Hugo Castellanos Monzon v. Ingrid De La Roca

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 16-2277
______________
HUGO ARISTOTELES CASTELLANOS MONZON,
Appellant
v.
INGRID FABIOLA DE LA ROCA
_______________
APPEAL FROM THE UNITED STATES
DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(Case No. 3:16-cv-00058)
District Judge: Hon. Freda L. Wolfson
______________
Argued March 6, 2018
______________
Before: McKEE, AMBRO, and RESTREPO, Circuit Judges.
(Filed: December 7, 2018)
John M. Boehler, Esq. [ARGUED]
Rutgers Law Associates
123 Washington Street
Suite 203
Newark, NJ 07102
Counsel for Appellant
Dorothy A. Hickok, Esq.
Mark D. Taticchi, Esq. [ARGUED]
Drinker Biddle & Reath
One Logan Square
Suite 2000
Philadelphia, PA 19103
James C. Jones, Esq.
Drinker Biddle & Reath
105 College Road East
P.O. Box 627, Suite 300
Princeton, NJ 08542
Counsel for Appellee
______________
OPINION OF THE COURT
______________
McKEE, Circuit Judge.
Hugo Castellanos Monzón1 appeals the District Court’s
denial of the Petition he filed pursuant to the Hague
Convention on the Civil Aspects of International Child
Abduction (the “Convention”)2 and the International Child
Abduction Remedies Act (“ICARA”),3 seeking the return of
his minor child, H.C. Subject to certain exceptions, both the
1
Inasmuch as the transcripts establish that Appellant refers to
himself simply as “Hugo Castellanos,” we will refer to him as
“Castellanos.”
2
Oct. 25, 1980, T.I.A.S. No. 11670, 22514 U.N.T.S. 98
[hereinafter Hague Convention].
3
Codified at 22 U.S.C. §§ 9001-9008, 9010-9011.
2
Convention4 and ICARA5 mandate the return of a child to the
custodial parent when the other parent wrongfully removes or
retains the child in violation of the requesting parent’s custody
rights. For the reasons that follow, we will affirm.6
I.
A. Factual Background
Castellanos married Appellee De La Roca in 2004.
Their son, H.C., was born in 2010. The couple separated
shortly thereafter in November 2011, and formally divorced by
mutual consent in January 2014.
Castellanos and De La Roca have divergent narratives
regarding their separation and divorce. De La Roca claims that
violence was a factor. Although she did not raise that issue in
the divorce proceedings,7 she now claims that she feared for
her safety during the relationship. Responding to Castellanos’s
Petition for H.C.’s return, she claimed that Castellanos verbally
and physically threatened her by speeding and driving
recklessly while she was pregnant and a passenger in his car.
She also claimed that Castellanos attempted to visit H.C. more
often than the couple had agreed to after their separation when
she became H.C.’s primary guardian. According to De La
Roca, this resulted in arguments between her and Castellanos.
De La Roca claims that Castellanos showed up at her home late
at night, approached her, threatened to kill himself, and
4
Article 1 of the Convention sets forth two primary
objectives: “(a) to secure the prompt return of children
wrongfully removed to or retained in any Contracting State;
and (b) to ensure that rights of custody and of access under
the law of one Contracting State are effectively respected in
the other Contracting States.” Karpenko v. Leendertz, 619
F.3d 259, 263 (3d Cir. 2010) (quoting Hague Convention,
supra note 2, at art. 1).
5
ICARA serves in the United States as the implementing
statute for the Convention.
6
On August 30, 2018, we entered an order granting panel
rehearing and vacating the order and nonprecedential opinion
which we initially filed in this matter.
7
Monzon v. De La Roca, No. 16-0058, 2016 WL 1337261, at
*2 (D.N.J. Apr. 5, 2016).
3
demanded H.C. Castellanos categorically denies all of De La
Roca’s allegations of abuse.
1. De La Roca’s New Relationship and Ties
to the U.S.
In the summer of 2013, after her separation from
Castellanos, but before they divorced, De La Roca began a long
distance relationship with her childhood acquaintance,
“Deleon,” who resided in New Jersey. De La Roca testified
that she obtained a visa for H.C. to travel to the United States
with Castellanos’s consent, though she did not immediately
bring H.C. to the U.S. Instead, she took several trips to visit
Deleon by herself. However, she eventually traveled to New
Jersey and married him in March of 2014. She did not tell
Castellanos about the marriage.
Shortly after marrying Deleon, De La Roca told
Castellanos that she intended to bring H.C. to the United States
to live; Castellanos refused to consent. In or around March of
2014, De La Roca filed a domestic violence complaint against
Castellanos in Guatemala and obtained a temporary restraining
order. However, she failed to appear at the hearing to make the
TRO permanent because she had already moved to New Jersey
before the final hearing.
