Seth Colchester v. Jewel Lazaro ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SETH BASIL COLCHESTER, No. 21-35210
Petitioner-Appellee,
D.C. No.
v. 2:20-cv-1571-
JCC
JEWEL LAZARO,
Respondent-Appellant. OPINION
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Argued and Submitted August 31, 2021
Seattle, Washington
Filed October 22, 2021
Before: A. Wallace Tashima and Ronald M. Gould, Circuit
Judges, and Jed S. Rakoff, * District Judge.
Opinion by Judge Rakoff
*
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
2 COLCHESTER V. LAZARO
SUMMARY **
Hague Convention
The panel (1) vacated the district court’s order, after a
bench trial, granting a petition for the return of a child under
the Hague Convention on the Civil Aspects of International
Child Abduction and (2) remanded for appointment of a
psychologist and a new trial.
The child’s father sought the return of the child to Spain.
The mother argued that returning the child to her father, who
she alleged had abused both her and her baby, would present
a grave risk of psychological or physical harm to the child,
and a defense under Article 13(b) of the Convention
therefore applied.
The panel held that neither the Hague Convention nor its
implementing legislation, the International Child Abduction
Remedies Act, provides for appointment of a psychologist
as of right. Nonetheless, the district court erred in refusing
the mother’s request for appointment of a forensic
psychologist to examine the child and provide an expert
opinion regarding the mother’s allegations of abuse and the
psychological harm to the child arising therefrom. The panel
concluded that the district court’s refusal to permit the
requested examination amounted to an abuse of discretion
that rendered the subsequent bench trial fundamentally
unfair.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
COLCHESTER V. LAZARO 3
The panel held that the district court also erred by failing
to make findings of fact adequate to support its order
returning the child to Spain under Fed. R. App. P. 52(a).
COUNSEL
Aaron P. Brecher (argued), John W. Wolfe, and Melanie
Phillips, Orrick Herrington & Sutcliffe LLP, Seattle,
Washington, for Respondent-Appellant.
Caleb O. Bonm (argued), William J. Bender, and Peter
Offenbecher, Skellenger Bender P.S., Seattle, Washington,
for Petitioner-Appellee.
William D. Dalsen, Proskauer Rose LLP, Boston,
Massachusetts; Margaret A. Dale and Lucy Wolf, Proskauer
Rose LLP, New York, New York; for Amici Curiae
Sanctuary for Families, Legal Momentum, Women’s Legal
Defense and Education Fund, Family Violence Appellate
Project, Joan S. Meier, Lawyers Committee Against
Domestic Violence, Legal Voice, Merle H. Weiner, Sexual
Violence Law Center, and Washington State Coalition
Against Domestic Violence.
Angela Vigil, Baker & McKenzie LLP, Miami, Florida;
David Zaslowsky, Nicole Ford, Debra Dandeneau, and
Kirsten Jackson, Baker & McKenzie LLP, New York, New
York; for Amici Curiae National Association of Social
Workers, Pamela Krasner, Dr. Stephanie Brandt, Dr. Marie
Rudden, Professor Evan Stark, and Professor Jeffrey L.
Edleson.
4 COLCHESTER V. LAZARO
OPINION
RAKOFF, District Judge:
This case concerns the balance between expeditiously
adjudicating a petition for return of an abducted child under
the Hague Convention on the Civil Aspects of International
Child Abduction (“the Convention”) and thoroughly
assessing allegations of domestic violence to determine
whether return would subject that child to a grave risk of
physical or psychological harm.
Here, the district court erred in two ways. First, it ordered
a six-year-old child returned to her father in Spain without
permitting the respondent mother to develop the evidence
necessary to mount her defense. In particular, she argued that
returning the child to her father, who she alleged had abused
both her and her baby, would present a grave risk of
psychological or physical harm to the child. She therefore
asked the court to appoint a forensic psychologist to examine
the child in depth and provide an expert opinion, which, she
believed, would confirm her contested allegations of abuse
as well as the psychological harm to the child arising
therefrom. But the district court summarily denied the
application. While neither the Convention nor its
implementing legislation, the International Child Abduction
Remedies Act (“ICARA”), provides for appointment of a
psychologist as of right, and this Court establishes no such
blanket rule, here, for reasons detailed below, the district
court’s refusal to permit the requested examination
amounted to an abuse of discretion that rendered the
subsequent bench trial fundamentally unfair.
Second, and independently, the district court erred by
failing to make findings of fact adequate to support its order
returning the child to Spain. The only findings of fact
COLCHESTER V. LAZARO 5
supporting the post-trial return order were those portions of
the petitioner’s proposed findings of fact that the district
court simply adopted by reference. But the petitioner’s
proposed findings were entirely conclusory and failed to
engage with any of the evidence or testimony adduced at
trial. Federal Rule of Civil Procedure 52 demands more.
Accordingly, we vacate the order below and remand this
matter to the district court for appointment of a psychologist
and a new trial.
BACKGROUND
I. Legal Framework
“The Hague Convention is a multilateral international
treaty on parental kidnapping” that “seeks to deter parental
abductions.” Holder v. Holder, 305 F.3d 854, 859–60 (9th
Cir. 2002) (Holder I). 1 The objects of the Convention are to
“secure the prompt return of children wrongfully removed or
retained in any Contracting State,” Hague Convention,
Oct. 25, 1980, art. 1., 19 I.L.M. 1501, 1501, and to ensure
that parents cannot gain “tactical advantages” in child
custody proceedings “by absconding with a child to a more
favorable forum” or by otherwise undermining custody
decrees entered in the country of the child’s habitual
residence, Holder v. Holder, 392 F.3d 1009, 1013 (9th Cir.
2004) (Holder II). “The Convention’s focus is thus whether
a child should be returned to a country for custody
proceedings and not what the outcome of those proceedings
should be.” Id.; see also Convention, art. 19, 19 I.L.M. at
1
Unless otherwise specified, all internal quotation marks, citations,
emphases, elisions, and alterations are omitted from all sources cited
herein.
