Hugo Castellanos Monzon v. Ingrid De La Roca , 910 F.3d 92 ( 2018 )


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  •                                       PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ______________
    No. 16-2277
    ______________
    HUGO ARISTOTELES CASTELLANOS MONZON,
    Appellant
    v.
    INGRID FABIOLA DE LA ROCA
    _______________
    APPEAL FROM THE UNITED STATES
    DISTRICT COURT
    FOR THE DISTRICT OF NEW JERSEY
    (Case No. 3:16-cv-00058)
    District Judge: Hon. Freda L. Wolfson
    ______________
    Argued March 6, 2018
    ______________
    Before: McKEE, AMBRO, and RESTREPO, Circuit Judges.
    (Filed: December 7, 2018)
    John M. Boehler, Esq. [ARGUED]
    Rutgers Law Associates
    123 Washington Street
    Suite 203
    Newark, NJ 07102
    Counsel for Appellant
    Dorothy A. Hickok, Esq.
    Mark D. Taticchi, Esq. [ARGUED]
    Drinker Biddle & Reath
    One Logan Square
    Suite 2000
    Philadelphia, PA 19103
    James C. Jones, Esq.
    Drinker Biddle & Reath
    105 College Road East
    P.O. Box 627, Suite 300
    Princeton, NJ 08542
    Counsel for Appellee
    ______________
    OPINION OF THE COURT
    ______________
    McKEE, Circuit Judge.
    Hugo Castellanos Monzón1 appeals the District Court’s
    denial of the Petition he filed pursuant to the Hague
    Convention on the Civil Aspects of International Child
    Abduction (the “Convention”)2 and the International Child
    Abduction Remedies Act (“ICARA”),3 seeking the return of
    his minor child, H.C. Subject to certain exceptions, both the
    1
    Inasmuch as the transcripts establish that Appellant refers to
    himself simply as “Hugo Castellanos,” we will refer to him as
    “Castellanos.”
    2
    Oct. 25, 1980, T.I.A.S. No. 11670, 22514 U.N.T.S. 98
    [hereinafter Hague Convention].
    3
    Codified at 
    22 U.S.C. §§ 9001-9008
    , 9010-9011.
    2
    Convention4 and ICARA5 mandate the return of a child to the
    custodial parent when the other parent wrongfully removes or
    retains the child in violation of the requesting parent’s custody
    rights. For the reasons that follow, we will affirm.6
    I.
    A.     Factual Background
    Castellanos married Appellee De La Roca in 2004.
    Their son, H.C., was born in 2010. The couple separated
    shortly thereafter in November 2011, and formally divorced by
    mutual consent in January 2014.
    Castellanos and De La Roca have divergent narratives
    regarding their separation and divorce. De La Roca claims that
    violence was a factor. Although she did not raise that issue in
    the divorce proceedings,7 she now claims that she feared for
    her safety during the relationship. Responding to Castellanos’s
    Petition for H.C.’s return, she claimed that Castellanos verbally
    and physically threatened her by speeding and driving
    recklessly while she was pregnant and a passenger in his car.
    She also claimed that Castellanos attempted to visit H.C. more
    often than the couple had agreed to after their separation when
    she became H.C.’s primary guardian. According to De La
    Roca, this resulted in arguments between her and Castellanos.
    De La Roca claims that Castellanos showed up at her home late
    at night, approached her, threatened to kill himself, and
    4
    Article 1 of the Convention sets forth two primary
    objectives: “(a) to secure the prompt return of children
    wrongfully removed to or retained in any Contracting State;
    and (b) to ensure that rights of custody and of access under
    the law of one Contracting State are effectively respected in
    the other Contracting States.” Karpenko v. Leendertz, 
    619 F.3d 259
    , 263 (3d Cir. 2010) (quoting Hague Convention,
    supra note 2, at art. 1).
    5
    ICARA serves in the United States as the implementing
    statute for the Convention.
    6
    On August 30, 2018, we entered an order granting panel
    rehearing and vacating the order and nonprecedential opinion
    which we initially filed in this matter.
    7
    Monzon v. De La Roca, No. 16-0058, 
    2016 WL 1337261
    , at
    *2 (D.N.J. Apr. 5, 2016).
    3
    demanded H.C. Castellanos categorically denies all of De La
    Roca’s allegations of abuse.
    1. De La Roca’s New Relationship and Ties
    to the U.S.
    In the summer of 2013, after her separation from
    Castellanos, but before they divorced, De La Roca began a long
    distance relationship with her childhood acquaintance,
    “Deleon,” who resided in New Jersey. De La Roca testified
    that she obtained a visa for H.C. to travel to the United States
    with Castellanos’s consent, though she did not immediately
    bring H.C. to the U.S. Instead, she took several trips to visit
    Deleon by herself. However, she eventually traveled to New
    Jersey and married him in March of 2014. She did not tell
    Castellanos about the marriage.
    Shortly after marrying Deleon, De La Roca told
    Castellanos that she intended to bring H.C. to the United States
    to live; Castellanos refused to consent. In or around March of
    2014, De La Roca filed a domestic violence complaint against
    Castellanos in Guatemala and obtained a temporary restraining
    order. However, she failed to appear at the hearing to make the
    TRO permanent because she had already moved to New Jersey
    before the final hearing.
    In July of 2014, De La Roca took H.C. to the United
    States. She testified that she decided to ignore Castellanos’s
    denial of consent because she “could not explain to [her]
    aggressor that [she] was leaving.”8 A month after taking H.C.
    to New Jersey, she sent Castellanos a text message informing
    him she was there with H.C. She did not disclose their exact
    address “[o]ut of fear that he would come [to New Jersey] to
    do the same thing as in Guatemala.”9
    2. Castellanos’s   Efforts   to   Invoke   the
    Convention
    On August 23, 2014, Castellanos filed an Application
    for Return of the Child under the Convention with the Central
    8
    
