Noergaard v. Noergaard ( 2016 )

Filed 12/16/15; pub. order 1/15/16 (see end of opn.)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
CHRISTIAN THORSEN NOERGAARD,
Plaintiff and Respondent, G049854
v. (Super. Ct. No. 14FL000022)
TAMMY NOERGAARD, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Linda
Lancet Miller, Judge. Reversed and remanded.
Tammy Noergaard, in pro. per; and Merritt McKeon for Defendant and
Appellant.
American Overseas Domestic Violence Center and Voices Set Free—
Intercept Abuse as Amici Curiae on behalf of Defendant and Appellant.
Family Violence Appellate Project, Nancy K.D. Lemon, Jennafer Dorfman
Wagner, and Shuray Ghorishi; O’Melveny & Myers, Sharon M. Bunzel, Ward A.
Penfold, Gabriel Markoff, Brian Y. Chang, and Yahor Frusevich as Amicus Curiae on
behalf of Defendant and Appellant.
Ruben/Huggins, Stephen B. Ruben and Diana L. Leonida for Plaintiff and
Respondent.
* * *
To combat the harmful effects of international child kidnapping, the Hague
Convention on the Civil Aspects of International Child Abduction (Convention or Hague
Convention) requires the judicial or administrative authorities of a signatory nation (i.e., a
“Contracting State”) to order a child returned to her country of habitual residence if the
child has been wrongfully removed to or retained in the Contracting State.1 The
International Child Abduction Remedies Act (ICARA) implements the Convention in the
United States, granting federal and state courts concurrent jurisdiction and directing those
courts to decide cases under the Convention. (42 U.S.C. § 11601 et seq.)
Here, the trial court granted Christian Noergaard’s request to remove his
11-year-old daughter from the care of her mother Tammy Noergaard and return the child
to Denmark without an evidentiary hearing on critical aspects of Tammy’s objections
under the Hague Convention.2 The trial court declined to address mother’s allegations
father e-mailed a death threat against her and Mia’s younger sister or her exhibits and
testimony supporting her claim he engaged in a history of spousal abuse and child abuse.
According to mother, father’s abuse caused Mia to run away from his care in Denmark
and flee to Orange County with her maternal grandmother.
1 See generally Hague Convention, October 25, 1980, T.I.A.S. No. 11670,
1343 U.N.T.S. 49 (reprinted at 51 Fed.Reg. 10494 (Mar. 26, 1986)). We take judicial
notice of the Convention. (Evid.Code, § 452, subd. (c).)
2 We use the family members’ first names or their familial status (e.g.,
mother or father) for clarity. (Rubenstein v. Rubenstein (2000) 81 Cal. App. 4th 1131,
1136, fn. 1.)
2
Because due process requires an opportunity for mother to be heard on
claims that would prevent Mia’s return under the Hague Convention, we reverse the
judgment and remand for a full evidentiary hearing.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. Proceedings in Orange County
In late January 2014, Orange County Sheriff’s Department deputies found
Mia with mother in Orange County, where they had lived together with father and Mia’s
younger sister before the family departed for Germany. The deputies removed Mia from
mother’s care based on father’s ex parte custody demand in his Hague petition filed in the
superior court. According to mother, although Mia was transported to Orangewood
based on Mia’s refusal to return to father, Orange County Social Service Agency (SSA)
social workers conducted only a cursory investigation and summarily released Mia to
father’s sole custody despite her and Mia’s allegations father engaged in a pattern of
domestic violence. According to mother, father’s abuse began when he lost his job in
Germany and unilaterally took the children to Denmark. Mother also alleged father
issued death threats against them and asked SSA to delay handing Mia over to father
while she sought proof of her abuse allegations in documentation from Denmark. SSA,
however, refused her request and relinquished custody of Mia to father.
The trial court denied mother’s repeated requests for an Evidence Code
section 730 psychological evaluation of Mia and, according to mother, conducted a
summary trial that violated her right to due process. The court admitted into evidence
only two documents among the parties’ voluminous exhibit binders: two Danish court
orders in 2012 vesting custody of Mia and her sister with father. The trial court declined
to resolve whether father sent mother an e-mail in July 2013 containing death threats
against mother and Mia’s sister. The court concluded it lacked the technical expertise to
determine the e-mail’s authenticity. The court reviewed competing declarations from
3
father and mother and their respective technology experts. But the court denied mother’s
repeated requests to testify and call other witnesses to support her abuse claims, including
lay and expert witnesses. In prohibiting witness testimony, the court also declined to
allow mother to cross-examine father. Nor would the court consider mother’s supporting
documentation and exhibits concerning the e-mail, her allegations of abuse, or other
related subjects, such as the Denmark custody proceedings or a European Union
investigation concerning the alleged failure of Danish courts to take allegations of
domestic violence seriously when brought by a non-Danish parent.
The court interviewed Mia in-camera with minor’s counsel present, but not
mother or father or their counsel. Based on its brief interview with Mia, the court
concluded Mia did not fear father, had not run away from him, and implicitly determined
mother’s abuse allegations were unfounded or that the Danish courts had, or would,
resolve those claims against her. The court rejected mother’s renewed request for a
psychological exam to explain Mia’s seeming recantation in her in-camera interview, and
declined to hear mother or her witnesses’ contrary testimony alleging abuse. The trial
court granted father’s Hague petition and returned his and Mia’s passports for them to
board a plane to Denmark that night.
