Ermini v Vittori, 2013 WL 1703590 (S.D.N.Y.) [Italy] [Grave Risk of Harm]

In Ermini v Vittori, 2013 WL 1703590 (S.D.N.Y.) Emiliano Ermini ("Petitioner"), an Italian citizen, petitioned the seeking the return of his two sons to Italy alleging that the two boys, E.E., age 9, and D.E. age 7, who were Italian citizens, had been retained in the United States by their mother, Respondent Viviana Vittori ("Respondent"), also an Italian citizen, without Petitioner's consent. After a trial the district Court denied the petition without prejudice to renewal if D.E. was not able to continue with his current CABAS program and the Italian court system issued a final order requiring the return of the children to Italy. Petitioner's request for an award of legal fees and costs and expenses was also denied.

Petitioner and Respondent, the parents of E.E. and D.E., were married in Italy in July 2011. Respondent had initiated divorce proceedings in Italy and the parties were now legally separated. The family came to the United States in August 2011 in connection with efforts to secure effective medical and rehabilitative treatment for D.E., who was autistic. D.E. was diagnosed with autism on March 14, 2008, when he was approximately two years old. Petitioner and Respondent were both committed to helping D.E. and took him to various doctors in Italy as well as abroad in Scotland for medical treatment. When Petitioner and Respondent's own resources were inadequate to pay for the treatments, they solicited donations through a website and a blog about D.E. Dr. Antonucci was D.E.'s primary treating professional in Italy from December of 2008 until May of 2010. One of the treatments that Dr. Antonucci recommended for D.E. was hyperbaric oxygen therapy, which was eventually administered in a hyperbaric chamber installed in the family home in Velletri, Italy. He also treated D.E. for gut inflammation, heavy metal intoxication and viral issues believed to be underlying physical causes of autism. D.E.'s "support teacher" at his school in Italy did not know any specific techniques for treating children with autism. On their own initiative, Petitioner and Respondent attended training in Applied Behavioral Analysis ("ABA") techniques at a private institution, Pianeta Autismo, and Respondent attended three additional courses. With the permission of the principal of D.E.'s school, Respondent spent two hours each day at D .E.'s school, instructing the support teacher in the ABA techniques. Petitioner and Respondent also consulted with another doctor in Italy, Dr. Claudia Lerz, to develop an ABA treatment plan for D.E. According to Respondent's expert, Dr. Fiorile, ABA therapy is "the most common treatment" for children with autism in the United States and it can have an enormous impact on the life of an autistic child Dr. Antonucci also endorsed ABA treatment. Respondent estimated that she personally provided 70-80% of D.E.'s thirty to forty weekly hours of ABA treatment while the family were living in Italy. Professional ABA treatment would have been preferable but very expensive. The Italian national health care system covered 90 minutes a week of psychomotility therapy for D.E. for the first year after his autism diagnosis, with an extra 90 minutes of speech therapy during the second year, but did not pay for other types of treatment or therapy for D.E. Both Respondent and Petitioner were unhappy with the options for D.E.'s schooling and therapy in Italy as they did not see results in D.E.'s developmental progress. They began to look elsewhere for treatment options, and in October of 2009, the family traveled to Florida for a week, at the recommendation of Dr. Antonucci, to consult with an American doctor about therapies available for D.E. in the United States. In April or May of 2010, Petitioner and Respondent met Dr. Giuseppina Feingold in Italy. Dr. Feingold was an Italian-speaking pediatrician with a practice in Suffern, New York, who focused on children with special needs. In August of 2010, Petitioner and Respondent traveled with E.E. and D.E. to Suffern, New York, so that Dr. Feingold could assess and begin treating D.E. The family stayed with Respondent's first cousins, John and Patricia Tempesta, at their home in Ridgefield, Connecticut. During that August 2010 visit, they met other parents at Dr. Feingold's clinic, who told them about provisions for special needs children at the local schools in the Suffern area. Both Respondent and Petitioner were impressed
by the treatment options available for D.E. in the United States. Around this time, Petitioner and Respondent began to formulate a plan for the family to move to the United States for two or three years, during which time Petitioner and Respondent could decide if it would be possible and appropriate to make a permanent move to the United States. Meanwhile, Petitioner began meeting with Marcello Russodivito, to whom he had been introduced through one of Mr. Tempesta's contacts, about potentially investing in Mr. Russodivito's restaurant so that he could obtain a business visa for himself and derivative ones for his family, which would allow them to pursue treatment for D.E. in the United States. Mr. Russodivito understood that Petitioner planned to fund the restaurant investment by selling the family's house in Italy.

