03 CV 6299 (JG).
January 13, 2005
Counsel for both sides are serving pro bono. They have engaged in vigorous and extremely able advocacy at, I am sure, considerable expense to their firms. They are a credit to the profession.
The guardian ad litem is also serving pro bono, and the Court is grateful to the Heller Ehrman firm for its service.
LEA HABER KUCK, ALISON E. CAHILL, New York, New York, Attorneys for Respondent.
KATHLEEN M. SCANLON, Heller Ehrman White McAuliffe LLP, New York, New York, Guardian ad litem to Sergio Noel Cruz Reyes and Raul Stalin Cruz Reyes.
MEMORANDUM AND ORDER
Petitioner Noel Stalin Reyes Olguín ("Olguín") petitions for the return of his children, Sergio Noel Cruz Reyes and Raul Stalin Cruz Reyes, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (the "Hague Convention" or "Convention") and its implementing legislation, the International Child Abduction Remedies Act, 42 U.S.C. §§ 11601- 11611. On August 5, 2004, I denied the motion by Respondent María del Carmen Cruz Santana ("Santana") to dismiss, finding that Olguín had proved by a preponderance of the evidence that the removal of Sergio and Raul was wrongful under the Convention. Olguin v. Santana, 2004 WL 1752444 (E.D.N.Y. Aug. 5, 2004) (" Olguin I"). I also found, however, that Olguín had physically abused Santana throughout the course of their relationship, often beating her in front of the children. Because of this abuse, I scheduled a hearing to determine whether sending the children back to Mexico would subject them to a grave risk of physical or psychological harm within the meaning of Article 13(b) of the Convention, and if so, whether any ameliorative measures could be taken that would minimize such a risk.
The hearing occurred on December 1, 2004. I heard testimony from an expert in child psychiatry, an expert on the likely availability of services for victims of domestic abuse in Mexico, Olguín, and Santana. In addition, a guardian ad litem ("GAL"), whom I had appointed to represent the children's interests, spoke at the hearing, and also submitted a written report (the "GAL Report"). For the reasons set forth below, I conclude that there is a grave risk that the children's repatriation would expose them to psychological harm or otherwise place them in an intolerable situation, and that there are no arrangements that could be made that would mitigate this risk. Accordingly, the petition is denied.
BACKGROUNDInitial findings of fact were set forth in Olguin I, and I assume familiarity with that opinion. Relevant facts from that opinion are included in the comprehensive findings of fact that follow.
Olguín and Santana, who never married, began living together in December 1996, shortly after Sergio was born. They lived with Olguín's parents, in the rural town of Jilotepec, Mexico. From the outset, their relationship was rocky. Olguín abused alcohol, physically abused Santana, and spent most of the time when he was not working carousing with friends and girlfriends. Olguín frequently beat Santana, often in front of Sergio (and later in front of Raul), and once in front of his father, Sergio Raul Reyes Olvera ("Reyes"). When Santana became pregnant after Sergio was born, Olguín forced her to have an abortion. When Santana again became pregnant (with Raul), Olguín again insisted that she have another abortion. This time Santana refused; Olguín then beat her in an attempt to cause an abortion, frequently kicking her in the stomach and pushing her down stairs. At one point, Olguín, indicating a gun that was kept in the house, threatened to kill Santana.
Sergio, who is currently eight years old, was born on September 23, 1996. Raul, who turned five in February, 2004, was born on February 9, 1999.
Olguín's parents did nothing to protect Santana or the boys from Olguín's abuse. Instead, they covered up for Olguín. Sergio stated, for example, that his grandparents would take the boys downstairs while Olguín beat his mother. On occasions when visitors saw Santana's bruises, her mother-in-law would say that Santana was "stupid and fell down."
Although Olguín's physical abuse was mostly directed at Santana, both boys stated in their interviews with Dr. Stephanie Brandt, a child psychiatrist, that Olguín would hit them as well. Sergio, growing up in this abusive environment, began to emulate his father, saying to Santana, for example, that if he did not get his way, he would get Olguín to beat her up.
The difficulties between Olguín and Santana reached a crescendo on July 19, 2001. On that date, in the presence of Raul, Olguín choked Santana and tried to throw her down the stairs in their home. Olguín then cursed at Santana, and said that he would have killed her had Raul not been present. Santana reported the beating to Mexican police and went to live with her parents for the next two months. After that two-month period, Santana took the children to New York. After approximately eight months, Olguín and Reyes showed up at the home in the Bronx where Santana was living with Sergio and Raul. Reyes promised that everything would change if Santana returned to Mexico. He assured her that Olguín would be more responsible and would stop drinking. Reyes promised the boys new toys and bicycles if they returned. In the end, Reyes and Olguín convinced Santana to return to Mexico.
Santana and the boys returned to Jilotepec in April, 2002. For the first couple of months, Olguín acted differently than he had before the July 2001 incident. He soon reverted, however, to his old habits of beating Santana, abusing alcohol, and carousing at night with other women. Fearful of additional physical abuse, Santana took the boys once again and left Olguín in May 2003, arriving in New York in early June of that year. In February 2004, Olguín filed his claim under the Hague Convention to have the boys returned to Mexico.
