Second Circuit
addresses novel issues under Hague Child Abduction Convention, including
whether separating a child from autism therapy is sufficiently grave to trigger
exceptions to the general rule that children wrongfully removed or retained
should be returned to their country of habitual residence
The
case Ermini v. Vittori arose out of the marital dissolution of an Italian
couple. The couple moved to the United States with their two sons and signed a
one-year lease on a New York apartment in August 2011 after they were unable to
secure adequate treatment in Italy for their autistic son Daniele. They
enrolled Daniele in a Comprehensive Application of Behavior Analysis to
Schooling (“CABAS”) program in Stony Point, New York. The program offered
personalized instruction with an educational team, including a special
educational teacher, an occupational therapist, a speech and language
therapist, several classroom assistants, and a full-time one-on-one teaching
assistant. Daniele’s mother, Viviana Vittori (Vittori), instituted divorce
proceedings against Daniele’s father, Emiliano Ermini (Ermini) in April 2012
after numerous incidences of domestic abuse. Ermini had remained employed in
Italy and traveled between Italy and the United States to visit his family, but
petitioned the district court during the divorce proceedings and ensuing
custody dispute to have both children returned to Italy pursuant to the Hague
Convention on the Civil Aspects of International Child Abduction. Specifically,
Ermini petitioned the return of his two sons to Italy alleging that the two
boys who were Italian citizens had been retained in the United States by
Vittori, also an Italian citizen without Ermini’s consent. After a trial, the
district court denied the petition without prejudice to renewal if Daniele was
not able to continue with his current CABAS program. The Italian court system
issued a final order requiring the return of the children to Italy.
Daniele
was diagnosed with autism on March 14, 2008, when he was approximately two
years old. Both parents were committed to helping Daniele and took him to
several doctors in Italy as well as abroad to Scotland for medical treatment.
When their own resources were inadequate to pay for the treatments, they
solicited donations through a website dedicated to Daniele. Dr. Antonucci was
Daniele’s primary treating professional in Italy from December 2008 until May
2010. One of the treatments that Dr. Antonucci recommended was hyperbaric
oxygen therapy, which was eventually administered in a hyperbaric chamber
installed in the family home in Italy. Daniele’s support teacher in Italy was
not familiar with any specific techniques for treating autistic children. On
their own initiative, the parents attended training in Applied Behavioral
Analysis (“ABA”) techniques at a private institution. With permission from
Daniele’s school principal, Vittori spent two hours daily at Daniele’s school
instructing the support teacher in ABA techniques. Both parents consulted
another physician in Italy, Dr. Claudia Lerz, to develop an ABA treatment plan
for Daniele. According to Vittori’s expert, Dr. Fiorile, ABA therapy is the
most common treatment for children with autism in the United States and it can
have an enormous impact on the life of an autistic child. Dr. Antonucci also
endorsed ABA treatment. Vittori estimated that she personally provided 70-80%
of Daniele’s thirty to forty weekly hours of ABA treatment while the family was
living in Italy. Professional ABA treatment would have been preferable but very
expensive. The Italian national health care system covered 90 minutes a week of
psycho-motility therapy for the first year after Daniele’s autism diagnosis,
with an extra 90 minutes of speech therapy during the second year. However, it
did not cover other types of treatment or therapy. Both parents were
dissatisfied with the options for Daniele’s schooling and therapy in Italy as
they did not see results in his developmental progress. They began to look
elsewhere for treatment options. In Spring 2010, the parents met Dr. Giuseppina
Feingold in Italy. Dr. Feingold was an Italian-speaking pediatrician with a
practice in Suffern, New York specializing in children with special needs. In
August 2010, they traveled with both sons to Suffern so that Dr. Feingold could
assess and begin treating Daniele. The family stayed with Vittori’s cousins at
their Connecticut home.
