In Lomanto v. Agbelusi, 2024 WL 3342415 (2d Cir., 2024) the Second Circuit affirmed an order of the district court denying Lomanto’s petition for repatriation to Spain of his two minor children, R.A.L. and S.M.L. The parties were both non-American citizens who met in Spain in 2006. They resided there together and had two children. On June 26, 2021, Agbelusi left Spain with R.A.L. and S.M.L., who were then twelve and four, to visit her mother in New York for the summer. Lomanto had provided his written permission for the children to travel with their mother to the United States. On August 24, 2021, Agbelusi notified Lomanto that she planned to stay in New York permanently with the children. Lomanto objected and initiated legal proceedings in Spain, in which Agbelusi participated, to try to obtain the return of the children. In September 2021, the Spanish trial court issued an order concluding that the habitual residence of the children was Spain, that Lomanto did not consent to the children’s staying in New York, and that Agbelusi should return them to Spain. Agbelusi filed an appeal, which was unsuccessful. On August 26, 2022, Lomanto filed the current action in federal district court in New York.
Although there was no dispute that a prima facie case of wrongful retention was established under the Hague Convention, the district court held that Agbelusi met her burden to establish multiple affirmative defenses to return of the children, which Lomanto challenged on appeal. In addition, Lomanto maintained that even if these defenses were established, the district court nevertheless erred by (1) declining to exercise its discretion to repatriate the children notwithstanding Agbelusi’s defenses, (2) failing to accord comity to the Spanish court orders, and (3) proceeding with the first day of trial without a Spanish-language interpreter.
The Second Circuit reviewed the district court’s interpretation of the Convention and its application to the facts de novo. It reviewed its factual determinations only for clear error. The clear error standard is deferential, and “[w]e must accept the trial court’s findings unless we have a definite and firm conviction that a mistake has been committed.” Tereshchenko v. Karimi, 102 F.4th 111, 124 (2d Cir. 2024) (quoting Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir. 2013)).
The Court noted that Article 12 of the Hague Convention requires a court to order the repatriation of a child if Hague Convention proceedings are initiated within one year of the child’s wrongful removal or retention unless an exception applies. Hague Convention, art. 12. If the proceedings are commenced after the one-year period, the court “shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.” The respondent bears the burden of proving this exception “by a preponderance of the evidence.” 22 U.S.C. § 9003(e)(2)(B). The district court ruled that Lomanto’s petition was filed more than a year after the wrongful retention of the two children and that the children were “now settled” in their new environment. The Second Circuit saw no reason to disturb the district court’s finding that wrongful retention began on August 24, 2021, the date that Lomanto learned that the children would be staying in New York, thus making his petition filed on August 26, 2022, beyond the one-year deadline. This finding was not clearly erroneous. The district court based its finding on Lomanto’s communication with R.A.L. on August 24, 2021, his communication with Agbelusi later that day, and the police reports that Lomanto filed the next day on August 25, 2021, where he reported that the children were missing as of August 24, 2021, and that he “want[ed] to put on record that he ha[d] not given his consent for his children to stay” in the United States. These events made clear that Agbelusi advised Lomanto on August 24, 2021, that she would retain the children in New York over his objection. In a closely analogous case, we affirmed a district court’s determination that the date the child’s mother advised the father that she would not be returning with the children” to their country of habitual residence was the date of wrongful retention. The Second Circuit held that the district court did not err in declining to adopt one of the later dates Lomanto proposed as the beginning of the children’s wrongful retention—including the date Lomanto asked Agbelusi via text message to return the children or the date the parties originally had agreed that the children would return. wrongful “retention” occurs on a fixed date—it is not a continuing act. Marks, 876 F.3d at 422. And on this record, for the reasons noted above, the district court properly found that Agbelusi’s wrongful retention began on August 24, 2021. Thus, the district court correctly concluded that Lomanto’s filing of Hague Convention proceedings on August 26, 2022, occurred after the one-year period that began on August 24, 2021.
