Radu v. Shon ( 2022 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Bogdan Radu, No. CV-20-00246-TUC-RM 10 Petitioner, ORDER 11 v. 12 Persephone Johnson Shon, 13 Respondent. 14 15 On December 30, 2021, this Court granted Petitioner Bogdan Radu’s Petition for 16 Return of Children to Germany (“Petition”) and ordered Respondent Persephone Johnson 17 Shon to return minor children O.S.R. and M.S.R. to Germany within thirty days. (Doc. 18 77.) Respondent appealed (Doc. 78), and the Ninth Circuit Court of Appeals remanded 19 for this Court to reconsider its ruling in light of Golan v. Saada, __ U.S. __, 142 S. Ct. 20 1880 (2022). (Doc. 99; see also Docs. 105, 110, 111.) At this Court’s request, the parties 21 submitted supplemental briefs regarding the impact of Golan. (Docs. 107, 109; see also 22 Doc. 102.) 23 Also pending before the Court is Petitioner’s pro se Motion for Criminal 24 Prosecution Referral (Doc. 101), which Respondent opposes (Doc. 108). 25 I. Procedural History 26 On June 8, 2020, Petitioner filed his Petition pursuant to the Hague Convention on 27 the Civil Aspects of International Child Abduction (“Convention”) and its implementing 28 legislation, the International Child Abduction Remedies Act, 42 U.S.C. § 9001, et seq. 1 (Doc. 1.) The Court held a three-day evidentiary hearing on July 29, 2020 and August 2 26-27, 2020. (Docs. 15, 21-22.) On September 17, 2020, the Court issued an Order 3 granting the Petition and ordering the return of minor children O.S.R. and M.S.R. to 4 Germany. (Doc. 26.) The Court found, under Article 13(b) of the Convention, that the 5 children would be at grave risk of psychological harm if returned to Germany in the 6 custody of Petitioner, but it further found that such harm could be mitigated by ordering 7 that the children be returned in the temporary custody of Respondent. (Id. at 5-6.) 8 On August 31, 2021, the Ninth Circuit vacated and remanded for this Court “to 9 reasonably ensure compliance with its alternative remedy in Germany.” (Doc. 51-1 at 4.) 10 This Court held a further evidentiary hearing on November 3, 2021 and November 9, 11 2021 (Docs. 63, 67), and contacted the United States Department of State for assistance. 12 On December 30, 2021, this Court again ordered Respondent to return O.S.R. and M.S.R. 13 to Germany. (Doc. 77.) The Court recognized that this is “a borderline case whether an 14 Article 13(b) finding is warranted.” (Id. at 6 (internal quotation marks omitted).) The 15 Court further found that the alternative remedy of ordering Respondent to return with 16 O.S.R. and M.S.R. to Germany would ameliorate the risk of psychological harm to 17 O.S.R. and M.S.R. given the unique circumstances of this case, including Germany’s 18 child protection services (see Doc. 58 at 2), the ability of a German court to prioritize 19 child custody matters for expedited processing pursuant to Section 155 of the Act on 20 Proceedings in Family Matters and Matters of Non-Contentious Jurisdiction, 21 Respondent’s joint custody rights under German law, Respondent’s ability to stay in 22 Germany for at least three months, and Petitioner’s commitment to paying, if necessary, 23 for the airfare of O.S.R. and M.S.R., as well as rent for a separate residence for 24 Respondent and the children until a German court makes a custody determination. (Id. at 25 7-8.) 26 II. Golan v. Saada 27 On June 15, 2022, the United States Supreme Court issued Golan, holding that 28 “consideration of ameliorative measures” after an Article 13(b) finding is not required 1 under the Convention but, rather, “is within a district court’s discretion.” 142 S. Ct. at 2 1893. The Supreme Court also clarified that a district court’s consideration of 3 ameliorative measures (1) “must prioritize the child’s physical and psychological safety,” 4 (2) must “not usurp the role of the court that will adjudicate the underlying custody 5 dispute,” and (3) “must accord with the Convention’s requirement that the courts act 6 expeditiously in proceedings for the return of children.” Id. at 1893-94 (internal 7 quotation marks omitted). “[A] district court reasonably may decline to consider 8 ameliorative measures that have not been raised by the parties, are unworkable, draw the 9 court into determinations properly resolved in custodial proceedings, or risk overly 10 prolonging return proceedings.” Id. at 1895. 11 III. The Parties’ Supplemental Briefs 12 Petitioner argues that Golan should not affect the outcome of this case, since 13 district courts are still permitted to consider ameliorative measures and the ameliorative 14 measure ordered by this Court meets the requirements outlined in Golan. (Doc. 107; 15 Doc. 107-1.) 16 Respondent argues that this Court should order a further evidentiary hearing on 17 grave risk and ameliorative measures. (Doc. 109.) Respondent argues that a further 18 evidentiary hearing is necessary for this Court to assess ameliorative measures under the 19 proper legal standard and for this Court to assess grave risk based on the current physical 20 and psychological safety of O.S.R. and M.S.R. (Id. at 7-8.) 