Since their arrival in New York in June 2003, Santana and the boys have lived in several apartments in the New York City area. Since June 30, 2004, they have lived in a threebedroom apartment in Brooklyn, which they share with another family with whom they are friendly. Sergio and Raul attend public school, and Santana works as a housekeeper and nanny. Santana has had the same, steady position since mid-August, 2004.
A. Psychological Status
Dr. Brandt testified at the December 1, 2004 hearing about Sergio and Raul's emotional status, and the likely psychological impact of sending the boys back to Mexico. Dr. Brandt also submitted written reports (Respondent Exs. A, C; the "Brandt Report" and the "Brandt Supplemental Report," respectively), setting forth her findings based upon multiple interviews she conducted with Santana and the boys. Dr. Brandt also reviewed, among other things, the transcript of the July 1, 2004 hearing, and my memorandum decision of August 5, 2004.
Dr. Brandt is board certified with the American Board of Psychiatry and Neurology in both Adult and Child Psychiatry, and serves as Clinical Assistant Professor of Psychiatry in the Department of Child and Adult Psychiatry at the Payne Whitney Clinic at New York Hospital.
In addition, Dr. Brandt reviewed medical reports concerning the injuries Santana suffered as a result of Olguín's abuse; documents submitted by Olguín to courts in Mexico regarding custody proceedings and the abduction; and documents submitted by Santana for proceedings brought in Brooklyn Family Court.
Dr. Brandt found that Sergio suffers from post traumatic stress disorder ("PTSD") as a result of Olguín's abuse, and that if Sergio is returned to Mexico, he would be at risk of severe psychological damage. Specifically, Brandt concluded that if Sergio was repatriated, he would suffer a very significant exacerbation or relapse of the PTSD, and that this outcome could not be mitigated by any measures that could be put into place to try to protect him. (Brandt Report at 2, 13; Brandt Supplemental Report at 5; 12/01/04 Tr. ("Tr.") at 9, 25.)
Dr. Brandt found that Sergio and Raul had experienced many years of extremely severe domestic violence. Santana was repeatedly beaten by Olguín, often in front of the boys, in a house where Olguín's parents tolerated and covered up their son's abusive behavior. Though Olguín hit both Sergio and Raul, (Brandt Report at 8; Brandt Supp. at 2), the brunt of his physical abuse was directed at their mother. Brandt explained, though, that watching their mother being abused was as traumatic as being abused themselves: "The effect on children generally of an environment of domestic violence does not depend on whether they were directly attacked or were instead only witness to violence against someone else on whom they depend, usually the mother." (Brandt Report at 12.)
Brandt testified that Sergio was seriously traumatized by Olguín's violent behavior, finding that he was highly defensive, with poor impulse control and near psychotic thinking, and he had a history of suicidal thought and highly aggressive fantasy. (Brandt Supp. at 5.) When Sergio first arrived in New York, he had recurring nightmares of his father coming after him. He also acted out in school, trying to beat up other children. At that time, Sergio saw a counselor at school every other day, and was referred to a psychiatrist at a hospital in Bushwick, whom he saw five or six times. Sergio was both protective of his mother and aggressive towards her. For example, Sergio would say to Santana, "I will buy a gun to kill my father so that he can not beat and hurt you." (Brandt Report at 7.) Yet he would also threaten to kick Santana (and Raul), using the identical threatening gestures as Olguín. Santana told Dr. Brandt that even now, Sergio sometimes assaults Raul, saying "I'm going to choke you just like Dad did." (Brandt Report at 5.) During the recent period in which Brandt was conducting her interviews, Sergio intentionally cut Raul's finger.
Brandt explained that taking on the characteristics of the aggressor is a common symptom among children suffering from PTSD.
Dr. Brandt testified, however, that in recent months Sergio's behavior has apparently improved, especially at school. (Tr. at 20-21, 56-57.) As the GAL also detailed in its report, school presents a structured environment in which Sergio has flourished. Sergio is a diligent student, and he apparently no longer acts out at school as he had done upon first arriving in New York. According to Sergio's second grade teacher, he is hard working, cooperative, regularly in attendance, always on time, and gives a hundred percent effort to his schoolwork. (GAL Report, letter from teacher, dated 10/27/04.) As the GAL explained, the school environment has created something of a safe haven for Sergio, and he has embraced it. (Tr. at 69-70.)
When Brandt asked Sergio about returning to Mexico, Sergio stated that he would "kill himself." (Brandt Report at 9.) While such statements from children should not always be taken at face value, see Tr. at 16-17, Brandt found that Sergio was at risk of committing suicide or some other act of violence. (Tr. at 18, 26.) Sergio also made a similar statement about killing himself to the GAL when asked about returning to Mexico, and the GAL concluded that this suicidal statement accurately revealed Sergio's outlook on the prospect of return. (Tr. at 70-71.)