During
that visit, they met other parents at Dr. Feingold’s clinic who shared
provisions for special needs children at the local schools in Suffern. Both
were impressed by the treatment options available in the United States. Around
this time, they began to formulate a plan to relocate to the United States for
two or three years, during which time they would decide if it would be feasible
to make a permanent move to the United States. Meanwhile, Ermini met with
Marcello Russodivito about potentially investing in Russodivito’s restaurant so
that he could obtain a business visa for himself and derivative ones for his
family in order to pursue treatment for Daniele in the United States. On
September 2, 2011, the couple co-signed a one-year lease for a house near
Russodivito’s restaurant. On September 15, 2011, Vittori and her two sons moved
into that house. In September and November, the boys were enrolled in the local
public school. In an email to Vittori, Ermini said that they should ship
“books, clothing, any furniture we can’t sell, ornaments, dishes, sheets,
blankets” in a cargo container from Italy to the United States. On September
13, 2011, he wrote to the U.S. Consulate in Rome to apply for visas for himself
and his family for the purpose of “exploring the possibilities of entering into
a business partnership with Mr. Marcello Russodivito who already owns an
established Italian restaurant in the city of Suffern, NY. I also wish to
request a B-2 visa for my wife and 2 children, who will accompany me in this
trip to the United States.” Vittori traveled with the children to Italy to
renew their visas in November 2011 and then returned to Suffern. Meanwhile
Ermini traveled to Italy to finish settling the family’s affairs and did not
return to the United States until December 2011. Ermini left again for Italy in
early January 2012, following an altercation with Vittori. Although the
children had not left the United States since November 2011, but Vittori left
the country again in April 2012 to attend court proceedings in Italy. On
December 1, 2012, Vittori and the two children moved to their current residence
in Suffern. Ermini never relocated to the United States.
Meanwhile,
on September 20, 2012, Ermini had applied to the Italian court for an order
directing Vittori to return to Italy with the children. With only Ermini in
attendance, the court in Velletri ordered Vittori to return to Italy with the
children and also ordered temporary measures including that the parents live
separately but share parental authority; Vittori and the children would live in
the family home; Ermini could visit 8–12 hours per week; and that Ermini would
pay spousal and child support of 1,600 Euros per month. At the time of trial,
Vittori had not complied with the Italian court’s order to return to Italy with
the children, nor had there been visitation or other contact between Ermini and
the children. Vittori appealed the Velletri court’s order and on April 5, 2013,
the Court of Appeals in Rome vacated several provisions of the September 20,
2012, order and granted her exclusive custody of the children. The April 5,
2013 order also withdrew the Velletri Court’s order thereby revoking both the
award of the family home to Ermini. However it did not preclude Ermini’s
application to the district court because it was only a temporary order, which
appeared to have been designed to conform with U.S. Family Court protective
orders.
Due
to Daniele’s limited capacity for speech, he did not appear in court. Vittori
testified that she took care of feeding Daniele, grooming him and ensuring that
he was properly supervised. According to Vittori and Dr. Fiorile, Daniele had
shown significant progress in his school environment in the United States. When
he first began school in the United States, Daniele’s test results were far
below average; at age six, he demonstrated the motor skills of a three-year
old. Dr. Fiorile suggested that Daniele performed poorly on the testing because
his Italian treatments had been deficient. According to Dr. Fiorile, the CABAS
program offered the best ABA curriculum available to autistic children. Dr.
Fiorile further testified that Daniele had one-to-one instruction throughout
the day and had made exceptional progress. Dr. Fiorile explained that the high
level of intervention in Daniele’s current classroom setting was the key to his
success. Moreover, she believed that Daniele required this program in order to
continue experiencing meaningful progress in cognition, language, social and
emotional skills. While the United States has over 4,000 board certified ABA practitioners,
Dr. Fiorile knew of fewer than twenty in Italy. Therefore, she concluded in her
January 11, 2013 report that if Daniele were separated from his CABAS program,
he “will most certainly fail to make the same level of progress and will,
without doubt, demonstrate significant skill regression” and that it would be
“extremely harmful” to return him to Italy at this time. The Court found that
separating Daniele from CABAS would put him in an intolerable situation due to
the grave risk of deterioration of his condition and denial of needed
rehabilitation.
On
the contrary, Ermini argued that Vittori and the children did not currently
have legal immigration status in the United States, as they had overstayed
their visas in April 2012. In October or November of 2012, Vittori applied for
a visa for both herself and the children on the basis of the domestic abuse.
Her application was currently pending.
The
district court found that the then couple intended to move to the United States
as a family for a period of two to three years, during which time medical and
rehabilitative treatment would be pursued for Daniele, and also agreed that it
was possible that the move would be made permanent at the end of the three-year
period, circumstances permitting. Notwithstanding the plan to sell their house
in Italy to fund the restaurant investment, there was no agreement to abandon
the family’s ties to Italy.