6 COLCHESTER V. LAZARO
1503 (“A decision under this Convention concerning the
return of the child shall not be taken to be a determination on
the merits of any custody issue.”).
The United States is a party to the Convention, and
Congress has implemented it domestically by enacting
ICARA, 22 U.S.C. § 9001 et seq. ICARA grants federal
district courts concurrent jurisdiction with state courts over
petitions arising under the Convention that seek return of
children wrongfully removed or retained. Id. § 9003(a). We
have jurisdiction over appeals from ICARA proceedings
under 28 U.S.C. § 1291. Flores Castro v. Hernandez
Renteria, 971 F.3d 882, 886 (9th Cir. 2020).
“[T]he Convention’s central operating feature is the
return remedy.” Abbott v. Abbott, 560 U.S. 1, 9 (2010).
Contracting states commit to “use the most expeditious
procedures available” to decide petitions arising under the
Convention, with decisions generally expected within six
weeks from the date of filing. Hague Convention, arts. 2, 11,
19 I.L.M. at 1501–02. Where a parent files a petition for
return alleging that a child under the age of 16 was
wrongfully removed or retained within the last year, “the
country to which the child has been brought must ‘order the
return of the child forthwith,’ unless certain exceptions
apply.” Abbott, 560 U.S. at 9 (quoting Convention, art. 12,
19 I.L.M. at 1502).
Among those exceptions is the “grave risk” defense:
Article 13(b) of the Convention provides that “the judicial
. . . authority . . . is not bound to order the return of the child
if the person . . . which opposes its return establishes that . . .
there is a grave risk that his or her return would expose the
child to physical or psychological harm or would otherwise
place the child in an intolerable situation.” Convention, art.
13(b), 19 I.L.M. at 1502. The case law reflects that
COLCHESTER V. LAZARO 7
“domestic violence is a common inciter to ‘abduction’—the
abused spouse flees and takes her children with her.” Khan
v. Fatima, 680 F.3d 781, 784 (7th Cir. 2012). This “grave
risk” defense thus reflects the proposition that “the remedy
of return . . . is inappropriate when the abductor is a primary
caretaker who is seeking to protect herself and the children
from the other parent’s violence.” Id.A respondent parent can establish a grave risk of harm
from abuse “where the petitioning parent had actually
abused, threatened to abuse, or inspired fear in the children
in question.” Ermini v. Vittori, 758 F.3d 153, 164 (2d Cir.
2014). Spousal violence may also “establish a grave risk of
harm to the child, particularly when it occurs in the presence
of the child.” Id.; see also Gomez v. Fuenmayor, 812 F.3d
1005, 1007 (2016); Khan, 680 F.3d at 787; Walsh v. Walsh,
221 F.3d 204, 220 (1st Cir. 2000) (“[C]redible social science
literature establishes that serial spousal abusers are also
likely to be child abusers.”).
We have repeatedly stated that the grave risk exception
is “narrowly drawn,” so “as not to impair the Convention’s
general policy.” Cuellar v. Joyce, 596 F.3d 505, 509 (9th Cir.
2010). ICARA requires that a respondent must establish the
Article 13(b) grave risk defense by clear and convincing
evidence. 22 U.S.C. § 9003(e)(2)(A). And even when the
respondent establishes that a grave risk of harm exists, the
court may still order the child’s return if it determines there
are ameliorative measures that would “allow both the return
of the child[] to [his or her] home country and [the child’s]
protection from harm.” Gaudin v. Remis, 415 F.3d 1028,
1035 (9th Cir. 2005).
8 COLCHESTER V. LAZARO
II. Factual & Procedural History
A. Lazaro’s Flight From Spain With S.L.C.
S.L.C. is the now-six-year-old, U.S.-citizen daughter of
Appellant Jewel Lazaro, who resides in or around Seattle,
WA, and Appellee Seth Colchester, who resides in or around
Barcelona, Spain. In January 2020, Colchester was given
sole custody of S.L.C. by a Spanish court sitting in
Barcelona. Lazaro, who lacked the resources to live in Spain
fulltime, was visiting Colchester and S.L.C. in April 2020,
as the COVID-19 pandemic erupted. According to Lazaro’s
testimony at the bench trial below, during that visit
Colchester often “screamed at and acted aggressively toward
both her and S.L.C.” Lazaro testified about several specific
instances of alleged abuse that occurred at the time,
including:
• Colchester grabbing S.L.C. by the arm
and throwing her down the hallway,
leading S.L.C. to cry and hide in her room
with Lazaro;
• Colchester screaming at S.L.C. to “get
downstairs, before I kick you downstairs”
and then kicking S.L.C. down the stairs; 2
• Colchester screaming at S.L.C. on
various occasions for things like not
2
An audio recording of this incident, which Lazaro made without
Colchester’s knowledge, was played at trial. As Lazaro’s briefing
highlights, Colchester’s explanation for this conduct shifted materially
over the course of the litigation, first contending in his pre-trial brief that
S.L.C. interrupted a business phone call by knocking on his office door,
then testifying at trial that she blocked his way while carrying laundry
down the stairs.
COLCHESTER V. LAZARO 9
folding his laundry, and sticking his
finger in her face and making her cry;
More generally, Lazaro also alleged that Colchester
repeatedly screamed at five-year-old S.L.C. and compelled
S.L.C. to do various chores, including his dishes and
laundry.
Following these incidents, Lazaro absconded with
S.L.C. After fleeing Colchester’s home, she falsely told local
Spanish police that she had legal custody of S.L.C. She also
hired a Spanish forensic psychologist, Dr. Alicia Romero
Fernandez, who conducted a preliminary examination of
S.L.C. for approximately 90-minute via Skype and through
a translator. After Lazaro was unable to find anywhere to
stay in Spain because of the COVID-19 lockdown, she and
S.L.C. fled to the United States using a passport for S.L.C.
that Lazaro had previously claimed to have lost. Colchester
then filed a Hague Convention application in Spanish court,
filed a criminal complaint against Lazaro in Spain, and
applied to the governments of Spain and the United States
for S.L.C.’s return. 3 The Spanish court eventually issued a
warrant, based on an order declaring that Spain was S.L.C.’s
habitual residence and that Lazaro’s removal of S.L.C. to the
United States was wrongful under the Convention.