In July of 2014, De La Roca took H.C. to the United
States. She testified that she decided to ignore Castellanos’s
denial of consent because she “could not explain to [her]
aggressor that [she] was leaving.”8 A month after taking H.C.
to New Jersey, she sent Castellanos a text message informing
him she was there with H.C. She did not disclose their exact
address “[o]ut of fear that he would come [to New Jersey] to
do the same thing as in Guatemala.”9
2. Castellanos’s Efforts to Invoke the
Convention
On August 23, 2014, Castellanos filed an Application
for Return of the Child under the Convention with the Central
8
Id. at *4.
9
Id.4
Authority in Guatemala. The Guatemalan Authority
forwarded that application to the United States Department of
State. About 16 months later, on January 5, 2016, having
discovered that the Convention required him to file where H.C.
lived, Castellanos filed the instant Petition for Return of the
Child (the “Petition”) in the District Court of New Jersey.
B. Legal Background
1. The Hague Convention on Civil Aspects of
International Child Abduction
Article 1 of the Convention has two primary objectives:
“(a) to secure the prompt return of children wrongfully
removed to or retained in any Contracting State; and (b) to
ensure that rights of custody and of access under the law of one
Contracting State are effectively respected in the other
Contracting States.”10 The Convention requires that the
petitioner seeking return of the child bear the initial burden of
showing that the child was habitually resident in a State
signatory to the Convention and was wrongfully removed to a
different State, as defined by Article 3.
Where a court determines a child has been wrongfully
removed, Article 12 of the Convention provides that the child
is to be returned “forthwith,” as long as the proceedings have
been “commenced” in the “judicial or administrative authority
of the Contracting State where the child is” less than one year
before the date of wrongful removal.11 But where the
petitioner fails to commence the proceedings before the one-
year deadline, s/he is no longer entitled to the child’s automatic
return. Instead, a rebuttable presumption arises whereby the
child’s return is subject to certain affirmative defenses,
including demonstration that “the child is now settled in its
new environment.”12
The Convention sets out a total of five defenses to a
Contracting State’s duty to return the child. The first is the one
10
Karpenko, 619 F.3d at 263 (quoting Hague Convention,
supra note 2, at art. 1).
11
Hague Convention, supra note 2, at art. 12.
12
Id.
5
just mentioned: where the child is well settled in his or her new
environment.13 A second exception applies where the
petitioner was not exercising custody rights at the time of the
child’s wrongful removal or retention, or acquiesced in the
removal or retention.14 A third exception applies where “there
is a grave risk that [the child’s] return would expose the child
to physical or psychological harm or otherwise place the child
in an intolerable situation.”15 There is a fourth exception if the
child objects to being returned and has “attained an age and
degree of maturity at which it is appropriate to take account of
[the child’s] views.”16 The fifth and final exception is where
“[t]he return of the child . . . would not be permitted by the
fundamental principles of the requested State relating to the
protection of human rights and fundamental freedoms.”17
Significantly, the Convention establishes neither the degree of
certainty nor the burden of proof that a respondent must
establish to defeat the petition and retain custody of the child
pursuant to these affirmative defenses.18
2. The International Child Abduction
Remedies Act (“ICARA”)
Congress enacted ICARA to implement the
Convention.19 Under ICARA, “the petitioner bears the initial
burden of proving by a preponderance of the evidence that the
child was . . . wrongfully removed.”20 “Once the petitioner
13
Id.
14
Id. at art. 13a.
15
Id. at art. 13b.
16
Id. at art. 13.
17
Id. art. 20. Only the first (well-settled defense) and the
third (grave risk defense) of these listed defenses are relevant
to this case since they were the only defenses De La Roca
made in response to the Petition.
18
See infra Part III(A)(2) for a discussion of ICARA
provision 22 U.S.C. § 9003(e)(2) and its explanation of
burdens of proof for the exceptions.
19
See, e.g., Feder v. Evans-Feder, 63 F.3d 217, 221 (3d Cir.
1995).
20
Karpenko, 619 F.3d at 263. In particular, a court must
determine “(1) when the removal or retention took place; (2)
the child’s habitual residence immediately prior to such
6
meets its initial burden, the respondent may oppose the child’s
return by proving one of [the] five affirmative defenses” as
listed under ICARA provision 22 U.S.C. § 9003(e)(2)(A) and
(B).21 Section 9003(e)(2) provides:
(e) Burdens of proof
...
