Cuellar v. Joyce ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEYDA SANTALIBRADA CUELLAR,  No. 09-35068
Petitioner-Appellant,
v.  D.C. No.
2:08-cv-00084-RFC
RICHARD CECIL JOYCE,
OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, Chief District Judge, Presiding
Argued and Submitted
November 4, 2009—Portland, Oregon
Submission Vacated November 5, 2009
Resubmitted and Filed February 19, 2010
Before: Alex Kozinski, Chief Judge, Raymond C. Fisher and
Richard A. Paez, Circuit Judges.
Opinion by Chief Judge Kozinski
3083
3086 CUELLAR v. JOYCE
COUNSEL
Kevin M. Ashby and Robert R. Miller, Milbank, Tweed, Had-
ley & McCloy LLP, New York, New York; and Michael
Anderson, Anderson & Liechty, P.C., Billings, Montana, for
the petitioner-appellant.
Ronald F. Waterman and Sarah M. Power, Gough, Shanahan,
Johnson & Waterman, PLLP, Helena Montana, for the
respondent-appellee.
OPINION
KOZINSKI, Chief Judge:
Petitioner seeks the return of her daughter to Panama under
the Hague Convention on the Civil Aspects of International
Child Abduction. The father opposes return; he claims that the
mother is neglectful and very poor, that the child has grown
used to living in America and that the child’s medical needs
cannot be addressed in Panama.
CUELLAR v. JOYCE 3087
I
Richard Joyce built a sailboat and sailed it to Panama,
where he met Leyda Cuellar. He’s a college professor; she
was an exotic dancer. They married in Panama, where she
eventually gave birth to a baby girl whom we call K.C. Leyda
lives in Neuva Livia, a neighborhood that Richard describes
as “slum-like,” “beyond the end of the road” and “very dan-
gerous,” although Leyda points out that Richard never com-
plained when they were dating.
When K.C. was nineteen months old, Richard arranged for
Leyda and K.C. to meet him in Australia. At the Sydney air-
port, Richard separated himself and K.C. from Leyda and
flew to the United States, leaving Leyda behind without her
passport. Leyda tracked Richard down in Montana, where he
currently lives with K.C., and petitioned the district court
there for K.C.’s return. The district court denied relief and
Leyda appeals.
II
[1] The Hague Convention seeks to deter parents from
abducting their children across national borders by limiting
the main incentive for international abduction—the forum
shopping of custody disputes. See Mozes v. Mozes, 239 F.3d
1067, 1070 (9th Cir. 2001). A court that receives a petition
under the Hague Convention may not resolve the question of
who, as between the parents, is best suited to have custody of
the child. See id. With a few narrow exceptions, the court
must return the abducted child to its country of habitual resi-
dence so that the courts of that country can determine cus-
tody.
[2] This policy of deterrence gives way to concern for the
welfare of the child only in extreme cases. Article 13(b) of the
treaty provides that return need not be ordered where “there
is a grave risk that . . . return would expose the child to physi-
3088 CUELLAR v. JOYCE
cal or psychological harm or otherwise place the child in an
intolerable situation.” So as not to impair the Convention’s
general policy, this exception is “narrowly drawn,” Asvesta v.
Petroutsas, 580 F.3d 1000, 1020 (9th Cir. 2009) (quoting In
re Adan, 437 F.3d 381, 395 (3d Cir. 2006)), and all facts sup-
porting the exception must be established by clear and con-
vincing evidence. 42 U.S.C. § 11603(e)(2)(A). The exception
“is not license for a court in the abducted-to country to specu-
late on where the child would be happiest.” Gaudin v. Remis,
415 F.3d 1028, 1035 (9th Cir. 2005) (quoting Friedrich v.
Friedrich, 78 F.3d 1060, 1068 (6th Cir. 1996)).
The district court found that “K.C. was a habitual resident
of Panama and the removal or retention of K.C. did breach the
rights of custody attributed to [Leyda]. Additionally, [Leyda]
was exercising her custody rights at the time of the removal
or retention.” The district court also assumed (but did not
find) that Leyda did not consent to removal. It nevertheless
withheld relief under this grave risk exception. The court cited
Leyda’s living conditions in Panama, K.C.’s medical needs
and K.C.’s psychological attachment to the United States and
her father. We review the district court’s factual findings for
clear error, but determine de novo whether those facts estab-
lish a grave risk of harm. See Mozes, 239 F.3d at 1073; Silver-
man v. Silverman, 338 F.3d 886, 896 (8th Cir. 2003).