Lazaro and S.L.C. eventually made it to Washington
State, where she filed a pair of petitions for domestic
violence orders of protection (“DVOP”), first in Snohomish
County Superior Court and then later in King County
Superior Court. However, on July 24, 2020, the Snohomish
3
This was Colchester’s second Hague Convention petition. In 2018,
Lazaro took S.L.C. from Spain to the United States, and Colchester filed
a Hague petition in United States courts that resulted in S.L.C.’s return
to Spain.
10 COLCHESTER V. LAZARO
County Superior Court dismissed this petition with prejudice
and vacated a temporary ex parte order of protection,
concluding that the court lacked personal jurisdiction over
Colchester, in part because the “court [did] not find that there
are any credible allegations of any acts of domestic violence
that occurred between the parties within Washington.” On
October 28, 2020, the King County Superior Court
dismissed the second DVOP petition, finding that there had
not “been any acts by [Colchester] that have arisen since the
Snohomish County action was dismissed on July 24, 2020
that would give this court jurisdiction.”
Meanwhile, Colchester filed the instant Hague
Convention proceeding on July 20, 2020 in Snohomish
County Superior Court, seeking S.L.C.’s return under the
Convention and ICARA. On July 24, 2020, the same day
Lazaro’s DVOP petition was dismissed, the Superior Court
issued a writ of habeas corpus and a warrant, authorizing
local law enforcement to seize S.L.C. Lazaro responded by
fleeing her residence, and she went into hiding with S.L.C.,
moving between friends’ houses in Seattle, having left
behind her phone, computer, and car.
B. The Pre-Trial Proceedings
On October 25, 2020, Lazaro’s counsel accepted service
of the instant Hague Convention petition and immediately
removed this action to the Western District of Washington.
Colchester then agreed to quash the warrant, Lazaro came
out of hiding, and the parties temporarily placed S.L.C. in
the care of her maternal grandmother and aunt in the Seattle
area. The district court then set an initial Rule 26(f) case
management conference for February 1, 2021.
Colchester filed a motion for immediate return of S.L.C.
shortly thereafter, which the district court denied on
COLCHESTER V. LAZARO 11
December 23, 2020. The district court held, properly relying
on the Spanish custody order, that Colchester had undisputed
sole custody of S.L.C., that Lazaro had taken S.L.C. to
Washington in violation of the Spanish court’s custody
order, and that therefore “Lazaro cannot meaningfully
dispute that her April 2020 removal of S.L.C. was wrongful
under Spanish law.” 4 However, the court held that
Colchester had not yet established that S.L.C. was
“‘habitually resident’ in Spain prior to her removal,” and it
did not decide whether Lazaro had any viable defenses to
S.L.C.’s return. The court concluded by stating that the
“matter w[ould] proceed in due course.”
After Colchester belatedly requested expedited
proceedings in mid-January, the district court held a status
conference on January 27, 2021. Lazaro filed a pre-
conference memorandum setting forth two limited discovery
requests: a psychological examination of S.L.C. and limited
document requests.
At the conference, the court questioned why a
psychological exam was required, since Dr. Romero had
already examined S.L.C. in April 2020 by video. Lazaro’s
counsel explained that the prior exam was a relatively short
“initial screening” conducted through an interpreter and that
the psychologist recommended a more extensive
examination. Counsel explained that it would be difficult to
4
While the instant litigation was proceeding in the district court, the
parties continued to litigate in Spanish courts, including Lazaro’s filing
criminal charges against Colchester. On January 4, 2021, the Spanish
family court hearing Colchester’s Hague Convention petition found that
Lazaro’s flight with S.L.C. was “unlawful” and “without any evidence
of violence towards her daughter caused by the father that would justify
this,” despite testimony from Lazaro regarding Colchester’s alleged
physical and emotional abuse of S.L.C.
12 COLCHESTER V. LAZARO
continue working with the Spanish psychologist, not just
because of the challenges posed by conducting an effective
examination through a translator, but also because the nine-
hour time difference would complicate efforts to complete
the necessary exams and trial preparation on the expedited
schedule Colchester had requested. Counsel further argued
that it was necessary to conduct an exam informed by the
case law applicable in the district court, which Dr. Romero
had not considered. Counsel explained that such
psychological exams of children are routine in Convention
cases and that Lazaro would develop reliable evidence that
S.L.C. suffered psychological harm from Colchester’s
alleged abuse of her and Lazaro, which would be “critical”
to establishing the affirmative defense that S.L.C. faced a
grave risk of psychological harm from living with
Colchester. In support, Lazaro cited a recent Convention
case in the Western District of Washington in which the
judge declined to find that a grave risk of harm to the child
existed, despite crediting the respondent mother’s
allegations of severe domestic violence, because no
psychological expert testified about the “potential for
psychological harm to children in cases of spousal abuse.”
Garcia v. Duarte Reynosa, 2020 WL 777247, at *4 (W.D.
Wash. Feb. 18, 2020) (Jones, J.), reconsideration denied,
2020 WL 978355 (W.D. Wash. Feb. 28, 2020).
Consequently, counsel argued that “we can’t rely solely on
witness testimony, and the relatively cursory Spanish
evaluation, to prove grave risk by clear and convincing
evidence.” The Court then ruled, without explanation and
even though there had been no discovery, that “we’re going
to have no more discovery. I’m not going to order the
evaluation to take place.” The court then set a four-day
bench trial for February 22, 2021.
