Mauvais v. Herisse

United States Court of Appeals
For the First Circuit
No. 14-1763
MANEL MAUVAIS,
Petitioner, Appellee,
v.
NATHALIE HERISSE,
Respondent, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, U.S. District Judge]
Before
Torruella, Dyk,* and Kayatta,
Circuit Judges.
Allison Flood, with whom James Verner Moore and Harvard Legal
Aid Bureau, were on brief for appellant.
Matthew P. Barach, for appellee.
November 5, 2014
*
Of the Federal Circuit, sitting by designation.
TORRUELLA, Circuit Judge. Petitioner-Appellee Manel
Mauvais (the "father") filed a petition for the return of his two
minor children, M.M. and R.M., to Canada pursuant to the Hague
Convention on the Civil Aspects of International Child Abduction,
Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89 (the "Hague
Convention" or the "Convention"), as implemented by the
International Child Abduction Remedies Act, 22 U.S.C. § 9001 et
seq. ("ICARA"). In September 2013, Respondent-Appellant Nathalie
Herisse (the "mother") took the children from Canada, where the
parents and children had lived for approximately three-and-a-half
years, and relocated them to the United States, where the entire
family had never lived together.
After a bench trial and consideration of the parties'
submissions, the United States District Court for the District of
Massachusetts granted the father's petition, determining that
Canada was the children's country of habitual residence and that
there was no grave risk that returning the children to Canada would
expose them to physical or psychological harm. After careful
consideration of the evidence and the parties' arguments, we
affirm.
I. Background
A. Family History
The mother and father are both citizens of Haiti, where
they met and began a romantic relationship in 2002. The parties
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disagree on whether they were formally married, but the father
attests that he obtained a divorce from the mother in Haiti in
November 2012 and that he remarried in 2013. Currently, the father
lives in Canada and the mother lives in Boston, Massachusetts.
Together, they have two female children: M.M. was born
in France in December 2005, and is now nearly nine years old; and
R.M. was born in the United States in November 2009, and is
approximately five years old. The father also has three other
children, including twins -- B.M. (male) and S.M. (female), who are
now between nine and ten years old -- from a previous
relationship.1
During the course of their approximately ten-year
relationship, the parties intermittently lived together,
principally in Haiti and Canada. They lived separately in Haiti
from 2002 to 2005. From some point in 2005 until 2007, the father
lived in St. Maarten and the mother lived in France, where she gave
birth to their daughter, M.M. After this period abroad, the
parties both moved back to Haiti, where they lived together from
2007 until 2009.
In September 2009, the mother moved from Haiti to live
with her aunt in Massachusetts, where R.M. was born two months
1
There is evidence that the twins lived with the father, the
mother, M.M., and R.M. at various times over the years. The
father's third child from a previous relationship is not relevant
to this appeal.
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later. Meanwhile, M.M. remained with her father in Haiti. The
mother did not return to live in Haiti.
In January 2010, less than two months after R.M.'s birth,
a catastrophic earthquake devastated the parties' community in
Haiti. Following the earthquake, in February 2010, the father and
M.M. moved to Québec, Canada, where members of the father's family
lived. The mother testified that she asked the father to bring
M.M. to Massachusetts, but he refused and urged her to join him in
Canada instead. She further testified that he threatened to harm
or kill M.M. if she refused to join him, so she reluctantly took
R.M. and moved to Canada in March 2010. The father denies the
allegations that he threatened any physical harm.
At first, the family lived in Montréal, Québec, with the
father's sister and her family. In July 2010, the parents moved
into their own apartment, along with their two daughters and the
father's twin children. In January 2011, the mother moved out,
taking M.M. and R.M. with her, and leaving behind the father and
his older twins. At first the mother and her daughters briefly
lived with the mother's relatives in the area, before they moved to
a separate apartment in Montréal.
Over one year later, in February or March 2012, the
father prevailed upon the mother to allow him to rejoin her, and he
and his other children moved into her apartment. The parties lived
together for some time thereafter.
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During the family's time in Québec, M.M. and R.M. visited
regularly with relatives on both sides of the family, attended
church and Sunday school, and developed Québécois (French Canadian)
accents. M.M. attended a Québec primary school during the 2011-
2012 and 2012-2013 school years, and was pre-enrolled in the same
school for the 2013-2014 school year. R.M. was enrolled in a full-
time day care program from the end of April 2013 until late August
2013.
In the fall of 2012, R.M. began to exhibit health
problems, including frequent nosebleeds and weight loss. The
mother decided that R.M., as a U.S. citizen, should return to the
United States to receive medical care. For that reason, the father
and mother agreed that the mother's aunt could bring R.M. to the
United States for medical care; the parties' written agreement
provided that R.M. would be returned to Canada around September 20,
2013. In the fall of 2013, R.M. was examined and treated for
eczema, a tendency to experience nosebleeds, and mild anemia, for
which she was prescribed an iron supplement.
R.M. was not returned to Canada as agreed. Instead, on
September 13, 2013, the mother left Canada with M.M. and traveled
to her aunt's home in Massachusetts, where the mother and the two
children remained through oral argument in this case.
