Braude v Zierler, 2022 WL 3018175 (S.D. New York,2022)[Canada][Grave risk of harm][Petition denied] [ameliorative measures insufficient]

In Braude v Zierler, 2022 WL 3018175 (S.D. New York,2022) the District Court denied the Petition of  Gadi Braude (“the Father”) against Dorona Mia Zierler (“the Mother”) seeking the immediate return of their two sons to Canada.

 Respondent averred that Petitioner consented to Respondent removing the children to the United States. The Court explained that to establish this defense, the respondent must show by a preponderance of the evidence that the petitioner consented to the removal or retention. Velozny v. Velozny, 550 F. Supp. 3d 4, 15 (S.D.N.Y. 2021). The consent does not have to be formal, instead the Court must analyze the petitioner’s conduct prior to the removal or retention, and “consider what the petitioner actually contemplated and agreed to in allowing the child to travel outside its home country. “The key to the consent inquiry is the petitioner’s subjective intent, including the nature and scope of the alleged consent.” In re Kim, 404 F. Supp. 2d 495, 516 (S.D.N.Y. 2005). Respondent  failed to prove by a preponderance of the evidence that Petitioner consented to Respondent taking the two children to New York on December 29, 2021. The parties did not dispute that on the day of the separation, the Mother left with the two children and did not tell Petitioner where they were going. Petitioner called and texted the Mother, who refused to answer. Specifically, that evening, Petitioner texted the Mother asking what she was planning and whether she was going to the United States, and begging her not to take the children away. Chumachenko v. Belan, No. 18-CV-9728-LTS, 2018 WL 6437062, at *8 (S.D.N.Y. Dec. 7, 2018) (holding the respondent failed to prove that the consent defense applied where “Respondent’s departure to the United States was immediately followed by contemporaneous text messages from Petitioner protesting Respondent’s actions, lamenting his unilateral decision to take the Children away from her, and refusing to write a letter allowing the Children to live with Respondent”). Petitioner stated he was “blindsided”, and that Respondent made this decision without him. While the parties had discussions about the Mother and children going to live with her parents in New York after Petitioner’s arrest, these discussions did not indicate Petitioner provided consent to their removal at the time of the separation. See Velozny, 550 F. Supp. 3d at 16–17 (holding the petitioner did not consent to removal where emails showed the petitioner discussed receiving assistance from his father-in-law in New York but eventually rejected the idea of sending the children there); Laguna v. Avila, No. 07-CV-5136 (ENV), 2008 WL 1986253, at *7 (E.D.N.Y. May 7, 2008) (holding that the parties’ custody agreement that stated that after returning to Colombia the child could move to the United States if he so desired was insufficient to establish the petitioner consented to retention of the child in the United States). While the Mother provided testimony showing that Petitioner gave her the children’s birth certificates before they left the house, this, without more, was insufficient to establish Petitioner’s subjective consent to her taking the children to live in New York. See Kosewski v. Michalowska, No. 15-CV-928 (KAM)(VVP), 2015 U.S. Dist. LEXIS 139924, at *44–45 (E.D.N.Y. Oct. 14, 2015) (denying consent defense where the record established that petitioner accompanied respondent to a passport office after she requested that he consent to the child obtaining a passport, but the parties disputed whether respondent told petitioner that she planned to move to the United States with the child prior to petitioner’s agreement); In re J.J.L.-P., 256 S.W.3d 363, 375 (Tex. App.—San Antonio 2008, no pet.) (upholding denial of the consent defense where the petitioner surrendered the child’s travel documents to the respondents because petitioner testified that he surrendered the documents to permit the child to enter the country for the holidays only). The  Court held that Respondent has failed to prove by a preponderance of the evidence that Petitioner consented to the children’s removal and retention.

 

Petitioner next averred that there was a grave risk that returning the children to Canada would expose them to harm. The Court noted that Article 13 of the Hague Convention prevents the Court from ordering the return of a child when “his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Hague Convention, art. 13(b). “The potential harm to the child must be severe, and the level of risk and danger required to trigger this exception has consistently been held to be very high.” Abdollah Naghash Souratgar v. Fair, 720 F.3d 96, 103 (2d Cir. 2013). The respondent bears the burden of establishing the defense by clear and convincing evidence. See 22 U.S.C. § 9003(e)(2)(A). The defense requires a real risk of the child being harmed. Blondin v. Dubois, 238 F.3d 153, 162 (2d Cir. 2001). The Court agreed with Respondent that the record established “Petitioner’s unstable mental health and demonstrated history of engaging in dangerous and illegal activities” and that this created a probability of grave harm and an extreme magnitude of harm. Specifically, Respondent averred that Petitioner’s untreated mental health issues, history of domestic violence and coercive conduct, and access and possession of child pornography together demonstrated a grave risk of harm to the children.