On September 2, 2011, Petitioner and Respondent co-signed a one-year lease for a house near Mr. Russodivito's restaurant. On September 15, 2011, Respondent, E.E. and D .E. moved into that house. In October, Mr. Russodivito arranged for one of his employees, Pasquale Ruggiero, to share the house with them. In September and November, E.E. and D.E. were enrolled in the local public schools. In an email to Respondent at the time, Petitioner said that they should ship "books, clothing, any furniture we can't sell, ornaments, dishes, sheets, blankets" in a cargo container from Italy to the United States. Petitioner also researched the cost of shipping D.E.'s hyperbaric oxygen chamber. On September 13, 2011, Petitioner wrote to the U.S. Consulate in Rome to apply for visas for himself and his family for the purpose of "explor[ing] the possibilities of entering into a business partnership with Mr. Marcello Russodivito who already owns an established Italian restaurant in the city of Suffern, NY. I also wish to request a B-2 visa for my wife and 2 children, who will accompany me in this trip to the United States." Respondent traveled with the two children to Italy to renew their United States visas in November 2011 and then the children and Respondent returned to Suffern, while Petitioner went to Italy to finish settling the family's affairs. Petitioner did not return to the United States until December 2011.

Meanwhile, on September 20, 2012, Petitioner applied to the Italian court for an order directing the Respondent to return with the children to Italy and provisions for visitation with the children. With only Petitioner in attendance, the court in Velletri ordered Respondent to return to Italy with the children and also ordered temporary measures including that Petitioner and Respondent would live separately but share parental authority; that Respondent and the children would live in the family home; that Petitioner could visit 8–12 hours per week; and that Petitioner would pay spousal and child support of 1,600 Euros per month. At the time of trial, Respondent had not complied with the Italian court's order to return to Italy with the children, nor had there been visitation or any other contact between Petitioner and the children. Respondent appealed the Velletri Court's order and, on April 5, 2013, the Court of Appeals in Rome vacated several provisions of the September 20, 2012, Order and granted Respondent exclusive custody of the children. The April 5, 2013, Order, also withdrew the Velletri Court's prior order requiring that Respondent return to Italy, revoked the award of the family home to Respondent, and revoked the Petitioner's visiting rights and rights of access to the children. Although the April 5, 2013, Order provided Respondent with exclusive custody of the children, it did not necessarily moot Petitioner's application to the district Court because it was a temporary order, which appeared to have been designed, at least in part, to conform to Family Court protective orders in the United States, which are were in effect until 2014. It expressly contemplated further investigative and adjudicative proceedings in the lower court.

Petitioner again left for Italy in early January 2012, following an altercation with Respondent . The two children had not left the United States since November of 2011, but Respondent left the country again in April 2012, to attend court proceedings in Italy. On December 1, 2012, Respondent and the two children moved to their current residence in Suffern with Mr. Ruggiero. Petitioner never relocated to the United States.