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B. Procedural History
On November, 26, 2013, the father filed a petition in the
United States District Court for the District of Massachusetts,
seeking a court order for the return of M.M. and R.M. to Canada,
pursuant to the Hague Convention and its implementing statute,
ICARA. After a bench trial, the district court concluded that the
father's petition should be granted and the children be returned to
Canada.
In support of that determination, the district court made
several findings of fact and conclusions of law. Among those
facts, the district court found that the parties' actions
demonstrated that they "both were content" for the children to live
in Canada for at least two years immediately prior to the
children's removal to Massachusetts. The court found that even
after the mother stopped living with the father, she chose to
remain in Canada in her own household with the children. During
this time, the children led "settled" and "acclimatized" lives in
Canada, where they attended school and participated in social
activities. The court thus concluded that Canada was the
children's habitual country of residence at the time of their
removal, and they were wrongfully removed or retained for purposes
of the Hague Convention.
The district court further found that returning the
children to Canada would not involve a grave risk of physical or
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psychological harm. The court noted that the mother admitted that
the father has never harmed or attempted to harm M.M. or R.M. It
further found it "telling" that even after the mother moved out,
she took no steps to prevent the father from having contact with
the children. Therefore, the court granted the father's petition
for the return of M.M. and R.M. to Canada. This appeal followed.
II. Discussion
"The Hague Convention is a multilateral treaty designed
to address 'the problem of international child abductions during
domestic disputes.'" Neergaard-Colón v. Neergaard, 752 F.3d 526,
529-30 (1st Cir. 2014) (quoting Abbott v. Abbott, 560 U.S. 1, 8
(2010)). To effect this goal, "[t]he Convention seeks 'to secure
the prompt return of children wrongfully removed to or retained in
any Contracting State,' and 'to ensure that rights of custody and
of access under the law of one Contracting State are effectively
respected in the other Contracting States.'" Abbott, 560 U.S. at
8 (quoting Hague Convention, art. 1).
The "return remedy" is the "central operating feature" of
the Convention, id. at 9, and "lays venue for the ultimate custody
determination in the child's country of habitual residence rather
than the country to which the child is abducted," Lozano v. Montoya
Alvarez, 134 S. Ct. 1224, 1228 (2014); see also Abbott, 560 U.S. at
20 ("The Convention is based on the principle that the best
interests of the child are well served when decisions regarding
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custody rights are made in the country of habitual residence.").
Rather than "alter[ing] the existing allocation of custody rights,"
the return remedy instead "allow[s] the courts of the home country
to decide what is in the child's best interests." Abbott, 560 U.S.
at 20. "It is the Convention's premise that courts in contracting
states will make this determination in a responsible manner." Id.However, "[t]he return remedy is not absolute." Lozano,
134 S. Ct. at 1229. Instead, there are several exceptions under
which return is excused. See id. at 1229-30. Of these, one narrow
exception is found in Article 13(b) of the Convention, which
"gives a court discretion to return or decline to return a child
who has not become settled if 'there is a grave risk that . . .
return would expose the child to physical or psychological harm or
otherwise place the child in an intolerable situation.'" Id. at
1238 (Alito, J., concurring) (quoting Hague Convention, art.
13(b)); see also Yaman v. Yaman, 730 F.3d 1, 17 (1st Cir. 2013)
(stating that if an Article 13 exception is established, "it is
within a court's discretion to refuse to order return" to the
country of habitual residence, but that "[a]t no point . . . is a
court bound to so refuse"); Whallon v. Lynn, 230 F.3d 450, 459 (1st
Cir. 2000) ("The article 13(b) exception is a narrow one.").
Here, the mother raises two issues on appeal, arguing
that the district court erred (1) by ruling that Canada was the
children's country of habitual residence, and (2) by finding that
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returning the children to Canada would not subject them to a grave
risk of physical and psychological harm. We address each claim in
turn, reviewing the "district court's factual findings for clear
error while reviewing its interpretation and application of the
Hague Convention de novo." Neergaard-Colón, 752 F.3d at 530
(citing Darín v. Olivero-Huffman, 746 F.3d 1, 8-9 (1st Cir. 2014)).
A. Country of Habitual Residence
Under the Convention, a petitioner seeking to prove
wrongful removal must show, by a preponderance of the evidence,
that immediately prior to the removal: "(1) the child's habitual
residence was the place to which the child's return is being
sought, (2) the petitioner had custody rights over the child, and
(3) the petitioner was exercising his or her custody rights."
Sánchez-Londoño v. González, 752 F.3d 533, 540 (1st Cir. 2014)
(citing Darín, 746 F.3d at 9). Importantly, pursuant to the
Convention, the court-ordered return of wrongfully removed or
retained children to their country of habitual residence "is not a
final determination of custody rights." Neergaard-Colón, 752 F.3d
at 530. Rather, such an order of return "simply ensures that
custodial decisions will be made by the courts of the children's
country of habitual residence." Id. (citing Abbott, 560 U.S. at
9).