 

The record reflected an existence of factors in combination that create a grave risk of harm if the children were returned to Canada. First, Petitioner has a long and serious history of untreated mental health issues. Petitioner had suicidal ideation and attempts since the age of ten. He  attempted suicide three times, including once when Child 1 was asleep in the house. Petitioner was diagnosed with BPD in 2020, but did not answer in the affirmative when asked if he accepts his diagnosis. He was not prescribed medication until March of 2021, and had been unable to begin the treatment needed for BPD. While he acknowledged a need for treatment and to unpack past traumas, Petitioner has had an unstable history of treatment, and only recently began working with a psychiatrist in response to his criminal charges.

 

Respondent presented testimony from Dr. Elizabeth Jeglic, a clinical psychologist and professor, who testified that DBT is an intense behavioral treatment for those with BPD and repeated suicide attempts, which typically takes years to become effective. Without this therapy, BPD symptoms including self-harming, suicide, and emotional instability, would continue. Further, Dr. Jeglic discussed the intergenerational suicide risk which states that a parent who attempts suicide increases the risk of their children engaging in suicidal behavior. There was no doubt that exposing the children to suicidal behavior would create a real risk of psychological harm.

 

In addition, Petitioner had a concerning history of angry and manipulative behavior. He had threatened to commit suicide, hit and shoved Respondent out of anger, continued play fights with both Respondent and Child 1 when asked to stop due to pain, and strangled Respondent to the point of almost passing out. Petitioner also had intense, angry reactions when the Mother merely brings up discussing him with others, including her therapist. While most of this behavior was directed at the Mother, “evidence of prior spousal abuse, though not directed at the child, can support the grave risk of harm defense.” Davies v. Davies, 717 F. App’x 43, 47–48 (2d Cir. 2017) (upholding the district court’s finding that the grave risk of harm defense applied as the petitioner had a history of “pervasive, manipulative violence” that consisted of psychological abuse). This was particularly concerning now, as the Mother had discussed Petitioner’s mental health issues and criminal charges with a full range of people, including her family, friends, and the Court.

 

Finally,  and perhaps most important, was the Petitioner’s arrest for access and possession of child pornography. He has discussed having sexual fantasies involving children. While she did not examine Petitioner, Dr. Jeglic testified that those who possess child pornography are at an increased of risk of contact sexual abuse. Dr. Gojer  established that without treatment, Petitioner does create a risk to children. See M.M v. F.R, No. 11 Civ. 2355 (PKC), 2011 U.S. Dist. LEXIS 156760, at *26 (S.D.N.Y. June 30, 2011) (holding a grave risk of harm existed where eight years prior the petitioner engaged in sexual abuse of a child and had since had a “lack of a meaningful and continuing regimen of rehabilitation”). Further, while the children are too young to understand what is happening now, Child 1 will soon be at an age where he will start to question what is happening to his family. The “derivative harm” of Child 1 eventually learning about his Father’s actions could prove to be “psychologically devastating.”

 

Petitioner states that he had consented to eight ameliorative measures if this Court ordered the children return to Canada, including (i) JFCS is notified in advance of the return date of the children to Canada; (ii) Petitioner continues to comply with all surety conditions; (iii) Petitioner has no contact with Respondent upon her return to Canada; (iv) Petitioner continues to undergo therapy with Peach; (v) Petitioner continues to take his Sertraline prescription; (vi) Petitioner commences DBT with Peach; (viii) Petitioner continues to reside with his parents; and (viii) Petitioner continues to comply with all JFCS conditions and requirements. The court noted that in considering ameliorative measures, the Court must (1) “prioritize the child’s physical and psychological safety”; (2) “abide by the Convention’s requirement that courts addressing return petitions do not usurp the role of the court that will adjudicate the underlying custody dispute”; and (3) “accord with the Convention’s requirement that courts act expeditiously in proceedings for the return of children.” Golan v. Saada, 142 S. Ct. 1880, 1893–94 (2022). The Court did  not find that these ameliorative measures would prioritize the children’s physical and psychological safety. None of the proposed measures address Petitioner’s history of aggressive behavior and coercive control. None of the measures adequately protect the children from Petitioner’s pedophilia. The Court held that Respondent established the grave risk of harm defense.