Filed 10/11/18 Estrada v. Ana R. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Teresa Bennett, Judge. Affirmed.

Law Office of Jesus Eduardo Arias and Jesus Eduardo Arias for Defendant and Appellant.

Law Office of Luis E. Lopez and Luis E. Lopez for Plaintiff and Respondent.

Michael A. Ramos, District Attorney, and Philip P. Stemler, Deputy District Attorney, Amicus Curiae on behalf of The People of the State of California.

This case involves a petition for the return of two children pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention or the Convention).[1] Plaintiff and respondent Eder Geovanni Guzman Estrada (father) caused the petition to be filed on the grounds that defendant and appellant Ana R. (mother) had wrongfully removed their children from his residence in Mexico. The trial court granted the petition and mother appeals, challenging the court’s decision. We find no merit to her challenge and affirm.

I. PROCEDURAL BACKGROUND AND FACTS

Father and mother are husband and wife. They have two children, A., born in 2010, and E., born in 2012. They lived together in Morelia, state of Michoacan, Mexico, until July 21, 2016, when mother took the children out of Mexico and brought them to the United States. On July 25, 2016, in San Bernardino County, mother filed a “Request for Order Domestic Violence Prevention” (RO) against father, alleging that he is verbally, mentally, and physically abusive towards her and the children, and mother requested custody of the children. She alleged that on two separate occasions in July 2016, husband was verbally and physically abusive towards her. She claimed that on July 20, 2016, she appeared before a local police station in Morelia, Michoacán, Mexico, and filed a report of domestic violence and emotional abuse against father. At the hearing on mother’s motion, she testified, but father did not. The court granted the RO for three years, as to mother only, and denied the request for custody of the children on the ground that “there is a petition under the Hague Convention that is currently being litigated.”

On October 28, 2016, the San Bernardino County District Attorney’s Office, Child Abduction Unit, (DA) received an application and request from the California Department of Justice to return the children to Mexico. On February 8, 2017, the DA filed the instant petition for immediate return of the children under the Convention (petition) and requested that the children be placed with the DA during the hearing. Mother unsuccessfully moved to dismiss the petition on the grounds that it was not filed within a reasonable time.

An evidentiary hearing on the petition was conducted between March 17 and March 28, 2017. The parties stipulated that a prima facie case had been made for a Convention hearing, and the burden shifted to mother to show a defense. Mother argued that returning the children to Mexico would pose a grave risk of physical and psychological harm, because she claimed that father was physically and verbally abusive. She offered the transcript of her testimony from the RO hearing; along with the testimony of father, mother, Marta Torres, a marriage and family therapist intern, supervised by a licensed therapist, Kathleen Applegate, the daughter’s teacher, and Dr. Judith A. Vangemert-Prather, a psychologist.

Father testified and denied each of mother’s claims of verbal, physical and sexual abuse. Mother testified that on or about July 16, 2016, father was choking her, throwing her against the walls, punching her in the face, and abusing her in the presence of the children. She asserted that father said that he was “so sick” of her that he wished that she was dead. Mother testified that in April 2016, she awoke from sleep when she could not breathe and found father putting his penis into her mouth. She also stated that father committed forcible, nonconsensual sexual acts upon her, including vaginal and anal penetration with foreign objects. According to mother, father would touch the son’s penis and his anus, take pictures of the child naked, and yell at mother in front of the children, causing the daughter to attempt to push father away.

Ms. Torres had diagnosed A., the daughter, and was working on her treatment; however, Ms. Torres asserted the psychotherapist-patient privilege and declined to testify as to the diagnosis or treatment. Ms. Applegate testified that A. tends to whisper when she speaks, tucks her head into the teacher’s chest (when the teacher is sitting) or belly (when the teacher is standing) to talk, is scared of father, and is behind in reading skills. Dr. Prather testified that when she asked the children about father, the daughter put her hands over her head and stamped her feet “really loud,” while the son stated that father “hits us.” She stated that the children suffer nightmares. When the court asked whether returning the children to Mexico would present a grave risk of harm to them, the doctor replied in the affirmative, “now that they have obtained services that they desperately need for their emotional, intellectual academic and personal well-being,” which “even the interruption of that would create crisis and harm.”