The determination of a child's country of habitual
residence is "critical, because '[i]f the state in which a child is
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retained was also the child's place of habitual residence
immediately prior to retention, that retention is not wrongful
under the Hague Convention.'" Sánchez-Londoño, 752 F.3d at 540
(quoting Neergaard–Colón, 752 F.3d at 530).
Although the Convention itself does not define the term
"habitual residence," our inquiry into this question "'begins with
the parents' shared intent or settled purpose regarding their
child's residence.'" Id. (quoting Nicolson v. Pappalardo, 605 F.3d
100, 103-04 (1st Cir. 2010)). "As a secondary factor, 'evidence of
a child's acclimatization to his or her place of residence may also
be relevant.'" Id. (quoting Neergaard–Colón, 752 F.3d at 530); see
also Darín, 746 F.3d at 11-13.
When reviewing a district court's findings as to habitual
residence, "we defer to the court's findings of intent absent clear
error, but we review the ultimate determination of habitual
residence -- a mixed question of fact and law -- de novo."
Neergaard–Colón, 752 F.3d at 530.
1. The Parents' Shared Intent or Settled Purpose
As is the case here, where the children in question are
very young, we focus on the shared intent or settled purpose of the
parents, rather than the children, because young children "lack[]
both the material and psychological means to decide where [they]
will reside." Darín, 746 F.3d at 11; see also Sánchez-Londoño, 752
F.3d at 540 (stating that when children are very young, it is
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generally the parents who "are entitled to determine the child's
place of habitual residence"); Neergaard–Colón, 752 F.3d at 531.
We look specifically to the latest moment of the parents' shared
intent, "as the wishes of one parent alone are not sufficient to
change a child's habitual residence." Neergaard–Colón, 752 F.3d at
531 (citing Darín, 746 F.3d at 11).
In the absence of clear error in the district court's
subsidiary findings of fact, we defer to its finding of intent:
its "plausible interpretation of the facts cannot be rejected just
because the record might sustain a conflicting interpretation."
Darín, 746 F.3d at 8.
In a situation like this, in which the parties have lived
in two or more countries, the district court is required to
"distinguish 'between the abandonment of a prior habitual residence
and the acquisition of a new one.'" Sánchez-Londoño, 752 F.3d at
540 (quoting Neergaard–Colón, 752 F.3d at 531). "A person cannot
acquire a new habitual residence without forming a settled
intention to abandon the one left behind. Otherwise, one is not
habitually residing; one is away for a temporary absence of long or
short duration." Darín, 746 F.3d at 11 (internal quotation marks
and citations omitted).
Here, although certain members of the family lived in
various countries over the years -- including Haiti, St. Maarten,
France, Canada, and the United States -- only two countries are
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legitimate candidates for consideration as the country of the
children's habitual residence pursuant to the parents' latest
shared intent or settled purpose prior to removal: Haiti and
Canada. Indeed, the mother has not put forth any other alternative
country of habitual residence. Rather, the crux of her argument on
this issue is that the parents never intended to move permanently
from Haiti to Canada.
In support of this position, the mother argues that the
father only left Haiti after a catastrophic earthquake forced him
to seek refugee status in Canada. She maintains that she was
coerced to move to Canada, and that she never applied for asylum or
status as a permanent resident there. Specifically, the mother
alleges that the father forced her to leave Boston and bring R.M.
to join him and M.M. in Canada by means of threats. She alleges
that he said that if she did not come to Canada, he would buy rat
poison and use it to first kill M.M., and then himself. If true,
such allegations certainly would undermine the father's argument
that both parents shared an intent for the children to reside in
Canada.
However, the father denies the mother's claims, and the
district court did not affirmatively credit her allegations. The
court found that although the mother only "reluctantly" took R.M.
to Canada in March 2010, she then proceeded to live there with the
father and his children for approximately ten months. In January
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2011, the mother, R.M., and M.M. moved out, first staying with
relatives but then moving to a separate apartment in Montréal. In
February or March 2012, the mother agreed to allow the father and
his other children to move into her apartment. The court further
found that "[i]t is clear that the children lived with their mother
in an apartment in Montreal for about two years prior to the events
that gave rise to the present petition."
Indeed, the court found relevant the undisputed fact that
even after the mother stopped living with the father, "she
established her own household with the children in Montreal."
Thus, the court found that the mother's actions show that she chose
to remain in Canada of her own volition, and the fact that "she
subsequently had a change of heart and decided that the children
would be better off living elsewhere is of no moment, as any such
intent was not a shared one with [the father]." For those reasons,
the district court concluded that although the parents originally
lacked a shared intent for the children to live in Canada when the
mother first arrived in March 2010, the parties later formed such
an intent at some point during the intervening three-and-a-half
years prior to the children's removal and retention in September
2013. The court found that for at least two years during this
period, and possibly longer, both parents were "content" to have
the children live in Canada.