The
court ultimately concluded that the children’s habitual residence for Hague
Convention purposes at the time of their retention in the United States was
Italy; that the retention was in breach of Ermini’s custody rights under the
law of Italy; and that Ermini was exercising those rights at the time of the
children’s retention in the United States.
The
burden then shifted to Vittori to assert affirmative defenses against the
return of the children to Italy. The court accepted Vittori’s argument that
return to Italy posed a “grave risk” of harm to Daniele, pursuant to Hague
Convention, Article 13(b), which precludes repatriation of a child where there
“is a grave risk that his or her return would expose the child to physical or
psychological harm or otherwise place the child in an intolerable situation”,
and ruled in Vittori’s favor.
The
district court denied Ermini’s petition for return to Italy as to both children
without prejudice to renewal if Daniel is no longer able to participate in the
CABAS program. Ermini appealed.
The
United States Court of Appeals for the Second Circuit affirmed the district
court’s denial and amended the judgment to deny the petition with prejudice.
The
key issue here is whether the psychological and physical harms of separating a
child from autism therapy were sufficiently grave to allow a displaced child to
remain in the country where they receive the therapy.
The
Court reviewed de novo the district court’s interpretation of Hague Convention.
“The
Hague Convention is a pact among nation-states to protect children in limited,
though important, circumstances. It establishes uniform standards, on one side,
for ensuring the swift return of children wrongfully removed or retained from
their home states, and, on the other, for barring return to a home state when
doing so would create a grave risk of harm to the children or violate their
fundamental human rights and freedoms. See Hague Convention, arts. 13 &
20.”
“The
Convention was adopted in 1980 ‘to protect children internationally from the
harmful effects of their wrongful removal or retention and to establish
procedures to ensure their prompt return to the State of their habitual
residence, as well as to secure protection for rights of access.’ Hague
Convention, pmbl., 51 Fed.Reg. at 10498. The Convention is not designed to
adjudicate custody claims, but only to determine the merits of claims of
wrongful removal and abduction. See id., art. 19 (‘A decision under this
Convention concerning the return of the child shall not be taken to be a
determination on the merits of any custody issue.’)”
“Under
the Convention, removal or retention of a child is deemed ‘wrongful’ when:
[1]
it is in breach of rights of custody attributed to a person, an institution or
any other body, either jointly or alone, under the law of the State in which
the child was habitually resident immediately before the removal or retention;
and
[2]
at the time of removal or retention those rights were actually exercised,
either jointly or alone, or would have been so exercised but for the removal or
retention.
Hague
Convention, art. 3.”
“Wrongful
removal or retention, however, does not end the matter. If a parent establishes
that the removal or retention was wrongful, the child is to be returned unless
the defendant establishes one of four defenses. See Blondin v. Dubois (Blondin
II), 189 F.3d 240, 245 (2d Cir. 1999); see also 42 U.S.C. § 11601(a)(4). These
defenses, or as they are also called, “exceptions,” are to be are to be
construed narrowly. See 42 U.S.C. § 11601(a)(4).”
“Two
of the four exceptions are to be established by clear and convincing evidence.
See id. § 11603(e)(2)(A). The first applies if ‘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.’ Hague Convention, art.
13(b). The second governs when the return of the child ‘would not be permitted
by the fundamental principles ... relating to the protection of human rights
and fundamental freedoms.’ Id., art. 20. The remaining exceptions are to
be established by a preponderance of the evidence. See 42 U.S.C. §
11603(e)(2)(B). The first exception subject to this lesser standard applies if
judicial proceedings were not commenced within one year of the child’s
abduction and the child is well-settled in the new environment. Hague
Convention, art. 12. The second applies if the plaintiff not actually
exercising custody rights at the time of the removal. Id., art. 13(a).”
“Finally,
it should be noted that, since the Convention is a pact among nation-states,
Congress has emphasized ‘the need for uniform international interpretation of
the Convention.’ 42 U.S.C. § 11601(b)(3)(B). In light of this necessity, the
Supreme Court has made clear that, in interpreting the Convention, we are to
give the opinions of our sister signatories ‘considerable weight.’ Air
France v. Saks, 470 U.S. 392, 404, 105 S.Ct. 1338, 84 L.Ed.2d 289 (1985)
(quoting Benjamins v. British European Airways, 572 F.2d 913, 919 (2d
Cir.1978)).” (internal quotation marks omitted).