    Id. at *4
    .
    9
    
    Id.
    4
    Authority in Guatemala.          The Guatemalan Authority
    forwarded that application to the United States Department of
    State. About 16 months later, on January 5, 2016, having
    discovered that the Convention required him to file where H.C.
    lived, Castellanos filed the instant Petition for Return of the
    Child (the “Petition”) in the District Court of New Jersey.
    B.     Legal Background
    1. The Hague Convention on Civil Aspects of
    International Child Abduction
    Article 1 of the Convention has two primary objectives:
    “(a) to secure the prompt return of children wrongfully
    removed to or retained in any Contracting State; and (b) to
    ensure that rights of custody and of access under the law of one
    Contracting State are effectively respected in the other
    Contracting States.”10 The Convention requires that the
    petitioner seeking return of the child bear the initial burden of
    showing that the child was habitually resident in a State
    signatory to the Convention and was wrongfully removed to a
    different State, as defined by Article 3.
    Where a court determines a child has been wrongfully
    removed, Article 12 of the Convention provides that the child
    is to be returned “forthwith,” as long as the proceedings have
    been “commenced” in the “judicial or administrative authority
    of the Contracting State where the child is” less than one year
    before the date of wrongful removal.11 But where the
    petitioner fails to commence the proceedings before the one-
    year deadline, s/he is no longer entitled to the child’s automatic
    return. Instead, a rebuttable presumption arises whereby the
    child’s return is subject to certain affirmative defenses,
    including demonstration that “the child is now settled in its
    new environment.”12
    The Convention sets out a total of five defenses to a
    Contracting State’s duty to return the child. The first is the one
    10
    Karpenko, 
    619 F.3d at 263
     (quoting Hague Convention,
    supra note 2, at art. 1).
    11
    Hague Convention, supra note 2, at art. 12.
    12
    Id.
    5
    just mentioned: where the child is well settled in his or her new
    environment.13 A second exception applies where the
    petitioner was not exercising custody rights at the time of the
    child’s wrongful removal or retention, or acquiesced in the
    removal or retention.14 A third exception applies where “there
    is a grave risk that [the child’s] return would expose the child
    to physical or psychological harm or otherwise place the child
    in an intolerable situation.”15 There is a fourth exception if the
    child objects to being returned and has “attained an age and
    degree of maturity at which it is appropriate to take account of
    [the child’s] views.”16 The fifth and final exception is where
    “[t]he return of the child . . . would not be permitted by the
    fundamental principles of the requested State relating to the
    protection of human rights and fundamental freedoms.”17
    Significantly, the Convention establishes neither the degree of
    certainty nor the burden of proof that a respondent must
    establish to defeat the petition and retain custody of the child
    pursuant to these affirmative defenses.18
    2. The International Child              Abduction
    Remedies Act (“ICARA”)
    Congress enacted ICARA to implement the
    Convention.19 Under ICARA, “the petitioner bears the initial
    burden of proving by a preponderance of the evidence that the
    child was . . . wrongfully removed.”20 “Once the petitioner
    13
    Id.
    14
    Id. at art. 13a.
    15
    Id. at art. 13b.
    16
    Id. at art. 13.
    17
    Id. art. 20. Only the first (well-settled defense) and the
    third (grave risk defense) of these listed defenses are relevant
    to this case since they were the only defenses De La Roca
    made in response to the Petition.
    18
    See infra Part III(A)(2) for a discussion of ICARA
    provision 
    22 U.S.C. § 9003
    (e)(2) and its explanation of
    burdens of proof for the exceptions.
    19
    See, e.g., Feder v. Evans-Feder, 
    63 F.3d 217
    , 221 (3d Cir.
    1995).
    20
    Karpenko, 
    619 F.3d at 263
    . In particular, a court must
    determine “(1) when the removal or retention took place; (2)
    the child’s habitual residence immediately prior to such
    6
    meets its initial burden, the respondent may oppose the child’s
    return by proving one of [the] five affirmative defenses” as
    listed under ICARA provision 
    22 U.S.C. § 9003
    (e)(2)(A) and
    (B).21 Section 9003(e)(2) provides:
    (e) Burdens of proof
    ...
    (2) In the case of an action for the return of a
    child, a respondent who opposes the return of
    the child has the burden of establishing—
    (A) by clear and convincing
    evidence that one of the exceptions
    set forth in article 13b or 20 of the
    Convention applies; and
    (B) by a preponderance of the
    evidence that any other exception
    set forth in article 12 or 13 of the
    Convention applies.22
    Congress specifically required that these affirmative
    defenses be “narrowly construed to effectuate the purposes of
    the Convention.”23 Moreover, because of the very important
    policy objectives of the Convention and ICARA, courts retain
    the discretion to order the child’s return. Thus, “even where a
    defense applies, the court has the discretion to order the child’s
    return.”24
    C. Procedural Background
    On January 5, 2016, Castellanos filed the Petition for
    the return of H.C. with the United States District Court of New
    Jersey. Thereafter, the District Court held two days of
    removal or retention; (3) whether the removal or retention
    breached the petitioner’s custody rights under the law of the
    child’s habitual residence; and (4) whether the petitioner was
    exercising his or her custody rights at the time of removal or
    retention.”
    21
    