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On the record before us, we cannot say that these
findings are clearly erroneous. Although the mother offers various
reasons for her decisions to travel and stay in Canada, including
her uncertain immigration status, she does not dispute that she
continued to live in Canada -- at times together with the father,
and at times separately -- for three-and-a-half years. She asserts
that her "action to remain in Canada cannot be viewed as a choice,"
arguing that "she remained in Canada due to [the father's]
extensive control and coercion in the form of verbal and sexual
abuse." However, the mother also admits that she moved out of the
father's household and remained in Canada for a period of one year.
Although she argues that during this period she "had nowhere to go"
and could not return to the United States due to poverty and lack
of legal immigration status, she fails to explain how circumstances
changed such that she was later able to return to the United States
in September 2013 but was unable to do so before that time. On
these facts, the district court concluded that the mother's
"actions show that even when she was not under [the father's]
control or influence, she chose to remain in Canada." We find no
clear error in this factual finding.
Nonetheless, the mother maintains that the parties did
not intend to abandon Haiti. See Darín, 746 F.3d at 11. We find
this argument unconvincing. Nothing in the parents' actions
suggests that they intended to return to Haiti. The mother left
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Haiti in September 2009, and the father left Haiti in February
2010. The mother has not lived in Haiti for five years, and the
father has not lived in Haiti for well over four years.
Moreover, neither child was born in Haiti -- M.M. was
born in France, and R.M. was born in the United States. There is
no evidence of any attempt or future plan by the parents to return
to Haiti to raise the children there. In fact, the mother
testified at trial that after giving birth to R.M. in
Massachusetts, she wanted the father and M.M. to join her in the
United States, but he would not. Thus, the evidence shows no
shared intent by the parents to return to Haiti or to raise their
children in the United States, leaving Canada as the country in
which the parents last had a shared intent for their children to
reside. See Neergaard–Colón, 752 F.3d at 531-32. Accordingly, we
cannot conclude that the district court clearly erred in
determining that the parents shared an intent to abandon Haiti in
favor of Canada.
Finding no clear error in the district court's findings
of the subsidiary facts, we defer to its finding of intent. See
Sánchez-Londoño, 752 F.3d at 542 (citing Darín, 746 F.3d at 8). We
thus uphold the district court's factual finding that the parents
last shared an intent for their children to habitually reside in
Canada. See id. at 540-42.
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2. Acclimatization
Having upheld the district court's factual finding that
the parents intended to abandon Haiti and establish Canada as the
children's country of habitual residence, we now consider whether
the children were nonetheless acclimatized to a country other than
Canada. "[F]actors evidencing a child's acclimatization to a given
place -- like a change in geography combined with the passage of an
appreciable period of time -- may influence our habitual-residence
analysis." Id. at 542. "[I]n certain circumstances, 'a child can
lose its habitual attachment to a place even without a parent's
consent . . . if the objective facts point unequivocally to a
person's ordinary or habitual residence being in a particular place
. . . .'" Neergaard–Colón, 752 F.3d at 532 (quoting Darín, 746
F.3d at 11–12). However, courts should be "slow to infer" that an
established country of habitual residence has been abandoned, when
the parents have not demonstrated a shared intent to do so. Id.
(quoting Darín, 746 F.3d at 13). Relatedly, evidence of
acclimatization is generally insufficient "to establish a child's
habitual residence in a new country when contrary parental intent
exists." Id. at 12 (quoting Darín, 746 F.3d at 12).
Here, the overwhelming weight of the evidence supports
the district court's conclusion that "[f]or approximately two
years, the children lived in a settled, 'acclimatized' way in
Canada." The court found that M.M. attended a primary school and
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R.M. attended a full-time day care program in Canada. While there,
"[b]oth children visited regularly with relatives, apparently on
both their mother's and their father's sides." They regularly
attended church and Sunday school, and they developed Québécois
accents.
The district court further found that "[i]t is noteworthy
[that] [R.M.] has spent almost her entire life, and [M.M.] about
half her life, in Canada, and the evidence presented at trial shows
that both [R.M.] and [M.M.] have had sufficient time for
acclimatization." The mother has failed to demonstrate that these
factual findings are clearly erroneous. Indeed, the record does
not support a conclusion that the children were acclimatized to any
country other than Canada. Having found no clear error on this
issue, we uphold the district court's factual determination that
M.M. and R.M. were acclimatized to life in Canada.
Given the lack of clear error in the district court's
factual findings on the parents' shared intent and on the
children's acclimatization, both of these factors support the
district court's ultimate determination that Canada was the
children's country of habitual residence. See Sánchez-Londoño, 752
F.3d at 542-43. Accordingly, having been provided no cause to
disturb the district court's findings on this issue, we uphold the
court's determination that Canada was M.M. and R.M.'s country of
habitual residence.
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B. Grave Risk of Physical or Psychological Harm
The determination of Canada as the children's country of
habitual residence does not end our inquiry, however. Even if
return would otherwise be proper under the Convention, a court "is
not bound to order the return of the child" if the party opposing
return establishes that there exists a "grave risk" that return to
the country of habitual residence "would expose the child to
physical or psychological harm or otherwise place the child in an
intolerable situation." Hague Convention, art. 13(b).