21 IV. Discussion 22 The Court, in its discretion, finds that consideration of ameliorative measures is 23 appropriate in this case. The Court further finds that the ameliorative measure set forth in 24 its December 30, 2021 Order—namely, that Respondent return with O.S.R. and M.S.R. to 25 Germany—satisfies the requirements outlined in Golan. The Order complies with the 26 Convention’s requirement that courts act expeditiously in proceedings for the return of 27 children, and it avoids usurping the role of the German courts in adjudicating the parties’ 28 underlying custody dispute. Ordering Respondent to return to Germany with the children 1 is workable for the reasons discussed in the December 30, 2021 Order, and the Ninth 2 Circuit has held that a district court has discretion to order the relocation of an abducting 3 parent (or a responsible family member) if doing so “can help alleviate any grave risk of 4 harm from repatriation of the kids.” Radu v. Shon, 11 F.4th 1080, 1090 (9th Cir. 2021), 5 judgment vacated on other grounds by Shon v. Radu, __ S. Ct. __, 2022 WL 2295109 6 (2022). Finally, the ameliorative measure of requiring Respondent to return with the 7 children to Germany appropriately prioritizes the physical and psychological safety of 8 O.S.R. and M.S.R. The Court has already found that Respondent failed to show that 9 O.S.R. and M.S.R. would be at grave risk of physical harm if returned to Germany. 10 (Doc. 26 at 5.) The Court found that the children would be at grave risk of psychological 11 harm if returned to Germany in the sole custody of Petitioner (id.), but the Court has also 12 found that this is a borderline Article 13(b) case and that ordering Respondent to return 13 with the children to Germany, where Petitioner and Respondent currently have joint 14 custody rights, would ameliorate any risk of psychological harm to the children (Doc. 77 15 at 8). The Court notes that Petitioner’s testimony at the evidentiary hearings in this case 16 has been credible—more credible than Respondent’s—and that Petitioner has complied 17 with this Court’s Orders throughout these proceedings. 18 The Court finds that a further evidentiary hearing would only unnecessarily 19 prolong these proceedings, thereby violating the Convention’s requirement that this Court 20 act expeditiously. The Court’s grave-risk finding was based on evidence concerning 21 Petitioner’s treatment of O.S.R. and M.S.R. (Doc. 26 at 5.) Respondent has not provided 22 any indication that Petitioner has had any contact with O.S.R. and M.S.R. since the Court 23 made its grave-risk finding or that current circumstances would support a different 24 conclusion concerning Petitioner’s treatment of O.S.R. and M.S.R. In support of her 25 request for a further evidentiary hearing, Respondent cites to Blondin v. DuBois, a case in 26 which the Second Circuit Court of Appeals held that the fact that a child is settled in his 27 or her new environment may be considered as “part of a broader analysis of whether 28 repatriation will create a grave risk of harm” under Article 13(b). 238 F.3d 153, 164 (2d Cir. 2001), abrogated on other grounds by Golan, 142 S. Ct. 1880. But Blondin is not || binding precedent, and the Ninth Circuit Court of Appeals has held that “[t]he fact that a || child has grown accustomed to her new home is never a valid concern under the grave 4|| risk exception, as it is the abduction that causes the pangs of subsequent return.” Cuellar 5|| v. Joyce, 596 F.3d 505, 511 (9th Cir. 2010) (internal quotation marks omitted; emphasis || in original). 7 V. Petitioner’s Motion for Criminal Prosecution Referral 8 In his pro se Motion for Criminal Prosecution Referral, Petitioner asks that this Court refer Respondent, as well as her legal representative, attorneys, and family || members, for criminal prosecution regarding leaks of United States government data and 11 || the abduction of O.S.R. and M.S.R. (Doc. 101.) Respondent denies the factual allegations in Petitioner’s Motion and argues that there is no basis for the relief that 13 || Petitioner requests. (Doc. 108.) 14 Petitioner has failed to show that this Court has any authority to grant the relief 15 || requested in his pro se Motion and, therefore, the Motion will be denied. 16 IT IS ORDERED that Petitioner’s pro se Motion for Criminal Prosecution 17|| Referral (Doc. 101) is denied. 18 IT IS FURTHER ORDERED that the Petition (Doc. 1) is granted. Respondent || Persephone Johnson Shon shall return with minor children O.S.R. and M.S.R. to 20 || Germany within thirty (30) days of the date this Order is filed. The Clerk of Court is directed to enter judgment accordingly and close this case. 22 Dated this 19th day of August, 2022. 23 24 ff 25 {> Honorable Rosemary □□□□□□□ 27 United States District □□□□□ 28 _5-