“The
Hague Convention does not concern itself with situations where two parents
commit to settle a family in a new location, and where in so migrating, neither
parent breaches the other’s custody rights. Familial migration across borders
is a facet of family life for many, and unless there is wrongful removal or
retention of children from their habitual residence and breach of custody
rights, the Hague Convention is neither concerned nor involved. […]”
While
the Court accepts the district court’s findings that both wrongful retention
and breach of custody rights had occurred here, thereby triggering the
Convention’s applicability, it doubts as to the district court’s conclusions of
law on these issues.
“We
have before stated that, in determining habitual residence, courts are to focus
on whether a ‘child’s presence at a given location is intended to be temporary,
rather than permanent.’ Gitter v. Gitter, 396 F.3d 124, 132 (2d Cir.2005). And
the two-three year trial period here may well have influenced the district
court’s conclusion that this move was temporary. We have also earlier credited
a district court’s finding that a habitual residence did not change because a
move was of a ‘trial nature’ and ‘conditional. Id. at 135. And here, the
district court, again with reason, focused on the fact that the parents were to
reassess their stay in the United States at the end of what appeared to be a
trial period. Ermini, 2013 WL 1703590, at *11-12.”
“But
we stress that the period of time of a move is not the only relevant factor in
the analysis. Indeed, our sister signatories have clarified that a habitual
residence may be established even when a move is for a ‘limited period’ and
indeed ‘indefinit[e].’ Shah v. Barnet London Borough Council and other appeals,
[1983] 1 All E.R. 226, 235 (Eng.H.L). Drawing on the approach in Shah, the
Ninth Circuit has placed emphasis on divining not just the duration of the move
but instead, more broadly, the shared intent and ‘settled purpose’ of the
parents. Mozes v. Mozes, 239 F.3d 1067, 1074 (2001). As the Third Circuit has
stated, when similarly confronted with a two-year relocation, ‘the fact that
the agreed-upon stay was of a limited duration in no way hinders the finding of
a change in habitual residence. Rather, ... the parties’ settled purpose in
moving may be for a limited period of time....’ Whiting v. Krassner, 391 F.3d
540, 550 (3d Cir.2004); see also Gitter, 396 F.3d at 132 (adopting the ‘shared
intent’ approach). We thus want to emphasize that the time period attached to a
move is but one factor in determining, in a fact-intensive manner, what the
settled intent among the parents was in making the move.”
“Nor,
as we see it, is it clear that Vittori breached Ermini’s custody rights. Rights
of custody are ‘rights relating to the care of the person of the child and, in
particular, the right to determine the child’s place of residence.’ Hague
Convention, art. 5(a). Custody rights are provided by ‘the law of the State in
which the child was habitually resident immediately before the removal or
retention.’ Id., art. 3(a). The district court determined, quite properly,
that, under Italian law, custody rights are defined by ‘mutual agreement’ of
the parents, and therefore focused on Ermini and Vittori’s agreement. Ermini,
2013 WL 1703590, at *14; see also Title IV, Italian Civil Code of Law, Art. 316
(‘A child is subject to the authority of its parents until majority ... or
emancipation. The authority is exercised by both parents by mutual
agreement....’).”
“[…][T]he
legal issues surrounding custody rights, and defining the family’s habitual
residence, are complicated. As a result, while we have doubts about the
district court’s conclusions and thought it important to clarify the governing
legal standards, we choose not to ground our decision on those issues. The case
can be resolved, and the district court’s decision readily affirmed, because we
believe—even assuming arguendo that the children’s habitual residence was in
Italy and that Vittori breached Ermini’s custody rights—that return would be
barred because the children faced a ‘grave risk’ of harm if returned. […]”
The
Court then turns to analyze the “grave risk” of harm issue under the
Convention. Although the Court agrees with the district courts finding that the
risk of harm Daniele faced if removed from his therapy and returned to Italy
was grave enough to meet the Hague Convention’s standards, the Court also holds
that Ermini’s history of domestic violence towards Vittori and the children was
itself sufficient to establish the Hague Convention’s “grave risk” of harm
defense.