D.E. was severely autistic and had only a limited capacity for speech. He did not appear in court. Respondent and Mr. Ruggiero took care of feeding D.E., grooming him and ensuring that he was supervised and occupied. According to Respondent and to Dr. Fiorile, D.E. had significantly progressed in his school environment in the United States and was moving closer to being able to lead an independent life. When he first began school in the United States, D.E.'s test results were far below average; at age six, he presented with the fine motor skills of a three year old. Dr. Fiorile opined that D.E. performed poorly on the testing because his Italian treatments had been deficient. According to Dr. Fiorile, the CABAS program, which D.E. currently attended at a school in Stony Point, New York, offered the best ABA curriculum available to autistic children. Dr. Fiorile testified that D.E. had "one-to-one instruction" throughout the day and had made "exceptional progress" Dr. Fiorile explained that the high level of intervention in D.E.'s current classroom setting was the key to his success. Dr. Fiorile further opined that D.E. required a program like the one in which he was currently enrolled to continue to making meaningful progress in, among other things, cognition, language, social and emotional skills. Dr. Fiorile further opined that, if D.E. "were to be removed from this educational program and not provided this intensity of educational programming that's being provided by highly skilled and trained professionals" he will face "a severe loss of the skills he has successfully developed since beginning in CABAS ...." (“CABAS” is an acronym for Comprehensive Application of Behavioral Analysis to Schooling and it is “an intensive, data-driven specialized ABA program.” ) While the United States has over 4,000 board certified ABA practitioners, Dr. Fiorile knew of fewer than twenty in Italy. Dr. Fiorile concluded in her January 11, 2013, Report, admitted into evidence at trial, that if D .E. was separated from his CABAS program, he "will most certainly fail to make the same level of progress and will, without doubt, demonstrate significant skill regression" and that it would be "extremely harmful" to return him to Italy at this time. The Court found that separating D.E. from the CABAS program, while it remained available to him, would put him in an intolerable situation due to the grave risk of deterioration of his condition and denial of needed rehabilitation.

Respondent testified that she and the children did not currently have legal immigration status in the United States, as they overstayed their visas in April of 2012. In October or November of 2012, Respondent applied for a visa for herself and the children on the basis of the domestic abuse that she suffered. Her application was currently pending.

The district court found that Petitioner and Respondent intended to move to the United States as a family for a period of two to three years, during which time medical and rehabilitative treatments would be pursued for D.E., and also agreed that it was possible that the move would be made permanent at the end of the three-year period, circumstances permitting. Notwithstanding the plan to sell their house in Italy to fund the restaurant investment, there was no agreement to abandon the family's ties to Italy.


The court concluded that the children's habitual residence for Hague Convention purposes at the time of their retention in the United States was Italy. The Court took judicial notice of Title IV, Italian Civil Code of Law, Art. 316 ("[a] child is subject to the authority of its parents until majority ... or emancipation. The authority is exercised by both parents by mutual agreement") and Title IV, Italian Civil Code of Law, Art. 144 ("[t]he spouses agree between them the pattern of family life and fix the residence of the family according to the requirements of both and to those prevailing for the family. Each of the spouses has the authority to implement the agreed pattern"). Thus, Petitioner had rights of custody under Italian law in April 2012, when the retention of the children in the United States began. It also found that the Petitioner had been exercising his rights and the he had established a prima facie case for return.

Nevertheless, the district court found by clear and convincing evidence that, because D.E. was severely autistic, he faced a grave risk of harm if he had to return to Italy, as the return would severely disrupt and impair his development. It observed that in this Circuit, courts have emphasized the severity of the psychological or physical harm required under the "grave risk of harm" affirmative defense. See, e.g., Reyes Olguin v. Cruz Santana, No. 03 Civ. 6299 JG, 2005 WL 67094, at *6 (E.D.N.Y. Jan.13, 2005) ("[t]here is a spectrum of harms a repatriated child may suffer. At one end 'are those situations where repatriation might cause inconvenience or hardship, eliminate certain educational or economic opportunities, or not comport with the child's preferences; at the other end of the spectrum are those situations in which the child faces a real risk of being hurt, physically or psychologically, as a result of repatriation' "). Because "returning a child is likely to present adjustment concerns in almost every Convention case," the Court should examine whether the child is likely to "suffer
long-term permanent harm if returned." In re Lozano, 809 F.Supp.2d at 222.