This harm "must be a great deal more than minimal" --
"[n]ot any harm will do." Walsh v. Walsh, 221 F.3d 204, 218 (1st
Cir. 2000). Similarly, the risk of harm must be "grave," and not
"low." Id. "Courts are not to engage in a custody determination,
so '[i]t is not relevant . . . who is the better parent in the long
run, or whether [the absconding parent] had good reason to leave
her home . . . and terminate her marriage.'" Id. (quoting Núñez-
Escudero v. Tice-Menley, 58 F.3d 374, 377 (8th Cir. 1995)).2
2
The parties here have not argued for "undertakings," nor has the
district court ordered any such measures. In Walsh, we stated that
[a] potential grave risk of harm can, at times, be
mitigated sufficiently by the acceptance of undertakings
and sufficient guarantees of performance of those
undertakings. Necessarily, the "grave risk" exception
considers, inter alia, where and how a child is to be
returned. The undertakings approach allows courts to
conduct an evaluation of the placement options and legal
safeguards in the country of habitual residence to
preserve the child's safety while the courts of that
country have the opportunity to determine custody of the
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Here, the mother seeks to avail herself of this narrow,
discretionary exception to the return remedy,3 arguing that
returning M.M. and R.M. to Canada will expose them to a grave risk
of physical or psychological harm. We find no clear error in the
district court's determination on this issue.
1. The Mother's Allegations
In her submissions, testimony, and argument, the mother
levies a number of serious allegations against the father. Among
other things, she alleges that the father repeatedly raped her,
including in the presence of the couple's children. According to
the mother, this sexual abuse began while the parties lived
together in Haiti in 2007 and continued through 2009, even after
she was pregnant. She alleges that the sexual abuse and rapes
resumed when they lived together in Canada, beginning in July 2010
and continuing through her most recent rape on September 9, 2013.
children within the physical boundaries of their
jurisdiction. Given the strong presumption that a child
should be returned, many courts, both here and in other
countries, have determined that the reception of
undertakings best allows for the achievement of the goals
set out in the Convention while, at the same time,
protecting children from exposure to grave risk of harm.
Id. at 219.
3
See Yaman, 730 F.3d at 17 (explaining that the Article 13
exceptions are discretionary and do not require a court to refuse
the return remedy if such an exception is shown); Whallon, 230 F.3d
at 459 (describing the Article 13(b) exception for "grave risk" as
a "narrow" exception).
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It was after this alleged rape that she fled to Boston on
September 13, 2013.
The mother also alleges that one of the father's twin
children, B.M., exhibited sexually aggressive behavior toward his
half-sister, M.M. The mother states that this behavior began while
the family was living in Haiti and continued when the family was
reunited in Canada. She states that both the twins teased and
bullied M.M. and R.M., including by biting and scratching M.M. in
Haiti. While the family lived in Haiti, the mother alleges, she
found B.M. rubbing his penis against M.M.'s genitals. In response,
the father whipped B.M. with a belt. Shortly thereafter, after
another incident of sexually inappropriate behavior by B.M. toward
M.M., the father allegedly told the mother that the behavior was
not serious. The mother also alleges that, while the family was
living together in Canada in May 2010, she found B.M. and M.M. in
the living room with their pants and underwear around their ankles.
Once again, the father whipped B.M. with a belt as punishment.
The mother argues that in addition to potential physical
and sexual harm, M.M. and R.M. would be subjected to corresponding
psychological harm if returned to Canada. At trial, the mother
offered her own testimony as well as that of her aunt. She also
offered the expert testimony of Dr. Eli Newberger, a Massachusetts
pediatrician. Dr. Newberger offered his professional opinion that
the children would be subject to a grave risk of physical or
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psychological harm if returned to Canada, on the basis of the
mother's assertions of past abuse. The "nature and scope" of Dr.
Newberger's work regarding the case involved (1) reviewing the
children's medical records at Boston Medical Center, and (2) a
visit to his home office, where he interviewed the mother, her
aunt, and both children.
Additionally, the mother argues that R.M.'s medical
condition cannot be treated adequately in Canada because R.M. is
not a Canadian citizen and lacks health insurance in Canada.
2. The Father's Position
The father denies the mother's allegations regarding any
sexual assault or rape of her, stating that he never abused her
sexually and denying that the parties ever had sexual relations in
front of the children. He further denies the allegations of sexual
abuse of M.M. by his twins.4 He notes that the mother alleges that
his improper discipline was directed only toward B.M. and not
against M.M. or R.M.; relatedly, he emphasizes that the mother
admits that he never physically harmed M.M. or R.M. The father
maintains that, during the parties' separation in Canada, he
continued to visit with the children regularly -- generally every
4
In his deposition, however, the father did admit that he had to
discipline the twins for inappropriate sexual behavior. He
asserts, however, that he "would discipline the children using
appropriate methods such as taking away something that they like
and sending them to bed early."
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weekend (from Friday after school until Sunday night), but also
occasionally during the school week.