Dr. Brandt was unequivocal about the likely consequences of returning Sergio to Mexico: "I believe that [Sergio] would suffer a very significant exacerbation or relapse if returned to Mexico." Further, Dr. Brandt found that uprooting Sergio at all from his current, stable living situation would put him at great risk of psychological harm: "If [Sergio] were taken away from this basic security, especially if he feels that his relationship with his mother, or her safety, is jeopardized, it is my professional opinion that Sergio would likely destabilize dramatically." (Brandt Supp. at 5.)
Brandt characterized the exacerbation of Sergio's PTSD as a panic state: "He could become very aggressive and think he should kill his father or defend himself in some way. He could develop what essentially would be psychotic ideas about his power. . . . I think he also alternately might feel overwhelmingly helpless, and with his history, he's the kind of kid that might kill himself." (Tr. at 26.)
Brandt stated that Sergio will need ongoing mental health treatment, and noted in her report that there are numerous clinics and social service organizations in New York City through which Sergio can get appropriate and affordable treatment.
Dr. Brandt found that Raul would also be at risk of severe psychological damage if repatriated to Mexico; specifically, he would be at risk of developing a disorder similar to Sergio's. (Brandt Report at 2.) Though Dr. Brandt found no evidence that Raul currently suffers from any psychological disturbance, she believes that Raul's sense of well-being is entirely dependent on his knowledge that his mother is safe. (Brandt Report at 13.) Further, Dr. Brandt stated that if Raul (or Sergio) were separated from Santana, it would be highly traumatic, causing extreme and irreversible psychological damage, "regardless of what environmental supports were put in place." (Brandt Supp. at 5-6.)
B. Social Services Available in Jilotepec
1. Ziaurriz's testimony
On behalf of Santana, Teresa Ulloa Ziaurriz submitted a report (Resp. Ex. D, "Ziaurriz Report") regarding the availability of social services for victims of domestic violence in rural towns such as Jilotepec. In addition, Ziaurriz was cross-examined (by telephone) at the December 1, 2004 hearing.
Ziaurriz's expert status on the subject of domestic violence in Mexico and the availability of social services to address such violence is uncontested. Ziaurriz, a lawyer who has completed postgraduate studies in Gender and Justice and International and Humanitarian Law from the Sorbonne, has represented thousands of victims of domestic violence. Ziaurriz currently holds several positions, including that of the Regional Director for Latin America and the Caribbean of the Coalition Against Trafficking in Women, and General Coordinator of Popular Defenders, a non-governmental organization in the Federal District, Mexico. In addition to authoring numerous publications on the subject of human rights and gender violence, Ziaurriz drafted portions of the Mexican Criminal Code on gender violence crimes, and has developed workshops to train community leaders in Mexico on the promotion of the rights of women and children. Ziaurriz is also an elected member of the International Commission of Women of the International Federation of Human Rights.
In preparation for drafting her report, Ziaurriz reviewed (1) the petition brought by Reyes under the Hague Convention; (2) a transcript of the July 1, 2004 hearing; and (3) the Olguin I memorandum and order.
Ziaurriz explained that in Jilotepec, a poor municipality in the State of Mexico, there are insufficient resources to support defense, shelter and counseling services for victims of domestic violence. (Ziaurriz Report at 3-4.) "Jilotepec," Ziaurriz wrote, "does not provide the necessary services to guarantee [Sergio and Raul's] physical and emotional integrity." (Ziaurriz Report at 6.) Ziaurriz explained that in addition to having insufficient social and medical resources, the rights of women and children in such municipalities are neglected; local courts are often reluctant to prosecute batterers, or even to issue restraining orders, in part because of culturally ingrained attitudes that favor men. Ziaurriz concluded that there is no doubt that if Santana and the boys were forced to return to Mexico, the boys would be in great danger of suffering mistreatment and "will not receive social services necessary to help victims of domestic abuse." (Ziaurriz Report at 5-6.)
2. The DIF report
Both Olguín and the GAL contacted a social welfare agency called Desarrollo Integral de la Familia (" DIF") (the National System for the Integral Development of the Family). DIF prepared a three-page report regarding the prospective treatment of the children, which included a "social work report" based on a home visit to Olguín's house. The first page of the report sets forth a six-point outline of the "proceeding that will be conducted in order to accomplish the objectives of psychological guidance to therapy," including (1) establishing rapport with the children through play therapy; (2) interviewing Santana "(if possible)"; (3) interviewing Olguín; (4) evaluating the case by "applying appropriate psychometric batteries;" (5) making a diagnosis; and (6) "therapy to be pursued." No other details are provided regarding the substance or availability of any therapeutic services.
DIF is a "social welfare agency whose primary purpose is to raise awareness, prevent families from breaking up, and persuade families to stay together and secure their well-being by providing various services, such as . . . a Child Advocacy Agency where the rights and guarantees of minor children are asserted; likewise we have psychological care, with three highly-trained psychologists who offer talks focused on the individual and the family, workshops to prevent depression, school for parents, etc." (GAL Ex. G, " DIF Report") (brackets omitted).