II
DISCUSSION
Mother contends the trial court erred in granting father’s petition to return
Mia to Denmark in his care without an evidentiary hearing on crucial aspects of her
claims of spousal abuse and child abuse, including recent death threats. We agree
mother’s claims must be addressed in a full evidentiary hearing.
A. Governing Law and Standard of Review
The Hague Convention does not mandate a child’s automatic return to a
parent in another country, but instead protects children against “the harmful effects of
4
their wrongful removal or retention” across international borders. (Convention,
preamble, italics added.) Where appropriate, the Convention establishes “procedures to
ensure their prompt return to the State of their habitual residence.” (Ibid.; see Blondin v.
Dubois (2d Cir. 2001) 238 F.3d 153, 155 (Blondin).) But a speedy return “‘is not the
goal in cases where there is evidence that the status quo was abusive.’” (Van De Sande v.
Van De Sande (7th Cir. 2005) 431 F.3d 567, 572 (Van De Sande).)
As father did here, a parent seeking a child’s return under the Convention
may initiate a civil action in the jurisdiction where the child is physically located.
(42 U.S.C. § 11603(b); all further statutory references are to this code and title unless
noted.) The petitioner must establish by a preponderance of evidence the child’s country
of habitual residence and that another person wrongfully removed or retained the child
outside that country. (§ 11603(e)(1)(A).) The removal or retention of a child is wrongful
when it interferes with the petitioning parent’s custody rights in the country of habitual
residence. (Convention, art. 3; see, e.g., Sealed Appellant v. Sealed Appellee (5th Cir.
2004) 394 F.3d 338, 343 (Sealed Appellant).)
If the petitioning party meets his or her burden to establish the child’s
country of habitual residence and wrongful removal or retention, the respondent
nevertheless may prevent the return of the child or require certain conditions or
“undertakings” on the child’s return based on several affirmative defenses. (Convention,
arts. 12, 13, 20; see, e.g., Van De Sande, supra, 431 F.3d 567, 571-572 [overturning order
for return of children where district court’s limited inquiry and undertakings ignored
father’s extensive history of abuse].) For example, return is precluded under the
Convention if the respondent shows by a preponderance of evidence that the petitioner
was not exercising his or her custody rights, or a child of adequate age and maturity
objects to returning. (Convention, arts. 12, 13(a); § 11603(e)(2)(B).)
Other affirmative defenses include a showing by clear and convincing
evidence that returning the child would violate the child’s or other parent’s human rights
5
or fundamental freedoms, or the return would cause grave risk to the child’s mental or
physical well-being. (Convention, arts. 20, 13(b); § 11603(e)(2)(A); Sealed Appellant,
supra, 394 F.3d at p. 343.) Domestic violence or child abuse constitutes a grave risk to
the child. As one court observed in overturning a return order obtained without an
evidentiary hearing, “given [father’s] propensity for violence . . . and the grotesque
disregard for the children’s welfare that he displayed by beating his wife severely and
repeatedly in their presence and hurling obscene epithets at her also in their presence, it
would be irresponsible to think the risk to the children less than grave.” (Van De Sande,
supra, 431 F.3d at p. 570; see also Walsh v. Walsh (1st Cir. 2000) 221 F.3d 204, 220
(Walsh) [“grave risk” established by evidence of petitioner’s violence in children’s
presence, noting research that serial spousal abusers are more likely to strike children and
children face increased risk of psychological harm].)
Family Code section 3044 reflects similar concern for children in abusive
homes, establishing in trial court proceedings “a rebuttable presumption that an award of
sole or joint physical or legal custody of a child to a person who has perpetrated domestic
violence is detrimental to the best interest of the child . . . .” True, the Hague standard is
narrower than the “best interests of the child” in a custody proceeding; for example, it is
not enough that the child would have better prospects in one country or another, nor is
general political or social unrest sufficient to prevent the child’s return. (Danaipour v.
McClarey (1st Cir. 2002) 286 F.3d 1, 14 (Danaipour); England v. England (5th Cir.
2000) 234 F.3d 268, 271; Nunez-Escudero v. Tice-Menley (8th Cir. 1995) 58 F.3d 374,
378; Frier v. Frier (E.D. Mich. 1996) 969 F. Supp. 436; Janakakis-Kostun (Ky. App.
1999) 6 S.W.3d 843; Tahan v. Duquette (N.J. Super. Ct. App. Div. 1992) 613 A.2d 486,
488.)
But psychological, sexual, or physical harm of a spouse or child poses a
grave risk precluding a child’s return. (Danaipour, supra, 286 F.3d at p. 16; Blondin,
supra, 238 F.3d at p. 155; Rodriguez v. Rodriguez (D. Md. 1999) 33 F. Supp. 2d 456;
6
Steffen F. V. Severina P. (Dist. Ariz. 1997) 966 F. Supp. 922.) A pattern of violence in
the home may not be ignored. (Walsh, supra, 221 F.3d at 219.) “Because of the privacy
of the family and parental control of children, most abuse of children by a parent goes
undetected.” (Van De Sande, supra, 431 F.3d at p. 571.) Accordingly, “[t]he rendering
court [considering a Hague petition] must satisfy itself that the children will in fact, and
not just in legal theory, be protected if returned . . . .” (Id. at pp. 581-572 [noting that “in
cases of child abuse the balance may shift against return [even with] conditions”].)