He notes that the mother never contacted the police
regarding her claims of sexual abuse, nor did she ever seek
protection or a restraining order from the Canadian courts against
him. He asserts that she only filed for a restraining order in the
United States on September 17, 2013, after she had relocated to
Massachusetts with the children.
The father maintains that his sister and her family have
a close relationship with M.M. and R.M., and that his niece would
regularly babysit for the children. He asserts that the children
were acclimated to life in Canada, have French Canadian accents,
have friends in Canada, and that M.M. participated in
extracurricular activities such as basketball and ice skating. He
further states that medical records indicate that R.M.'s medical
condition is mild anemia, which can be treated adequately in Canada
with medication and other follow-up treatment.
3. Analysis
As "a party opposing return based on Article 13's 'grave
risk' exception," the mother here "bears the burden of establishing
that exception by clear and convincing evidence"; she must prove
subsidiary facts by a preponderance of the evidence. Yaman, 730
F.3d at 11; see also 22 U.S.C. § 9003(e)(2). On appeal, we review
the district court's findings of fact with deference, overturning
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a factual finding for clear error "only if it 'hit[s] us as more
than probably wrong -- it must prompt a strong, unyielding belief,
based on the whole of the record, that the judge made a mistake.'"
Sánchez-Londoño, 752 F.3d at 539 (quoting Darín, 746 F.3d at 8–9).
Here, the district court noted the mother's testimony
that the father "frequently acted toward her in a sexually abusive
manner," and that "he insisted on sexual activity at times and
under circumstances when the children were or could have been
exposed to it." However, the district court found that this
"testimony was general and vague," and that it was "difficult to
draw any reliable conclusions about how frequently such conduct
occurred or how significant any impact on the children might have
been." The court observed that the mother "admits that [the
father] has never harmed or attempted to harm [M.M.] or [R.M.]."
Furthermore, the court found it "telling" that "even after moving
out in January 2011, [the mother] took no steps to prevent [the
father] from having contact with their children."
The court also referred to the mother's testimony that
the father's son, B.M., was sexually aggressive toward his half-
sister, M.M. One of these alleged incidents occurred in Haiti, and
according to the mother's testimony, the father disciplined B.M. by
beating him with a belt. The mother's aunt testified about a
similar incident years later in Canada, but the district court
found no evidence as to how B.M. was disciplined for that incident.
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Meanwhile, the father's niece testified that all the children,
including the older twins, played well together and enjoyed each
other's company.
Additionally, the district court reviewed the evidence
concerning R.M.'s medical condition. In the fall of 2012, R.M.
began experiencing frequent nosebleeds and weight loss. The
parents agreed that R.M., as a U.S. citizen, could return to the
United States for medical care in late August 2013. The court
found that the medical records from the Boston Medical Center
showed no major health issues. In the fall of 2013, R.M. was
examined and treated for eczema, frequent nosebleeds, and mild
anemia, for which she was prescribed an iron supplement.
As to Dr. Newberger's expert testimony that R.M. or M.M.
would suffer psychological harm if returned to Canada, the district
court found such evidence "unconvincing," because it was not "based
on an in-depth investigation, but rather on some office interviews
and a review of hospital records that themselves did not disclose
any grave medical or emotional issue." Accordingly, the court
found that "[t]he evidence fell well short of supporting a finding
of a grave risk of psychological harm."
Having reviewed the record evidence and the parties'
arguments on appeal, we find no clear error among the foregoing
findings of fact. First, we do not find any merit to the mother's
argument that the district court improperly discounted
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Dr. Newberger's testimony. Dr. Newberger was called as an expert
witness, not as a fact witness. The mother's counsel submitted to
the district court that "no part of Dr. Newberger's opinion is
based upon communication with the children." Dr. Newberger
testified that his first involvement in this case began with a
conversation with the mother's counsel. He only met with the
mother and the children once, he did not review their Canadian
medical records, and he never interviewed the father. He testified
that "with regard to the interviews of the children, there was
nothing of probative importance." Dr. Newberger's expert testimony
does not and cannot serve as factual testimony bolstering the
mother's narrative regarding alleged past abuse in the household,
as he had no independent knowledge of what transpired in the
household. Accordingly, we find no clear error in the district
court's evaluation of Dr. Newberger's testimony.
Second, we find no clear error in the district court's
determination that R.M.'s medical records show "no major health
issues," or in its determination that her treated conditions
include nothing more than "eczema, frequent nosebleeds, and mild
anemia." The mother has not demonstrated that these conditions
cannot be adequately treated by health care providers in Canada,
such that returning R.M. to Canada would subject her to a "grave
risk" of physical harm.
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Turning to her other arguments, the mother's allegations
of abuse are not to be taken lightly. She has described incidents
of brutality that, if true, paint a disturbing portrait of a
physically, sexually, and emotionally abusive and controlling
husband. We do not doubt that there can be significant, lasting
psychological trauma inflicted on children who witness such abuse
between their parents. See, e.g., Lynn Hecht Schafran, Domestic
Violence, Developing Brains, and the Lifespan: New Knowledge from
Neuroscience, 53 Judges' J., no. 3, Summer 2014, at 32, 35 ("The
toxic stress that harms developing brains comes from living in a
chronic state of tension and fear.").
