Radu v Shon, 2023 WL 2470014 (9th Cir., 2023) - [Germany][Petition granted][ grave risk of psychological harm] [ameliorative measures] [affirmed]

    In Radu v Shon, 2023 WL 2470014 (9^th Cir., 2023) while the family was residing in Germany, Shon took the children to the United States and refused to return them. Because the Supreme Court issued its decision in Golan while it was considering Shon’s appeal of the second return order, it also remanded that order for the district court’s reconsideration. The district court then granted the petition a third time. The Ninth Circuit affirmed.

 

    Radu and Shon married in 2011 in the United States. Their older child, O.S.R., was born in the United States in 2013, and their younger child, M.S.R., was born in Germany in 2016. Both children were citizens of the United States. From 2016 to 2019, Radu, Shon, and their children lived in Germany. Shon took O.S.R. and M.S.R. from Germany to the United States in June 2019. Shon and the children have since lived with Shon’s parents in Arizona, despite Radu’s wishes for the children to be brought back to Germany.

 

    Radu petitioned for the children to be returned to Germany in federal district court in Arizona in June 2020. The district court held an evidentiary hearing and granted Radu’s petition. The court found a grave risk of psychological harm if the children were returned to Germany in the custody of Radu. The court determined, however, that those risks would be mitigated if the children returned to Germany in Shon’s temporary custody. So the court ordered Shon to return with the children and retain full custody until the German courts resolved the merits of the custody dispute. At that time, Gaudin v. Remis made the consideration of ameliorative measures mandatory. See 415 F.3d 1028, 1035 (9th Cir. 2005). Shon appealed. The Ninth Circuit vacated and remanded for the district court to determine whether the sole-custody measure would be enforceable in Germany.

 

    On remand, the district court held a second hearing at which Shon presented expert testimony and the parties testified. Shon’s expert, a German-licensed attorney, stated that the temporary sole-custody order would not be enforceable because Germany does not recognize ameliorative measures. He also testified that a German court may take up to six months to decide custody because the children would not be considered habitually resident in Germany until then. Furthermore, because the children are not German citizens, he testified that neither Shon nor Radu could initiate German custody proceedings or obtain protective measures from abroad. Shon testified that her savings would not cover travel or living expenses in Germany but conceded that her parents, who had assisted her financially during this case, had paid for her plane tickets for her previous return from Germany. She was also afraid of being arrested upon returning to Germany but did not know of any pending legal matters at that time. Radu testified that he would pay for airfare and housing for Shon and their children pending the custody determination. He promised to maintain a separate household and cooperate with Shon. He also testified that Germany has a child-protection agency that could ensure the children’s safety if Shon became unavailable.

 

    The district court then contacted the State Department, Office of Children’s Issues’ country officer for Germany, who contacted the German Central Authority for the court. The court did not receive a binding statement on the time needed for a German court to determine custody. But the German Central Authority cited Section 155 of the Act on Proceedings in Family Matters and Matters of Non-Contentious Jurisdiction, which provides for handling of custody issues “in an expedited manner.” The German Central Authority also confirmed that Germany has youth welfare offices that may conduct home visits or take custody of children if necessary.

 

    In a second return order, the district court concluded that the enforceability of the sole-custody remedy was uncertain. But that was no longer necessary because the district court had considered the risk of psychological harm over too long of a time period. Based on the new evidence that a German court would take months to resolve custody, the court held that ordering Shon to return with the children to Germany—where the default rule was joint custody—sufficiently ameliorated the risk of psychological harm. Shon again appealed. The Ninth Circuit stayed the appeal pending the Supreme Court’s resolution of Golan and eventually remanded for reconsideration in light of Golan’s clarification that consideration of ameliorative measures is discretionary rather than mandatory. See 142 S. Ct. at 1892–93.

 

    The district court did not hold another hearing on the second remand but ordered return based on the existing record. Following Golan, the district court exercised discretion to consider ameliorative measures. Relying on the second return order’s analysis, the district court again stated that ordering Shon to return to Germany with the children would ameliorate the risk of psychological harm. It denied Shon’s request for a new evidentiary hearing, partially because there was no new evidence about Radu’s interactions with the children and partially because a hearing would contravene the Convention’s directive for expeditious resolution.