We review issues of law in Hague proceedings de novo. (Croll v. Croll
(2d Cir. 2000) 229 F.3d 133, 136.) A trial court’s factual determinations “are reviewed
for clear error,” but the lower court’s “application of the Convention to the facts it has
found, like the interpretation of the Convention, is subject to de novo review.” (Blondin,
supra, 238 F.3d at p. 158, original italics.)
B. The Trial Court Erred in Failing to Determine the Authenticity of Father’s Alleged
Death Threat
Here, among other objections, mother opposed father’s Hague petition on
grounds of grave risk (Convention, art. 13(b)) if Mia were returned to Denmark and
father’s care. Mother alleged father engaged in an extensive history of domestic violence
against her and the children, including death threats in a recent e-mail. Father disputed
the authenticity of the e-mail. Unfortunately, the trial court declined to hold an
evidentiary hearing on the e-mail, explaining that it doubted it would be able to determine
its authenticity. The trial court reviewed mother’s and father’s declarations on the issue
and those of their respective technology experts. But the court did not permit the parties
or their experts to testify, apparently concluding the unheard testimony was beyond the
court’s expertise (“The court will not be able to make a finding” on the e-mail). The
court concluded simply that “neither [side] can prove it was an original, or came from
Dad, or that it wasn’t an e-mail that originated from Dad.”
7
The court’s decision not to decide the issue of death threats is puzzling in
two respects. First, it is the trier of fact’s role to resolve even the most complex issues of
disputed material fact. (See, e.g., Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826,
850-851 (Aguilar).) As Judge Posner has observed, “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
. . . .” (Khan v. Fatima (7th Cir. 2012) 680 F.3d 781, 785 (Khan) [reversing Hague
Convention return order for full evidentiary hearing].) Death threats are patently material
to the grave risk analysis, and therefore the trial court erred by leaving the matter
undecided. (See Van De Sande,supra, 431 F.3d at p. 570 [reversing return of child for
full evidentiary hearing where trial court “inexplicably gave no weight to [the father’s
alleged] threat to kill the children”].) Second, testimony can illuminate seemingly
intractable factual issues, and therefore the trial court erred in deciding to neither hear
testimony nor resolve the issue.
The trial court’s decision to simply ignore and leave unresolved father’s
alleged death threats is similar to the due process abdication in In re Marriage of
Carlsson (2008) 163 Cal. App. 4th 281 (Carlsson). There, the trial judge refused to allow
the husband’s attorney to finish his evidentiary presentation and abruptly ended the trial
by walking off the bench. The effect here in failing to admit or hear evidence to resolve
the death threat allegations is the same: “summary termination of the trial infring[ing] on
[the] fundamental right to a full and fair hearing.” (Id. at p. 291.)
In Carlsson, the wife on appeal defended the judgment on grounds “there is
no such thing as ‘structural error’ in a civil case.” (Carlsson, supra, 163 Cal.App.4th at
p. 292.) But the court explained that the “structural error” label was not dispositive;
rather, “‘Denying a party the right to testify or to offer evidence is reversible per se.’
[Citations.] As the state Supreme Court has recently stated: ‘“We are fully cognizant of
the press of business presented to the judge who presides over the [Family Law]
Department of the Superior Court . . . , and highly commend his efforts to expedite the
8
handling of matters which come before him. However, such efforts should never be
directed in such manner as to prevent a full and fair opportunity to the parties to present
all competent, relevant, and material evidence bearing upon any issue properly presented
for determination. [¶] Matters of domestic relations are of the utmost importance to the
parties involved and also to the people of the State of California. . . . To this end a trial
judge should not determine any issue that is presented for his consideration until he has
heard all competent, material, and relevant evidence the parties desire to introduce.”’
[Citation.]” (Id. at p. 291, original italics.)
The Carlsson court explained that though the then-recent Supreme Court
case in Elkins v. Superior Court (2007) 41 Cal. 4th 1337 (Elkins) “involved a different
issue than that posed here — whether a local rule that required parties to present their
case in contested dissolution trials by means of written declarations was inconsistent with
certain statutory provisions [citation] — the court’s pronouncements have a direct
bearing on this case.” (Carlsson, supra, 163 Cal.App.4th at p. 292.) Specifically, “[t]he
high court noted that ‘[a]lthough some informality and flexibility have been accepted in
marital dissolution proceedings, such proceedings are governed by the same statutory
rules of evidence and procedure that apply in other civil actions.’ [Citation.] ‘Ordinarily,
parties have the right to testify in their own behalf [citation], and a party’s opportunity to
call witnesses to testify and to proffer admissible evidence is central to having his or her
day in court.’ [Citation.] Emphasizing a party’s ‘fundamental right to present evidence
at trial in a civil case’ [citation], the Elkins court went on to declare, ‘“One of the
elements of a fair trial is the right to offer relevant and competent evidence on a material
issue. Subject to such obvious qualifications as the court’s power to restrict cumulative
and rebuttal evidence . . . , and to exclude unduly prejudicial matter [citation], denial of
this fundamental right is almost always considered reversible error”’ [citations].” (Ibid.,
original italics.)
9
The same is true here. Due process required the trial court to decide the
material issue of father’s alleged death threats and to afford mother the opportunity to
offer relevant and competent evidence on that issue. The court apparently believed the
matter, if addressed at all, should be decided by Danish authorities upon Mia’s return.