COLCHESTER V. LAZARO 13
C. The Bench Trial
The bench trial, conducted over videoconference, started
three weeks later. Although the Court, as noted, had refused
to order a psychologist to examine S.L.C. for this Hague
proceeding, Lazaro attempted to overcome this handicap by
presenting evidence of alleged domestic violence through
fact witness testimony, medical records, and the testimony
of Dr. Romero (the Spanish psychologist who had conducted
a preliminary examination of S.L.C. over videoconference
in April 2020). But on the first morning of trial, the district
court also denied Lazaro’s offer for S.L.C. to testify in
whatever manner the court deemed appropriate, such as in
camera and ex parte. The court thus precluded the testimony
of the person with the most personal knowledge of whether
S.L.C. had been abused, namely, S.L.C. herself. 5
At trial, Lazaro alleged other instances of Colchester
abusing her and S.L.C. beyond those said to have occurred
during her spring 2020 visit to Colchester’s Barcelona home
(as previously referenced). These included:
• Throwing a bowl of soup at Lazaro’s
head, leaving a bruise;
• Keeping Lazaro and S.L.C. “under [his]
control financially . . . ma[king] her beg
5
The Court provided the following rationale: “I am not inclined to
permit testimony by the child. During some of the events involved here,
she would have been three or four years old. She has just turned six years
old, and I think it would be a mistake to put a child in the position of
testifying in favor of one party or the other and could do permanent
scarring to the child. It’s just something I don’t think is appropriate.”
14 COLCHESTER V. LAZARO
him on a weekly basis just for money for
food;” 6
• Kicking Lazaro in the stomach when she
was three-months pregnant with S.L.C.
and forcing her to sleep in the closet;
• Punching and screaming at Lazaro when
she was seven-months pregnant, after she
sat in the driver’s seat of his car, then
throwing her to the ground, dragging her
through the gravel, and leaving her on the
side of the road for hours;
• Hitting Lazaro in the head with S.L.C.’s
bag, in front of S.L.C.; 7
• Smashing Lazaro’s guitar, in front of
S.L.C., after Colchester’s associate told
him that Lazaro was out with a friend; 8
6
Lazaro also offered, and there was received in evidence, a 2014
email from Lazaro to an Irish domestic violence support center that states
“I am not yet a resident and have no money as my boyfriend[] controls
all the finances. . . . I am now almost 7 months pregnant and fearful he
could hurt not only me but the baby. Please let me know what I can do
as a non resident with close to no money to get myself into a more safe
situation.” As amici Sanctuary for Families, et al., explain, “financial
abuse is a common and effective abuse tactic. By ensuring a lack of
alternative means of economic support, an abuser restrains his victim
from escaping his sphere of control.”
This incident is corroborated by a text message exchange between
7
Colchester and Lazaro that was received in evidence.
Lazaro is a musician, and she testified that the guitar was her most
8
valuable possession. This incident is corroborated by a contemporaneous
photo message Colchester sent Lazaro that was received in evidence.
COLCHESTER V. LAZARO 15
• Shoving Lazaro into walls, on numerous
occasions, in front of S.L.C.;
• Slapping Lazaro and ripping S.L.C.
away, when she was breastfeeding S.L.C.
rather than paying attention to
Colchester;
• Throwing S.L.C. out of a first-floor
kitchen window, after screaming at her
about breakfast dishes, then locking
S.L.C. outside until dinnertime without
giving her food; 9
Some of these incidents were corroborated with
contemporaneous evidence—including text and photo
messages exchanged with Colchester, emails to domestic
violence organizations, and an audio recording—as well as
testimony from cross examination of Colchester’s mother.
See supra nn. 2, 6, 7, & 8.
Dr. Romero testified at trial as a psychological expert in
forensic evaluation of children. Her opinions were based
entirely on her spring 2020 evaluation of S.L.C. Dr. Romero
testified that she concluded there was “the possibility that
[S.L.C.] [wa]s being abused by her father” because she
“verbalized that she was scared of her father and that she had
suffered physical abuse at the hand of the father.” She further
9
This incident is reflected in medical records received into evidence,
reflecting clinical notes from therapy provided to S.L.C. in May 2020,
after her arrival in Washington. The records reflect that S.L.C. “meets
the full criteria of Separation Anxiety Disorder,” and that she has
“[p]ersistent and excessive fear/reluctance about being . . . anywhere,
including home, without Mom.” The clinical notes also include the
assessment that S.L.C. “has ha[d] highly traumatic experiences when
staying with her father.”
16 COLCHESTER V. LAZARO
testified that she did “not detect[] any indication that
[S.L.C.] had been manipulated,” and that she did not discern
that Lazaro was affected by any “pathology.” Finally, she
testified as to the developmental risks that are created when
an abusive parent obtains sole custody of a child. On cross
examination, Dr. Romero acknowledged that there were
limitations to her opinion—including that she was not able
to do an in-person evaluation and that she was unable to
spend time alone with S.L.C.—and explained that they were
due to the need to respond to the “emergency situation”
presented by Lazaro’s flight from Colchester’s alleged abuse
and the COVID-19 lockdown measures in place at the time
of her examination.
During closing arguments, the district court made
several comments on the record that reflect its assessment of
Lazaro’s evidence of Colchester’s alleged abuse. First, while
Lazaro’s counsel was discussing S.L.C.’s own previous
statements alleging abuse, the court—which, as noted, had
already precluded S.L.C. from testifying at trial, even in
camera and ex parte—interrupted to express doubt about the
ability of children to reliably report abuse. 10 The court then
critiqued Dr. Romero’s testimony as unworthy of reliance:
10
The court stated: “If we have learned anything in the last ten years,
especially since the McMartin case, is that children of extreme youth—
a three-year old child, for example—are not reliable reporters. In the
McMartin case, kids were saying that Satanic rituals were taking place.
The case over in Wenatchee is another example.” Aside from the fact
that S.L.C. was six years old, not three, the forty-year-old McMartin
Preschool case involved children who made false accusations of
molestation and Satanic rituals to interviewers whose tactics were found
to be highly suggestive and significantly deviated from standard
interviewing techniques. Amici National Association of Social Workers
et al. write that “[f]ar from teaching us that children are apt to lie, the
COLCHESTER V. LAZARO 17
“[F]rankly, this psychologist from Barcelona
didn’t display any understanding of the
concerns about relying upon children of
extreme youth as reporters. It’s very
troublesome to me that she would express an
opinion that the father was physically abusive
based upon an hour-and-a-half Zoom
interview. Frankly, upon reconsideration, I
have had serious reservations about whether
I should have admitted that testimony at all.”