The second and third pages consist of a "social work report," which is comprised primarily of information regarding the physical characteristics of the house the Reyes family lives in and the family members' occupations and salaries. The report states that the family is "a nuclear family with adequate, well-defined roles that are flexible if necessary, clear, direct and well-managed communication with sufficient emotional involvement. No problems expressing feelings." After describing the Reyes family house as one that is well-built and well-maintained, the report concludes: "the family's economic standing is good since nothing whatsoever is lacking. Therefore, we believe that it is a suitable place for the children to grow up properly."
Olguín's father passed away a few weeks prior to the December 1, 2004 hearing. Reyes had drawn the largest salary among those living in Olguín's household, and accordingly, the family's economic condition has changed since the DIF report was prepared.
3. Olguín's testimony
Olguín testified about efforts that he made to determine whether there were social services available in Jilotepec for the children. In addition to contacting DIF, Olguín contacted several private doctors whom he believed had experience treating children who had experienced domestic violence, in part because the doctors worked with prisoners and their relatives to foster family reconciliation.
4. The guardian ad litem 's research
In addition to contacting DIF, the GAL contacted Toni Cardenas, the Child Protection coordinator at Bellevue Hospital, to inquire about available services for victims of domestic violence in Mexico. According to the GAL, Cardenas was unaware of any programs for the children of victims of domestic violence in Mexico, and noted that resources for such victims are very limited. Further, the GAL reviewed a limited set of documents from which it concluded that domestic violence appeared not to be uncommon in Mexico, and that there were limited resources to prevent future violence or provide therapy to its victims.
Cardenas is on the Board of Directors for the American Professional Society on Child Abuse, and is involved with international domestic violence services.
These documents included County Reports on Human Rights Practices from the United States Department of State, Bureau of Democracy, Human Rights and Labor, available at http://www.state.gov.
DISCUSSIONThe purpose of the Hague Convention is "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." Blondin v. Dubois, 238 F.3d 153, 157 (2d Cir. 2001) (" Blondin IV") (quoting the Hague Convention, preamble). The Convention is intended to address the situation where parents involved in custody disputes wrongfully take their children across international borders in search of a more sympathetic court. See Blondin v. Dubois, 189 F.3d 240, 246 (2d Cir. 1999) (" Blondin II") (citing Friedrich v. Friedrich, 78 F.3d 1060, 1064 (6th Cir. 1996)). The court where the petition is brought "has the authority to determine the merits of an abduction claim, but not the merits of the underlying custody claim." Id. at 245 (quotation marks omitted); 42 U.S.C. § 11601(b)(4). First, the court must determine whether the child has been "wrongfully removed or retained." Blondin II, 189 F.3d at 245; 42 U.S.C. § 11601(a)(4). A wrongful removal under the Convention includes one "in breach of rights of custody . . . under the law of the State in which the child was habitually resident." Blondin IV, 238 F.3d at 157 (quoting the Convention, art. 3) (ellipsis in original).
Once a petitioner establishes that removal was wrongful, the child must be returned to the country of his habitual residence unless the respondent can establish one of the four "narrow" exceptions to repatriation. Id. at 157; see also 42 U.S.C. § 11601(a)(4). These exceptions "do not authorize a court to exceed its Hague Convention function by making determinations, such as who is the better parent, that remain within the purview of the court with plenary jurisdiction over the question of custody." Blondin II, 189 F.3d at 246. Even where a court finds that an exception has been established, the court is not required to deny repatriation. Id. at 246 n. 4 (citing Friedrich v. Friedrich, 78 F.3d at 1067 ("a federal court retains, and should use when appropriate, the discretion to return a child, despite the existence of a defense, if return would further the aims of the Convention.")).
These four exceptions are: (1) that there is a grave risk that repatriation would expose the child to harm; (2) that the repatriation would not be permitted by fundamental principles related to the protection of human rights; (3) that judicial proceedings were not commenced within a year of the abduction and the child is well-settled in the new environment; and (4) that petitioner was not actually exercising custody rights at the time of the removal. See Convention, arts. 13(b); 20; 12; and 13(a) respectively. In addition, under an unnumbered provision of Article 13, a court may deny repatriation where the child objects to being returned and has attained an age and degree of maturity such that it is appropriate to take the child's views into account. See Blondin IV, 238 F.3d at 166.
In Olguin I, I found that Santana's removal of Sergio and Raul was wrongful within the meaning of the Hague Convention; that is, I found that Olguín had custody rights under Mexican law and that he was actually exercising those rights at the time Santana brought the children to New York in 2003. 2004 WL 1752444, at *6. At issue here is whether Santana has established an exception to the Convention's general rule of repatriating wrongfully removed children. Specifically, the question is whether returning the boys to Mexico will expose them to a grave risk of psychological harm within the meaning of Article 13(b) of the Convention.
A. Grave Risk of Harm
Under Article 13(b), "a court may decline to repatriate a child if the party opposing repatriation establishes by clear and convincing evidence that repatriation would create a grave risk of physical or psychological harm to the child." Blondin IV, 238 F.3d at 157. Before a court may decline repatriation, however, it must first determine whether there are any ameliorative measures that could be taken to mitigate this risk and enable a child to return safely to his home country. Id. The grave-risk exception recognizes that "the interest of the child in not being removed from its habitual residence . . . gives way before the primary interest of any person in not being exposed to physical or psychological danger or being placed in an intolerable situation." Id. at 161 (quoting Elisa Perez-Vera, Explanatory Report to the Convention ¶ 29).