D.E. had the fine motor skills of a child half his age when he first came to the United States. He was enrolled in a premier ABA school program and had made significant developmental progress. Dr. Fiorile had proferred credibly that, if D.E. left the Stony Point CABAS program even temporarily, he would face a significant regression in his skills and that without such an intensive, structured program, D.E. would not develop the cognitive, language, social, emotional and independent living skills that he was likely to acquire through such a program. Petitioner did not present any testimony controverting Dr. Fiorile's considered assessment. Respondent had also proven that there was a significant lack of resources in Italy for treating autism as compared to those available in the United States. D.E. had multiple doctors in Italy who were involved in his care including, Dr. Nicola Antonucci and Dr. Claudia Lerz. However, he met with most of these doctors infrequently and none of them were able to provide the intensive behavioral instruction that D.E. had been able to receive in the United States. There was no indication that D.E. could ever obtain the treatment and resulting positive prognosis that he has gained through the CABAS program were he to return to Italy. The Court found that the predicted deterioration in D.E.'s cognition, social skills and self-care if D.E. was separated from the CABAS program, to which Dr. Fiorile had testified, constituted psychological and physical harm sufficient to establish the "grave risk of harm" affirmative defense. As even a brief separation from the CABAS program would likely lead to a severe regression in D.E.'s progress, Respondent had shown by clear and convincing evidence that returning D.E. to Italy and separating him from the CABAS program posed a grave risk of harm to D.E. and would place him in an intolerable situation.

The testimony at trial established by clear and convincing evidence that E.E. and D.E. had a loving and close relationship and enjoyed spending time in each other's company. It was also established that E.E. helped his mother in caring for his brother. The district court observed that Courts in this Circuit have frequently declined to separate siblings, finding that the sibling relationship should be protected even if only one of the children can properly raise an affirmative defense under the Hague Convention. See, e.g., Blondin, 78 F.Supp.2d 283, 291 (S.D.N.Y. Jan.12, 2000) (declining to separate children because "children's relationships with their siblings are the type of intimate human relationships that are afforded a substantial measure of sanctuary from unjustified interference by the state") (quoting Aristotle P. v. Johnson, 721 F.Supp. 1002, 1005-06 (N.D.Ill.1989)); Broca v. Giron, No. 11 CV 5818(SJ)(JMA), 2013 WL 867276, at *9 (E.D.N.Y. Mar. 7, 2013) (deciding not to "further fracture the family unit" and separate the siblings). D.E. would face a significant disruption of his routine and general happiness were his older brother to return to Italy. Such a separation was also likely to harm E.E., since the one parent with whom he had a good relationship would have to remain in the United States to care for D.E. Having found that D.E. would face a grave risk of harm if separated from the CABAS program and repatriated to Italy, the Court would not separate the two brothers. Therefore, the Petition was denied as to both children, without prejudice to renewal if D.E. was no longer able to participate in the CABAS program and if the Italian court system issued a final order requiring the return of the children to Italy.

Filipczak v Filipczak, 2013 WL 692694 (2d Cir 2013) [Poland] [Federal & State Judicial Remedies] [Well Settled]

In Filipczak v Filipczak, 2013 WL 692694 (2d Cir 2013)(not selected for publication in the Federal Reporter) Respondent Yashmun Filipczak, the Mother, appealed from the judgment of the United States District Court for the Southern District of New York finding that Poland was the country of habitual residence for the Mother's two minor children and ordering the children's return to Poland. Petitioner Wojciech Filipczak, the Father, brought the case against her under the International Child Abduction Remedies Act (“ICARA”). At trial, the Mother did not contest that she had wrongfully removed the children from Poland, but argued that she qualified for two exceptions to the Hague Convention's repatriation requirement: (i) that the children would face “grave risk” to their well being in Poland, Hague Convention, art. 13(b), and (ii) that the children were “well settled” in the United States, Hague Convention art. 12. In a decision and order dated December 23, 2011, the United States District Court for the Southern District of New York rejected the Mother's contentions and ordered that the children be returned to Poland.


The Second Circuit Court of Appeals affirmed. While the Mother was represented by counsel in the District Court, she appears pro se on appeal. Thus, it construed her submissions to the Court liberally and interpret them to raise the strongest arguments they suggest. See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994).
The Mother raised several arguments on appeal, all of which were without merit. First, she claimed that her removal of the children from Poland was not wrongful because she was forced to leave Poland due to the expiration of her visa. The Mother, however, failed to raise this argument before the trial court. Because the Mother gave no justification for her failure to make this argument below, the Court would not consider it for the first time on appeal. Bogle–Assegai v. Connecticut, 470 F.3d 498, 504 (2d Cir.2006) (“[I]t is a well-established general rule that an appellate court will not consider an issue raised for the first time on appeal.”). She also alleged a number of defects in the evidence presented to the District Court, including failure to authenticate e-mails between her mother and the Father, bias on the part of the guardian ad litem, and failure to conduct cross-examination of several witnesses. These arguments were also presented for the first time on appeal, without any explanation as to why they were not raised below, and the Court refused to consider them for the same reasons.