After Lazaro’s counsel argued that S.L.C.’s statements had
been consistent over time, the judge said:
“Don’t you think it’s just a little bit
preposterous that the father threw her out a
window and left her outside all day and into
the night without food or drink?”
D. The Decision Below
The district court issued a five-page order the day after
the trial concluded. The order begins by noting that it was
undisputed that Lazaro’s removal of S.L.C. from Spain was
unlawful under the Convention and that the two issues for
McMartin Preschool case actually teaches us the exact opposite—that
only in the most unusual and egregious situations should we reject as
‘preposterous’ the horrific stories children tell us. In part due to the
studies conducted in the wake of the McMartin Preschool case, the
district court’s concerns about the reliability of recounted memories and
young children’s capacity for truthfulness are considered outdated.”
Amici cite several studies regarding the evidentiary value of children’s
testimony and conclude that “modern research establishes that children
can in fact be reliable witnesses,” particularly when a trained expert
examines a child using validated questioning techniques.
18 COLCHESTER V. LAZARO
decision were (i) S.L.C.’s habitual residence (not challenged
on appeal) and (ii) whether Lazaro had presented clear and
convincing evidence that returning S.L.C. to Colchester’s
custody in Spain would subject her to a grave risk of physical
or psychological harm. The Court found for Colchester on
both points and ordered S.L.C. returned to Spain, provided
that Colchester must facilitate “daily electronic
communications” between S.L.C. and Lazaro, and that
Lazaro be permitted supervised visits with S.L.C., limited to
two days per month.
The district court’s order did not discuss any of the
testimony or evidence regarding Colchester’s alleged abuse.
In lieu of setting forth its own findings of fact, the order
states that the court “adopts and incorporates paragraphs one
through ten and thirteen of Mr. Colchester’s proposed
findings of fact and conclusions of law.” 11 Colchester’s ¶ 10
states, in wholly conclusory fashion, that “Lazaro has . . . not
presented clear and convincing evidence that the return of
the child will present a ‘grave risk of harm.’” But it does not
address any of the evidence Lazaro presented during the
trial. Instead, ¶ 10 states that “[m]any of the allegations of
domestic violence and ‘drug trafficking’ that Ms. Lazaro has
raised to attempt to use this ‘grave risk’ exception . . . were
raised and rejected” in prior U.S. and Spanish courts. The
only three paragraphs drafted by the court itself setting forth
its reasoning discuss Lazaro’s unlawful removal of S.L.C.
from Spain, her petitions for DVOPs in Washington state
courts, and the period during the summer and fall of 2020
11
In so-doing, the Court excluded only ¶ 11 of Colchester’s
proposed findings, namely that “[t]he evidence . . . does not support
Ms. Lazaro’s claims that Mr. Colchester is a “drug trafficker” or “money
launderer.” The proposed findings contain no ¶ 12 because of an
apparent typographical error.
COLCHESTER V. LAZARO 19
when Lazaro absconded from law enforcement; they do not
address the substance of Lazaro’s grave risk defense.
DISCUSSION
Lazaro presses several issues on appeal, but we reach
only two: whether the district court abused its discretion in
denying Lazaro’s application to have an expert psychologist
examine S.L.C. and whether the findings of fact supporting
the order below complied with Fed. R. Civ. P. 52(a). We
conclude that the district court erred in both respects. We
accordingly vacate the order below and remand to the district
court for further proceedings, which shall include
appointment of a psychologist to conduct a forensic
examination of S.L.C.
I. The Psychological Examination
Lazaro’s allegations that Colchester had abused both
S.L.C. and herself formed the core of her Article 13(b)
defense that returning S.L.C. to live with Colchester in Spain
would subject S.L.C. to a grave risk of physical or
psychological harm. Lazaro therefore argued to the district
court at the pre-trial conference that credible testimony from
a psychological expert who had examined S.L.C. would be
essential to her case, and she sought an order permitting the
necessary examination. The district court nonetheless denied
her application, apparently because Lazaro could put on
Dr. Romero, a Spanish psychologist who had interviewed
S.L.C. over videoconference and through an interpreter for
90-minutes, even though, as Lazaro argued, Dr. Romero’s
brief interview was no substitute for an in-depth interview
by a psychological expert. (The court also rejected Lazaro’s
offer for the judge to hear from S.L.C. herself, either on the
stand or in camera and ex parte.) But after the trial, the
district court indicated that it viewed Dr. Romero’s
20 COLCHESTER V. LAZARO
testimony as not credible because her opinion was based on
an inadequate examination, the very reason Lazaro had
sought a new exam before trial. The court subsequently held
that Lazaro had failed to present clear and convincing
evidence to establish her Article 13(b) defense.
Lazaro argues on appeal that the district court’s refusal
to permit an in-depth psychological examination rendered
the bench trial unfair. We agree.
A. Discovery in Hague Proceedings
Expert testimony from a forensic psychologist can be
critical in determining whether a respondent parent’s grave
risk defense will succeed against a Convention petition for
return. Psychological evidence is particularly important in
cases like this one, where the respondent (usually the
mother) alleges that she fled with her children because the
petitioner (usually the father) had abused her and/or her
children. In these cases, psychological evidence can be
important both because it can help the court determine
whether the alleged abuse occurred and because it can aid
the court in assessing the effect any abuse had on the child’s
psychological health.
Courts hearing Convention petitions thus routinely grant
requests to order psychological examinations of children and
credit testimony of psychological experts. 12 And, as Lazaro
12
See, e.g., Blondin v. Dubois, 238 F.3d 153, 160–61 (2d Cir. 2001)
(affirming district court’s decision to deny return because of an Article
13(b) defense, in reliance on testimony of retained psychiatric expert);
Saada v. Golan, No. 18-cv-5292 (AMD) (E.D.N.Y. Nov. 15, 2018)
(minute entry granting respondent’s request for evaluation of a child);
Tsarbopoulous v. Tsarbopoulos, No. 00-cv-83 (EFS) (E.D. Wash. Feb.