On April 24, 2017, the trial court granted the petition. The court found that: (1) father’s general appearance in the custody case filed in California did not establish that he consented to or subsequently acquiesced in the removal of the children from Mexico; (2) there is no evidence that returning the children to Mexico would subject them to a violation of human rights and fundamental freedoms; (3) neither child is old enough or mature enough for the court to consider their views on returning to Mexico; and (4) a grave risk of harm exists if the children are returned to Mexico; however, enforceable undertakings exist to sufficiently ameliorate the risk of harm.

II. ANALYSIS

Mother contends the trial court erred in granting the petition because (1) the “grave risk of harm” presented by returning the children to their father in Mexico “is not ameliorated . . . by imposing non statutory, unauthorized and inappropriate undertakings”; (2) the DA “improperly influence[d] rather than [assisted] the court in its decisions”; (3) the children “strongly object to return[ing]” to Mexico; (4) the court “mistakenly” required mother to prove “that Mexico is unable to protect her children”; and (5) return of the children to Mexico is “not consistent with American basic principles of protection of human rights and fundamental freedoms.” We reject mother’s contentions and affirm.

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 (Maurizio).)

B. Analysis.

1. Imposition of Undertakings Is Appropriate.

Mother contends that “nothing on the record sustains a finding that undertakings as applied to this particular case is [a] desirable result in any way.” She argues that the trial court erred in its application of Simcox v. Simcox (6th Cir. 2007) 511 F.3d 594, 607-608 (Simcox). We disagree.

Domestic violence may expose a child to grave or serious risk of harm; however, there is a distinction between the two. (Maurizio, supra, 201 Cal.App.4th at p. 635.) Simcox illustrated this distinction “by articulating three broad categories into which abusive situations might fall. At one end of the spectrum are the cases in which the abuse is ‘relatively minor.’ [Citation.] For example . . . [i]n Whallon v. Lynn (1st Cir. 2000) 230 F.3d 450, the court held that a husband’s verbal abuse and one incident in which he shoved his wife were insufficient to establish a grave risk of harm to the child. [Citation.] Abusive situations are less likely to be considered ‘grave’ where the allegations involve ‘isolated or sporadic incidents’ of abuse. [Citation.] [¶] The opposite end of the spectrum involves cases in which ‘the risk of harm is clearly grave, such as where there is credible evidence of sexual abuse, other similarly grave physical or psychological abuse, death threats, or serious neglect.’ [Citation.] Examples of such cases include Van De Sande v. Van De Sande (7th Cir. 2005) 431 F.3d 567, 570, in which the court reversed a return order where a petitioner had repeatedly and severely beaten his wife in the children’s presence and threatened to kill them . . . . [¶] The remaining, and most difficult, category of cases ‘fall somewhere in the middle.’ In those cases, the abuse is ‘substantially more than minor, but is less obviously intolerable.’ [Citation.] The grave risk analysis in such situations is ‘a fact-intensive inquiry that depends on careful consideration of several factors, including the nature and frequency of the abuse, the likelihood of its recurrence, and whether there are any enforceable undertakings that would sufficiently ameliorate the risk of harm to the child caused by its return.’ [Citation.]” (Maurizio, supra, at pp. 635-636.)

In Simcox, the family was living in Mexico when mother took the children to the United States to escape from father’s verbal and physical abuse. (Simcox, supra, 511 F.3d at pp. 598-599.) Father filed a petition under the Convention. (Id. at p. 599.) The court concluded that the children had been wrongfully removed and that returning them to Mexico would pose a “‘grave risk of physical or psychological harm.’” (Id. at p. 600.) Father was observed to be “‘belligerent,’” exhibiting “‘an arrogance, a need to be in control and a tendency to act out violently.’” (Ibid.) Nonetheless, the court conditioned the children’s return on several undertakings. (Id. at p. 601.) On appeal, the Sixth Circuit found that the case fit “in the middle category. The nature of abuse . . . was both physical (repeated beatings, hair pulling, ear pulling, and belt-whipping) and psychological ([father’s] profane outbursts and abuse of the children’s mother in their presence).” (Id. p. 608.) However, the court could not say that the risk was “so grave that undertakings must be dismissed out-of-hand.” (Id. at pp. 609-610.) The Simcox court reversed, but remanded for further proceedings regarding the “appropriateness and efficacy of any proposed undertakings.” (Id. at pp. 610-611.)