However, the district court did not fully credit the
mother's testimony, which it found to be "general and vague." The
father denies the mother's allegations, and the mother has offered
scant evidence to corroborate her testimony. There is no
indication in the record that the mother previously sought legal
protection in either Haiti or Canada against the father, no
indication that she sought sole custody previously, and no
indication that she made any such allegations prior to her removing
the children from Canada and taking them to Boston. To the
contrary, prior to removal, the mother had consistently allowed the
father to play an active role in the children's lives. The mother
admits that the father has never harmed or attempted to harm M.M.
or R.M. As previously described, the district court also found it
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"difficult to draw any reliable conclusions" about the frequency of
the conduct alleged by the mother and how significant its impact
was on the children.
Moreover, the mother does not dispute that the father has
since remarried. Although she asserts that the father is a "serial
spousal abuser" and that the children would experience
psychological trauma if returned to Canada -- "a place they
associate with their [f]ather's abuse of [their] [m]other" -- there
is no evidence or allegation in the record that the father has ever
committed abuse of any sort against his current wife. Thus, there
is no indication of a "grave risk" that upon their return to Canada
the children will be exposed to the type of domestic abuse alleged
by the mother.
As to potential sexual abuse of M.M. or R.M. by their
half-brother, B.M., who is himself still a young child, there is
testimony describing isolated instances of sexually aggressive or
inappropriate behavior by B.M. toward M.M. In her requests for
findings of fact before the district court, the mother alleged
three such instances. However, several years have passed since the
last alleged instance of sexually inappropriate behavior by B.M.
toward M.M., and both the mother and the father agree that B.M. was
disciplined in some way for the prior incident. The father's niece
further testified that all the children get along well together.
The record does not establish that B.M. continues to exhibit
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sexually aggressive or inappropriate behavior, or that the father
and his new wife are unwilling or unable to prevent any such
incidents in the future. Thus, on the supported factual findings
made by the district court, we cannot say that there is a "grave
risk" that B.M. will behave in sexually aggressive or inappropriate
ways toward either M.M. or R.M. if they are returned to Canada.
In her submissions, the mother relies heavily on Walsh,
221 F.3d at 204, asserting that the district court, like the
district court in Walsh, erred by failing to give proper weight to:
the mother's allegations; the connection between exposure to
spousal abuse and physical and psychological harm; the danger of
the sexualized environment in the home; and the degree of the
father's propensity for violence. However, the district court here
explicitly considered our decision in Walsh and applied it to the
instant case, finding that "[t]he facts of this case are neither as
dire nor as clear." Reiterating her most serious allegations of
abuse, the mother focuses on attacking the former determination
(whether these facts are as "dire"), but, critically, fails to
establish that the district court erred in finding that the instant
facts are not as "clear" as those in Walsh.
Indeed, the mother's argument regarding Walsh hinges on
accepting all of her allegations as true. The district court did
no such thing. Rather, the district court merely recited aspects
of her testimony.
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Nothing in the district court's opinion suggests that it
accepted the mother's testimony wholesale or resolved all
credibility determinations in her favor. To the contrary, the
district court found the mother's testimony to be "general" and
"vague," and found that it could not "draw any reliable
conclusions" about the frequency of the alleged conduct or its
effect on the children. Furthermore, the district court expressed
skepticism regarding the degree to which the mother feared for her
children's safety, stating that it was "telling" that she "took no
steps to prevent [the father] from having contact with their
children, unlike the respondent in Walsh, who had sought numerous
protective orders out of fear of harm to her or her children." We
find no clear error in these determinations, which do not leave us
with the "'strong, unyielding belief . . . that the judge made a
mistake.'" Sánchez-Londoño, 752 F.3d at 539 (quoting Darín, 746
F.3d at 8–9).
The instant case thus involves competing "he said, she
said" testimony from both parties, with little independent evidence
corroborating the mother's testimony, and no clear acceptance by
the district court of the mother's narrative over the father's.
The district court thus effectively found that the mother did not
bear her burden of proof in establishing that returning the
children to Canada would subject them to a "grave risk" of
"physical or psychological harm." We see no error in that
-29-
determination. By contrast, the Walsh case involved "ample
evidence" that the father in that case, John Walsh, "has been and
can be extremely violent and that he cannot control his temper."
Walsh, 221 F.3d at 219. In Walsh, there was "a clear and long
history of spousal abuse, and of fights with and threats against
persons other than his wife. These include John's threat to kill
his neighbor in Malden, for which he was criminally charged, and
his fight with his son Michael." Id. at 220.5
Moreover, John Walsh had severely beaten his wife,
Jacqueline Walsh, multiple times over the years, including when she
was seven months pregnant. Id. at 209-12.6 Many of these
beatings, as well as a beating of John's older son by another
marriage, took place in front of Jacqueline's two small children.