    Id.
    22
    
    22 U.S.C. § 9003
    (e)(2) (emphasis added).
    23
    Tsai-Yi Yang v. Fu-Chiang Tsui, 
    499 F.3d 263
    , 271 (3d Cir.
    2007) (internal citations omitted).
    24
    
    Id.
    7
    hearings,25 which included the testimony of Castellanos, De La
    Roca, and two expert witnesses who testified on her behalf.26
    The first of those witnesses was Victoria Sanford, Ph.D., an
    expert on domestic violence against women and children in
    Guatemala. She testified about “the police structure and
    government of Guatemala City.”27 The second witness was
    Robert T. Latimer, M.D., a psychiatric expert who interviewed
    H.C. at the start of the court case.28
    After considering the evidence and the parties’ post-
    hearing submissions, the District Court entered judgment in
    favor of De La Roca, thereby refusing to return H.C. to
    Castellanos. However, the Court expressly declined to address
    De La Roca’s affirmative defense under Article 13b (H.C.’s
    return to Guatemala constitutes a “grave risk”).29 Instead, the
    Court concluded that De La Roca had successfully
    demonstrated by a preponderance of the evidence, that H.C.
    was well settled in the United States pursuant to ICARA,30 and
    25
    Monzon, 
    2016 WL 1337261
    , at *1. Here, the District Court
    expressly declined to exercise its discretion to order H.C.’s
    return because it found that De La Roca had credibly testified
    that H.C. had become “well settled” in the U.S. 
    Id. at *10
    (“Respondent has established by a preponderance of the
    evidence that H.C. is settled in the United States and . . . I will
    not exercise my discretion to order H.C.’s return.”); 
    Id. at *15
    (“Although the Court expressly declines to address the
    parties’ arguments concerning whether returning H.C. to
    Guatemala constitutes a ‘grave risk’ to H.C., nonetheless, in
    light of the testimony received from Dr. Sanders concerning
    how familial domestic violence is skewed unfairly against
    women by the culture and authorities in Guatemala, and
    Respondent’s testimony concerning her fear of Petitioner,
    both of which I find credible, I will not exercise my discretion
    to order the return of H.C. to Guatemala during the pendency
    of any future custody determinations.”).
    26
    
    Id. at *1
    .
    27
    
    Id. at *8
    .
    28
    
    Id. at *9
    .
    29
    
    Id. at *15
    .
    30
    
    Id. at *10, *13
    ; 
    22 U.S.C. § 9003
    (e)(2)(B) (corresponding
    to Hague Convention, supra note 2, at art. 12).
    8
    therefore decided not to exercise its independent authority to
    order H.C.’s return to Guatemala.
    II. DISCUSSION
    Castellanos makes three arguments on appeal. He
    argues that the District Court erred in not finding that the notice
    he filed with the Guatemalan Central Authority and the U.S.
    Department of State constituted a “proceeding” for purposes of
    Article 12 of the Convention, thereby entitling him to have
    H.C. returned pending resolution of the custody dispute.
    Castellanos also claims the District Court erred in interpreting
    De La Roca’s burden under ICARA.31 Finally, he claims the
    District Court erred in finding that H.C. was “well settled” in
    the United States, and thereby denying H.C.’s return to
    Guatemala.
    A.
    Castellanos contends the District Court should have
    considered the application he initially filed with the
    Guatemalan Central Authority and the U.S. Department of
    State as a “proceeding” under ICARA. He insists that by filing
    that notice when he first learned of H.C.’s removal, he acted
    “diligently” and “in accordance with the established methods
    of international communication between [U.S. and
    Guatemalan] Central Authorities.”32 He argues that he was
    “unable to overcome the language barrier, the lack of access to
    affordable legal representation, and certainty as to H.C.’s
    residence.”33 He therefore asserts that the resulting delay
    should not be attributed to him, and the “petition date” should
    therefore be the first of either a judicial filing or an application
    to the Central Authority, for purposes of the Convention.34
    ICARA defines “commencement of proceedings” as
    used in Article 12 of the Convention as “the filing of a petition
    in accordance with [§ 9003(b)].”35 Section 9003(b) provides,
    31
    Appellant’s Br. 9.
    32
    Id. at 22.
    33
    Id. at 22–23.
    34
    Id. at 23.
    35
    
    22 U.S.C. § 9003
    (f)(3).
    9
    in turn, that “[a]ny person seeking to initiate judicial
    proceedings under the Convention for the return of a child . . .
    may do so by commencing a civil action by filing a petition for
    the relief sought in any court which has jurisdiction of such
    action and which is authorized to exercise its jurisdiction in the
    place where the child is located at the time the petition is
    filed.”36 Accordingly, we cannot conclude that mere notice of
    one’s intent to have a child returned to the parent in a signatory
    state constitutes “commencement of proceedings” under
    Article 12.
    We realize that Castellanos tried to act diligently, and
    we are not unsympathetic to his efforts. Nevertheless, our
    inquiry into what constitutes a proper filing for these purposes
    is circumscribed by the language of ICARA and the
    Convention. We cannot ignore that language by extending it
    to include a document filed with either the Guatemalan Central
    Authority or the U.S. Department of State.37 If a parent pursues
    the remedies available for the return of his/her child under
    ICARA, Congress has clearly required that the parent do so by
    “filing a petition . . . in [a] court . . . where the child is
    located.”38
    As noted earlier, the timing of any such filing is crucial.
    When a child has been removed and “a period of less than one
    year has elapsed from the date of the wrongful removal or
    retention, the authority concerned shall order the return of the
    child forthwith.”39 Thus, at least one year must pass before a
    child can be considered sufficiently settled and no longer
    subject to automatic return to the other parent during the
    pendency of proceedings under the Convention and ICARA.
    “[I]f one year has elapsed since a child was wrongfully
    36
    