(2) In the case of an action for the return of a
child, a respondent who opposes the return of
the child has the burden of establishing—
(A) by clear and convincing
evidence that one of the exceptions
set forth in article 13b or 20 of the
Convention applies; and
(B) by a preponderance of the
evidence that any other exception
set forth in article 12 or 13 of the
Convention applies.22
Congress specifically required that these affirmative
defenses be “narrowly construed to effectuate the purposes of
the Convention.”23 Moreover, because of the very important
policy objectives of the Convention and ICARA, courts retain
the discretion to order the child’s return. Thus, “even where a
defense applies, the court has the discretion to order the child’s
return.”24
C. Procedural Background
On January 5, 2016, Castellanos filed the Petition for
the return of H.C. with the United States District Court of New
Jersey. Thereafter, the District Court held two days of
removal or retention; (3) whether the removal or retention
breached the petitioner’s custody rights under the law of the
child’s habitual residence; and (4) whether the petitioner was
exercising his or her custody rights at the time of removal or
retention.”
21
Id.22
22 U.S.C. § 9003(e)(2) (emphasis added).
23
Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 263, 271 (3d Cir.
2007) (internal citations omitted).
24
Id.7
hearings,25 which included the testimony of Castellanos, De La
Roca, and two expert witnesses who testified on her behalf.26
The first of those witnesses was Victoria Sanford, Ph.D., an
expert on domestic violence against women and children in
Guatemala. She testified about “the police structure and
government of Guatemala City.”27 The second witness was
Robert T. Latimer, M.D., a psychiatric expert who interviewed
H.C. at the start of the court case.28
After considering the evidence and the parties’ post-
hearing submissions, the District Court entered judgment in
favor of De La Roca, thereby refusing to return H.C. to
Castellanos. However, the Court expressly declined to address
De La Roca’s affirmative defense under Article 13b (H.C.’s
return to Guatemala constitutes a “grave risk”).29 Instead, the
Court concluded that De La Roca had successfully
demonstrated by a preponderance of the evidence, that H.C.
was well settled in the United States pursuant to ICARA,30 and
25
Monzon, 2016 WL 1337261, at *1. Here, the District Court
expressly declined to exercise its discretion to order H.C.’s
return because it found that De La Roca had credibly testified
that H.C. had become “well settled” in the U.S. Id. at *10(“Respondent has established by a preponderance of the
evidence that H.C. is settled in the United States and . . . I will
not exercise my discretion to order H.C.’s return.”); Id. at *15(“Although the Court expressly declines to address the
parties’ arguments concerning whether returning H.C. to
Guatemala constitutes a ‘grave risk’ to H.C., nonetheless, in
light of the testimony received from Dr. Sanders concerning
how familial domestic violence is skewed unfairly against
women by the culture and authorities in Guatemala, and
Respondent’s testimony concerning her fear of Petitioner,
both of which I find credible, I will not exercise my discretion
to order the return of H.C. to Guatemala during the pendency
of any future custody determinations.”).
26
Id. at *1.
27
Id. at *8.
28
Id. at *9.
29
Id. at *15.
30
Id. at *10, *13; 22 U.S.C. § 9003(e)(2)(B) (corresponding
to Hague Convention, supra note 2, at art. 12).
8
therefore decided not to exercise its independent authority to
order H.C.’s return to Guatemala.
II. DISCUSSION
Castellanos makes three arguments on appeal. He
argues that the District Court erred in not finding that the notice
he filed with the Guatemalan Central Authority and the U.S.
Department of State constituted a “proceeding” for purposes of
Article 12 of the Convention, thereby entitling him to have
H.C. returned pending resolution of the custody dispute.
Castellanos also claims the District Court erred in interpreting
De La Roca’s burden under ICARA.31 Finally, he claims the
District Court erred in finding that H.C. was “well settled” in
the United States, and thereby denying H.C.’s return to
Guatemala.
A.
Castellanos contends the District Court should have
considered the application he initially filed with the
Guatemalan Central Authority and the U.S. Department of
State as a “proceeding” under ICARA. He insists that by filing
that notice when he first learned of H.C.’s removal, he acted
“diligently” and “in accordance with the established methods
of international communication between [U.S. and
Guatemalan] Central Authorities.”32 He argues that he was
“unable to overcome the language barrier, the lack of access to
affordable legal representation, and certainty as to H.C.’s
residence.”33 He therefore asserts that the resulting delay
should not be attributed to him, and the “petition date” should
therefore be the first of either a judicial filing or an application
to the Central Authority, for purposes of the Convention.34
ICARA defines “commencement of proceedings” as
used in Article 12 of the Convention as “the filing of a petition
in accordance with [§ 9003(b)].”35 Section 9003(b) provides,
31
Appellant’s Br. 9.
32
Id. at 22.
33
Id. at 22–23.
34
Id. at 23.