Id. John fled the United States for Ireland as a fugitive after
5
The district court in Walsh explicitly found that the mother in
that case was the "victim of random beatings" -- beatings which
were known to, among others, the following persons: three of
John's older children from previous relationships; the mother's
physician in Ireland, who advised her to seek legal protection and
a court order, and to get photographs taken to document the abuse;
and a licensed social worker who worked with her case. Id. at 209-
12.
6
Jacqueline described many instances of attacks by John,
including kicks and punches on specific dates that resulted in the
following injuries: a broken tooth; repeated bruises (including on
her face, chest, and knees); scratch marks; and an injured coccyx
bone (or "tailbone") in her lower spine. Id. at 210. She sought
the Irish equivalent of a temporary restraining order, which John
then violated by coming to her home and threatening her again. Id.
at 211. Jacqueline testified at trial, and her allegations were
corroborated by additional witnesses, including a social worker and
her sister. Id. at 212.
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being charged with threatening to kill his neighbor,7 and he
violated court orders in Ireland that he stay away from
Jacqueline's home. Id. at 210-11. The district court in Walsh
accepted these underlying facts. See id. at 218-22.8
On appeal in Walsh, we found that the facts of the case
-- "including the father's flight after indictment for threatening
to kill another person in a separate case and a documented history
of violence and disregard for court orders" -- were "clearly
established." Id. at 222. In contrast, the instant case has none
of these strong, independent pieces of evidence corroborating the
mother's testimony as to the father's alleged abuse. Additionally,
the district court here did not fully accept the allegations
against the father.
Furthermore, on appeal in Walsh, we placed particular
emphasis on John's repeated history of ignoring court orders. See
7
In 1993, in Malden, Massachusetts, after becoming drunk
following a wake, John Walsh ran to his next door neighbor's house,
"banged on the door, breaking the door's glass, and yelled that he
was going to kill the man." Id. at 209. "He did this repeatedly
until the police arrived," and he was later charged in a
Massachusetts criminal complaint with attempting to break and
enter, and threatening to kill another person. Id. He then
"absconded to Ireland," id., and he remained a fugitive from
justice in the United States at the time of the appeal in Walsh.
Id. at 215 ("John is plainly a fugitive.").
8
See also In re Walsh, 31 F. Supp. 2d 200 (D. Mass. 1998), rev'd,
221 F.3d 204 (1st Cir. 2000); id. at 201 (finding that "John
physically abuses Jackie"); id. at 202-04 (making detailed findings
of fact that John committed various specific acts of physical abuse
against his wife); id. at 208 (concluding that the court had
identified "deplorable conditions of domestic abuse" in the case).
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id. at 220-21 ("We do not believe th[at] undertakings . . . or even
a potential [protective] order, are sufficient to protect the
children from the exposure to grave risk in this case. We have no
doubt that the Irish courts would issue appropriate protective
orders. That is not the issue. The issue is John's history of
violating orders issued by any court, Irish or American.").9 The
father here has no such history of violating court orders. Quite
simply, this case is not Walsh.
Importantly to our decision here, an order returning the
children to Canada is not equivalent to an order mandating that the
children live with their father rather than with their mother,
another family member, or guardian. Again, an order of return to
Canada under the Convention "is not a final determination of
custody rights." Neergaard-Colón, 752 F.3d at 530. Instead,
implementation of the return remedy here means that the courts of
Canada -- the children's country of habitual residence -- will make
the appropriate custodial and family law determinations. See id.
(citing Abbott, 560 U.S. at 9); see also Charalambous v.
9
In Walsh, we further explained that:
John's past acts clearly show that he thinks little of
court orders. He has violated the orders of the courts
of Massachusetts, and he has violated the orders of the
courts of Ireland. There is every reason to believe that
he will violate the undertakings he made to the district
court in this case and any [protective] orders from the
Irish courts.
Id. at 221.
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Charalambous, 627 F.3d 462, 469-70 (1st Cir. 2010) (per curiam)
("We point out that [the mother] is free, in the courts of [the
children's country of habitual residence], to seek custody of the
children and such other orders as may become necessary as to the
children.").
For all the foregoing reasons, we find no clear error in
the district court's underlying findings of fact on the narrow
"grave risk" exception. See Sánchez-Londoño, 752 F.3d at 539;
Neergaard-Colón, 752 F.3d at 530. Nor do we disagree with the
district court's conclusion that the mother failed to meet her
burden of establishing that exception by clear and convincing
evidence. See Yaman, 730 F.3d at 11; see also 22 U.S.C.
§ 9003(e)(2) (providing that "a respondent who opposes the return
of the child has the burden of establishing . . . by clear and
convincing evidence" that the exception set forth in Article 13(b)
of the Convention applies). Therefore, we conclude that the
district court did not err in determining that the mother has not
shown a "grave risk" that returning the children to Canada would
expose them to "physical or psychological harm or otherwise place
[them] in an intolerable situation." See Hague Convention, art.
13(b).
III. Conclusion
We find no reversible error in the district court's
findings that (1) Canada was the children's country of habitual
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residence, and (2) returning the children to Canada would not
subject them to a grave risk of physical or psychological harm. On
that basis, we affirm.
Affirmed.
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