COLCHESTER V. LAZARO 21
argued below, a district court in this Circuit recently rejected
a grave risk defense for lack of a forensic psychologist’s
testimony, even though the court acknowledged credible
allegations of severe domestic violence. See Garcia, 2020
WL 777247, at *4. Indeed, the Seventh Circuit held in Khan
v. Fatima that it was reversible error for a district court to
refuse a respondent mother’s request for a psychological
evaluation of her child where there was credible evidence
that the petitioning father had physically and
psychologically abused her in the child’s presence. 680 F.3d
at 787–88. “The failure to allow psychological evidence,”
along with inadequate findings of fact, made “the
evidentiary hearing . . . inadequate.” Id. at 788.
Notwithstanding the widespread practice of courts
granting psychological exams, Colchester points out that
neither the Convention nor ICARA expressly provides for
litigants to obtain discovery as of right. The Convention
rather obliges signatory parties to “use the most expeditious
procedures available” to achieve the objective of
adjudicating petitions for return, “do[es] not limit the power
of a judicial . . . authority to order the return of the child at
any time,” and establishes a presumption that petitions will
be decided within six weeks from the filing of a petition.
Convention Art. 2, 11, 18, 19 I.L.M. at 1501–03. The Sixth
Circuit, as Colchester cites, has accordingly held that these
Convention provisions, and ICARA’s implementation of
them, exempt Hague proceedings from the general rule that
litigants are entitled to adequate discovery before a court
may render summary judgment. See March v. Levine,
249 F.3d 462, 474 (6th Cir. 2001). Colchester also points to
a Tenth Circuit case for the proposition that neither the
1, 2001) ECF 83 (granting petitioner’s motion for examination of a
minor child).
22 COLCHESTER V. LAZARO
Convention nor ICARA provides for court-ordered
psychological examinations, even where respondents assert
a grave risk defense. See West v. Dobrev, 735 F.3d 921, 931–
32 (10th Cir. 2013).
But Colchester overstates the holdings of these cases.
The Sixth Circuit decision in March does not suggest an
evidentiary record is unnecessary in Hague proceedings:
Rather, the Sixth Circuit held that the district court had not
abused its discretion in granting summary judgment before
discovery substantially because the district court had
“allowed a voluminous amount of evidence into the record
in conjunction with the parties’ briefs, and the court had
independently sought information under the terms of the
treaty” before granting summary judgment. 249 F.3d at 468,
475.
Likewise, the Tenth Circuit decision in West does not
suggest a district court may deny a psychological
examination where there are credible allegations of child
abuse or domestic violence. The respondent father in West
sought appointment of a second psychologist to determine if
the petitioning mother had abused their children by
proffering a Belgian psychologist’s letter, which stated only
that the mother had little time for the children, had spanked
them for discipline, and had failed to provide adequate
hygienic and medical care. 735 F.3d at 927. But the
respondent not only failed to proffer any evidence of
domestic violence or child abuse “sufficient to warrant
further inquiry,” id. at 931, he also refused the district court’s
invitation to have the Belgian psychologist testify, citing
privilege concerns, “[m]uch to the district court’s
befuddlement,” and “was reluctant to permit the court to
interview the children, ages eight and six at the time.” Id.
at 927, 931. This led the district court to surmise that
COLCHESTER V. LAZARO 23
“[a]pparently you don’t want me to hear from the children.”
Id. at 928. The Tenth Circuit therefore concluded that “what
Respondent really wanted was more time to investigate to
determine if there has been abuse, and if so, what kind” and
so “refuse[d] to condone what appear[ed] . . . under the
totality of the facts presented [to be] a ‘fishing expedition’
on the part of Respondent designed to ‘hook’ an Article
13(b) defense.” Id. at 931–32.
B. Standard of Review
“A district court is vested with broad discretion to permit
or deny discovery,” a decision we review for abuse of
discretion. Laub v. U.S. Dep’t of Interior, 342 F.3d 1080,
1093 (9th Cir. 2003). A district court commits an abuse of
discretion if it failed to apply the correct legal rule or, if the
correct legal rule was applied, if the court’s decision
“resulted from a factual finding that was illogical,
implausible, or without support in inferences that may be
drawn from the facts in the record.” United States v.
Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc). But
here, Lazaro bears a heavier burden: “a decision to deny
discovery will not be disturbed except upon the clearest
showing that the denial of discovery results in actual and
substantial prejudice to the complaining litigant. Prejudice is
established if there is a reasonable probability that the
outcome would have been different had discovery been
allowed.” Laub, 342 F.3d at 1093.
However, abuse of discretion review requires that the
appellate court “be able to ascertain how the district court
exercised its discretion.” Traxler v. Multnomah Cnty.,
596 F.3d 1007, 1015 (9th Cir. 2010) (reversing and
remanding unreasoned, discretionary denial of liquidated
damages). “If on appeal the record is devoid of reasoning
after an appropriate objection is registered, the case must be
24 COLCHESTER V. LAZARO
remanded to the district court to record its reasoning in a
manner sufficient to permit the ‘proper application of the
abuse of discretion standard on appellate review.’” Gov’t
Emps. Ins. Co. v. Dizol, 133 F.3d 1220, 1225 (9th Cir. 1998)
(en banc).
C. Analysis
As a threshold matter, the parties dispute whether the
district court provided a reasoned decision when it denied
Lazaro’s application for a psychological examination of
S.L.C. The application was denied at the January 27, 2020
status conference, which followed a joint status update, a
memorandum from Lazaro, and argument by counsel.