35
22 U.S.C. § 9003(f)(3).
9
in turn, that “[a]ny person seeking to initiate judicial
proceedings under the Convention for the return of a child . . .
may do so by commencing a civil action by filing a petition for
the relief sought in any court which has jurisdiction of such
action and which is authorized to exercise its jurisdiction in the
place where the child is located at the time the petition is
filed.”36 Accordingly, we cannot conclude that mere notice of
one’s intent to have a child returned to the parent in a signatory
state constitutes “commencement of proceedings” under
Article 12.
We realize that Castellanos tried to act diligently, and
we are not unsympathetic to his efforts. Nevertheless, our
inquiry into what constitutes a proper filing for these purposes
is circumscribed by the language of ICARA and the
Convention. We cannot ignore that language by extending it
to include a document filed with either the Guatemalan Central
Authority or the U.S. Department of State.37 If a parent pursues
the remedies available for the return of his/her child under
ICARA, Congress has clearly required that the parent do so by
“filing a petition . . . in [a] court . . . where the child is
located.”38
As noted earlier, the timing of any such filing is crucial.
When a child has been removed and “a period of less than one
year has elapsed from the date of the wrongful removal or
retention, the authority concerned shall order the return of the
child forthwith.”39 Thus, at least one year must pass before a
child can be considered sufficiently settled and no longer
subject to automatic return to the other parent during the
pendency of proceedings under the Convention and ICARA.
“[I]f one year has elapsed since a child was wrongfully
36
Id. at § 9003(b) (emphasis added).
37
See Monzon, 2016 WL 1337261, at *11 (quoting 22 U.S.C.
§ 9003(b)) (“In this instance, Petitioner previously applied to
Guatemala’s Central Authority for assistance in securing the
return of H.C. However, that application was neither a
substitute, nor a prerequisite, for commencing ‘proceedings
before the judicial or administrative authority of the
Contracting State where the child is.’”).
38
22 U.S.C. § 9003(b).
39
Hague Convention, supra note 2, at art. 12.
10
removed or retained when a petition is filed, a court must also
determine whether the child is ‘settled in its new
environment.’”40 Thus, “the ‘now settled’ exception only
applies where the child has been in the destination state for
more than one year from the date of the wrongful removal or
retention.”41
The delay in filing the Petition for H.C.’s return did not
eliminate Castellanos’s remedies under the Convention,42 nor
did it ensure De La Roca’s success in resisting the Petition for
H.C.’s return. Here, the District Court correctly recognized its
continuing independent authority to order H.C.’s return;
however, it declined to exercise this authority. The Court
stated, “I will not exercise my discretion to order the return of
H.C. to Guatemala during the pendency of any future custody
determinations.”43 Concomitantly, even if Castellanos had
properly filed his petition in the New Jersey District Court
within a year of H.C.’s removal, the District Court still could
have exercised its discretion and denied H.C.’s return pursuant
to the terms of the Convention.44 Therefore, although the one-
year filing requirement is important, the late filing did not
ultimately determine H.C.’s custody.45
B.
When proceedings for a petition for the return of a child
begin more than one year after the child’s removal, the
40
Yang v. Tsui, 416 F.3d 199, 203 n.4 (3d Cir. 2005) (quoting
Hague Convention, supra note 2, at art. 12).
41
Hofmann v. Sender, 716 F.3d 282, 295 (2d Cir. 2013)
(holding that “[b]ecause one year had not elapsed between the
wrongful retention of the children and the institution of these
proceedings under the convention, the district court’s
determination that the ‘now settled’ exception does not apply
must be affirmed.”).
42
Lozano v. Montoya Alvarez, 572 U.S. 1, 14 (2014) (noting
that “expiration of the 1–year period in Article 12 does not
eliminate the remedy the Convention affords the left-behind
parent—namely, the return of the child.”).
43
Monzon, 2016 WL 1337261, at *15.
44
See Hague Convention, supra note 2, at arts. 13, 20.
45
See id. at art. 12.
11
Convention requires that the court “shall order the return of the
child,” subject to specific affirmative defenses set forth in §
9003(e).46 The petitioner has the initial burden of proving by
a preponderance of the evidence that the child was wrongfully
removed, whereupon “the respondent may oppose the child’s
return” by establishing the “affirmative defenses” or
“exceptions” as listed under ICARA provision 22 U.S.C. §
9003(e)(2)(A) and (B).47
In Tsai-Yi Yang, we explained the “four questions that
must be answered in a wrongful removal or retention case” are
as follows:
[We] must determine (1) when the removal or
retention took place; (2) the child’s habitual
residence immediately prior to such removal or
retention; (3) whether the removal or retention
breached the petitioner’s custody rights under
the law of the child's habitual residence; and (4)
whether the petitioner was exercising his or her
custody rights at the time of removal or
retention.48
De La Roca does not dispute the District Court’s conclusion
that Castellanos established each of these four conditions for
H.C.’s return under the Convention.49 Accordingly, De La
Roca had to produce sufficient evidence to establish an
46
Id.47
Karpenko, 619 F.3d at 263.
