Marriage of Emilie D.L.M. and Carlos C. ( 2021 )

Filed 4/29/21 Modified and Certified for Pub. 5/28/21 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re Marriage of EMILIE 2d Civ. No. B304344
D.L.M. and CARLOS C. (Super. Ct. No. 19FL-0484)
(San Luis Obispo County)
EMILIE D.L.M,
Respondent,
v.
CARLOS C.,
Appellant.
Carlos C. appeals an order of the family law court denying
his petition filed pursuant to the Hague Convention on the Civil
Aspects of International Child Abduction (the Hague
Convention). (22 U.S.C. § 9001 et seq.)1 We conclude that Carlos
All further statutory references are to Title 22 of the
1
United States Code.
C. did not bear his burden of establishing the existence of
ameliorative measures to ensure his children’s safety and affirm.
This appeal concerns an international custody dispute
involving the two minor children of an American mother and a
Chilean father. In 2016, the parties relocated to Chile from
California. There, the mother, Emilie D.L.M., was subjected to
acts of domestic violence and emotional abuse by her husband
Carlos C., sometimes committed in the presence of the children.
Frequently, the violence was occasioned by Carlos C.’s excessive
alcohol consumption. Following an unsuccessful family vacation
to California in 2019, Emilie D.L.M. and the children refused to
return to Chile. She then filed a petition to dissolve the marriage
and requested a domestic violence restraining order. In response,
Carlos C. filed a petition for the return of the children to Chile
pursuant to the Hague Convention. Following a lengthy
evidentiary hearing, the family law court concluded, among other
things, that Emilie D.L.M. established by clear and convincing
evidence that returning the children to Chile would subject them
to a grave risk of harm.
FACTUAL AND PROCEDURAL HISTORY
Carlos C. and Emilie D.L.M. met while students at the
University of California Davis Law School. Carlos C., a Chilean
native, held a law degree in Chile, and was pursuing an advanced
law degree at Davis. Following law school, Emilie D.L.M. passed
the California state bar exam and accepted a litigation position
with a Bay Area law firm. Carlos C., a permanent resident of the
United States, established a legal translation service in the Bay
Area.
In 2006, the couple wed and, within seven years, had two
children. Emilie D.L.M. soon realized that Carlos C. frequently
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drank alcohol and became verbally abusive to her when he was
intoxicated. In 2006, and again in 2011, he was arrested and
subsequently convicted of driving under the influence of alcohol.
In September 2016, the parties and children relocated to
Carlos C.’s hometown of La Serena, Chile. Carlos C.’s mother
and his large extended family lived nearby.
In Chile, Carlos C. established a law practice and also
worked as a law professor. Emilie D.L.M. worked remotely as an
independent contractor for a California law firm. The couple paid
income taxes in the United States and Chile. Their children were
bilingual and held dual American-Chilean citizenships. The
children enrolled in schools, played with paternal cousins, and
participated in music, sports, and social activities in La Serena.
In 2019, the family took a vacation to Hawaii and then to
Lake Tahoe, California. During the vacation, Carlos C. consumed
excessive alcohol and became verbally and physically abusive to
Emilie D.L.M.
Following the 2019 California vacation, Carlos C. sent a
text to Emilie D.L.M. stating, “There is nothing left for us after
the past two weeks. Don’t bother coming back to Chile. We’ll
make arrangements later on regarding your belongings.”
Although Emilie D.L.M. and the children had return airline
tickets to Chile, they remained in California. Several weeks
later, Emilie D.L.M. filed a petition to dissolve her marriage to
Carlos C. and later requested a temporary restraining order
against him.
Carlos C., who had returned to Chile in the meantime,
returned to California. He visited unsupervised with the children
for three days. Emilie D.L.M.’s mother required Carlos C. to sign
an agreement that promised he would not consume alcohol while
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visiting the children. Carlos C. testified that he signed the
agreement without reading it and under pressure from his
mother-in-law. He violated the agreement by consuming alcohol
during the three days of visitation with his children.
Carlos C. then returned to Chile where he filed a family
law action and a Hague Convention petition seeking repatriation
of the children. In December 2019, the San Luis Obispo County
family law court heard the petition and Emilie D.L.M.’s request
for a temporary restraining order.