Article 13(b) provides, in relevant part:
Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that —
. . .
(b) 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.
The Explanatory Report is an "especially useful aid to interpretation of the Convention." Blondin IV, 238 F.3d at 161.
There is a spectrum of harms a repatriated child may suffer. At one end "are those situations where repatriation might cause inconvenience or hardship, eliminate certain educational or economic opportunities, or not comport with the child's preferences; at the other end of the spectrum are those situations in which the child faces a real risk of being hurt, physically or psychologically, as a result of repatriation. The former do not constitute a grave risk of harm under Article 13(b); the latter do." Id. at 162.
In describing the type of factual scenario that falls within the 13(b) grave-risk exception, the Department of State wrote:
An example of an "intolerable situation" is one in which a custodial parent sexually abuses a child. If the other parent removes . . . the child to safeguard [him] against further victimization, and the abusive parent then petitions for the child's return under the Convention, the court may deny the petition. Such action would protect the child from being returned to an "intolerable situation" and subjected to a grave risk of psychological harm.Blondin IV, 238 F.3d at 162 (quoting 51 Fed. Reg. 10494, 10510 (1986)); cf. Blondin v. Dubois, 78 F. Supp. 2d 283, 298 (S.D.N.Y. 2000) (" Blondin III") (explaining that although the State Department's illustration referred to sexual abuse rather than physical abuse, there was no reason to conclude that a father's physical abuse of a child, or his physical abuse of the mother in front of that child, would be any more tolerable).
In the Blondin case, the district court found that repatriating children to where the abusive father lived (and where he had repeatedly beat the mother and the older child, and threatened to kill them), would subject the children to a grave risk of harm, and accordingly denied repatriation under Article 13(b). Blondin v. Dubois, 19 F. Supp. 2d 123, 129 (S.D.N.Y. 1998) (" Blondin I"). The Second Circuit did not disturb the finding of grave risk of harm, but remanded for further proceedings to determine whether any ameliorative measures could be taken to reduce this risk. See Blondin II, 189 F.3d at 247-49. (As discussed below, after the district court found that no such ameliorative measures existed, it again denied repatriation, and the Second Circuit affirmed. See Blondin IV, 238 F.3d at 168.)
Here, there is uncontroverted expert testimony that the children are at great risk of severe psychological damage if they are returned to Mexico. (Brandt Report at 2.) In testimony I credit in its entirety, Dr. Brandt found that Sergio currently suffers from post traumatic stress syndrome due to the domestic violence that occurred in Mexico. If repatriated, Sergio would be at risk of acting on violent or suicidal impulses generated by his prior trauma. If Raul is repatriated, he would be at serious risk of developing a disorder much like Sergio's.
I give great weight to Dr. Brandt's findings, which are consistent with all of the evidence that has been presented in this case. The guardian ad litem, having interviewed both children on several occasions, and in consultation with its own psychiatric expert, Dr. April Kuchuk, concurred in the conclusions reached by Dr. Brandt. GAL Report at 23. Brenda Bauer, a law guardian for Sergio and Raul in a separate proceeding, also reported descriptions of abuse similar to those Sergio and Raul gave Dr. Brandt.
In addition to interviewing the boys, the GAL or its representatives contacted and obtained information from the following persons: Santana, Olguín, Brenda Bauer, the boys' law guardian in Brooklyn Family Court proceedings; the boys' school principals; DIF; Safe Horizon; and Sanctuary for Families.
Dr. Brandt stated that "the children informed [Bauer] of domestic abuse consistent with what the boys reported to me, including that [Olguín] beat both boys as well as their mother. Ms. Bauer reported that the boys had expressed a desire not to return to Mexico and [both] had a strong preference towards remaining with their mother." (Brandt Supp. Report at 4.)
Olguín, for his part, has not contested Dr. Brandt's diagnoses. He has offered no evidence as to the psychological impact a return to Mexico would have on Sergio and Raul. Although he does not dispute that Sergio suffers from Post Traumatic Stress Disorder (tr. at 91-92), Olguín has suggested other possible sources of the disorder, such as the boys' separation from their father or grandparents, or their experiences while escaping to the United States. I reject these suggestions. Dr. Brandt ruled out any other source for the PTSD except for Olguín's violent behavior, explaining that Sergio's symptoms "directly reflect and bear on his memories of domestic violence." (Tr. at 39.) I credit her conclusion that the genesis of the PTSD was Olguín's abusive behavior.
While Raul is currently in better psychological health than Sergio, Dr. Brandt's report makes clear that both children are at risk of severe psychological damage if repatriated. The GAL concurs; Raul would be at risk of psychological harm if returned to Mexico. He is extremely bonded to his brother and mother, and separating the two brothers "would not be a viable option." (GAL Report at 2; Tr. at 71-72.) Thus, while the risk of trauma is less for Raul than for Sergio, both children are at risk of harm if repatriated.