48
Tsai-Yi Yang, 499 F.3d at 270–71.
49
Specifically, the District Court held:
Petitioner met his initial burden of presenting a
prima facie case of wrongful removal and
retention under the Convention, i.e., that (1) the
removal took place on July 17, 2014; (2) H.C.’s
habitual residence immediately prior to the
removal was Guatemala; (3) Petitioner had
custodial rights to H.C. at the time of H.C.’s
removal from Guatemala; and, (4) Petitioner was
exercising those custodial rights at the time of
H.C.’s removal from Guatemala.
Monzon, 2016 WL 1337261, at *10.
12
affirmative defense to Castellanos’s Petition pursuant to
subsection (e)(2) of ICARA.
Recall that § 9003(e)(2) provides as follows:
(e) Burdens of proof
...
(2) In . . . an action for the return of a child, a
respondent who opposes the return of the
child has the burden of establishing--
(A) by clear and convincing evidence
that one of the exceptions set forth
in article 13b or 20 of the
Convention applies; and
(B) by a preponderance of the
evidence that any other exception
set forth in article 12 or 13 of the
Convention applies.50
Castellanos insists that the use of the conjunctive “and” means
that De La Roca must establish both prongs of § 9003(e)(2) by
the specified burden of proof before his Petition for H.C. could
be denied.51 He asserts with some force that Congress could
have simply used the word “or” if it had intended for
respondents to successfully resist a petition for return of a child
by establishing only one affirmative defense under §
9003(e)(2).52
De La Roca asserted two affirmative defenses to the
Petition—that H.C. is well settled in the United States, and that
returning him to Guatemala would present a grave risk. Under
(e)(2)(A), a respondent must prove by clear and convincing
evidence that (1) there is a grave risk that the child’s return
would expose the child to physical or psychological harm;53 or
50
22 U.S.C. § 9003(e)(2) (emphasis added).
51
Appellant Br. 11.
52
Id. at 12; see Brown v. Budget Rent-A-Car Sys., Inc., 119
F.3d 922, 924 (11th Cir. 1997) (per curiam) (quoting
Quindlen v. Prudential Ins. Co. of Am., 482 F.2d 876, 878
(5th Cir. 1973)) (As a “general rule, the use of a disjunctive in
a statute indicates alternatives and requires that those
alternatives be treated separately.”).
53
Hague Convention, supra note 2, at art. 13b.
13
(2) the return should not be permitted by the fundamental
principles of the requested State relating to the protection of
human rights and fundamental freedoms.54 ICARA requires
that a respondent only establish by a preponderance of the
evidence that (1) the child is now settled in its new
environment;55 or (2) the petitioner was not exercising custody
rights at the time of removal.56
According to Castellanos, use of the conjunctive “and”
requires a respondent under the Convention to establish
defenses of either a grave risk or violation of fundamental
principles and either that the child is now settled or that the
petitioner was not exercising custody rights when the child was
taken from the petitioner.57
Castellanos thus claims that the District Court’s reading
of ICARA ignored a “critical layer of protection” expressly
embedded in the statutory scheme and undermined the
overriding goals of ICARA and the Convention.58
1. A Literal Reading of ICARA Produces an Absurd
Result
“[C]ourts must presume that a legislature says in a
statute what it means and means in a statute what it says there.
When the words of a statute are unambiguous, then this first
canon [of statutory construction] is also the last: ‘judicial
inquiry is complete.’”59 Only when a statute is ambiguous and
includes disputed language “reasonably susceptible to different
interpretations” should a court go beyond interpreting the text
of a provision.60 Thus, Castellanos argues that the District
Court here erred by prematurely ending its inquiry after
54
Id. at art. 20.
55
Id. at art. 12.
56
Id. at art. 13a.
57
Appellant Br. 13 (emphasis added).
58
Id. at 18.
59
Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253–54 (1992)
(quoting Rubin v. United States, 449 U.S. 424, 430 (1981)).
60
In re Phila. Newspapers, LLC, 599 F.3d 298, 304 (3d Cir.
2010) (quoting Dobrek v. Phelan, 419 F.3d 259, 264 (3d Cir.
2005)).