    Id.
     at § 9003(b) (emphasis added).
    37
    See Monzon, 
    2016 WL 1337261
    , at *11 (quoting 
    22 U.S.C. § 9003
    (b)) (“In this instance, Petitioner previously applied to
    Guatemala’s Central Authority for assistance in securing the
    return of H.C. However, that application was neither a
    substitute, nor a prerequisite, for commencing ‘proceedings
    before the judicial or administrative authority of the
    Contracting State where the child is.’”).
    38
    
    22 U.S.C. § 9003
    (b).
    39
    Hague Convention, supra note 2, at art. 12.
    10
    removed or retained when a petition is filed, a court must also
    determine whether the child is ‘settled in its new
    environment.’”40 Thus, “the ‘now settled’ exception only
    applies where the child has been in the destination state for
    more than one year from the date of the wrongful removal or
    retention.”41
    The delay in filing the Petition for H.C.’s return did not
    eliminate Castellanos’s remedies under the Convention,42 nor
    did it ensure De La Roca’s success in resisting the Petition for
    H.C.’s return. Here, the District Court correctly recognized its
    continuing independent authority to order H.C.’s return;
    however, it declined to exercise this authority. The Court
    stated, “I will not exercise my discretion to order the return of
    H.C. to Guatemala during the pendency of any future custody
    determinations.”43 Concomitantly, even if Castellanos had
    properly filed his petition in the New Jersey District Court
    within a year of H.C.’s removal, the District Court still could
    have exercised its discretion and denied H.C.’s return pursuant
    to the terms of the Convention.44 Therefore, although the one-
    year filing requirement is important, the late filing did not
    ultimately determine H.C.’s custody.45
    B.
    When proceedings for a petition for the return of a child
    begin more than one year after the child’s removal, the
    40
    Yang v. Tsui, 
    416 F.3d 199
    , 203 n.4 (3d Cir. 2005) (quoting
    Hague Convention, supra note 2, at art. 12).
    41
    Hofmann v. Sender, 
    716 F.3d 282
    , 295 (2d Cir. 2013)
    (holding that “[b]ecause one year had not elapsed between the
    wrongful retention of the children and the institution of these
    proceedings under the convention, the district court’s
    determination that the ‘now settled’ exception does not apply
    must be affirmed.”).
    42
    Lozano v. Montoya Alvarez, 
    572 U.S. 1
    , 14 (2014) (noting
    that “expiration of the 1–year period in Article 12 does not
    eliminate the remedy the Convention affords the left-behind
    parent—namely, the return of the child.”).
    43
    Monzon, 
    2016 WL 1337261
    , at *15.
    44
    See Hague Convention, supra note 2, at arts. 13, 20.
    45
    See id. at art. 12.
    11
    Convention requires that the court “shall order the return of the
    child,” subject to specific affirmative defenses set forth in §
    9003(e).46 The petitioner has the initial burden of proving by
    a preponderance of the evidence that the child was wrongfully
    removed, whereupon “the respondent may oppose the child’s
    return” by establishing the “affirmative defenses” or
    “exceptions” as listed under ICARA provision 
    22 U.S.C. § 9003
    (e)(2)(A) and (B).47
    In Tsai-Yi Yang, we explained the “four questions that
    must be answered in a wrongful removal or retention case” are
    as follows:
    [We] must determine (1) when the removal or
    retention took place; (2) the child’s habitual
    residence immediately prior to such removal or
    retention; (3) whether the removal or retention
    breached the petitioner’s custody rights under
    the law of the child's habitual residence; and (4)
    whether the petitioner was exercising his or her
    custody rights at the time of removal or
    retention.48
    De La Roca does not dispute the District Court’s conclusion
    that Castellanos established each of these four conditions for
    H.C.’s return under the Convention.49 Accordingly, De La
    Roca had to produce sufficient evidence to establish an
    46
    
    Id.
    47
    Karpenko, 
    619 F.3d at 263
    .
    48
    Tsai-Yi Yang, 499 F.3d at 270–71.
    49
    Specifically, the District Court held:
    Petitioner met his initial burden of presenting a
    prima facie case of wrongful removal and
    retention under the Convention, i.e., that (1) the
    removal took place on July 17, 2014; (2) H.C.’s
    habitual residence immediately prior to the
    removal was Guatemala; (3) Petitioner had
    custodial rights to H.C. at the time of H.C.’s
    removal from Guatemala; and, (4) Petitioner was
    exercising those custodial rights at the time of
    H.C.’s removal from Guatemala.
    Monzon, 
    2016 WL 1337261
    , at *10.
    12
    affirmative defense to Castellanos’s Petition pursuant to
    subsection (e)(2) of ICARA.
    Recall that § 9003(e)(2) provides as follows:
    (e) Burdens of proof
    ...
    (2) In . . . an action for the return of a child, a
    respondent who opposes the return of the
    child has the burden of establishing--
    (A) by clear and convincing evidence
    that one of the exceptions set forth
    in article 13b or 20 of the
    Convention applies; and
    (B) by a preponderance of the
    evidence that any other exception
    set forth in article 12 or 13 of the
    Convention applies.50
    Castellanos insists that the use of the conjunctive “and” means
    that De La Roca must establish both prongs of § 9003(e)(2) by
    the specified burden of proof before his Petition for H.C. could
    be denied.51 He asserts with some force that Congress could
    have simply used the word “or” if it had intended for
    respondents to successfully resist a petition for return of a child
    by establishing only one affirmative defense under §
    9003(e)(2).52
    De La Roca asserted two affirmative defenses to the
    Petition—that H.C. is well settled in the United States, and that
    returning him to Guatemala would present a grave risk. Under
    (e)(2)(A), a respondent must prove by clear and convincing
    evidence that (1) there is a grave risk that the child’s return
    would expose the child to physical or psychological harm;53 or
    50
    