Lazaro requested limited discovery of documents related to
Colchester’s businesses, recovery of Lazaro’s electronic
devices in Colchester’s possession, a psychological exam of
S.L.C., and a schedule that would have led to a trial in May
2021. Lazaro’s counsel pointed out that discovery could not
have commenced before the Rule 26(f) conference absent an
agreement between the parties, which Colchester had
refused. Colchester, who had only recently asked the court
to adopt an expedited schedule (two weeks after Lazaro’s
counsel requested a proposed timeline and eight weeks after
the court set its initial, slower schedule), sought to bar all
discovery and have trial start February 8, 2021.
Colchester argued that Lazaro was only seeking delay,
that another exam could be harmful to S.L.C., that the
Spanish and Washington courts had heard and rejected her
allegations, and that she should have conducted discovery
earlier. After asking whether S.L.C. had been assessed by a
psychologist in Spain, whether the Spanish court had
considered Lazaro’s arguments, whether there is “any reason
to believe that the Spanish courts can’t be trusted,” and why
Lazaro was not present at the status conference, the Court
COLCHESTER V. LAZARO 25
stated simply that “[w]e’re going to have no more
discovery.”
Colchester contends on appeal that the district court’s
questioning should be construed as providing a rationale for
decision to reject Lazaro’s “duplicitous” requests. He also
defends the court’s denial of the psychological exam by
arguing that Lazaro already had a psychologist of her
choosing (Dr. Romero) examine S.L.C. in spring 2020, that
Lazaro should have worked with Dr. Romero in the
intervening months to complete the examination, that the
district court ultimately permitted Dr. Romero to testify, and
that the issue ultimately reduced to Lazaro’s counsel’s
preference to “shop around for” a psychologist of their
preference.
But in fact, the district court’s brief remarks were just
one-sentence questions during argument, and when the court
announced its decision, it provided no reasons. Indeed, it
impliedly misstated the record, by saying that “[w]e’re going
to have no more discovery” when no discovery at all had yet
taken place in this action. The transcript reflects no
discussion of whether the parties could conduct limited
discovery before an expedited trial, whether Lazaro’s
proposed expert could conduct a psychological examination
in the time allotted, or whether Colchester was entitled to his
delayed request for expedition. We therefore hold that the
district court’s wholesale denial of discovery in general and
of the psychological examination in particular was
unreasonable. This alone would suffice for remand. See
Gov’t Emps. Ins. Co., 133 F.3d at 1225.
Moreover, even if we were to infer from the court’s
colloquy with Lazaro’s counsel that it viewed the request as
a request for a second psychological exam, since Dr. Romero
was available to testify, and that the abuse allegations had
26 COLCHESTER V. LAZARO
been adequately tested (and rejected) in the Spanish and
Washington state courts, we would still conclude on the
merits that the district court abused its discretion by denying
an in-depth psychological exam in the face of specific,
corroborated allegations of domestic violence and child
abuse.
In particular, it would have been unfair for the district
court to first refuse the exam because Dr. Romero had
already examined S.L.C. but later conclude that
Dr. Romero’s examination was too brief to be reliable and
that her testimony should never have been admitted because
her opinion was based on an inadequate examination.
Together, these rulings rendered the bench trial
fundamentally unfair. It is impossible to know, reviewing the
record, whether Colchester in fact abused Lazaro and S.L.C.
But the district court prevented Lazaro from developing the
expert evidence that courts generally require respondents to
present for an Article 13(b) defense based on domestic
violence to be accepted. This error was further compounded
by the district court’s peremptory refusal to permit S.L.C. to
testify herself. In effect, the district court’s rulings made it
practically impossible for Lazaro to make out her case.
Finally, the district court’s abuse of discretion in denying
Lazaro’s application for a meaningful psychological
examination of S.L.C. resulted in actual and substantial
prejudice to Lazaro, since there is a reasonable probability
that ordering the exam would have changed the result at trial.
See Laub, 342 F.3d at 1093. The court’s denial of that
examination therefore constitutes reversible error.
II. The Findings of Fact
Rule 52(a) requires that after a bench trial a district court
“find the facts specially and state its conclusions of law
COLCHESTER V. LAZARO 27
separately.” Fed. R. Civ. P. 52(a)(1). This Court has “held
that Rule 52(a) requires the district court’s findings to ‘be
explicit enough to give the appellate court a clear
understanding of the basis of the trial court’s decision, and
to enable it to determine the ground on which the trial court
reached its decision.’” Zivkovic, 302 F.3d at 1090 (quoting
Alpha Distrib. Co. v. Jack Daniel Distillery, 454 F.2d 442,
453 (9th Cir.1972)). Rule 52(a) does not require the district
court “to base its findings on each and every fact presented
at trial.” Simeonoff v. Hiner, 249 F.3d 883, 891 (9th Cir.
2001). But failure to make factual findings “where a full
understanding of the issues can[not] be reached without the
aid of findings” precludes our review of the district court’s
legal conclusions and requires that us to vacate and remand
the district court’s judgment. Alpha Distributing Co.,
454 F.2d at 453; Zivkovic, 302 F.3d at 1091.
Lazaro argues that the district court failed to make
adequate findings of fact regarding the evidence of
Colchester’s alleged abuse and drug trafficking. We agree.
The order below states that “Lazaro failed to meet her burden
to establish a grave risk of harm,” but that is just a legal
conclusion. See Khan, 680 F.3d at 786 (holding that the
statement that the mother had failed to meet her burden of
proof was “not a finding of fact, but a conclusion of law”).