“We
have in the past ruled that a ‘grave risk’ of harm does not exist when
repatriation ‘might cause inconvenience or hardship, eliminate certain
educational or economic opportunities, or not comport with the child’s
preferences.’ Blondin IV, 238 F.3d at 162. But we have also stressed that a
grave risk of harm exists when repatriation would make the child ‘face[] a real
risk of being hurt, physically or psychologically.’ Id. The potential harm
‘must be severe,’ and there must be a ‘probability that the harm will
materialize.’ Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir. 2013).”
“Domestic
violence can satisfy the defense when the respondent shows by clear and
convincing evidence a ‘sustained pattern of physical abuse and/or a propensity
for violent abuse.’ Id. at 104 (internal quotation marks omitted). And we
concluded that a ‘grave risk’ of harm from abuse had been established where the
‘petitioning parent had actually abused, threatened to abuse, or inspired fear
in the children in question.’ Id. at 105. Spousal violence, in certain
circumstances, can also establish a grave risk of harm to the child,
particularly when it occurs in the presence of the child. See id. at 103-04
(stating that spousal abuse is relevant insofar as it ‘seriously endangers the
child’); see also *165 Khan v. Fatima, 680 F.3d 781, 787 (7th Cir.2012). We
have also been careful to note that ‘[s]poradic or isolated incidents of
physical discipline directed at the child, or some limited incidents aimed at persons
other than the child, even if witnessed by the child, have not been found to
constitute a grave risk.’ Id. at 104.”
As
stated above, the Court finds district court’s conclusion of law as correct
when district court concluded that a “grave risk” of harm existed if Daniele
would be removed from his current therapy and returned to Italy.
“This
is the first occasion for this Court to consider this kind of psychological
harm pursuant to Article 13(b). We note, however, that Article 13(b) explicitly
lists ‘psychological’ harm and ‘physical’ harm as appropriate harms for
triggering the Convention’s affirmative defenses, both of which are implicated
by a developmental disorder such as autism. And we hold that the facts as found
by the district court lend themselves straightforwardly to the conclusion that
the risk of harm was grave.”
“First,
the district court’s findings established there was a ‘probability that the
harm w[ould] materialize.’ Souratgar, 720 F.3d at 103. Indeed, the district
court credited testimony that does not speak in terms of probability but
instead of near certainty: ‘if [Daniele] leaves the Stony Point CABAS program
even temporarily, he will face a significant regression in his skills and []
without such an intensive, structured program, [Daniele] will not develop the
cognitive, language, social, emotional and independent living skills that he is
likely to acquire through such a program.’ Ermini, 2013 WL 1703590, at *16
(emphasis added).”
“Second,
the court’s finding that Daniele would lose the ability to develop cognitive,
emotional, and relational skills, and potentially lead an independent life, if
removed from his current therapy and repatriated, establishes harm of a
‘severe’ magnitude manifestly sufficient to satisfy the exception. Souratgar,
720 F.3d at 103. The harm, in fact, is of such a severity that it threatens to
strike to the very core of the child’s development individually and of his
ability to participate as a member of society.”
In
support of its determination, the Court of Appeals cited a number of cases from
countries who were also signatories to the Hague Convention and had ruled on
the harm inherent in removing an autistic child from treatment:
J.M.H.
v. A.S., [2010] 367 N.B.R.2d 200 (N.B.Fam.Ct.) (Can.) (concluding that the risk
to the wellbeing of a child who exhibited signs of autism in removing the child
from treatment was sufficiently grave);
DP
Commonwealth Cent. Auth., [2001] HCA 39 (High Ct. Austl.) (finding that a lack
of adequate treatment facilities for a child with autism in his country of
habitual residence was a reason for refusing to return the child).
The
Court also agreed with the district court’s decision related to the separation
of children, and states:
“[I]n
light of the children’s close relationship to each other, and, significantly,
the conclusion we reached with respect to abuse, we determine as well that it
was not error for the district court to decline to separate the children. See
Ermini, 2013 WL 1703590, at *17 (“Courts in this Circuit have frequently
declined to separate siblings, finding that the sibling relationship should be
protected even if only one of the children can properly raise an affirmative
defense under the Hague Convention.’).”