Finally, the Mother argued that the children had stronger ties to the United States than they did to Poland, and therefore should be permitted to remain. It held that this misconstrues Article 12. The standard under that provision does not call for determining in which location the child is relatively better settled, but rather for determining whether the child has become so settled in a new environment that repatriation would be against the child's best interest. Blondin, 238 F.3d at 164. The Mother made no such showing.

Patrick v. Rivera-Lopez, --- F.3d ----, 2013 WL 388053 (C.A.1 (Puerto Rico)) [Puerto Rico] [Federal & State Judicial Remedies - Bond] [Rights of Custody]

In Patrick v. Rivera-Lopez, --- F.3d ----, 2013 WL 388053 (C.A.1 (Puerto Rico)) Lisandro Patrick appealed a decision of the United States District Court for the District of Puerto Rico dismissing his petition for the return of his child under the Hague Convention and the district court's order that he post a bond to proceed with the case. In March 2012, Rivera absconded to Puerto Rico with her children. When Patrick discovered that Rivera had taken her children to Puerto Rico and did not intend to return to the United Kingdom, he filed a petition for the return of L.N.R. in the United States District Court for the District of Puerto Rico under the Hague Convention. The petition alleged that Rivera wrongfully removed L.N.R. from her habitual residence, the United Kingdom. Patrick did not petition for the return of Rivera's other child because he was not the child's biological father. On the eve of trial, October 11, Rivera moved to dismiss Patrick's petition under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. Rivera argued in part that removal of a child is "wrongful" under the Hague Convention only if "it is in breach of [a person's] rights of custody," Hague Convention art. 3, and that Patrick had no rights of custody under the Convention because he was not registered as L.N.R.'s father in her birth certificate. The magistrate judge granted Rivera's motion to dismiss on the ground that Patrick never presented his affidavit of paternity to Puerto Rico's Vital Statistics Registry. Patrick v. Rivera-Lopez, 2012 WL 5462677 (D.P.R. Nov. 8, 2012).

 The Court of Appeals observed that Patrick had to allege facts sufficient to show that he has "rights of custody... under the law of the State in which the child was habitually resident immediately before the removal or retention." Hague Convention art. 3. Patrick alleged in his petition that L.N.R.'s habitual residence was the United Kingdom. For purposes of this appeal, Rivera did not dispute this allegation. Therefore, Patrick's rights of custody were determined with respect to United Kingdom law. "Where a child's father and mother were married to each other at the time of his birth, they shall each have parental responsibility for the child." Children Act, (1989) § 2(1). On its face, this provision would appear not to apply to Patrick and Rivera, who married after L.N.R.'s birth, but "[r]eferences in this Act to a child whose father and mother were ... married to each other at the time of his birth must be read with section 1 of the Family Law Reform Act 1987 (which extends their meaning)."Id. § 2(3). That section states that "references to a person whose father and mother were married to each other at the time of his birth include ... references to any person to whom subsection (3) below applies." Family Law Reform Act, (1987) § 1(2). Subsection (3) applies to "any person who ... is a legitimated person within the meaning of section 10 of [the Legitimacy Act 1976]."Id. § 1(3). That section defines "legitimated person" to include "a person legitimated or recognised as legitimated ... under section 2 or 3 above," Legitimacy Act, (1976) s 10(1), and Section 3 of the Legitimacy Act 1976 provides that where the parents of an illegitimate person marry one another and the father of the illegitimate person is not at the time of the marriage domiciled in England and Wales but is domiciled in a country by the law of which the illegitimate person became legitimated by virtue of such subsequent marriage, that person, if living, shall in England and Wales be recognised as having been so legitimated from the date of the marriage. ( The National Archives of the United Kingdom made these statutes available at http://www.legislation.gov.uk/) Based on these statutes, it concluded (as did the district court) that L.N.R.'s removal was wrongful under the Hague Convention if L.N.R. became legitimated under Puerto Rico law by virtue of Patrick's marriage to Rivera. With his petition, Patrick filed a letter from the International Child Abduction and Contact Unit (a unit of Ministry of Justice's Official Solicitor) stating that "[t]he parents are married to each other and therefore both have parental responsibility for [L.N.R.], pursuant to Section 2(1) of the Children Act of 1989.