14
concluding that H.C. was well settled. According to him,
“[t]he plain language of section 9003 (e)(2)(A) of ICARA
requires that the respondent also prove, by clear and
convincing evidence, that one of the exceptions set forth in
article 13b or 20 of the Convention [also] applies.”61
Castellanos’s conjunctive reading of § 9003(e)(2)
appears, at first glance, to be correct. Congress’ use of the
conjunctive certainly suggests that it intended to require
respondents to present an affirmative defense under both §
9003(e)(2)(A) and its counterpart, § 9003(e)(2)(B), by the
prescribed burdens of proof. However, the result of that literal
reading not only contradicts the underlying principles of the
Convention and ICARA, it produces a patently absurd result.62
“The plainness or ambiguity of statutory language is
determined by reference to the language itself, the specific
context in which that language is used, and the broader context
of the statute as a whole.”63 Here, the broader context of the
statute strongly suggests that the “and” in § 9003(e)(2) is
misleading insofar as it means that Congress intended that both
prongs need to be satisfied. “Statutory context can suggest the
natural reading of a provision that in isolation might yield
contestable interpretations.”64 Hence the Supreme Court’s
reminder that “[s]tatutory construction . . . is a holistic
endeavor.”65
Logic dictates that the text of the Convention and its
discussion of the affirmative defenses be interpreted as
establishing that Congress intended them to apply
61
Appellant Br. 13 (citing 22 U.S.C.A. § 9003(e)(2)(A)).
62
See First Merchants Acceptance Corp. v. J.C. Bradford &
Co., 198 F.3d 394, 403 (3d Cir. 1999) (“[O]nly absurd results
and ‘the most extraordinary showing of contrary intentions’
justify a limitation on the ‘plain meaning’ of . . . statutory
language.”) (citing Garcia v. United States, 469 U.S. 70, 75
(1984)).
63
Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997).
64
In re Price, 370 F.3d 362, 369 (3d Cir. 2004).
65
United Sav. Ass’n of Tex. v. Timbers of Inwood Forest
Assocs., Ltd., 484 U.S. 365, 371 (1988).
15
individually.66 The State Department itself suggested in its
(albeit pre-ICARA) legal analysis of the Convention that only
one of the defenses need be shown. Its analysis stated: “a
finding that one or more of the [affirmative defenses] provided
by Articles 13 and 20 are applicable does not make refusal of
a return order mandatory. The courts retain the discretion to
order the child returned even if they consider that one or more
of the [defenses] applies.”67
Moreover, the Convention clearly establishes that
certain defenses can defeat a demand for repatriation, and they
can do so without any additional showing. Article 12 provides
that the well-settled exception controls, even in the absence of
other considerations that mitigate in favor of a petition for the
return of the child. It commands: “The judicial or
administrative authority, even where the proceedings have
been commenced after [the lapse of one year from the date of
the child’s wrongful removal], shall also order the return of the
child, unless it is demonstrated that the child is now settled in
its new environment.”68 The Convention also includes what
appears to be a standalone defense to a child’s repatriation in
Article 20: “[t]he return of the child under the provisions of
Article 12 may be refused if this would not be permitted by the
fundamental principles of the requested State relating to the
protection of human rights and fundamental freedoms.”69
66
See Appellee Br. 16.
67
Hague International Child Abduction Convention; Text and
Legal Analysis, 51 FR 10494-01. While the State
Department’s own understanding of the Convention is
persuasive, it should be noted this particular analysis was not,
in fact, contemporaneous with the passage of ICARA. The
former was published in 1986, whereas the latter was codified
in 1988. Note, this discretion applies despite the one-year
provision.
68
Hague Convention, supra note 2, at art. 12 (emphasis
added).
69
Id. at art. 20. In its public statement analyzing the
Convention, the State Department offered what it
characterized as its “best explanation” for Article 20’s
“unique formulation”: that “the Convention might never have
been adopted without it.” Hague International Child
Abduction Convention; Text and Legal Analysis, 51 FR
16
Castellanos’s reading of § 9003(e)(2) would mean that
even proof of an especially compelling defense could never, by
itself, prevent a child’s return under the Convention.70 For
example, even if it were proven by clear and convincing
evidence the child faced a “grave risk . . . [of] physical or
psychological harm”71 upon return, or that return of the child
would violate “fundamental principles . . . of human rights,”72
a court would be powerless to deny return unless it also found
that the child was settled in its new residence.
Our conclusion that the inclusion of “and” was not
intended to suggest the conjunctive is not a cavalier attempt to
reconcile inconsistences between ICARA and the Convention.
Courts repeatedly resolve conflicts between treaties and Acts
of Congress by the doctrine of implied repeal, with the latter in
time prevailing; here, that is ICARA.73 Thus, although federal
10494-01. The State Department specifically noted that the
negotiating countries had been divided on the inclusion of
Article 20, which it characterized as a “public policy
exception in the Convention” allowing a court to excuse itself
from returning a child “under some extreme circumstances
not covered by the exceptions of Article 13.” Id.; see also
Souratgar v. Lee, 720 F.3d 96, 108 (2d Cir. 2013) (“The
defense is to be invoked only on the rare occasion that return
of a child would utterly shock the conscience of the court or
offend all notions of due process.”) (internal citations and
quotations omitted).