No party to this action has suggested that the two children be separated, which would wreak its own psychological havoc. See Blondin III, 78 F. Supp. 2d at 290 n. 9 (children's relationships with their siblings are the sort of `intimate human relationships' that are afforded `a substantial measure of sanctuary from unjustified interference by the State.'") (quoting Roberts v. United States Jaycees, 468 U.S. 609, 618, 104 S. Ct. 3244, 82 L. Ed. 2d 462 (1984)).
As part of the grave-risk analysis under Article 13(b), courts may consider, as non-dispositive factors, whether the child is settled into his new environment, and what the child's own views on repatriation are, taking into account the child's age and degree of maturity. Blondin IV, 238 F.3d at 164, 166. In large part, the purpose of appointing the guardian ad litem was to assist in making these assessments.
Under Article 12 of the Convention, a court may decline to return a child where it is demonstrated that the child "is now settled in its new environment" and where proceedings under the Hague Convention were initiated more than one year after the abduction. See Blondin IV, 238 F.3d at 164 (quoting the Convention, art. 12). Here, Olguín initiated his petition within the one-year limitations period, and thus the Article 12 exception does not apply. The Second Circuit stated, however, that a district court may consider whether a child is settled "as part of a broader analysis of whether repatriation will create a grave risk of harm." Id. at 164.
Under an unnumbered provision of Article 13, a court may refuse to return a child if it finds that the child "objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views." Blondin IV, 238 F.3d at 166 (quoting the Convention, art. 13). The Convention did not establish a specific age that must be reached before a court could find that the child's objection was sufficient in and of itself to decline repatriation. Id. Even if a child is not old enough so that his objection could be dispositive, a court may consider his testimony as part of the broader analysis under Article 13(b). Id. at 166 (court properly considered eight-year old child's view as part of its grave-risk analysis under Article 13(b)).
1. The degree to which the boys are well-settled
Courts have considered a variety of factors in determining how settled a child is in his new environment, including the child's age; the stability of the child's current residence; whether the child attends school or church regularly; the stability of the mother's employment; and whether the child has friends or relatives in the new area. See K.C. v. K.C., 181 F. Supp. 2d, 136, 152 (E.D.N.Y. 2001) (citing Wojcik v. Wojcik, 959 F. Supp. 413, 421 (E.D. Mich. 1997).
These factors have been set forth by courts analyzing an Article 12 exception (petition filed more than a year after abduction; court may refuse to repatriate where child is now settled in its new environment), but they are equally applicable to the non-dispositive inquiry under Article 13(b).
Sergio and Raul have lived with their mother in New York for more than eighteen months. As the GAL report makes clear, they are settling into a stable routine. On weekdays, Santana and Sergio put Raul on his school bus, after which Santana walks Sergio to school. At 3:00, Santana's apartment-mate picks the children up from school and watches them until Santana gets home from work around 6:00 pm. In the evenings, the boys do their homework and play PlayStation games. On the weekends, Santana and the boys often go to a park near their apartment, or play video games at a toy store. Santana and the children attend church on occasion, and have some contact with relatives of Santana who live in the New York City area.
Both children are performing well in school. As the guardian ad litem testified, school provides Sergio with a safe environment. He takes his studies seriously, and school has become an important part of his self-identification. (Tr. at 69.) Both children seem to know their classmates well, and they like their teachers. Sergio has become nearly fluent in English, and Raul's command of the language is improving.
During the GAL's interviews with the boys under the direction of Dr. Kuchuk, both Sergio and Raul stated that they liked living in the United States and living in Brooklyn in particular. When Sergio was asked as part of a homework assignment to compose a sentence using the word "from," he wrote: "I am from America." He told the GAL that he planned to dress as an American Flag for Halloween. The GAL concluded that "[a]ny disruption to Sergio's identification as an American would be an additional source of stress for Sergio and may impede his recovery from the psychological trauma caused by his exposure to domestic violence." (GAL Report at 22.)
Raul planned on dressing as The Hulk.
I find that Sergio and Raul have become well-settled in New York. This factor, while not dispositive, militates against repatriation. Wrenching the boys from their current stable environment, when they are only now beginning to recover from the trauma inflicted by Olguín in Mexico, could only increase the likelihood and severity of harm of their repatriation. See Blondin III, 78 F. Supp. 2d at 295; cf. Wojcik, 959 F. Supp. at 421 (finding children aged eight and five well-settled under an Article 12 inquiry, where the children had been in the United States for eighteen months; had consistently attended school or day care; had family in the area; and attended church regularly).
2. The boys' views
After meeting several times with the boys, the GAL, in consultation with its psychiatric expert, concluded that Sergio appeared to be mature enough to have his views taken into account. (GAL Report at 19; Tr. at 71.) Raul has not yet reached such a maturity level. (GAL Report at 19.) Further, the GAL found that Santana did not appear "to have unduly influenced [Sergio and Raul's] desire to stay here and not return to Mexico nor to make the children harbor harsh feelings toward their father and his parents." (GAL Report at 22.) Dr. Brandt found both children to be highly credible in their discussion of the abuse they witnessed and received, finding that the children "speak in terms that are graphic and nuanced and their level of fear is genuine." (Brandt Report at 11.) Olguín did not make any assertions regarding the maturity level of the boys and whether their views should be taken into account.