Family Law Evidentiary Hearing
At the contested family law hearing, Emilie D.L.M.
testified that Carlos C.’s drinking “suddenly increased after the
birth of [their] children and increased drastically” after moving to
Chile. She described several occasions when she concealed the
keys to Carlos C.’s vehicle to prevent him from driving while
intoxicated.
Emilie D.L.M. also described incidents of domestic violence
and emotional abuse, including sexual insults, some of which
occurred in the children’s presence. On one occasion, Carlos C.
threw her to the bathroom floor, causing her to bruise her face
against the bathtub. On another, he kicked her in her side and
legs, causing her to fall from bed. In August 2018, Carlos C.
became angry and threw the family television out the door as
Emilie D.L.M. and the children were watching it. On Chilean
Independence Day, Carlos C. became intoxicated at the home of
his uncle. As Emilie D.L.M. drove everyone home, Carlos C.
kicked the windshield and insisted on driving. He pushed Emilie
D.L.M. from the vehicle as the children screamed. The couple’s
minor daughter physically struggled with Carlos C. to prevent
him from driving. Carlos C. overwhelmed his daughter and drove
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away until his uncle blocked the road. In the spring of 2019,
Carlos C. threatened to kill the family dog to “teach [Emilie
D.L.M.] a lesson.” One evening, Carlos C. locked Emilie D.L.M.
out of the bedroom, only to shove her to the floor three times after
he relented and opened the door. Carlos C. also demanded money
from her and threatened her with harm if she did not pay him.
Emilie D.L.M.’s legal earnings were a critical source of the
household funding.
Carlos C. also ridiculed his daughter’s intellect and
compared her unfavorably to himself and her brother. During
the Hawaiian vacation, Carlos C. kicked Emilie D.L.M. from the
bed where she slept with her son. The child awoke and began to
cry. Carlos C. then spit on Emilie D.L.M. and the child.
Carlos C. testified and denied that he consumed alcohol
excessively or that he committed any acts of domestic violence.
Family Law Court Decision
Following the hearing, the family law court issued a
comprehensive written decision. The court found many of Emilie
D.L.M.’s accounts of incidents of domestic violence and emotional
abuse credible, but others not. The court also found that Carlos
C. consumed alcohol excessively and frequently and that Emilie
D.L.M. consumed alcohol excessively as well. The court expressly
found that Carlos C. was not credible regarding the extent of his
alcohol consumption, his denial of the domestic violence
incidents, and his denial of his emotional abuse of Emilie D.L.M.
in the children’s presence.
The family law court then concluded that Emilie D.L.M.
established by clear and convincing evidence that return of the
children to Carlos C.’s custody in Chile presents a grave risk to
their physical and psychological well-being. Citing the Chilean
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Independence Day incident, the court concluded that Carlos C.
“did not seem to be able to control his behavior in front of the
children, particularly when drinking.” The court also pointed out
that Carlos C. denied that he drank alcohol excessively and it
inferred that he would continue to drink excessively and expose
the children to a grave risk of harm: “If the children are returned
to [Carlos C.] at this time, there is no effective way to monitor
[his] actions with the children or enforce the orders. For all of
these reasons, the court cannot find that ameliorative measures
will eliminate the grave risk to the children.”
Carlos C. appeals and contends that the family law court
erred by not adequately considering ameliorative measures that
might allow for the children’s return to Chile.
DISCUSSION
Carlos C. argues that the family law court did not consider
“the full panoply of arrangements” that would safeguard the
children in his care in Chile. (Blondin v. Dubois (1999) 189 F.3d
240, 242 [trial court should consider options under foreign law
that would protect the repatriated child].)
The Hague Convention provides a legal mechanism for the
prompt return of a child taken by one parent across international
borders in violation of the other parent’s custodial rights.
(§ 9001; Abbott v. Abbott (2010) 560 U.S. 1, 9.) A petitioner under
the Hague Convention bears the burden of proving the child’s
wrongful removal or retention by a preponderance of the
evidence. (§ 9003(e)(1).) If the petitioner succeeds in showing a
wrongful removal, the Hague Convention requires repatriation of
the child to its county of habitual residence unless an exception to
repatriation exists. (§ 9003(e)(2)(A).) One exception is that the
child’s repatriation presents a grave risk of physical or
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psychological harm to the child. (Monasky v. Taglieri (2020) 589
U.S. -. - [206 L.Ed.2d 9, 22].) This exception must be established
by clear and convincing evidence. (§ 9003(e)(2)(A).)