70
See Griffin v Oceanic Contractors, Inc., 458 U.S. 564, 575
(1982) (“[I]nterpretations of a statute which would produce
absurd results are to be avoided if alternative interpretations
consistent with the legislative purpose are available.”);
Webster v. Reproductive Health Servs., 492 U.S. 490, 515
(1989) (“Interpreting . . . literally would produce an absurd
result, which the Legislature is strongly presumed not to have
intended”) (internal citations and quotations omitted).
71
Hague Convention, supra note 2, at art. 13(b).
72
Id. at art. 20.
73
See Reid v. Covert, 354 U.S. 1, 18 (1957); United States v.
Enger, 472 F. Supp. 490, 542 (D.N.J. 1978) (“[C]onflicts
between [treaties and Acts of Congress] are resolved by the
doctrine of implied repeal, with the later in time prevailing.”).
17
statutes and treaties are accorded the same weight, when a
treaty conflicts with provisions of subsequently enacted
legislation, the offending provisions of the treaty are deemed
null and void.74
The Supreme Court has explained that ICARA “does
[not] purport to alter the Convention,” and “Congress’ mere
enactment of implementing legislation did not somehow
import background principles of American law into the treaty
interpretation process, thereby altering our understanding of
the treaty itself.”75 Moreover, Congress has declared that
ICARA does not abrogate any of the remedies under the
Convention. Congress explained that “[t]he remedies
established by the Convention and this chapter shall be in
addition to remedies available under other laws or international
agreements.”76 Accordingly, notwithstanding Congress’ use
of the conjunctive “and” in relation to burdens of proof and
affirmative defenses in drafting ICARA, logic and the
fundamental principles underlying ICARA and the Convention
preclude us from concluding that Congress thereby intended to
alter the Convention in a way that would contradict
fundamental principles of human rights. Therefore, we will not
interpret ICARA in a manner that results in a statutory scheme
that diverges from, and creates remedies inconsistent with,
basic concepts of human rights, decency, and child welfare by
adopting Castellanos’s reading of § 9003(e)(2).
2. Precedent Supports a Disjunctive Reading of Section
9003(e)(2)
We have consistently allowed prevailing parties to
demonstrate only one affirmative defense to petitions under the
74
Reid, 354 U.S. at 18.
75
Lozano, 572 U.S. at 13.
76
22 U.S.C. § 9003(h); see also § 9003(d) (“The court in
which an action is brought [for a petition for return of the
child] shall decide the case in accordance with the
Convention.”).
18
Convention.77 We have pronounced, for example, that “[a]fter
a petitioner demonstrates wrongful removal or retention, the
burden shifts to the respondent to prove an affirmative defense
against the return of the child to the country of habitual
residence.”78
Other circuit courts of appeals agree.79 For example, the
77
See, e.g., Tsai-Yi Yang, 499 F.3d at 278 (“[E]ven if the
respondent meets his or her burden of proving the affirmative
defense, the court retains the discretion to order the return of
the child if it would further the aim of the Convention which
is to provide for the return of a wrongfully removed child.”)
(emphasis added) (internal quotations omitted); In re
Application of Adan, 437 F.3d 381, 389 (3d Cir. 2006) (“A
wrongful removal may nonetheless be justified if one of the
following exceptions applies . . . .”) (emphasis added); Baxter
v. Baxter, 423 F.3d 363, 368 (3d Cir. 2005) (“If the court
finds wrongful removal or retention, the burden shifts to the
respondent to prove an affirmative defense to the return of the
child to the country of habitual residence under article 13 of
the Convention. The respondent must prove the defense of
consent or acquiescence to the removal or retention by a
preponderance of the evidence, or the defense of a grave risk
of harm by clear and convincing evidence.”) (emphases
added).
78
Karkkainen v. Kovalchuk, 445 F.3d 280, 288 (3d Cir. 2006)
(emphasis added).
79
See, e.g., Rydder v. Rydder, 49 F.3d 369, 372 (8th Cir.
1995) (noting that a respondent who opposes a child’s return
“may advance any of the affirmative defenses to return listed
in Articles 12, 13, or 20 of the Hague Convention.”)
(emphasis added); Miller v. Miller, 240 F.3d 392, 402 (4th
Cir. 2001) (“In fact, the courts retain the discretion to order
return even if one of the exceptions is proven.”) (emphasis
added; internal citations omitted); Ohlander v. Larson, 114
F.3d 1531, 1534 (10th Cir. 1997) (the Hague Convention
“provides for several exceptions to return if the person
opposing return can show any” of the listed exceptions)
(internal quotation marks and citations omitted; emphasis
added); Friedrich v. Friedrich, 78 F.3d 1060, 1067 (6th Cir.