Both Sergio and Raul told Dr. Brandt and the GAL that they wanted to remain in the United States, and both expressed fear of returning to Mexico. When Dr. Brandt asked Sergio about returning to Mexico, he responded "I would kill myself. [I would find my father's knife and] stab myself . . . I don't want my Dad." (Brandt Report at 9.) Similarly, when the GAL asked Sergio what would happen if he had to go back to Mexico, he again replied "I'll kill myself."
While such statements from an eight-year-old boy should not necessarily be taken literally, Dr. Brandt found that Sergio was indeed at risk of committing suicide (Tr. at 18), and the GAL concluded that these statements revealed Sergio's "overwhelming desire to stay in New York and the anxiety that a potential return to Mexico produces." (GAL Report at 22.)
The GAL found that Raul "enjoys living here and has no desire to return to Mexico" (GAL Report at 22); Raul told Dr. Brandt that Mexico was bad and that he did not want to go there. (Tr. at 23.) Raul, though still a toddler for much of the time he was in Mexico, recalls specific incidents of physical abuse of his mother and himself. (Brandt Supp. at 3.) According to Dr. Brandt, Raul could not conceptualize the possibility of returning to Mexico and not living in the same house as his father. (Brandt Supp. at 3.)
The GAL spent significant time with the boys, and I give great weight to the guardian's assessment of the boys' views and maturity level. I find that Sergio is mature enough that his opposition to returning to Mexico should be considered in the Article 13 calculus. Raul's views warrant less weight, though I take note that he also expressed a desire not to return to Mexico.
In sum, I find by clear and convincing evidence that repatriation to Mexico would present a grave risk that Sergio and Raul would suffer severe, perhaps cataclysmic harm and would place them in an intolerable situation within the meaning of Article 13(b) of the Convention. While I would have reached this conclusion based solely on Dr. Brandt's testimony and report, my conclusion is buttressed by my finding that the boys, who have now lived in the United States for more than eighteen months, are well-settled in New York and that Sergio's desire to stay in the United States (and severe anxiety at the mere thought of returning to Mexico) deserve consideration.
B. Ameliorative Measures
Before a court may deny repatriation on the ground that a grave risk of harm exists under Article 13(b), it must examine whether any ameliorative measures might mitigate the risk of harm to the child and allow him to return safely pending a final adjudication of custody. Blondin IV, 238 F.3d at 156. This inquiry is necessary because a court must make every effort to simultaneously honor two core mandates of the Convention: (1) to return wrongfully abducted children to their home countries for custody adjudication; while (2) safeguarding those children from grave risk of harm. Blondin II, 189 F.3d at 242. A court may decline to repatriate a child, however, where it finds that there are no ameliorative measures that could be put in place that would significantly mitigate the grave risk to the child. See Blondin IV, 238 F. 3d at 168 (affirming denial of repatriation where no arrangements could mitigate risk of returning abused child to country where abuse took place); Danaipour v. McLarey, 386 F.3d 289, 303 (1st Cir. 2004) (same).
On remand in Blondin, a psychiatric expert testified that removing the children from their stable environment in the United States and returning them to the country where they were abused would cause post-traumatic stress disorder, regardless of what arrangements could be made to try and protect the children from contact with the abusive father. Blondin III, 78 F. Supp. 2d at 291-92 (the expert explained that "the primary trauma is the removal and uncertainty and the lack of security that comes from leaving where they are now and going back to the scene of their original trauma."). In addition to the psychiatric evidence, the court also considered potential ameliorative measures that could be put into place, including that: (1) the children and mother would be eligible for social services, including government housing assistance; (2) the mother would receive free legal assistance in the pending custody proceedings; and (3) the father gave undertakings that he would assist the mother and children financially in moving back and would agree not to make contact with them prior to the judicial determination of custodial rights. Id. at 288-90 (S.D.N.Y. 2000). Despite the availability of such measures, the district court concluded that any arrangements would fail to mitigate the grave risk of harm to the children, because returning to France under any circumstances would expose them to psychological harm. Id. at 295 ("I am convinced that wrenching the children away from the safe, extended-family environment in which they have begun to recover from the trauma caused by their father's abuse would thwart their recovery by causing a recurrence of the traumatic stress disorder they suffered in France"). The district court again denied repatriation under Article 13(b), and the Second Circuit affirmed. Blondin IV, 238 F.3d at 168.
Thus, the preliminary question here is whether there are any ameliorative measures that exist that would mitigate the grave risk of harm to Sergio and Raul if repatriated. I find that no such measures present themselves here.