Here, the trial court conducted a full evidentiary hearing on the petition and was familiar with the relevant history of the parties when it drafted undertakings to ameliorate the risk of harm to the children: The trial court did not mandate that mother return with the children, but rather gave her the option. It noted that both parents have strong familial ties in Mexico, and that there are responsible parties (other than mother) who can assist in transition if mother chooses not to return with them. Because mother’s parents reside in Mexico, “this case does not involve the scenario under which returning the children would, as a practical matter, require” mother and/or the children to return to an abusive home and navigate a foreign court system. (Sabogal v. Velarde (2015) 106 F.Supp.3d 689, 709.) The court ordered the DA not to disclose to father any information relating to the children’s itinerary, temporary custodian, and temporary residence in Mexico. Further, mother was “not required” to disclose this information to father until directed to do so by the court or a competent court in Mexico. Pending the children’s return, father was required to continue to honor the RO previously issued by the court, and he could only visit the children as directed by the court. According to the court, father indicated his willingness to comply with any guidelines imposed by the court to ensure the children’s safety in Mexico, pending the resolution of custody and visitation.

Notwithstanding the above, mother contends that because the Mexican courts have “expressly decline[d] to have any participation in any way in this matter,” the undertakings are meaningless such that the “children’s return to Mexico would expose them to grave risk of harm or an intolerable situation.” In support of her contention, she cites to correspondence from the judge in Mexico. According to the correspondence, Mexican courts have the power to decide custody issues when they are presented; however, the judge declined to comment on what action he would take because the case was not before him. Mother’s claim that the judge was “expressly declin[ing] to have any participation in any way in this matter” is misplaced. In his correspondence, the judge explained that he could not proceed with father’s request for international restitution of his children in Mexico because mother had already initiated legal action in the United States. Nothing in the correspondence declares that the Mexican courts will decline to act once the action in the United States has concluded.

Based on the record, we conclude that the trial court properly tailored the undertakings to meet the facts presented. (Contra, Van De Sande v. Van De Sande, supra, 431 F.3d at pp. 571-572 [overturning order for return of children where district court’s limited inquiry and undertakings ignored father’s extensive history of abuse].)

2. The Trial Court Was Not Influenced by the DA.

Mother contends the DA improperly influenced the trial court’s decision. We disagree.

Family Code section 3455 provides: “(a) In a case arising under this part or involving the Hague Convention on the Civil Aspects of International Child Abduction, a district attorney is authorized to proceed pursuant to Chapter 8 (commencing with Section 3130) of Part 2. [¶] (b) A district attorney acting under this section acts on behalf of the court and may not represent any party.” When the hearing began, the attorney for the DA stated his name and announced that he was “appearing on behalf of the Court under Family Code [section] 3130. Our office filed a petition in this case. We’re not here as a party or representing any party or taking an interest in the outcome of the case.” As such, the DA’s role was to ensure all relevant evidence and argument was before the court so the court could make an appropriate decision. The fact that such evidence and argument favored granting the petition does not make the DA an advocate for father. Rather, the statutory appointment of the DA to act on behalf of the court effectively makes the DA an amicus curiae. As amicus curiae, the DA aids the court in resolving doubtful issues of law. (United States v. Michigan (6th Cir. 1990) 940 F.2d 143, 164-165.) While providing such aid, the DA maintains a posture of neutrality. (Neonatology Assocs., P.A. v. Comm’r of Internal Revenue (3d Cir. 2002) 293 F.3d 128, 131 [“an amicus who makes a strong but responsible presentation in support of a party can truly serve as the court’s friend”].)