There exists a judicial exception, however, to the “grave
risk of harm” exception. The trial court may order the return of a
child despite a finding of grave risk of harm if ameliorative
measures by the parents or authorities can reduce the grave risk
of harm. (Saada v. Golan (2d Cir. 2019) 930 F.3d 533, 539.) The
court exercises its discretion in determining the existence of and
effectiveness of ameliorative measures. (Acosta v. Acosta (8th
Cir. 2013) 725 F.3d 868, 877.) The determination whether
enforceable ameliorative measures exist in a particular case is
“’inherently fact-bound’” and the petitioner urging the measures
bears the burden of proof. (Simcox v Simcox (6th Cir. 2007) 511
F.3d 594, 606 [ameliorative measures viewed skeptically in cases
involving abusive spouse]; Maurizio R. v. L.C. (2011) 201
Cal.App.4th 616, 639.)
As ameliorative measures, Carlos C. provided evidence at
trial that Chilean laws punish acts of domestic violence and that
Chilean courts protect domestic violence victims through
protective orders. The family law court properly found, however,
that these ameliorative measures would be ineffective here
because Carlos C. refuses to acknowledge his excessive drinking
or domestic violence. In the context of a dependency action, the
court in In re Gabriel K. (2012) 203 Cal.App.4th 188, 197,
observed that “[o]ne cannot correct a problem one fails to
acknowledge.” Even following his written promise to forbear
from alcohol consumption during visitation with his children,
Carlos C. could not keep his promise. Given Carlos C.’s failure to
acknowledge his excessive drinking and acts of domestic violence,
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as well as his repeated acts of driving while intoxicated, there are
no ameliorative measures that will mitigate the grave risk of
harm to his children. (Simcox v. Simcox, supra, 511 F.3d 594,
606 [collecting decisions where courts have been skeptical of
ameliorative measures in cases involving spousal abuse].) It is a
reasonable inference from the evidence that Carlos C. will
continue to drink to excess and drive while intoxicated, thus
exposing his children to a grave risk of harm. Carlos C. has not
borne his burden of establishing other ameliorative measures
that would protect the children from his excessive drinking and
abusive behavior.
The order is affirmed.
GILBERT, P. J.
We concur:
YEGAN, J.
PERREN, J.
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Gayle L. Peron, Judge
Superior Court County of San Luis Obispo
______________________________
Comstock & Wagner, Stephen A. Wagner for Appellant.
James Alex Karagianides for Respondent.
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Filed 5/28/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re Marriage of EMILIE 2d Civ. No. B304344
D.L.M. and CARLOS C. (Super. Ct. No. 19FL-0484)
(San Luis Obispo County)
EMILIE D.L.M, ORDER MODIFYING
OPINION AND
Respondent, CERTIFYING OPINION FOR
PUBLICATION
v. [NO CHANGE IN
JUDGMENT]
CARLOS C.,
Appellant.
THE COURT:*
It is ordered that the opinion filed herein on April 29, 2021, be
modified as follows:
1. On page 1, the following paragraph is to be inserted at the
beginning of the opinion as the opening paragraph:
Courts look to the Hague Convention to decide custody
disputes involving a child’s alleged wrongful removal from
her or his country of habitual residence. Even when a
child’s repatriation presents a grave risk of physical or
psychological harm to the child, repatriation may still be
required if a parent establishes the existence of
ameliorative measures. Here we conclude that the parent
did not establish this exception.
2. On page 2, approximately middle of the first full paragraph,
the word “unsuccessful” is changed to “unpleasant,” so the
sentence begins, “Following an unpleasant family vacation …”
3. On page 6, line 9 in the second paragraph following
DISCUSSION, the word “county” is changed to “country,” so lines
8-9 read,” “the Hague Convention requires repatriation of the
child to its country of habitual residence unless an exception …”
4. On page 7, the first line in the first full paragraph, “There
exists a judicial exception, however, to the …” is changed to
“There exists, however, a judicial exception to the ….”
There is no change in the judgment.
The opinion in the above-entitled matter filed on April 29,
2021, was not certified for publication in the Official Reports. For
good cause it now appears that the opinion should be published in
the Official Reports and it is so ordered.
GILBERT, P.J. YEGAN, J. PERREN, J.
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