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Ninfa Teresa Alvarado Solis De Handzlik v. Handzlik

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Dec 6, 2017
E063896 (Cal. Ct. App. Dec. 6, 2017)

Opinion

E063896

12-06-2017

NINFA TERESA ALVARADO SOLIS DE HANDZLIK, Plaintiff and Respondent, v. GRANT LAWRENCE HANDZLIK, Defendant and Appellant.

Grant Lawrence Handzlik, in pro. per., for Defendant and Appellant. No appearance for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. IND1500454) OPINION APPEAL from the Superior Court of Riverside County. Otis Sterling III, Judge. Affirmed. Grant Lawrence Handzlik, in pro. per., for Defendant and Appellant. No appearance for Plaintiff and Respondent.

This case involves a petition for the return of a child pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, October 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 49 (reprinted at 51 Fed. Reg. 10494 (Mar. 26, 1986)) (the Hague Convention or the Convention). Plaintiff and respondent Ninfa Teresa Alvarado Solis De Handzlik's (mother) filed the petition on the ground that defendant and appellant Grant Lawrence Handzlik (father) had wrongfully removed their child from her residence in Panama. The trial court granted the petition and father appeals, contending the evidence is insufficient to support the trial court's decision. We reject his contention and affirm.

We take judicial notice of the Hague Convention. (Evid. Code, § 452, subd. (c).)

I. FACTUAL AND PROCEDURAL BACKGROUND

Father did not designate that the reporter's transcript of the proceedings on April 16, 2015, (covering portions of the testimonies of Dr. Leitman and father, along with all of the testimony of father's girlfriend) be included in the record on appeal.

Father is a United States citizen. Mother is a citizen of Panama. The couple married in 2006 in Los Angeles, California. The child was born in 2008 in Panama. In 2009, the family moved to Los Angeles, where they lived for "about a year and a half," then moved to Hawaii, where they lived for approximately six months. In 2011, the family returned to Panama and the couple separated; however, the three continuously lived in Panama until December 2014. In Panama, the child lived with mother, except for a 10-month period in 2013 when she lived with father, and the couple verbally agreed on custody and visitation until July 2014. In September 2014, father asked mother if he could take the child to the United States. On December 15, 2014, father took the child with him following an event at school. On Christmas Eve, father told mother, via e-mail, that they had "arrived in the United States." A Panama court granted physical custody of the child to mother.

On January 21, 2015, mother filed the instant petition for return of the child under the Hague Convention (petition). An evidentiary hearing was conducted between April 8 and April 20. Mother testified that when father took the child in December 2014, he claimed that they were going to the beach, and that he would return her before Christmas. On December 22, 2014, mother called father, but there was no answer. She stopped by his business, but it no longer existed. She went to his residence, but his girlfriend claimed that father was at the beach and there was no cell reception there. Mother did not know that father and the child had left Panama for the United States. On December 23, 2014, mother tried to call father again, to no avail. On Christmas Eve, mother went to the police because she had "started to think that something might have happened to them at the beach." That evening, father sent an e-mail message to mother, informing her that they had arrived in the United States. Mother told the police that father had taken their daughter out of the country without her permission.

Father testified that mother allowed him to take the child to the United States. He claimed that in late November 2014, the documents evidencing mother's consent were either directly handed to him by mother or he found them in the child's backpack. With mother's consent, father took the child to apply for a passport. Father presented the document that was purportedly signed by mother authorizing him to take the child to the United States. Handwriting experts opined that mother "'[p]robably did not'" sign the document. Mother denied signing any document or playing any part in father obtaining a passport for the child on December 9, 2014. She testified that he had given her documents to sign, but she declined to do so. She never agreed to the child traveling to the United States.

In defense of the petition, father argued that returning the child to Panama would pose a grave risk of physical and psychological harm, because he claimed mother hit the child and the child's half sister had touched the child on her private parts. He offered the testimony of Dr. Michael Leitman, a licensed psychologist, who had interviewed the child. The relevant portion of Dr. Leitman's testimony was presented on April 16, 2015; however, father did not designate a reporter's transcript of that day's oral proceedings. (See fn. 2, ante.)

At the conclusion of the hearing, the trial court granted mother's petition, finding that the child had been wrongfully removed from Panama, and that there was no grave risk of physical and psychological harm in returning her to Panama.

II. ANALYSIS

Father contends the evidence is insufficient to support the trial court's decision. We disagree.