 

    This appeal arose from the third return order. Given the parties’ uncertainty about aspects of the ordered remedy, and unresolved logistical issues, the court ordered a limited remand while retaining jurisdiction to avoid further delay. See Friery v. L.A. Unified Sch. Dist., 448 F.3d 1146, 1150 (9th Cir. 2006) (ordering “a limited remand to the district court”). it directed the district court to clarify (1) its current Article 13(b) grave-risk finding and ameliorative measure(s) ordered, (2) whether Radu must pay for airfare, (3) whether Radu must pay for separate living arrangements, (4) the custody arrangements (sole or joint) while Shon was temporarily residing in Germany, (5) the custody arrangements if Shon is no longer able to legally reside in Germany before a German court decides custody, (6) the need to notify German child protective services upon the children’s arrival, and (7) whether, if necessary, German child protective services have jurisdiction to oversee the children’s wellbeing.

 

    The district court answered those questions. First, it explained that the grave risk of psychological harm arose only if the children remained in Radu’s sole custody for a longer time, and that no harm would arise if Shon and Radu had joint custody or if Radu had sole custody for a limited duration. Radu v. Shon, No. CV-20-00246-TUC-RM, 2023 WL 142908, at *2 (D. Ariz. Jan. 10, 2023). Second, Shon must pay for her and the children’s airfare back to Germany. Third, Radu must pay for separate living arrangements because Shon would take unpaid leave and could not work in Germany. Fourth, the parties would have joint custody, as German law provides, pending a final custody determination. Fifth, in the event Shon could not remain until the merits decision, the children would enter Radu’s physical custody.  Sixth, the court determined that notifying German child protective services was unnecessary. Seventh, the court judicially noticed the existence of jugendamt, the German child protective services agency, and explained that the record suggests that the agency would have authority over the children once they arrive in Germany.

 

    The issues currently before it were whether the district court should have conducted an evidentiary hearing during the second remand or the limited remand, refrained from contacting the State Department, or ultimately determined that the record supported its ameliorative measure.

 

    Shon contended that the district court should have held a new evidentiary hearing during the second remand or the limited remand. She relies on Gaudin’s instruction that “[t]he questions before the district court on remand will be whether a grave risk of harm now exists, and if so, whether that risk can be minimized through an alternative remedy,” 415 F.3d at 1036, for her position that a new hearing is necessary to determine the current conditions.

 

    Neither ICARA nor the Convention specify when a court must hold an evidentiary hearing. ICARA instructs courts to “decide the case in accordance with the Convention.” 22 U.S.C. § 9003(d). And the Convention directs courts to “act expeditiously in proceedings for the return of children.” Convention Art. 11. It also permits a court to “order the return of the child at any time” notwithstanding the other provisions. Convention Art. 18. It reviewed the district court’s decision not to hold a new evidentiary hearing for abuse of discretion. Under that standard, it affirms the district court unless it commits a legal error in interpreting the Convention, or clearly errs in determining the facts from the record. See United States v. Hinkson, 585 F.3d 1247, 1259 (9th Cir. 2009) (en banc).

 

    Any categorical rule requiring new hearings would contravene the Convention’s directive for expeditious resolution. The district court is far better situated to determine the exact procedures necessary to aid its resolution of the case. A per se rule would impede that flexibility with minimal upside. Under some circumstances, a refusal to hold a new hearing could constitute an abuse of discretion. But the district court here declined a third evidentiary hearing because the evidence of Radu’s treatment of the children—on which the court based its ameliorative measure and grave-risk finding—had not changed; Radu had not had contact with the children since the earlier hearings. Sister circuits agree. In March v. Levine, the question presented was whether the district court improperly granted summary judgment to a father petitioning for his children’s return without allowing discovery or a hearing on the merits. See 249 F.3d 462, 468 (6th Cir. 2001). The Sixth Circuit affirmed. Recognizing that Convention cases are unique, the court explained that “neither [the Convention nor ICARA] expressly requires a hearing or discovery”; instead they require “expeditious action.” The court also found persuasive that “courts in other Contracting States to the treaty have also upheld summary proceedings on review.” The Tenth Circuit reached the same conclusion in West v. Dobrev, reasoning that Article 18’s permission to order return at any time provides trial courts “a substantial degree of discretion in determining the procedures necessary to resolve a petition filed pursuant to the Convention and ICARA.” 735 F.3d 921, 929 (10th Cir. 2013).

 

    The court concluded that Gaudin did not require otherwise. It held that, in cases governed by the Convention, the district court has discretion as to whether to conduct an evidentiary hearing following remand and must exercise that discretion consistent with the Convention. The district court did not abuse its discretion in declining to hold a third evidentiary hearing when the factual record was fully developed.