    22 U.S.C. § 9003
    (e)(2) (emphasis added).
    51
    Appellant Br. 11.
    52
    
    Id. at 12
    ; see Brown v. Budget Rent-A-Car Sys., Inc., 
    119 F.3d 922
    , 924 (11th Cir. 1997) (per curiam) (quoting
    Quindlen v. Prudential Ins. Co. of Am., 
    482 F.2d 876
    , 878
    (5th Cir. 1973)) (As a “general rule, the use of a disjunctive in
    a statute indicates alternatives and requires that those
    alternatives be treated separately.”).
    53
    Hague Convention, supra note 2, at art. 13b.
    13
    (2) the return should not be permitted by the fundamental
    principles of the requested State relating to the protection of
    human rights and fundamental freedoms.54 ICARA requires
    that a respondent only establish by a preponderance of the
    evidence that (1) the child is now settled in its new
    environment;55 or (2) the petitioner was not exercising custody
    rights at the time of removal.56
    According to Castellanos, use of the conjunctive “and”
    requires a respondent under the Convention to establish
    defenses of either a grave risk or violation of fundamental
    principles and either that the child is now settled or that the
    petitioner was not exercising custody rights when the child was
    taken from the petitioner.57
    Castellanos thus claims that the District Court’s reading
    of ICARA ignored a “critical layer of protection” expressly
    embedded in the statutory scheme and undermined the
    overriding goals of ICARA and the Convention.58
    1. A Literal Reading of ICARA Produces an Absurd
    Result
    “[C]ourts must presume that a legislature says in a
    statute what it means and means in a statute what it says there.
    When the words of a statute are unambiguous, then this first
    canon [of statutory construction] is also the last: ‘judicial
    inquiry is complete.’”59 Only when a statute is ambiguous and
    includes disputed language “reasonably susceptible to different
    interpretations” should a court go beyond interpreting the text
    of a provision.60 Thus, Castellanos argues that the District
    Court here erred by prematurely ending its inquiry after
    54
    Id. at art. 20.
    55
    Id. at art. 12.
    56
    Id. at art. 13a.
    57
    Appellant Br. 13 (emphasis added).
    58
    Id. at 18.
    59
    Conn. Nat'l Bank v. Germain, 
    503 U.S. 249
    , 253–54 (1992)
    (quoting Rubin v. United States, 
    449 U.S. 424
    , 430 (1981)).
    60
    In re Phila. Newspapers, LLC, 
    599 F.3d 298
    , 304 (3d Cir.
    2010) (quoting Dobrek v. Phelan, 
    419 F.3d 259
    , 264 (3d Cir.
    2005)).
    14
    concluding that H.C. was well settled. According to him,
    “[t]he plain language of section 9003 (e)(2)(A) of ICARA
    requires that the respondent also prove, by clear and
    convincing evidence, that one of the exceptions set forth in
    article 13b or 20 of the Convention [also] applies.”61
    Castellanos’s conjunctive reading of § 9003(e)(2)
    appears, at first glance, to be correct. Congress’ use of the
    conjunctive certainly suggests that it intended to require
    respondents to present an affirmative defense under both §
    9003(e)(2)(A) and its counterpart, § 9003(e)(2)(B), by the
    prescribed burdens of proof. However, the result of that literal
    reading not only contradicts the underlying principles of the
    Convention and ICARA, it produces a patently absurd result.62
    “The plainness or ambiguity of statutory language is
    determined by reference to the language itself, the specific
    context in which that language is used, and the broader context
    of the statute as a whole.”63 Here, the broader context of the
    statute strongly suggests that the “and” in § 9003(e)(2) is
    misleading insofar as it means that Congress intended that both
    prongs need to be satisfied. “Statutory context can suggest the
    natural reading of a provision that in isolation might yield
    contestable interpretations.”64 Hence the Supreme Court’s
    reminder that “[s]tatutory construction . . . is a holistic
    endeavor.”65
    Logic dictates that the text of the Convention and its
    discussion of the affirmative defenses be interpreted as
    establishing that Congress intended them to apply
    61
    Appellant Br. 13 (citing 
    22 U.S.C.A. § 9003
    (e)(2)(A)).
    62
    See First Merchants Acceptance Corp. v. J.C. Bradford &
    Co., 
    198 F.3d 394
    , 403 (3d Cir. 1999) (“[O]nly absurd results
    and ‘the most extraordinary showing of contrary intentions’
    justify a limitation on the ‘plain meaning’ of . . . statutory
    language.”) (citing Garcia v. United States, 
    469 U.S. 70
    , 75
    (1984)).
    63
    Robinson v. Shell Oil Co., 
    519 U.S. 337
    , 341 (1997).
    64
    In re Price, 
    370 F.3d 362
    , 369 (3d Cir. 2004).
    65
    United Sav. Ass’n of Tex. v. Timbers of Inwood Forest
    Assocs., Ltd., 
    484 U.S. 365
    , 371 (1988).
    15
    individually.66 The State Department itself suggested in its
    (albeit pre-ICARA) legal analysis of the Convention that only
    one of the defenses need be shown. Its analysis stated: “a
    finding that one or more of the [affirmative defenses] provided
    by Articles 13 and 20 are applicable does not make refusal of
    a return order mandatory. The courts retain the discretion to
    order the child returned even if they consider that one or more
    of the [defenses] applies.”67
    Moreover, the Convention clearly establishes that
    certain defenses can defeat a demand for repatriation, and they
    can do so without any additional showing. Article 12 provides
    that the well-settled exception controls, even in the absence of
    other considerations that mitigate in favor of a petition for the
    return of the child.        It commands: “The judicial or