A. Legal Principles and Standard of Review.

"The Hague Convention does not mandate a child's automatic return to a parent in another country, but instead protects children against 'the harmful effects of their wrongful removal or retention' across international borders. [Citation.] Where appropriate, the Convention establishes 'procedures to ensure their prompt return to the State of their habitual residence.' [Citations.] . . . . [¶] . . . [A] parent seeking a child's return under the Convention may initiate a civil action in the jurisdiction where the child is physically located. [Citation.] The petitioner must establish by a preponderance of evidence the child's country of habitual residence and that another person wrongfully removed or retained the child outside that country. [Citation.] The removal or retention of a child is wrongful when it interferes with the petitioning parent's custody rights in the country of habitual residence. [Citations.] [¶] If the petitioning party meets his or her burden to establish the child's country of habitual residence and wrongful removal or retention, the respondent nevertheless may prevent the return of the child or require certain conditions or 'undertakings' on the child's return based on several affirmative defenses. [Citations.] For example, return is precluded under the Convention if the respondent shows by a preponderance of evidence that the petitioner was not exercising his or her custody rights, or a child of adequate age and maturity objects to returning. [Citations.] [¶] Other affirmative defenses include a showing by clear and convincing evidence that returning the child would violate the child's or other parent's human rights or fundamental freedoms, or the return would cause grave risk to the child's mental or physical well-being. [Citations.] Domestic violence or child abuse constitutes a grave risk to the child. . . ." (Noergaard v. Noergaard (2015) 244 Cal.App.4th 76, 83-84.)

"There is no consensus in California regarding whether the trial court's factual determinations in an action under the Hague Convention are reviewed for 'clear error,' under the federal standard, or 'substantial evidence,' under California law. [Citations.] We need not resolve this issue; our conclusion would not vary under either standard. Interpretation of the convention itself is a legal question, which we review de novo. [Citations.] A trial court's application of the convention to facts is reviewed de novo. [Citation.]" (Maurizio R. v. L.C. (2011) 201 Cal.App.4th 616, 633-634.)

B. Sufficient Evidence Supports the Trial Court's Findings.

Mother presented sufficient evidence that the child was wrongfully removed from Panama. The Panama court granted physical custody of the child to mother who testified that she never signed any document authorizing father to take the child to the United States. Handwriting experts confirmed that the signature on the document purportedly giving father permission to take his daughter out of Panama was not mother's signature. Father could not remember how he came to possess the documents. Nonetheless, when he took the child in December 2014, he did not tell mother that he would be taking her to the United States. Rather, he told mother they were going to the beach and that he would return the child before Christmas. Father did not return the child to mother, who repeatedly attempted to contact them. Only after father was in the United States did he contact mother, who immediately took action to have her child returned. As the trial court observed, father's actions "look[] like a cover up."

In opposition to mother's petition, father failed to present clear and convincing evidence that returning the child to Panama would create a grave risk of harm to her. He offered the testimony of Dr. Leitman; however, he failed to provide this court with the transcript of the relevant portion of Dr. Leitman's testimony. According to the trial court, Dr. Leitman's testimony "wasn't very persuasive . . . . He had hours with the minor child and very limited information from which to work, and he made some very grand opinions on very limited information . . . ." "Even if the evidence had supported a conclusion that returning [the child] to [Panama] would create some risk of harm, the court could not deny [mother's] petition without also finding that (1) the [Panama] courts were incapable of or unwilling to adequately protect [the child] [citation]; and (2) there were no alternative remedies that it could implement to avoid or minimize the risk of harm that would otherwise exist and allow [the child's] return to [Panama]. [Citations.]" (In re Marriage of Forrest & Eaddy (2006) 144 Cal.App.4th 1202, 1212.) In the absence of any evidence suggesting either that Panama's courts would be incapable or unwilling to protect the child or that alternative remedies would not ameliorate the risk of harm, the trial court was required to grant mother's petition and order the child's return to Panama. (Id. at p. 1213.)

Based on the foregoing, father wrongfully removed the child from her habitual residence in Panama. Because the evidence was insufficient to establish that returning her to Panama created a grave risk of harm to her, the trial court properly granted mother's petition seeking her return to Panama.

Father asserts the deputy district attorney improperly assumed the role of representing mother at the hearing. However, the deputy district attorney did not represent either party; she was acting as a friend of the court as expressly authorized by Family Code section 3455. She asked questions designed to elicit evidence either establishing or refuting the essential elements of the Hague Convention petition. The questions were fair, had pinpoint relevance to the disputed issues in the case, and they were calculated to, and did, assist the court in fulfilling its obligation to determine whether the petition's allegations were supported by the evidence. --------

III. DISPOSITION

The order granting the petition is affirmed. The parties shall bear their own costs.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J. We concur: CODRINGTON

J. SLOUGH

J.


Summaries of

Ninfa Teresa Alvarado Solis De Handzlik v. Handzlik

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Dec 6, 2017
E063896 (Cal. Ct. App. Dec. 6, 2017)
Case details for

Ninfa Teresa Alvarado Solis De Handzlik v. Handzlik

Case Details

Full title:NINFA TERESA ALVARADO SOLIS DE HANDZLIK, Plaintiff and Respondent, v…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Date published: Dec 6, 2017

Citations

E063896 (Cal. Ct. App. Dec. 6, 2017)