The only relevant findings of fact are those in ¶ 10 of
Colchester’s proposed findings, which the district court
incorporated by reference. But ¶ 10 does not expressly
address any of the relevant testimony or other evidence
presented at the bench trial below. Rather, ¶ 10 exclusively
addresses the prior decisions of Spanish and Washington
state courts, describing Lazaro’s disregard for judicial
process apparently as suggestive of her unreliability, stating
that “[m]any of the allegations of domestic violence and
‘drug trafficking’ that Ms. Lazaro has raised to attempt to
28 COLCHESTER V. LAZARO
use this ‘grave risk’ exception to the Convention were raised
and rejected during the previous” proceedings. 13
We have previously explained that verbatim adoption of
a prevailing party’s proposed findings . . . is generally
disapproved.” FTC v. Enforma Natural Prod., Inc., 362 F.3d
1204, 1215 (9th Cir. 2004). And here, the statements
incorporated by reference do not provide an adequate factual
basis for the district court’s rejection of Lazaro’s “grave
risk” defense. Stating that other state and foreign courts had
rejected substantially similar allegations in other
proceedings does not resolve the difficult questions of
credibility, relevance, and weight that are presented by the
13
Lazaro argues that the district court erred by extending comity to
the January 2021 Spanish court order and by “deferring” to the two
decisions of Washington state courts dismissing Lazaro’s petitions for
DVOPs. But the district court neither extended comity to the Spanish
decision nor deferred to the Washington state proceedings. We have
explained that a district court may extend comity in the Hague
Convention context in order (1) “to abstain from hearing a case in favor
of a foreign proceeding,” (2) “to enforce a foreign judgment,” or (3) “to
accept the adjudication of a foreign tribunal on a cause of action or a
particular issue.” Avesta v. Petroutsas, 580 F.3d 1000, 1009–10 (9th Cir.
2009). The district court obviously did not abstain from hearing the case
or enforce a foreign judgment. And the order below nowhere deferred to
the Spanish court, either with respect to the factual question of whether
the abuse occurred or to the legal question of whether Lazaro had
established an Article 13(b) defense. The district court therefore did not
extend comity to Spain in its analysis of the grave risk defense. Nor did
the district court defer to the state DVOP proceedings. The order below
discusses the state court proceedings as relevant to assessing Lazaro’s
allegations, but the order never indicates that the court is deferring to
them, either explicitly or implicitly. Nor are the state cases treated as
preclusive. Cf. Holder I, 305 F.3d at 864–66 (holding that ICARA’s full
faith and credit clause, 22 U.S.C. § 9003(g), prohibits courts hearing
Hague petitions from according preclusive effect to state court
judgments that did not arise under the Convention).
COLCHESTER V. LAZARO 29
evidence Lazaro presented in this proceeding tending to
show that Colchester abused her and abused S.L.C.
Furthermore, ¶ 10 speaks only of similar “allegations”
presented in those other proceedings, but it does not indicate
the extent to which the evidence was overlapping. To the
extent Colchester’s briefs fill in these blanks, “these
contentions are post-hoc rationalizations of the district court
decision—rather than an accurate representation of the
district court’s express findings and conclusions.” C.L. v.
Del Amo Hospital, Inc., 992 F.3d 901 (9th Cir. 2021). As
Judge Richard A. Posner explained regarding another district
court’s rejection of an Article 13(b) defense:
[T]he [Rule 52(1)] duty is not waived—
indeed it is at its most exacting—when as in
this case plaintiff and defendant testify
inconsistently and it is impossible to
demonstrate by objective evidence which one
is telling the truth, or more of the truth. The
trier of fact must decide whom to believe (and
how much to believe) on the basis of the
coherence and plausibility of the contestants’
testimony, corroboration or contradiction by
other witnesses, and other clues to falsity and
veracity. The process of factfinding in such a
situation is inexact and the findings that result
are doubtless often mistaken. But the judge
can’t just throw up his hands, as happened in
this case, because he can’t figure out what is
true and what is false in the testimony.
Khan, 680 F.3d at 785. Indeed, as Lazaro’s counsel stressed
at argument, the district court made no express credibility
determinations as to either Lazaro or Colchester.
30 COLCHESTER V. LAZARO
Reversal is therefore warranted here because, “[a]s a
consequence [of the omitted findings], we have no way of
knowing whether the district court’s decision in favor of
[Colchester] on [Lazaro’s Article 13(b) defense] was based
on resolution of the determinative facts in [his] favor; or
whether the court erroneously concluded that [the alleged
abuse] could, under no circumstances have . . . implications”
for Lazaro’s grave risk claim. 14 Alpha Distributing Co.,
454 F.2d at 453. Accordingly, reversal and remand would be
required, even if the court’s erroneous denial of Lazaro’s
application for a psychological exam of S.L.C. did not call
for a new trial. 15
CONCLUSION
The Hague Convention and ICARA demand that district
courts expeditiously adjudicate petitions for return of
children alleged to have been wrongfully removed or
retained, and district courts are accordingly vested with
broad discretion to fashion appropriate procedures in these
cases. But courts should not allow haste to overwhelm a
respondent’s right to develop the psychological evidence
needed to make out a viable Article 13(b) defense where she
has alleged with considerable particularity that the petitioner
has engaged in domestic violence. Accordingly, we hold that
the district court abused its discretion by denying Lazaro’s
application for a psychological examination of S.L.C. in the
14
Lazaro also presented evidence that Colchester was a trafficker in
marijuana, but the district court repeatedly questioned whether the drug
trafficking allegations could have any relevance whatsoever to Lazaro’s
“grave risk” defense. We need not reach this issue.
15
If failure to comply with Rule 52(a) were the only error, we might
have simply ordered the district court on remand to amplify its findings.
But the combination of errors makes a new trial necessary.
COLCHESTER V. LAZARO 31
face of her specific allegations that Colchester had engaged
in spousal and child abuse. We further hold that the district
court failed to comply with Fed. R. Civ. P. 52(a), because
the order below did not resolve the factual disputes
necessary to support its legal conclusions.
Because these errors rendered the trial below
fundamentally unfair, we vacate the district court’s order
returning S.L.C. to Spain under certain conditions and
awarding attorneys’ fees to Colchester. This case is
remanded for appointment of a psychologist and a new trial
on Colchester’s petition. 16 But we stress that “[t]he rulings
in this opinion are procedural,” so we “do not prejudge the
merits of the Article 13(b) defense,” which has a high burden
of proof. Khan, 680 F.3d at 788. We also leave it to the
district court to determine where S.L.C. shall reside while
these proceedings remain ongoing.
VACATED and REMANDED.
16
We also leave to the district court’s discretion whether and to what
extent any additional discovery should be permitted.