    administrative authority, even where the proceedings have
    been commenced after [the lapse of one year from the date of
    the child’s wrongful removal], shall also order the return of the
    child, unless it is demonstrated that the child is now settled in
    its new environment.”68 The Convention also includes what
    appears to be a standalone defense to a child’s repatriation in
    Article 20: “[t]he return of the child under the provisions of
    Article 12 may be refused if this would not be permitted by the
    fundamental principles of the requested State relating to the
    protection of human rights and fundamental freedoms.”69
    66
    See Appellee Br. 16.
    67
    Hague International Child Abduction Convention; Text and
    Legal Analysis, 51 FR 10494-01. While the State
    Department’s own understanding of the Convention is
    persuasive, it should be noted this particular analysis was not,
    in fact, contemporaneous with the passage of ICARA. The
    former was published in 1986, whereas the latter was codified
    in 1988. Note, this discretion applies despite the one-year
    provision.
    68
    Hague Convention, supra note 2, at art. 12 (emphasis
    added).
    69
    Id. at art. 20. In its public statement analyzing the
    Convention, the State Department offered what it
    characterized as its “best explanation” for Article 20’s
    “unique formulation”: that “the Convention might never have
    been adopted without it.” Hague International Child
    Abduction Convention; Text and Legal Analysis, 51 FR
    16
    Castellanos’s reading of § 9003(e)(2) would mean that
    even proof of an especially compelling defense could never, by
    itself, prevent a child’s return under the Convention.70 For
    example, even if it were proven by clear and convincing
    evidence the child faced a “grave risk . . . [of] physical or
    psychological harm”71 upon return, or that return of the child
    would violate “fundamental principles . . . of human rights,”72
    a court would be powerless to deny return unless it also found
    that the child was settled in its new residence.
    Our conclusion that the inclusion of “and” was not
    intended to suggest the conjunctive is not a cavalier attempt to
    reconcile inconsistences between ICARA and the Convention.
    Courts repeatedly resolve conflicts between treaties and Acts
    of Congress by the doctrine of implied repeal, with the latter in
    time prevailing; here, that is ICARA.73 Thus, although federal
    10494-01. The State Department specifically noted that the
    negotiating countries had been divided on the inclusion of
    Article 20, which it characterized as a “public policy
    exception in the Convention” allowing a court to excuse itself
    from returning a child “under some extreme circumstances
    not covered by the exceptions of Article 13.” Id.; see also
    Souratgar v. Lee, 
    720 F.3d 96
    , 108 (2d Cir. 2013) (“The
    defense is to be invoked only on the rare occasion that return
    of a child would utterly shock the conscience of the court or
    offend all notions of due process.”) (internal citations and
    quotations omitted).
    70
    See Griffin v Oceanic Contractors, Inc., 
    458 U.S. 564
    , 575
    (1982) (“[I]nterpretations of a statute which would produce
    absurd results are to be avoided if alternative interpretations
    consistent with the legislative purpose are available.”);
    Webster v. Reproductive Health Servs., 
    492 U.S. 490
    , 515
    (1989) (“Interpreting . . . literally would produce an absurd
    result, which the Legislature is strongly presumed not to have
    intended”) (internal citations and quotations omitted).
    71
    Hague Convention, supra note 2, at art. 13(b).
    72
    Id. at art. 20.
    73
    See Reid v. Covert, 
    354 U.S. 1
    , 18 (1957); United States v.
    Enger, 
    472 F. Supp. 490
    , 542 (D.N.J. 1978) (“[C]onflicts
    between [treaties and Acts of Congress] are resolved by the
    doctrine of implied repeal, with the later in time prevailing.”).
    17
    statutes and treaties are accorded the same weight, when a
    treaty conflicts with provisions of subsequently enacted
    legislation, the offending provisions of the treaty are deemed
    null and void.74
    The Supreme Court has explained that ICARA “does
    [not] purport to alter the Convention,” and “Congress’ mere
    enactment of implementing legislation did not somehow
    import background principles of American law into the treaty
    interpretation process, thereby altering our understanding of
    the treaty itself.”75 Moreover, Congress has declared that
    ICARA does not abrogate any of the remedies under the
    Convention.      Congress explained that “[t]he remedies
    established by the Convention and this chapter shall be in
    addition to remedies available under other laws or international
    agreements.”76 Accordingly, notwithstanding Congress’ use
    of the conjunctive “and” in relation to burdens of proof and
    affirmative defenses in drafting ICARA, logic and the
    fundamental principles underlying ICARA and the Convention
    preclude us from concluding that Congress thereby intended to
    alter the Convention in a way that would contradict
    fundamental principles of human rights. Therefore, we will not
    interpret ICARA in a manner that results in a statutory scheme
    that diverges from, and creates remedies inconsistent with,
    basic concepts of human rights, decency, and child welfare by
    adopting Castellanos’s reading of § 9003(e)(2).
    2. Precedent Supports a Disjunctive Reading of Section
    9003(e)(2)
    We have consistently allowed prevailing parties to
    demonstrate only one affirmative defense to petitions under the
    74
    Reid, 
    354 U.S. at 18
    .
    75
    Lozano, 572 U.S. at 13.
    76
    