The court admitted only two pieces of evidence, a Danish court order vesting custody
with father in 2012 and another order reiterating that decision just a few months later.
Both orders predated father’s alleged 2013 e-mail death threats against Mia’s sister still
in his custody and against mother. It is not clear whether the proceedings resulting in
either order adjudicated mother’s allegations of similar prior threats. The trial court
simply observed regarding Denmark that “[t]hey are a civilized country” and remarked to
mother that Danish courts were “fully capable of making a decision, in the best interest of
the minor children, even though you might not like the decision or they may not,
factually, find your side to be true.”
There are two manifest flaws in simply leaving the issue of death threats
and other unresolved material facts for Danish authorities potentially to address. First, it
is true that “the Convention prohibits courts in countries other than that of the child’s
habitual residence from ‘adjudicating the merits of the underlying custody dispute,’
[citation].” (Sealed Appellant, supra, 394 F.3d at p. 344.) But it is necessarily also true
that a Hague Convention court must consider in the first instance respondent’s allegations
of grave risk that postdate earlier foreign custody orders. (See Danaipour, supra,
286 F.3d at p. 15 [“the Convention assigns the task of making the ‘grave risk’
determination to the court of the receiving country”].) Courts must consider these issues
in deciding whether to impose undertaking requirements if the court orders the child’s
return, or to deny the child’s return. (E.g., Van De Sande, supra, 431 F.3d at p. 570;
Walsh, supra, 221 F.3d at p. 220.) As the court in Danaipour explained, the trial court
there erred in “cut[ting] the inquiry short” on a parent’s alleged sexual abuse because
10
“only once [the court] had made such a finding could [it] ask the right questions about
whether the children could be returned . . . .” (Danaipour, at p. 19.)
Second, “[t]he Convention says nothing about the adequacy of the laws of
the country to which the return of the child is sought—and for good reason, for even
perfectly adequate laws do not ensure a child’s safety.” (Khan, supra, 680 F.3d at
p. 788.) The rendering court itself must ascertain and protect the child’s safety (ibid.),
and to do so it must adjudicate factual disputes bearing on that question, including the
alleged death threat here.
Father asserted at oral argument, but not in his briefing, that mother
somehow waived the trial court’s failure to decide the authenticity of the death threat
e-mail. Not so. The trial court’s duty to resolve such critical issues in Hague
proceedings “is not waived—indeed it is at its most exacting” when the parents’ evidence
conflicts and it seems “impossible to demonstrate by objective evidence which one is
telling the truth, or more of the truth.” (Khan, supra, 680 F.3d at p. 785.) Moreover, the
record indicates it would have been futile for mother to press for a ruling on an issue the
trial court repeatedly stated—without hearing the evidence— it could not and would not
decide. There was no forfeiture.
Father also suggested at argument that the trial court’s failure to decide the
death threat issue was harmless, but the suggestion is preposterous. As father’s briefing
acknowledges, a credible death threat “automatically constitute[s] a grave risk of harm”
prohibiting the child’s return. The trial court could not duck the issue. (See Van De
Sande, supra, 431 F.3d at p. 570 [summary judgment inappropriate to resolve contested
death threats in Hague proceeding].)
C. Mother’s Evidence of Father’s Extensive History of Abuse
According to mother, by refusing to decide critical issues like whether
father threatened to kill her and the children, and by systematically excluding evidence to
11
support her allegations of abuse, the trial court received only a limited and inaccurate
picture of the case, and therefore could not fairly decide the matter. As we explain in
Part D. below, we agree and therefore remand for the trial court to conduct a new trial.
According to mother, after father moved the family temporarily to Germany
for job training, with plans to resume his employment in the United States within a year,
father lost the job before completing the training, became violently abusive towards her
and the children, sexually assaulted her, and made death threats against her. While
unemployed, he often took the children to Denmark without her, then forced the children
to move there, and continued to physically and emotionally abuse them.
Mother attempted to show in the exhibits and testimony that the trial court
excluded that father engaged in a continuous pattern of abuse against her and the children
and, once in Denmark, embarked on a course of conduct to cut her out of their lives. He
refused to apply for a visa on her behalf or include her on a family visa with the children,
but she found her own way to Denmark on a work visa. He harassed her, stalked her at
her job and home, and falsely reported her as an illegal alien to Danish authorities to
interfere with her parental rights and suppress her allegations of abuse.
According to mother, ample evidence from Denmark supported her abuse
allegations, but the trial court declined to admit the evidence or permit a full and fair
hearing on her claims. Her excluded documentation included reports in which Danish
social workers and medical personnel observed the children’s injuries allegedly inflicted
by father, and the children confirmed the abuse outside mother’s or father’s presence.
Mother’s translated documentary evidence included reports stating as follows: “The
family advice service of the Municipality of Ikast-Brande has spoken with Mia and
Sarah, cf. Section 11, Subsection 2 of SEL. During the meeting with Mia it transpires
that there has previously been violence at home from the father towards the mother and
Mia”; “Mia also says she does not like being at her father’s as he often hits them. . . . We
speak a little about the frequency of the violence, to which Sarah and Mia say
12
concurrently that Sarah is hit every day and that Mia is not hit quite as often. Without
being asked, Mia pulls up her sweater and shows a bruise. . . . Mia also says immediately
unaffected that she has also previously suffered a black eye . . .”; and “It is decided to
direct Tammy not to deliver Mia and Sarah today because of suspicion of violence. The
grounds for the decision are that the State Administration suspects that Christian has
committed violence against Mia and Sarah and to support Tammy in protecting her
children against putative violence.”