The
Court, however, does not agree with district court denial of Ermini’s petition
without prejudice to renewal if Daniele is not able to continue with his
current CABAS program and the Italian court system issues a final order
requiring the return of the children to Italy.
“[…][A]s
we believe the district court’s approach—which is, so far as we can tell, the
first such instance of denial without prejudice in a Hague Convention case—to
constitute an error of law, neither justified nor allowed by the Convention.
Since the ‘proper interpretation of the Hague Convention is an issue of law,’
we review the district court’s decision de novo. Blondin IV, 238 F.3d at 158
(internal quotation marks omitted).”
“‘In
interpreting a treaty, it is well established that we begin with the text of
the treaty and the context in which the written words are used.’ Swarna v.
Al-Alwadi, 622 F.3d 123, 132 (2d Cir.2010) (internal quotation marks and
alteration omitted). The Hague Convention provides either for the ‘return of
the child forthwith’ if the child is wrongfully removed, pursuant to Article
12, or for a ‘determin[ation] that the child is not to be returned,’ pursuant
to Article 16. The Convention authorizes these decisions alone, and stresses
the importance of deciding matters ‘expeditiously.’ See Hague Convention., art.
11. It also explicitly keeps courts out of deciding, or acting under the
Convention, ‘on the merits of rights of custody.’ Id., art. 16.”
“Furthermore,
as the Hague Convention’s Explanatory Report—which we have construed as being
an authoritative and official history of the Convention proceedings, see
Blondin II, 189 F.3d at 246 n. 5-has explained, the Convention ‘is not
concerned with establishing the person to whom custody of the child will belong
at some point in the future, nor with the situations in which it may prove
necessary to modify a decision ... on the basis of facts which have
subsequently changed.’ Elisa Perez-Vera, Explanatory Report: Hague Conference
on Private International Law, in 3 Acts and Documents of the Fourteenth Session
426 (1980), (“Explanatory Report”) ¶ 71.”
“By
denying the petition without prejudice to renewal, the district court allows
the parties to call upon future events and engage in prospective modifications
in light of changed facts in precisely the way the Convention intended to
prohibit. As the Explanatory Report shows, the Convention is concerned with
events at a particular *168 moment: it either requires return or, in light of
the risks of harm or other circumstances, it does not. Once a determination
properly applying the Convention to the facts at hand has been made, all other
issues leave the realm of the treaty’s domain. The Convention is not, and
cannot be, a treaty to enforce future foreign custody orders, nor to predict
future harms or their dissipation. See, e.g., Redmond v. Redmond, 724 F.3d 729,
741 (7th Cir.2013) (‘The Hague Convention targets international child
abduction; it is not a jurisdiction-allocation or full-faith-and-credit treaty.
It does not provide a remedy for the recognition and enforcement of foreign
custody orders or procedures for vindicating a wronged parent’s custody rights
more generally.’); Mota v. Castillo, 692 F.3d 108, 112 (2d Cir.2012) (‘[T]he
Convention’s focus is simply upon whether a child should be returned to her
country of habitual residence for custody proceedings.’). Indeed, the
Convention stresses the need for, and importance of, establishing swiftly a
degree of certainty and finality for children.[12] See, e.g., Chafin v. Chafin,
___ U.S. ___, 133 S.Ct. 1017, 1030, 185 L.Ed.2d 1 (2013) (Ginsburg, J.,
concurring) (‘Protraction ... is hardly consonant with the Convention’s
objectives.’); Blondin II, 189 F.3d at 244 n. 1 (noting the necessity that
procedural and substantive decision-making be expeditious so they do not exceed
the time that the child can endure the uncertainty of the process).”
The
Court affirms the District Court’s denial of appellant’s petition, and amends
its judgment to deny that petition with prejudice.
*** Godfrey Muwonge is an attorney in Milwaukee, Wisconsin. Author of “Immigration Reform: We Can Do It, If We Apply Our Founders' True Ideals, Revised Edition” (Univ. Press of America, 2010), which was selected as one of top-10 Books that Drive the Debate (2009) by U.S. Chamber of Commerce's National Chamber Foundation. See https://www.amazon.com/Immigration-Reform-Apply-Founders-Ideals-ebook/dp/B00D79W838