Dr. Brandt testified that, regardless of what arrangements might be made to safeguard Sergio, he would be exposed to severe psychological harm if returned to Mexico because the repatriation in and of itself would trigger a relapse or exacerbation of the PTSD. (Brandt Report at 2; Tr. at 27.) Dr. Brandt found that Sergio's psychological state is so tenuous that uprooting him in any fashion from his current, stable lifestyle would be traumatic. (Tr. at 25.)
I credit Dr. Brandt's testimony regarding the likely psychological effect on Sergio of repatriation regardless of any ameliorative measures that could be put into place. The GAL has concurred with Dr. Brandt's conclusions in this regard, and Olguín has offered no evidence to the contrary. Because of Sergio's precarious psychological state, returning to Mexico under any circumstances could trigger severe psychological damage. I find therefore that there are no ameliorative measures that could diminish the risk to the point where Sergio would no longer be exposed to a grave risk of psychological harm. As discussed above, separating Sergio and Raul, which no party has proposed, would in itself expose both children to harm. Accordingly, I would deny repatriation on this basis alone.
Even if there were some protective measures that in the abstract could mitigate the risk of harm to the children, no evidence has been presented that such measures would be available in this case. Indeed, substantial evidence has been presented to the contrary. First, like respondent's expert, I do not give much weight to the report from DIF. Cf. Ziaurriz Report at 7 ("After a detailed examination of the [ DIF report], I doubt the credibility of these documents."). Nothing in the report, for example, suggests that the organization provides essential services for victims of domestic violence, or for someone (like Sergio) who is suffering from PTSD. Further, given the domestic abuse of Santana and the boys that is at the heart of this case, it seems impossible to conclude — as the DIF social worker apparently did — that Olguín's home is a suitable place for the children to grow up based solely on the economic wherewithal of Olguín's family and the physical condition of the house.
Second, although Olguín testified that he contacted several private doctors, it is not clear that any of them are trained to work with victims of domestic violence; certainly there was no testimony that these doctors had any experience treating PTSD. Instead, it appears that these doctors provide family counseling to prisoners.
For her part, Santana has provided substantial evidence that it is highly unlikely that there would be any significant measures available to her or the children in Jilotepec that might ameliorate the risk of psychological harm. Ziaurriz's report states that municipalities such as Jilotepec not only do not have sufficient social services for victims of domestic violence, but also that violence towards women and children is culturally accepted to a degree that makes it even more unlikely that any such services would be available. Ziaurriz concluded that if Santana and the boys were forced to return to Mexico, the children would be in "great danger of suffering mistreatment and will not receive [the] social services necessary to help victims of domestic violence." (Ziaurriz Report at 6-7.) The GAL agreed with Ziaurriz's conclusions. See Tr. at 71 ("there really seems to be a lack of structure for the children, should they be returned to Mexico, to get the type of treatment, particularly Sergio, that he needs.").
Further, unlike the abusive father in Blondin, Olguín has not offered to take any action that might help reduce the risks of repatriation. Compare Blondin III, 78 F. Supp. 2d at 289 (abusive father promised: not to enforce existing custody order until a ruling from a French family judge; to pay the family's airfare for the trip back to France; to pay for three weeks in a one-star hotel for mother and children while mother applies for government housing, financial support and other social services). Here, Olguín, who has not disputed the psychological diagnoses of his children, only their bases, has made no representations regarding any actions that he could take to mitigate the risk to the children.
Finally, I note that Olguín has provided no evidence that he has taken steps to address his own abusive behavior. After Santana first came to New York with the boys, Olguín and his father convinced Santana to return, promising the boys new toys and bicycles. Within months, though, Olguín had reverted to his earlier habits of abusing alcohol and beating Santana. There is no reason to think that if the children were repatriated this time, Olguín would not resume his abusive behavior towards Santana and the boys. Accordingly, I find that there are no significant ameliorative measures available under the circumstances of this case that would mitigate the grave risk that the children would be exposed to psychological harm if repatriated.
The Convention protects children internationally from the harmful effects of their wrongful removal. See the Convention, preamble. While repatriating such children is one goal of the Convention, it cannot trump "`the primary interest of the children not to be exposed to physical or psychological danger' or the `intolerable situation' that would surely exist" if these boys are returned to Mexico. Blondin I, 19 F. Supp. 2d at 129 (quoting the Convention Explanatory Report ¶ 29). In order to protect these children, which is the ultimate aim of the Convention, I will not force them to return to a country under circumstances where they will be exposed to severe psychological harm.
In sum, I find by clear and convincing evidence that (1) there is a grave risk that returning Sergio and Raul to Mexico will expose them to psychological harm or otherwise place them in an intolerable situation; (2) this grave risk will be present regardless of any ameliorative measures that might be put into place; and (3) even if, in the abstract, arrangements existed for children such as Sergio and Raul that could mitigate the risk of repatriation, no such measures will be available in the place which petitioner seeks their return. Accordingly, I find that Santana has established, by clear and convincing evidence, the exception under Article 13(b) to the general rule that children who are wrongfully removed must be repatriated under the Hague Convention, and thus I decline to order the return of Sergio and Raul to Mexico.
CONCLUSIONFor the foregoing reasons, the petition is denied. The Clerk is directed to enter judgment for respondent and to close the case.