Mother asserted the children reported the abuse to other adults, who in turn
reported them to Danish authorities, including reports by mother’s landlord: “The
children also volunteered to me that their father hit them and bullied them,” “During
those visits, I observed bruises on both Sarah and Mia. As a father of three boys, one of
whom engages in extreme sports, I am familiar with ordinary bruises that children
experience. The location and frequency of these bruises were not consistent with
bruising I was familiar with. To me, they indicated grabbing and squeezing very hard, or
smack, on the arms and legs.”
Mother’s excluded evidence included emergency room reports in which
Mia complained father struck her on the head with a large book when she was seven
years old, causing “palpable tenderness,” a headache, and nausea, and a few months later
gave her a black eye. Another emergency department report included color photographs
of a large bruise on Mia’s forearm that she told the doctors father inflicted by grabbing
her violently. Other hospital reports showed similar injuries to Mia’s younger sister,
Sarah. The trial court did not review any of mother’s exhibits, but simply excluded them
in a summary order from the bench.
Mother sought to introduce other evidence showing the abuse continued
unabated over the next four years, when Mia finally began running away from father. In
a letter to a third party, Mia explained she ran away because father hit her and when she
wrote to him that she “did not want to live with him,” he rejected her plea. She wrote
13
that she looked forward to turning 10 years old because “[t]he State Administration and
Anni from Children’s Welfare have told me that when I turn 10 I will [get] to choose
where I am to live . . . .” As with all of mother’s exhibits, the trial court summarily
excluded the letter.
An earlier handwritten note by Mia at age eight recorded that when father
failed to relinquish her and Sarah for visitation with her mother, and instead “took us out
of town,” a social worker or other authority figure called on the telephone, but father
“took the phone and covered it and told me what I should say and he stood just by the
side of me when I spoke with Anne.” Mia stated in the note that she was “afraid because
when I was little . . . he always used to hit my mother and because he has been angry . . .
and because he did this to my little sister Sarah . . . .” The note closed, “I do not want to
live with my father and absolutely [do] not want him to take us out of the town again!”
She also reported to social service authorities an incident in which father followed mother
when she was picking Mia, Sarah, and a friend up at their school, and when Mia turned to
look, mother “was holding her hand up to her head as it looked as if he was hitting [her].”
Another excluded report noted mother’s confusion and helplessness
because she was “criticized by a number of authorities for delivering Mia and Sarah to
[father] because he was suspected of . . . being violent towards the children, while other
authorities had established that she should deliver the children in accordance with the
current visitation rights agreement.” In the same report, Mia answered “in a very loud
and determined voice that ‘it’s a massive yes that he hits us.’” She noted her younger
sister, Sarah, bore the brunt of the abuse. Sarah and Mia confirmed “concurrently” that
father hit Sarah “every day.”
Mother’s other excluded evidence showed a pattern of domestic violence
that continued for years. According to mother, she and her neighbors called the police in
April 2009 when father stabbed at her face with a knife in the children’s presence. Her
mother reported another incident later that year in which she saw father brandish a knife
14
in mother’s face. According to the grandmother, while father was charming initially, the
abuse dated to when father lost his job in Germany in 2007, and continued until Mia fled
in 2013. The grandmother observed father sleeping next to Mia naked in her room on
one occasion, and suspected sexual abuse based on his remarks, as did other witnesses
who heard Sarah’s reports about bath time.
Mother’s excluded evidence included police reports stating that: “Christian
Noergaard has reported Tammy Noergaard as an illegal alien in Denmark . . .”; “A prior
police report is also on file where Tammy as alleged to have worked illegally . . .”; and
“her ex-husband has not made this any easier for her as we have had to respond to him on
a number of occasions, including in connection with inquires from Aarhus police in
relation to a false report from him stating that Tammy was working without the necessary
residency and work permits and he has also stayed in his car outside the company gates
for hours at a time.”
Mother sought to explain the precariousness of her immigration status, as
highlighted in a report she made to European Union officials investigating Denmark for
disparate treatment of non-Danish parents in custody cases. Her Danish attorney
explained mother’s “legal basis for residing in Denmark derives from her work visa. She
does not qualify for permanent residency on the basis of having children with a Danish
father and who reside in Denmark, as such is not provided under Danish immigration
law. . . . [Thus], should [her] employment cease in the interim, her legal right to say in
Denmark would also be extinguished, her permanent residency application denied, and
thus she could potentially face deportation to the United States of America without her
children. The precarious, job-linked residence permit was highlighted as a worrisome
aspect of Danish Immigration Law in the European Commission Against Racism and
Intolerance (ECRI) Fourth Report on Denmark (2012)[.]” (Original italics.) The trial
court summarily excluded the evidence.
15
Among many excluded reports other people made to Danish authorities,
mother included the following: “When we drove off, [father] ran a red light almost
causing a serious accident with other drivers. . . . Officers Morten and Rasmus had to
order [him] to stop stalking us and to leave”; “In July 2012, I contact Danish police . . .
after [father] has illegally taken Mia and Sarah to Germany after Tammy gets temporary
sole custody”; “I had to speak to police officers after they tr[ied] to arrest Tammy in front
of Mia and Sarah on their way to school, on a false police report filed by [father] so she is
released. Mia and Sarah have been crying, and Mia is throwing up in the car”; and
“Deputy Superintendent Larsen agreed with me that this whole scenario was a severe
traumatic experience for the two little girls which should have been avoided.”