    22 U.S.C. § 9003
    (h); see also § 9003(d) (“The court in
    which an action is brought [for a petition for return of the
    child] shall decide the case in accordance with the
    Convention.”).
    18
    Convention.77 We have pronounced, for example, that “[a]fter
    a petitioner demonstrates wrongful removal or retention, the
    burden shifts to the respondent to prove an affirmative defense
    against the return of the child to the country of habitual
    residence.”78
    Other circuit courts of appeals agree.79 For example, the
    77
    See, e.g., Tsai-Yi Yang, 499 F.3d at 278 (“[E]ven if the
    respondent meets his or her burden of proving the affirmative
    defense, the court retains the discretion to order the return of
    the child if it would further the aim of the Convention which
    is to provide for the return of a wrongfully removed child.”)
    (emphasis added) (internal quotations omitted); In re
    Application of Adan, 
    437 F.3d 381
    , 389 (3d Cir. 2006) (“A
    wrongful removal may nonetheless be justified if one of the
    following exceptions applies . . . .”) (emphasis added); Baxter
    v. Baxter, 
    423 F.3d 363
    , 368 (3d Cir. 2005) (“If the court
    finds wrongful removal or retention, the burden shifts to the
    respondent to prove an affirmative defense to the return of the
    child to the country of habitual residence under article 13 of
    the Convention. The respondent must prove the defense of
    consent or acquiescence to the removal or retention by a
    preponderance of the evidence, or the defense of a grave risk
    of harm by clear and convincing evidence.”) (emphases
    added).
    78
    Karkkainen v. Kovalchuk, 
    445 F.3d 280
    , 288 (3d Cir. 2006)
    (emphasis added).
    79
    See, e.g., Rydder v. Rydder, 
    49 F.3d 369
    , 372 (8th Cir.
    1995) (noting that a respondent who opposes a child’s return
    “may advance any of the affirmative defenses to return listed
    in Articles 12, 13, or 20 of the Hague Convention.”)
    (emphasis added); Miller v. Miller, 
    240 F.3d 392
    , 402 (4th
    Cir. 2001) (“In fact, the courts retain the discretion to order
    return even if one of the exceptions is proven.”) (emphasis
    added; internal citations omitted); Ohlander v. Larson, 
    114 F.3d 1531
    , 1534 (10th Cir. 1997) (the Hague Convention
    “provides for several exceptions to return if the person
    opposing return can show any” of the listed exceptions)
    (internal quotation marks and citations omitted; emphasis
    added); Friedrich v. Friedrich, 
    78 F.3d 1060
    , 1067 (6th Cir.
    1996) (“Once a plaintiff establishes that removal was
    19
    Court of Appeals for the Second Circuit has held that if a
    petitioner has established a prima facie case under the
    Convention, the child must be returned to his or her place of
    habitual residence unless the respondent can establish one of
    four narrow defenses.80 It elaborated:
    Two [defenses] may be established only by
    “clear and convincing evidence” —either that
    “there is a grave risk that [the child's] return
    would expose the child to physical or
    psychological harm or otherwise place the child
    in an intolerable situation,” pursuant to Article
    13(b) of the Convention, or that return of the
    child “would not be permitted by the
    fundamental principles . . . relating to the
    protection of human rights and fundamental
    freedoms,” pursuant to Article 20. In contrast,
    the other two exceptions to the presumption of
    repatriation need only be established by a
    preponderance of the evidence—either that
    judicial proceedings were not commenced within
    one year of the child’s abduction and the child is
    well-settled in the new environment, pursuant to
    Article 12 of the Convention, or that the plaintiff
    was not actually exercising custody rights at the
    time of the removal, pursuant to Article 13(a) of
    the Convention.81
    Accordingly, the District Court for the Southern District
    of New York, in Lozano, denied a petition for return of a five
    year-old child upon a finding that the respondent demonstrated
    that the child had become settled in her new environment.82
    Not only did the court deny the petition based solely on a
    finding of only one affirmative defense, the court also
    specifically ruled that the respondent had not established either
    of the other three affirmative defenses.83 Thus, one defense
    wrongful, the child must be returned unless the defendant can
    establish one of four defenses.”) (emphasis added).
    80
    Blondin v. Dubois, 
    189 F.3d 240
    , 245 (2d Cir. 1999).
    81
    
    Id.
     (internal citations omitted).
    82
    In re Lozano, 
    809 F.Supp.2d 197
    , 235 (S.D.N.Y. 2011).
    83
    
    Id.
    20
    was sufficient.
    That decision was affirmed by the Court of Appeals for
    the Second Circuit,84 and thereafter the Supreme Court upheld
    the district court’s refusal to return the child based solely on
    the “now settled” exception and a finding that equitable tolling
    of the one-year period was not available.85
    V.
    Castellanos also complains that De La Roca did not
    actually offer sufficient evidence to prove that H.C. was well
    settled in the United States.86 We review a district court’s
    factual findings for clear error.87 Contrary to Castellanos’s
    claim, the District Court undertook an exceedingly thorough,
    careful, and thoughtful analysis of the evidence and the various
    factors that pertain to how well a child is settled in a
    community and home.88 We are satisfied that this record
    Respondent has failed to establish that sending
    the child back to the United Kingdom for a
    custody determination would expose the child to
    a grave risk of harm or place her in an intolerable
    situation.     However,       Respondent        has
    demonstrated that at the time the Petition was
    filed, the child had been in New York for more
    than a year and has become settled in her new
    environment.
    