[3] A. Living Conditions. The district court credited Rich-
ard’s testimony about the home where Leyda lived with K.C.:
that the home “has no indoor running water”; that “residents
in this area use a nearby creek and outhouse for waste dispos-
al”; and that the home “has no climate control, no refrigera-
tion, and very little furniture.” Accepting all this as true, as
the district court seems to have, it comes nowhere close to
establishing a grave risk of harm if K.C. were returned to Pan-
ama to live with her mother. Billions of people live in circum-
stances similar to those described by Richard. If that
amounted to a grave risk of harm, parents in more developed
countries would have unchecked power to abduct children
CUELLAR v. JOYCE 3089
from countries with a lower standard of living. At the time the
Convention was adopted, the State Department took care to
emphasize that grave risk doesn’t “encompass . . . a home
where money is in short supply, or where educational or other
opportunities are more limited.” 51 Fed. Reg. 10494, 10510
(1986); see also Baxter v. Baxter, 423 F.3d 363, 365-66, 373
(3d Cir. 2005).
[4] The district court acknowledged that poverty is not a
reason to deny relief. However, it expressed additional “con-
cerns about whether K.C. was properly nourished during the
time she lived in Panama.” The district court made no finding
that K.C. was malnourished or that her diet in Panama had
imperiled her health. Nor was there evidence that could have
supported such a finding. Richard testified that K.C.’s “diet
was poor, so she was kind of small and thin,” and the district
court noted that a professor of early childhood education cal-
led by Richard “did express concern that perhaps K.C. was
malnourished.” (emphasis added) This plainly does not
amount to clear and convincing evidence of a grave risk of
harm, and the district court erred by denying relief on that
basis.
The district court also denied relief based on its conclusion
that “K.C. suffered a serious head injury that was easily pre-
ventable” while in her mother’s care. The district court
appears to have credited Richard’s testimony on this matter,
which it recounted as follows:
K.C. was playing in a wheeled walker on a concrete
construction platform which had no guardrails and
she fell seven feet off the ground to a concrete plat-
form, landing on her head. K.C. was unconscious
from the fall and was taken to a health care facility
where an x-ray was taken.
The district court also relied on Richard’s testimony that K.C.
was sometimes cared for by a sick relative, had frequent ear
3090 CUELLAR v. JOYCE
infections and had unexplained burns behind her earlobes.
Based on this testimony, the district court concluded that
Leyda was so neglectful that to return K.C. to her custody
would be “unsafe.”
[5] By drawing this conclusion about Leyda’s fitness as a
parent, the district court overstepped its mandate and imper-
missibly addressed the ultimate question of custody. Well-
cared-for children do occasionally have accidents, and leaving
a child with a sick relative may or may not be neglectful,
depending on the circumstances. Richard’s feeble showing—
even if believed verbatim, as the district court seems to have
done—falls far short of clear and convincing evidence of “se-
rious abuse” that is “a great deal more than minimal.” Gaudin,
415 F.3d at 1035 (citations and internal quotation marks omit-
ted). Indeed, troubling as K.C.’s fall may be, she was subse-
quently given medical treatment, including an x-ray. It was
not the district court’s prerogative to determine whether Rich-
ard or Leyda was the better parent.
Richard tries to fashion an exception to this rule where the
abducting parent believes the legal system in the country of
habitual residence is too corrupt to fairly decide the issue of
custody. Richard testified:
I believe that if [K.C.] goes back to Panama, she’ll
be lost the moment she gets off the plane. Neuva
Livia is outside the bounds of what we consider a
civilization, and that will just be it. I can’t show up
down there in some local court in Neuva Livia as the
gringo and argue anything. I don’t believe I’ll ever
see her again.
It’s unsurprising that Richard thinks he’ll get a better shake in
the courts of his home country; parents who abduct their chil-
dren across international boundaries are generally driven by
the same hope. But the animating idea behind the Hague Con-
vention is to eliminate “any tactical advantages gained by
CUELLAR v. JOYCE 3091
absconding with a child.” Holder v. Holder, 392 F.3d 1009,
1013 (9th Cir. 2004). The time to take such considerations
into account is before undertaking the volitional acts that lead
to conception. Once the child is born, the remote parent must
accept the country where the child is habitually resident and
its legal system as given. Absent a showing of grave risk, or
that one of the Convention’s other narrowly-drawn exceptions
applies, whatever case the remote parent may have for cus-
tody must be made there.
[6] At least one court has held that a petitioner may defeat
removal by showing that courts “in the country of habitual
residence, for whatever reason, may be incapable or unwilling
to give the child adequate protection” from a severely abusive
or neglectful parent. Friedrich, 78 F.3d at 1069. This state-
ment is in some tension with the theory of the Hague Conven-
tion and our holding that the grave risk inquiry focuses only
on “the period necessary to obtain a custody determination.”
Gaudin, 415 F.3d at 1037. But we need not dwell on the ques-
tion of whether to adopt the Sixth Circuit’s rule as our own
because the evidence presented by Richard comes nowhere
close to raising the issue. Richard’s speculative and unsub-
stantiated concern about the fairness of Panama’s courts falls
woefully short of the showing required by the Sixth Circuit in
Friedrich.