According to mother, a Danish court-affiliated child psychologist
interviewed Mia about running away from her father’s home in April 2013, and made the
following report: “When asked why Mia does not want to go home to her father’s again,
she replies she does not want to live with someone who hits her. . . . Mia would try to
run away and return to her mother again. . . . In the light of this I would not advise that
Mia be forced to have contact against her will. It is my opinion that this would be very
costly to her in terms of her mental wellbeing.” The trial court excluded the report
without reviewing it or any of mother’s exhibits.
Mother asserted she and the children had to take refuge in a domestic
violence shelter on more than one occasion because of father’s abuse. According to
mother, United States Embassy personnel in Denmark responded to her pleas “after there
was a failure to date in the ability of the Danish administrative and judicial systems to
protect and support the American parent and children since their abduction to Denmark
by [father],” and that one of those workers witnessed a violent attack by father that put
mother in the hospital.
According to mother, a Danish judge not assigned to her case “interfered on
numerous occasions with [her] domestic violence proceedings, custody proceedings, as
16
well as . . . directly contacting social services to silence and remove their old social
worker from their case after receiving a letter from her also recommending supervision
and domestic violence counseling after [father]’s violent episodes. This is despite the
fact that he was not the princip[al] judge of deciding on their domestic violence
counseling and supervision requests from the court, or even custody, such being heard by
a separate judge. . . .” Mother’s excluded exhibits included social service agency child
custody reports documenting father’s abuse, which resulted in interim custody awards in
her favor, only to have those reports ignored in custody decisions father secured in other
Danish judicial jurisdictions.
Mother claimed Mia ran away from father on multiple occasions in 2012
and 2013, and she asserted father’s history of abuse led Mia to take refuge with her
maternal grandmother. The maternal grandmother apparently brought Mia to Orange
County in June 2013, and mother later joined them there. According to mother, she and
others in Denmark and the United States have sought to reach a mutual agreement with
father in Mia’s and Sarah’s best interests, but father “has not cooperated and sabotaged
every effort to find a tolerable solution . . . for Mia and Sarah” in Denmark or in the
United States.
D. The Trial Court Violated Mother’s Right to Present Evidence
As with the alleged death threat e-mail, mother is similarly entitled on
remand to an evidentiary hearing on her other claims. A trial court in a Hague
proceeding “has a substantial degree of discretion in determining the procedures
necessary to resolve a petition filed pursuant to the Convention and ICARA.
Specifically, neither the Convention nor ICARA, nor any other law of which we are
aware including the Due Process Clause of the Fifth Amendment, requires ‘that discovery
be allowed or that an evidentiary hearing be conducted’ as a matter of right in cases
17
arising under the Convention. [Citation.]” (West v. Dobrev (10th Cir. 2013) 735 F.3d
921, 929 (West), italics added.)
“Where circumstances warrant, both the Convention and ICARA provide
the [trial] court with ‘the authority to resolve these cases without resorting to a . . .
plenary evidentiary hearing.’ [Citation.]” (West, supra, 735 F.3d at p. 929, italics
added.) Convention Articles 2 and 11 respectively enjoin the court to use “the most
expeditious procedures available” and to “act expeditiously in proceedings for the return
of the children.”
But alacrity in Hague proceedings is not an objective for its own sake.
Rather, an overriding issue remains the child’s safety. As in Van De Sande, where the
district court “inexplicably” ignored the father’s alleged death threats in summarily
ordering return without an evidentiary hearing (431 F.3d at p. 570) and in Khan, where
the court “declined to decide one way or the other” whether the father beat the child
(680 F.3d at p. 786), “[t]he dispatch in this case [was] excessive.” (Id. at p. 784.) As in
those cases, “the procedural adequacy of the proceedings in the [trial] court is the
principal issue presented by this appeal.” (Ibid.)
Here, mother contends the circumstances did not warrant eviscerating her
case by: (1) denying her repeated requests to testify; (2) eliminating her right to cross-
examine father by dispensing with his testimony; (3) excluding any testimony from her
extensive list of witnesses; (4) excluding her voluminous exhibit binders with
documentation to support her claims and the testimony of her proposed witnesses;
(5) admitting only father’s exhibits, the two Danish court orders; (6) sua sponte quashing
her subpoena of an Orange County social worker by precluding any witness testimony;
(7) holding in abeyance and effectively excluding a social worker’s report that the court
conceded “I have not read it and neither will you”; (8) summarily denying mother’s
multiple requests for an Evidence Code section 730 psychological evaluation for Mia
while excluding all mother’s foregoing evidence, and (9) denying her request to be
18
present for or to review a transcript of the trial court’s in-camera interview with Mia.
While some of these rulings may have been justifiable alone or in the abstract, considered
together we have no confidence mother received a fair or adequate hearing.
In addition to the death threat e-mail, mother alleged other instances of
abuse postdating the 2012 Danish court orders, including abuse that led Mia to run away
from father in Denmark and take refuge with her maternal grandmother. The trial court
relied on father’s bare denial of abuse in his declaration, and denied mother’s request to
present contrary documentary evidence and testimony and to cross-examine father. The
trial court also relied on its own interview with Mia in which the court later recounted
that Mia denied ever “‘recall[ing] running away from my father.’”