The Second Circuit identified no error in the district court’s conclusion that R.A.L. and S.M.L. were “now settled” in New York. Because the now-settled analysis is a mixed question of fact and law, the district court’s factual findings as to each of the relevant factors are reviewed for clear error, while its application of the Convention based on those factual findings is reviewed de novo. See Blondin v. Dubois, 238 F.3d 153, 158 (2d Cir. 2001). The district court carefully considered the relevant factors, under Lozano v. Alvarez, including the age of the children, the stability of their residence in the new environment, whether they attend school consistently, whether they participate regularly in community or extracurricular activities, the respondent’s employment and financial stability, whether the children have friends and relatives in the new environment, and the immigration status of the children and the respondent. 697 F.3d 41, 57 (2d Cir. 2012). Upon reviewing the record as a whole, the Second Circuit agreed that R.A.L. and S.M.L. are now settled in the United States. The record evidence, including the children’s regular school attendance, involvement in their church community, and strong relationships with friends and relatives in the area, all supported the conclusion that they were now settled. And, although “a shelter may not be an ideal environment,” the district court found “in this case” that the shelter where the children live with their mother “is a stable environment that provides [the family] with their own apartment and also provides community and resources,” such as summer camp and an afterschool program. Even if their unresolved immigration status counseled against a conclusion that they were now settled, in the overall balance, the Second Circuit concluded that the factors as a whole militate toward a now-settled finding, and thus, the district court correctly applied the exception. See Lozano, 697 F.3d at 57–58 (requiring courts to “balance many factors” and declining to give controlling weight to a child’s lack of lawful immigration status).
The Second Circuit pointed out that Article 13 of the Hague Convention “permits a court to refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.” Blondin, 238 F.3d at 166. Under this provision, a court may refuse repatriation solely based on a considered objection to returning by a sufficiently mature child. Whether a child is “old enough and mature enough” for his “views to be considered” is a question of fact, as is the determination that a child actually objects to returning to his country of habitual residence. The Second Circuit identified no error in the district court’s conclusion that the older child, R.A.L., was of sufficient age and maturity to “take account of his views,” that his objection was a result of his own “independent thinking,” and that his articulation of reasons for not wanting to return to Spain was “rational, logical, and clear.” The court made its findings about R.A.L.’s objection based on the expert evaluation of a licensed clinical psychologist and the court’s own in camera interview with the children. Insofar as Lomanto characterized R.A.L.’s views as expressing only a “preference” for remaining in New York, rather than an “objection” to returning to Spain, this was a factual determination on which the court defers to the district court, which engaged directly with the child, absent clear error. In light of R.A.L.’s professed concern that, if he were returned to Spain, his father would not permit him to see his mother—a concern that he reiterated even after the district court told him that his mother could seek custody or visitation in Spain—the court identified no such error or abuse of discretion.
The court rejected Lomanto’s argument that even if the district court found that the children were settled in the United States and that R.A.L. objected to returning to Spain, the district court nevertheless abused its discretion in not ordering the children to return to Spain given Agbelusi’s “premeditated abduction” of the children, her “purposeful[ ] estrang[ement] [of the children] from their father, with whom they had a close and loving relationship,” and her defiance of orders from the Spanish courts. The court stated that while a district court may exercise its discretion to order the return of children to further the aims of the Convention even in cases where affirmative defenses are established, see Blondin v. Dubois, 189 F.3d 240, 246 n.4 (2d Cir. 1999), here, the district court declined to do so, explaining that, in addition to deterrence of wrongful removal or retention, the Convention has “an interest in the welfare of the children and their interests in remaining settled.. Thus, the district court denied repatriation based on the children’s interests in remaining settled together in their new close-knit community in New York, and based on R.A.L.’s objection to returning to Spain. The district court’s refusal to order return was not an abuse of discretion.
The Second Circuit rejected Lomanto’s argument that the district court erred in failing to accord comity to the Spanish court orders that found that Agbelusi had wrongfully retained the children and ordered that she return them to Spain. The district court correctly determined that the Spanish courts had not purported to rule on Agbelusi’s affirmative defenses but had determined only that the children’s retention was wrongful, and that the district court therefore had jurisdiction to adjudicate Agbelusi’s defenses.
No comments:
Post a Comment