 

    Shon asserted that the district court’s communications with the State Department and the German Central Authority were ex parte, resulted in hearsay evidence, and violated Shon’s due process rights. Federal Rule of Civil Procedure 44.1 clarified that an interpretation of foreign law “must be treated as a ruling on a question of law.” Accordingly, like any legal issue, “the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence.” Fed. R. Civ. P. 44.1. Moreover, “the court is not limited by material presented by the parties; it may engage in its own research and consider any relevant material thus found.” That said, “expert testimony accompanied by extracts from foreign legal materials has been and will likely continue to be the basic mode of proving foreign law.” Courts nonetheless have an “independent obligation to adequately ascertain relevant foreign law, even if the parties’ submissions are lacking.” de Fontbrune, 838 F.3d at 997. Though international comity requires American courts to “carefully consider a foreign state’s views about the meaning of its own laws,” that deference has its limits. “The appropriate weight in each case ... will depend upon the circumstances; a federal court is neither bound to adopt the foreign government’s characterization nor required to ignore other relevant materials.” Id.

 

    The State Department and foreign Central Authorities are proper and useful resources when evaluating a foreign legal landscape. See Convention Art. 7. A sister circuit, for instance, has directed a district court “to make any appropriate or necessary inquiries of the [foreign government] ... and to do so, inter alia, by requesting the aid of the United States Department of State, which can communicate directly with that foreign government.” Blondin v. Dubois, 189 F.3d 240, 249 (2d Cir. 1999). The Court said it contemplated the district court’s ability to seek assistance from the State Department when it remanded the first return order. See Radu I, 11 F.4th at 1090–91.

 

    Shon did not contest any foreign legal conclusion but challenged the methods the court used to determine German procedural issues. Though a legal conclusion on foreign law is reviewed de novo, a district court’s selection of methods to evaluate foreign law is discretionary. Accordingly, it reviewed the district court’s methods of foreign law research for abuse of discretion.

 

    The district court neither abused its discretion nor violated Shon’s due process rights by communicating with the State Department and, through it, the German Central Authority. “[I]ndependent judicial research” on a legal question “does not implicate the judicial notice and ex parte issues spawned by independent factual research.” de Fontbrune, 838 F.3d at 999; see also G&G Prods. LLC v. Rusic, 902 F.3d 940, 948 (9th Cir. 2018) (“formal notice” of court’s intent to research foreign law not required). Nor do the Federal Rules of Evidence and its hearsay rules apply to foreign law materials, much as legal research on domestic law cannot trigger evidentiary objections.

 

    Here the district court did not view itself bound by information received from the State Department; it properly considered and weighed that information alongside the testimony of the parties and Shon’s expert. Shon failed to persuade that the district court abused its discretion in the way it reached them.

 

     Shon challenged several factual findings underlying the district court’s third return order and asserted that the law-of-the-case doctrine prohibited the court from revisiting its grave-risk finding. The Court reviews factual findings for clear error, which occurs if “the finding is illogical, implausible, or without support in inferences that may be drawn from the facts in the record.” “While a district court has no obligation under the Convention to consider ameliorative measures that have not been raised by the parties, it ordinarily should address ameliorative measures raised by the parties or suggested by the circumstances of the case ....” Golan, 142 S. Ct. at 1893.

 

    On remand, the district court clarified that the minor children would be at a grave risk of psychological harm only if they returned to Germany and remained in Radu’s sole custody for years due to the cumulative nature of psychological harm. If Shon could not remain in Germany past the expiration of her tourist visa (around ninety days), then the court found no issue with Radu taking physical custody of the children for a short time until the final custody determination is made by German authorities. Because no exception to return would apply under those circumstances, the court ordered the children’s return.

 

    The record supported the district court’s determination that the time frame in which a German court would determine custody would be a few months rather than years. The hearing testimony supported the court’s determination that Shon could return with the children. Based on the lack of any evidence or testimony about pending criminal charges in Germany, the court drew the supported inference that none existed. Finally, the law-of-the-case doctrine did not prevent the district court from revisiting its prior ruling on grave risk. “[T]he law-of-the-case doctrine ‘merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power.’ It “applies most clearly where an issue has been decided by a higher court.”. Even though the district court found grave risk in its first return order, it was free to revisit this ruling based on updated evidence about the likely time frame for German courts to decide the merits of the custody dispute. See Radu, 2023 WL 142908, at *2. Gaudin instructs district courts to decide whether grave risk exists based on the current circumstances. 415 F.3d at 1036.

 

    The district court did not err in refusing to hold a new evidentiary hearing or in consulting the State Department. Adequate evidence supported the factual findings that Shon challenged. It thus affirmed.