    Id.
    84
    Lozano v. Alvarez, 
    697 F.3d 41
    , 59 (2d Cir. 2012).
    85
    Lozano, 572 U.S. at 8, 18; see also id. at 19 (Alito, J.,
    concurring) (“This is why Article 12 requires return
    ‘forthwith’ if the petition for return is brought within a year of
    abduction, unless one of the narrow exceptions set forth in
    Article 13 or 20 applies.”) (emphasis added).
    86
    Appellant Br. 8.
    87
    See Ragan v. Tri-County Excavating, Inc., 
    62 F.3d 501
    , 506
    (3d Cir. 1995).
    88
    See Monzon, 
    2016 WL 1337261
    , at *11–15.
    A survey of case law reveals that the factors
    courts typically consider in making this
    21
    supports the District Court’s finding that H.C. is well settled in
    his new environment.89 There was no error in reaching that
    conclusion, let alone any clear error in doing so.90
    VI.
    For the foregoing reasons, we will affirm the judgment
    of the District Court.
    determination include: (1) the age of the child;
    (2) the stability of the child’s new residence; (3)
    whether the child attends school or daycare
    consistently; (4) whether the child attends church
    regularly; (5) the stability of the parent’s
    employment or other means of support; (6)
    whether the child has friends and relatives in the
    area; (7) to what extent the child has maintained
    ties to the country of habitual residence; (8) the
    level of parental involvement in the child’s life .
    ...
    
    Id. at *12
    . “Here, the Court finds that . . . Factors One, Two,
    Three, Four, Five, Six, and Eight weigh in favor of finding
    that H.C. is settled in the United States . . . .” 
    Id. at *13
    .
    89
    See 
    id. at *15
    ; see also Werner Machine Co. v. Manning,
    
    129 F.2d 105
    , 105 (3d Cir. 1942) (holding that judgment
    should be affirmed where a district court’s judgment is
    supported by its findings of fact).
    90
    Although we mention this argument, we note that
    Castellanos has actually waived it because he failed to
    develop this argument beyond two sentences in the
    “Summary of Argument” section of his brief. See Laborers’
    Int’l Union of N. Am., AFL–CIO v. Foster Wheeler Corp., 
    26 F.3d 375
    , 398 (3d Cir. 1994) (“An issue is waived unless a
    party raises it . . . and . . . a passing reference to an issue …
    will not suffice to bring that issue before this court.”) (internal
    citations omitted).
    22
    

Document Info

Docket Number: 16-2277

Citation Numbers: 910 F.3d 92

Judges: McKee, Ambro, Restrepo

Filed Date: 12/7/2018

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (23)

Henry G. Baxter v. Jody Amanda Baxter , 423 F.3d 363 ( 2005 )

in-re-michael-b-price-christine-r-price-debtors-michael-b-price , 370 F.3d 362 ( 2004 )

thomas-l-dobrek-v-donald-f-phelan-individually-for-damages-and-in-his , 419 F.3d 259 ( 2005 )

Karin Sofia Ohlander, in the Matter of Julia Larson, a ... , 114 F.3d 1531 ( 1997 )

United Sav. Assn. of Tex. v. Timbers of Inwood Forest ... , 108 S. Ct. 626 ( 1988 )

Webster v. Reproductive Health Services , 109 S. Ct. 3040 ( 1989 )

Edward M. Feder v. Melissa Ann Evans-Feder , 63 F.3d 217 ( 1995 )

Bjorn Michael Rydder v. Susan Marie Rydder , 49 F.3d 369 ( 1995 )

Tsai-Yi Yang v. Fu-Chiang Tsui , 416 F.3d 199 ( 2005 )

Mrs. Frances E. Quindlen v. The Prudential Insurance ... , 482 F.2d 876 ( 1973 )

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Brown v. Budget Rent-A-Car Systems, Inc. , 119 F.3d 922 ( 1997 )

Emanuel Friedrich v. Jeana Michele Friedrich, David Harper ... , 78 F.3d 1060 ( 1996 )

United States v. Enger , 472 F. Supp. 490 ( 1978 )

In Re Philadelphia Newspapers, LLC , 599 F.3d 298 ( 2010 )

Felix Blondin v. Marthe Dubois , 189 F.3d 240 ( 1999 )

Doris Miller v. William Miller , 240 F.3d 392 ( 2001 )

In Re: Application of Ariel Adan Elena Esther Avans , 437 F.3d 381 ( 2006 )

Milla Karkkainen v. Vladimir Ivanovich Kovalchuk Julie L. D'... , 445 F.3d 280 ( 2006 )

Robinson v. Shell Oil Co. , 117 S. Ct. 843 ( 1997 )

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