1996) (“Once a plaintiff establishes that removal was
19
Court of Appeals for the Second Circuit has held that if a
petitioner has established a prima facie case under the
Convention, the child must be returned to his or her place of
habitual residence unless the respondent can establish one of
four narrow defenses.80 It elaborated:
Two [defenses] may be established only by
“clear and convincing evidence” —either that
“there is a grave risk that [the child's] return
would expose the child to physical or
psychological harm or otherwise place the child
in an intolerable situation,” pursuant to Article
13(b) of the Convention, or that return of the
child “would not be permitted by the
fundamental principles . . . relating to the
protection of human rights and fundamental
freedoms,” pursuant to Article 20. In contrast,
the other two exceptions to the presumption of
repatriation need only be established by a
preponderance of the evidence—either that
judicial proceedings were not commenced within
one year of the child’s abduction and the child is
well-settled in the new environment, pursuant to
Article 12 of the Convention, or that the plaintiff
was not actually exercising custody rights at the
time of the removal, pursuant to Article 13(a) of
the Convention.81
Accordingly, the District Court for the Southern District
of New York, in Lozano, denied a petition for return of a five
year-old child upon a finding that the respondent demonstrated
that the child had become settled in her new environment.82
Not only did the court deny the petition based solely on a
finding of only one affirmative defense, the court also
specifically ruled that the respondent had not established either
of the other three affirmative defenses.83 Thus, one defense
wrongful, the child must be returned unless the defendant can
establish one of four defenses.”) (emphasis added).
80
Blondin v. Dubois, 189 F.3d 240, 245 (2d Cir. 1999).
81
Id. (internal citations omitted).
82
In re Lozano, 809 F.Supp.2d 197, 235 (S.D.N.Y. 2011).
83
Id.20
was sufficient.
That decision was affirmed by the Court of Appeals for
the Second Circuit,84 and thereafter the Supreme Court upheld
the district court’s refusal to return the child based solely on
the “now settled” exception and a finding that equitable tolling
of the one-year period was not available.85
V.
Castellanos also complains that De La Roca did not
actually offer sufficient evidence to prove that H.C. was well
settled in the United States.86 We review a district court’s
factual findings for clear error.87 Contrary to Castellanos’s
claim, the District Court undertook an exceedingly thorough,
careful, and thoughtful analysis of the evidence and the various
factors that pertain to how well a child is settled in a
community and home.88 We are satisfied that this record
Respondent has failed to establish that sending
the child back to the United Kingdom for a
custody determination would expose the child to
a grave risk of harm or place her in an intolerable
situation. However, Respondent has
demonstrated that at the time the Petition was
filed, the child had been in New York for more
than a year and has become settled in her new
environment.
Id.84
Lozano v. Alvarez, 697 F.3d 41, 59 (2d Cir. 2012).
85
Lozano, 572 U.S. at 8, 18; see also id. at 19 (Alito, J.,
concurring) (“This is why Article 12 requires return
‘forthwith’ if the petition for return is brought within a year of
abduction, unless one of the narrow exceptions set forth in
Article 13 or 20 applies.”) (emphasis added).
86
Appellant Br. 8.
87
See Ragan v. Tri-County Excavating, Inc., 62 F.3d 501, 506
(3d Cir. 1995).
88
See Monzon, 2016 WL 1337261, at *11–15.
A survey of case law reveals that the factors
courts typically consider in making this
21
supports the District Court’s finding that H.C. is well settled in
his new environment.89 There was no error in reaching that
conclusion, let alone any clear error in doing so.90
VI.
For the foregoing reasons, we will affirm the judgment
of the District Court.
determination include: (1) the age of the child;
(2) the stability of the child’s new residence; (3)
whether the child attends school or daycare
consistently; (4) whether the child attends church
regularly; (5) the stability of the parent’s
employment or other means of support; (6)
whether the child has friends and relatives in the
area; (7) to what extent the child has maintained
ties to the country of habitual residence; (8) the
level of parental involvement in the child’s life .
...
Id. at *12. “Here, the Court finds that . . . Factors One, Two,
Three, Four, Five, Six, and Eight weigh in favor of finding
that H.C. is settled in the United States . . . .” Id. at *13.
89
See id. at *15; see also Werner Machine Co. v. Manning,
129 F.2d 105, 105 (3d Cir. 1942) (holding that judgment
should be affirmed where a district court’s judgment is
supported by its findings of fact).
90
Although we mention this argument, we note that
Castellanos has actually waived it because he failed to
develop this argument beyond two sentences in the
“Summary of Argument” section of his brief. See Laborers’
Int’l Union of N. Am., AFL–CIO v. Foster Wheeler Corp., 26
F.3d 375, 398 (3d Cir. 1994) (“An issue is waived unless a
party raises it . . . and . . . a passing reference to an issue …
will not suffice to bring that issue before this court.”) (internal
citations omitted).
22