasonable.
This alone would suffice for remand. Moreover, it would have been unfair for
the district court to first refuse the exam because Dr. Romero had already
examined S.L.C. but later conclude that Dr. Romero’s examination was too brief
to be reliable and that her testimony should never have been admitted because
her opinion was based on an inadequate examination. Together, these rulings
rendered the bench trial fundamentally unfair. This error was further
compounded by the district court’s peremptory refusal to permit S.L.C. to
testify herself. In effect, the district court’s rulings made it practically
impossible for Lazaro to make out her case. Finally, the district court’s abuse
of discretion in denying Lazaro’s application for a meaningful psychological
examination of S.L.C. resulted in actual and substantial prejudice to Lazaro,
since there is a reasonable probability that ordering the exam would have
changed the result at trial. The court’s denial of that examination therefore
constituted reversible error.
The panel also found the district court erred by failing to make
findings of fact adequate to support its order returning the child to Spain.
The only findings of fact supporting the post-trial return order were those
portions of the petitioner’s proposed findings of fact that the district court
simply adopted by reference. But the petitioner’s proposed findings were
entirely conclusory and failed to engage with any of the evidence or testimony
adduced at trial. Federal Rule of
Civil Procedure 52 demands more. Reversal was warranted because,
“[a]s a consequence [of the omitted findings], there was no way of knowing whether the district court’s
decision in favor of [Colchester] on [Lazaro’s Article 13(b) defense] was based
on resolution of the determinative facts in [his] favor; or whether the court
erroneously concluded that [the alleged abuse] could, under no circumstances have
... implications” for Lazaro’s grave risk claim. The district court failed to
comply with Fed. R. Civ. P.
52(a), because the order below did not resolve the factual disputes
necessary to support its legal conclusions.
