In Harvey v Means, Not
Reported in Fed. Rptr., 2025 WL 1189565, (Ninth Circuit, 2025) Garann Rose Means appealed a district court order
granting Dale Harvey’s Hague petition for the return of their two children to
Scotland. The Ninth Circuit affirmed.
The Ninth Circuit rejected means argument that the district court abused its discretion by failing to order a psychological examination of the children or by failing to grant her another continuance to obtain one. “It held that a district court does not abuse its discretion by denying a psychological exam when a movant fails to make “specific, corroborated allegations of domestic violence and child abuse.” Means failed to make a proffer to the district court that would justify ordering a psychological evaluation or, alternatively, granting a continuance for Means to obtain one. Means accused Harvey of sexually abusing their child, Z, which, if substantiated, would make the children’s return to Harvey in Scotland an “intolerable situation” under the Convention.. Means also alleged that Harvey abused her, which might also pose a grave risk to the children if true. See Colchester, 16 F.4th at 718. But Means acknowledged that the Scottish authorities investigated her claims and found no evidence that Harvey abused Z. And the district court found that Means’s sexual abuse allegations were “less than credible.” Because Means failed to point to specific, corroborated allegations of abuse or domestic violence, it concluded that the district court did not abuse its discretion by refusing to order a psychological evaluation for the children or refusing to grant a continuance for Means to obtain one.
The district court denied Means’s request to interview the children in camera because it concluded that an interview about “such serious allegations” might do “more harm than good[.]” The Ninth Circuit held this was not an abuse of discretion.
Although Means argued that the district court should have appointed an attorney or guardian ad litem to represent the children, she did not state that she moved for such an appointment in the district court. The Ninth Circuit held that Means likely forfeited this issue.
Means argued that the three-hour limit to present her case deprived her of due process. The Ninth Circuit held that Courts must “act expeditiously in proceedings for the return of children” and may “order the return of the child at any time[.]”District courts therefore have “a substantial degree of discretion in determining the procedures necessary to resolve a petition filed pursuant to the Convention.” The Ninth Circuit held that the district court gave Means the opportunity to submit evidence, cross-examine Harvey’s witnesses, and present her own testimony, even giving her extra time to do so. The district court appropriately balanced the need for expeditious proceedings with the need to afford Means a meaningful opportunity to be heard.
Means asserted that the district court abused its discretion by failing to appoint an attorney to represent her. The Ninth Circuit held that there is no constitutional right to counsel in a civil case. Nevertheless, a district “court may request an attorney to represent any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1). “The decision to appoint such counsel ... is granted only in exceptional circumstances.” Courts consider three factors when deciding whether exceptional circumstances exist: (1) the individual’s ability to articulate his or her claims pro se, (2) “the complexity of the legal issues involved,” and (3) “the possible merit of [the individual’s] claims.” Byrd v. Maricopa Cnty. Bd. of Supervisors, 845 F.3d 919, 925 (9th Cir. 2017). Even assuming that Means was unable to afford counsel, the district court did not abuse its discretion by not appointing counsel to represent her. Means showed that she understood the fundamental requirements of the Hague Convention by arguing that the children were not habitually resident in Scotland and by raising a grave-risk defense. And, although the case involved the parties’ children, it was otherwise straightforward because Means conceded most of the elements of Harvey’s case. Finally, Means’s grave-risk defense was meritless because her allegations of abuse were not credible.