 The Court of Appeals noted that tor more than a century, Puerto Rico law has provided that a child born under the same circumstances as L.N.R. is legitimated by the subsequent marriage of her parents. When Spain ceded Puerto Rico to the United States in 1898, the Spanish Civil Code provided that "natural children," defined as children born out of wedlock to parents who could have married each other at the time of conception, may be legitimated by the subsequent marriage of their parents. Puerto Rico's Civil Codes of 1902 and 1911 contained similar laws. Puerto Rico's current law was the same, except that it no longer requires that a child's parents be eligible to marry each other at the time of the child's conception. Despite the clear language of the statute, the district court held that Patrick's marriage to Rivera did not legitimate L.N.R. under Puerto Rico law because Patrick did not present his affidavit of paternity to the Vital Statistics Registry of Puerto Rico. The court stated that a child born out of wedlock "will not be automatically considered as begotten by" a man and woman who later marry, unless they register the child as theirs.” Patrick, 2012 WL 5462677, at *6 (citing Ramos v. Rosario, 67 P.R.R. 641 (1947)). Neither opinion on which the district court relied adequately supported its decision. The 1911 Civil Code was superseded by laws that expand the range of ways in which a parent can acknowledge a child and the Supreme Court of Puerto Rico has held that under current law, "[t]he father, or in his default, his heirs, may acknowledge in any way their children, expressly or impliedly, regardless of the dates or circumstances of their births and for all legal purposes." Because Patrick needed only to acknowledge L.N.R. "in any way," his affidavit acknowledging L.N.R. as his daughter sufficed to establish that he was her father. Because Patrick was L.N.R.'s father, his marriage to Rivera legitimated L.N.R. Patrick alleged in his petition that he was the father of L.N.R ., Rivera admitted this allegation in her answer, and no one else challenged Patrick's paternity. It held that Patrick's marriage to Rivera legitimated L.N.R. under Puerto Rico law. As a result, Patrick had "parental responsibility" for L.N.R. under United Kingdom law, which meant that he had "rights of custody" under the Hague Convention. The district court erred when it dismissed Patrick's petition on the grounds that he did not have rights of custody.

 The district court ordered Patrick to pay a $10,000 bond, stating that "[t]his bond will serve not only as a non-resident bond, but shall also respond to any damages that Respondent may incur should Petitioner not prevail on the merits." Patrick moved to vacate the bond requirement, arguing that the Hague Convention explicitly prohibits a court from requiring such a bond: "No security, bond or deposit, however described, shall be required to guarantee the payment of costs and expenses in the judicial or administrative proceedings falling within the scope of this Convention." Hague Convention art. 22. The district court continued to assert the authority to impose a bond but reduced the amount of the bond to $500. In a minute order dated June 28, 2012, the district court relied on three opinions that refer to instances in which a court  imposed a bond in a Hague Convention case: Whiting v. Krassner, 391 F.3d 540 (3d Cir.2004); Bekier v. Bekier, 248 F.3d 1051 (11th Cir.2001); and Lops v. Lops, 140 F.3d 927 (11th Cir.1998).

 The Court of Appeals held that the Hague Convention deprived the district court of authority to impose a bond on Patrick. It saw no distinction between a bond imposed to "respond to damages that Respondent may incur should Petitioner not prevail on the merits" and the bond that the Convention prohibits. The opinions on which the district court relied refer only in passing to a district court's imposition of a bond, without saying whether ordering the bond was within the court's power. Whiting, 391 F.3d at 545; Bekier, 248 F.3d at 1053 & n. 2; Lops, 140 F.3d at 948, 964. These opinions offered no reason to ignore the text of the Convention. It reversed the dismissal of Patrick's petition, vacated the order requiring that Patrick post a bond, and remanded the case to the district court with instructions to conduct a trial as soon as possible.