After the court conducted its interview with Mia, the court denied mother’s
renewed request for a psychologist to interview and evaluate Mia under Evidence Code
section 730 (section 730 evaluation), despite mother’s concerns father exercised his
position as an alleged custodial abuser to manipulate Mia’s testimony directly or
indirectly. Mother also sought the evaluation based on her fear Mia was traumatized into
silence about father’s abuse when Orange County authorities removed her from hwe
mother’s care. According to mother, Mia became nauseated during the raid, vomited on
a deputy, and protested her removal and release to father’s custody. She only acquiesced
on being told her mother would be arrested absent her compliance. According to mother,
Mia may have viewed the trial court as an arm of the authorities seeking to return her to
Denmark and may have believed mother would be incarcerated if Mia did not suppress
her earlier abuse claims.
We do not hold the trial court was required to order a section 730
evaluation, although the trial court may consider that issue on either party’s motion on
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remand.3 Evidence introduced at a new hearing may render a 730 evaluation
unnecessary, or may highlight the need for one. That decision remains for the sound
discretion of the trial court on remand. We simply hold the trial court was required to
afford mother the opportunity to present evidence supporting her claims and to consider
that evidence in a full and fair hearing.
For example, mother attempted to support her claim Mia ran away from
father with a written report from a Danish court-affiliated expert in which Mia told the
psychologist she fled because father hit her and her sister. The trial court, however,
refused to consider the report or to admit any of mother’s supporting documents as
exhibits. Instead, the trial court selectively admitted into evidence only father’s exhibits.
Mother’s witness list included a Danish child welfare worker who assisted the
psychologist in preparing the report and attempted to aid Mia in finding safe housing
away from father, but the trial court refused to allow mother to call any witnesses or to
testify to her concerns about Mia.
Mother’s witness list also included a psychologist to testify “regarding the
impact of abuse and exposure to abuse on a child, as well as a child’s reaction to abuse
and exposure to abuse.” Mother also sought to call the social workers who interviewed
Mia at Orangewood and to obtain the social service agency’s report, if any. The court
conceded a report existed, but declined to review it or allow mother to review it.
According to mother, the agency could not have meaningfully investigated her reports of
abuse because it released Mia immediately to father’s custody before any supporting
reports from Denmark could arrive.
Based on these and similar examples from the record, the trial court could
not simply ignore or decline to hear mother’s evidence or proposed testimony and deem
3 Father, like mother, harbored concerns the other parent unduly influenced
Mia’s account of events, and the trial court was inclined to think after the brief in-camera
session that the maternal grandmother also may have exerted a strong influence on Mia.
20
the matter fully heard and fairly resolved. As the Carlsson court explained, “‘“The trial
of a case should not only be fair in fact, but it should also appear to be fair.” [Citations.]
A prime corollary of the foregoing rule is that “A trial judge [must] keep an open mind
until all the evidence is presented to him.”’ [Citation.]” (Carlsson, supra,
163 Cal.App.4th at pp. 290-291.) It is no surprise the trial court reached the conclusions
it did based on admitting only father’s exhibits and excluding all of mother’s exhibits and
testimony.
The court also relied heavily on its brief, in-camera interview with Mia.
During the interview, Mia denied fearing father, but when the court asked Mia, “Do you
need help through a mental health professional to decide if your father hit you or treated
you badly,” Mia wanted to know what a “mental health professional” was, and when told
“psychologist or psychiatrist,” she answered, “Well, maybe.” Mia explained she was
“confused,” “still a little mixed up about things going on,” had “been thinking so many
things,” “hearing so many things,” and “want[ed] . . . to get help to seeing what the truth
[is] and what’s not.”
It was the trial court’s role as the trier of fact to ascertain the truth, but
where the only witness the court permitted to testify expressed doubt about the truth,
mother should have been allowed to support her claim Mia’s reticence arose from her
forceful detention and father’s influence, including a history of abuse. After preventing
mother from calling any witnesses and declining to consider her supporting exhibits and
documentation, the court could not make an informed and fair decision.
Mia’s return to Denmark under the trial court’s original order, now
reversed, does not moot this appeal or further proceedings below. (Chafin v. Chafin
(2013) __ U.S. __, 133 S. Ct. 1017, 1023-1026.) The trial court retains jurisdiction over
the proceedings and over father (id. at p. 1025), and thereby may ensure Mia’s return if
necessary (ibid.).
21
The unfortunate irony in this case is that mother claimed the Danish courts
failed to afford her a full and fair hearing on her claims father abused her and the
children. According to mother, the Danish courts ignored and never decided her Hague
petition and custody claims alleging father issued death threats against her and the
children when he lost his job during their temporary stay in Germany. According to
mother, father violated the Hague Convention by abducting the children to Denmark or
retaining them there in interference with her parental rights, including by trying to
exclude her from the children’s lives by having her deported from Denmark.
The trial court denied mother’s request to introduce testimony and
supporting evidence showing that, in addition to failing to adjudicate her Hague claims,
the Danish courts declined to allow her to present written evidence of her abuse
allegations and denied her a fair trial when a Danish judge that was not hearing her case
improperly interfered in the proceedings by prohibiting a court-appointed child specialist
from submitting evidence of abuse. Mother asserted European Union authorities have
issued reports on her case and similar cases that Danish courts may pay only lip service to
resolving domestic violence allegations against Danish citizens in custody cases
involving a foreign parent.