[7] B. Medical Concerns. The district court concluded
that K.C. exhibits “ataxia,” which is a lack of coordination
that may be symptomatic of a number of underlying neurolog-
ical conditions. See Mayo Clinic, Ataxia, http://
www.mayoclinic.com/health/ataxia/DS00910 (last visited
Feb. 16, 2010). The district court based this finding on Rich-
ard’s testimony regarding a diagnosis by an unidentified phy-
sician, testimony by a professor of early childhood education
whose primary area of study is “intergenerational patterns of
intimacy and autonomy” and a written statement by Richard’s
sister (a registered nurse) prepared a full year after she exam-
ined K.C. The professor didn’t claim to be qualified to give
3092 CUELLAR v. JOYCE
a medical opinion, and Richard’s self-serving testimony about
actual medical doctors was vague and unsubstantiated. Even
assuming the sister’s report wasn’t hearsay, its probative
value was limited given the sister’s likely bias, the lack of
cross-examination, the time elapsed between the sister’s
observations and her report, and the fact that she’s not a doc-
tor. None of this amounted to clear and convincing evidence
of a medical condition. The district court clearly erred in find-
ing that it did.
[8] Even if the record did support a conclusion that K.C.
exhibits ataxia, there’s still no basis to conclude that returning
her to Panama would pose a grave risk of harm. The evidence
didn’t show that K.C. was undergoing a regular course of
treatment in the United States; Richard testified that he didn’t
even have an appointment for K.C. to see a doctor. Although
Richard testified that Panama lacks the medical services that
K.C. needs, nothing he said indicates that he is knowledgeable
about the limits of the Panamanian health system. To the con-
trary, he admitted on cross-examination that he didn’t know
what care doctors in Panama could provide. The district
court’s finding that “Panama has doctors but they will not
have the specialized treatment and therapy that K.C. needs”
is unsupported by the record.
A parent may be able to defeat or delay return by showing
that it would disrupt an ongoing course of medical treatment
and severely impact the child’s health. But the parent would
have to provide clear and convincing evidence both of the
child’s serious medical needs and of the home country’s
inability to provide the necessary care. That evidence was
entirely lacking here.
[9] C. Psychological Harm. The district court also denied
relief based on K.C.’s attachment to the United States and her
father, and the psychological harm that would result if she
were to return to Panama. This was a very serious error. The
fact that a child has grown accustomed to her new home is
CUELLAR v. JOYCE 3093
never a valid concern under the grave risk exception, as “it is
the abduction that causes the pangs of subsequent return.”
Friedrich, 78 F.3d at 1068; see also Asvesta, 580 F.3d at
1020-21; England v. England, 234 F.3d 268, 271-72 (5th Cir.
2000). Rather than allowing an abducting parent to profit
from the psychological dislocation that he has caused, the
Convention attempts to avoid the harm by deterring parents
from abducting their children in the first place.
***
There’s nothing special about this case; it falls squarely
within the heartland of the Hague Convention. Richard has
provided absolutely no evidence that should have delayed
K.C.’s return to her habitual residence in Panama. Indeed, the
delay in this case can only have exacerbated the harm caused
by K.C.’s abduction. The Hague Convention does not allow
abducting parents to resort to courts in their home country in
order to thwart return of the child to its habitual residence.
District courts considering Hague Convention cases are cau-
tioned not to allow abducting parents to manipulate judicial
process for purpose of delay, as Richard obviously has here.
[10] We reverse the district court’s determination that K.C.
would suffer a grave risk of harm if returned to Panama. Rich-
ard’s request for judicial notice is denied, as the materials
contained therein are not relevant to the disposition of this
appeal.
Although the parties presented evidence on the question of
whether Leyda consented to K.C.’s removal to the United
States, the district court assumed, without deciding, that
Leyda did not consent. Because a finding of consent would
defeat Leyda’s petition, we would normally remand for a
determination of that issue. In this case, however, a remand
would be pointless. The only evidence of consent that Richard
presented was the fact that Leyda allowed herself to be sepa-
rated from Richard and K.C. at the airport in Sydney. This is
3094 CUELLAR v. JOYCE
plainly insufficient. Being victim of a successful abduction
can never prove consent. Even ambiguous statements or
actions don’t suffice; the Convention requires the parent
opposing removal to “unequivocally demonstrate that [the
petitioning parent] consented to the child’s indefinite stay in
[America].” Asvesta, 580 F.3d at 1019. There’s no such evi-
dence here; in fact, Leyda’s email to Richard shortly after the
abduction, imploring him to “give me back my baby” and
stating that “I’m going to die if you don’t return her,” pro-
vides strong evidence to the contrary. A remand for findings
as to consent would achieve only unnecessary delay, as the
record would not support a finding that Leyda consented.
[11] We order Richard to transfer custody of K.C. to
Leyda by 1:00 p.m. MST on the third business day following
the issuance of this opinion. Within 10 days of receiving cus-
tody, Leyda shall return to Panama with K.C.; Leyda may
request a limited extension upon a convincing showing of
good cause. The district court shall provide Leyda with all of
K.C.’s travel documents and take all steps necessary to ensure
that Richard complies with this order, including, if necessary,
ordering intervention of the United States Marshals Service.
REVERSED.
The mandate shall issue at once. Fed. R. App. P. 2.