Mother sought to call witnesses to explain the Danish court proceedings
and to call European Union and United States Embassy representatives to explain their
respective involvement in ongoing proceedings in Denmark but, as noted above, the trial
court declined to hear any of her witnesses. As in Carlsson where the court summarily
ignored the father’s evidence, due process requires per se reversal. (Carlsson, supra,
163 Cal.App.4th at p. 292.)
According to father, mother never presented a Hague petition in Denmark
and the Danish courts fully adjudicated and rejected her claims of abuse. Father claims
mother is being criminally prosecuted in Denmark for falsifying the e-mail in which he
allegedly made death threats. Of course, if mother is prosecuted and acquitted of those
22
charges, it would not obviate the trial court’s duty on remand to ascertain whether mother
falsified the e-mail or whether father actually issued the threat. The different standard of
review in criminal and civil proceedings and the court’s duty to determine the risk of
harm to a child, if any, requires an independent evaluation. (See Guardianship of
Simpson (1998) 67 Cal. App. 4th 914, 933-934 [father’s acquittal on murder charges did
not obviate inquiry in custody proceedings into circumstances of the alleged killings,
based on obvious relevance to children’s safety].)
The same may be true concerning criminal abuse allegations against father
in Denmark. According to father, he was acquitted of one allegation of domestic
violence in a criminal proceeding that went to trial, and Danish prosecutors declined to
bring charges against him on other incidents mother alleged. It is not clear from a brief
review of the Danish custody decisions admitted into evidence whether the courts in
those civil custody proceedings adjudicated mother’s claims of abuse, or whether they
simply restated the fact that father was acquitted on one count and not criminally
prosecuted on others.
On remand, the trial court must resolve the parties’ conflicting claims and
determine what was adjudicated in the Danish custody proceedings. Indeed, the original
court custody order in father’s favor does not appear to be in the record or among the two
subsequent Danish decisions the trial court admitted. This oversight must be corrected
and may shed light on what actually occurred in Denmark. Mother’s evidence suggests
there were several custody orders in her favor, but in excluding mother’s exhibits and
admitting only father’s, the court denied mother a full and fair hearing. It is far from
clear whether mother’s claims of abuse were actually addressed and adjudicated in the
Danish proceedings.
The court must determine, with the parties’ help, whether the Danish civil
courts in custody proceedings have the authority to independently determine whether
domestic violence has occurred when there has been an acquittal in criminal proceedings
23
or it is not criminally charged. More to the point, the trial court must determine in this
case whether the Danish court that awarded custody to father actually heard and
adjudicated mother’s claims of abuse. If not, the trial court must determine whether the
Hague Convention nevertheless requires it to extend a comity or collateral estoppel effect
to father’s acquittal on one charge in Denmark or to the decision by Danish civil
authorities not to prosecute him on others.
The trial court must make these findings for two reasons. First, clearly
ascertaining what has been decided in Denmark will resolve what mother can litigate in
her claim of grave risk. Specifically, it will affect whether she can include abuse
allegations that predated the 2012 Danish court orders, based on her contention those
claims have never been adjudicated. And it also impacts whether she can assert Denmark
is not Mia’s place of habitual residence, based on her contention her factual claim of prior
abduction has never been adjudicated.4 Secondly, the trial court must determine what
occurred in the Denmark proceedings so it can fully and fairly assess mother’s claim
under the Convention that her or Mia’s fundamental rights will not be protected there.
(Convention, art. 20.)
In sum, due process requires that we reverse and remand the matter so
mother may have her day in court. We express no opinion on the merits of mother’s or
father’s claims; rather, we reverse merely to ensure that the parties’ triable issues are in
fact tried on a full and fair presentation of their evidence. (Khan, supra, 680 F.3d at
p. 788 [“The essential point is that the evidentiary hearing was inadequate”].)
It is possible, even likely, other proceedings in Denmark or the European
Union have outstripped our discussion, requiring careful inquiry on remand into what has
4 Father claims mother stipulated in the trial below to Denmark as Mia’s
habitual residence, which mother denies. On remand, we return the case to its posture
before trial, and therefore any prior trial stipulations are void but may be renewed with
the parties’ consent.
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occurred and its collateral estoppel or comity effect, if any. With its international law
dimension and fraught issues of a family torn apart across borders, this case is undeniably
complex. But that complexity, if the parties are unable to resolve their differences, is all
the more reason not to short-circuit the adjudicative process.
III
DISPOSITION
The judgment is reversed and remanded for further proceedings consistent
with this opinion. The parties shall bear their own costs on appeal.
ARONSON, J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
MOORE, J.
25
Filed 1/15/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
CHRISTIAN THORSEN NOERGAARD,
Plaintiff and Respondent, G049854
v. (Super. Ct. No. 14FL000022)
TAMMY NOERGAARD, ORDER GRANTING REQUEST
FOR PUBLICATION
Defendant and Appellant.
The Family Violence Appellate Project has requested that our opinion, filed
on December 16, 2015, be certified for publication. It appears that our opinion meets the
standards set forth in California Rules of Court, rule 8.1105(c). The request is
GRANTED.
The opinion is ordered published in the Official Reports. (Cal. Rules of
Court, rule 8.1105(b).)
ARONSON, J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
MOORE, J.
26