Throughout the trial, the DA fulfilled its duty as an amicus curiae. Regarding the undertakings, the trial court asked the DA to respond to mother’s objection to legal authority on the grave risk defense. Neither mother nor father objected. The DA did not advocate for the issuance of undertakings. Instead, it recognized that certain kinds of grave risk should not be addressed with undertakings, and stated that it had no position on how the court would decide the issue. The court acknowledged the DA’s neutral position. Nonetheless, mother complains that when her appeal was dismissed for failure to timely file the necessary documents, the DA moved for an immediate return of the children to Mexico. However, the DA was merely taking action to assure the case proceeded expeditiously.

The DA did not advocate for any one side, but assisted the trial court in fulfilling its obligation to determine whether the evidence supported the petition’s allegations and what, if any, undertakings were necessary for the children’s return to Mexico.

3. The Children Were Not of an Age and Maturity for Their Views to Be Considered.

Mother asserts that the children’s objection to being returned to Mexico should have been considered; however, the trial court missed the opportunity to determine whether the daughter “had attain[ed] a sufficient age and maturity simply to express her opinion . . . .” We conclude otherwise.

“‘Once a petitioner under the Convention has demonstrated by a preponderance of the evidence that removal [or retention] of a child was wrongful [citation], the other parent may assert exceptions that, if proven, will prevent the return of the child.’ [Citation.] One such exception, which appears in an unnumbered paragraph of article 13 of the Convention, provides as follows: ‘The judicial or administrative authority may also refuse to order the return of the 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.’ [Citation.] ‘The importance of this exception is explained in the Pérez-Vera Report on the Convention: “[T]he Convention also provides that the child’s views concerning the essential question of its return or retention may be conclusive, provided it has, according to the competent authorities, attained an age and degree of maturity sufficient for its views to be taken into account. In this way, the Convention gives children the possibility of interpreting their own interests.” [Citation.] “In applying the ‘age and maturity’ exception, a court must not focus solely on the general goal of the Convention—to protect children from the harmful effects of wrongful removal—but must also carefully determine that the particular child ‘“has obtained an age and degree of maturity at which it is appropriate to take account of its views.”’”’ [Citation.]” (Escobar v. Flores (2010) 183 Cal.App.4th 737, 746-747, fns. omitted.) While the Convention does not set forth a minimum age at which a child is old enough and mature enough to object (Blondin v. Dubois (2d Cir. 2001) 238 F.3d 153, 166), case law suggests that children as young as 13, 11, and eight years old may, under certain circumstances, be of sufficient age and degree of maturity. (See, e.g., In re Marriage of Witherspoon (2007) 155 Cal.App.4th 963, 976 [13- and 11-year-old children]; Escobar v. Flores, supra, at pp. 740, 745, 752 [eight-year-old child]; Blondin v. Dubois, supra, at p. 158 [eight-year-old child].)

In this case, the trial court was presented with research concerning child development, and evidence of the daughter’s maturity via the testimony of her teacher and psychologist. Ms. Applegate observed the daughter to be unwilling to talk in front of the classroom, wanting to be with the teacher at all times, and whispering when she talks. Dr. Prather described the daughter as “extremely clingy with mom” and “a very fragile child who is very unsure of herself.” The doctor remarked that the daughter “has very high vocabulary and very good cognitive functioning in terms of understanding” directions and meaning, but is performing below her intellectual ability. The doctor commented that the daughter has difficulty concentrating, she is “so fearful that she can’t lock in and stay with and follow things through to conclusion.” The daughter’s drawings were of a lower maturity and developmental stage than those done by the son, who was not yet five years old. The daughter’s “lack of attention to cues and clues and the environment, the inability to integrate those things into some kind of holistic perspective . . . . [¶] . . . are all indicators of a child not giving full processing to what is going on in the world around them.

On this record, the trial court correctly concluded that the evidence fails to show that the daughter, who was six years four months old, was an exception to the large body of research concerning child development that finds children under the age of seven “incapable of truly intellectual thought.”

4. The Trial Court Correctly Found That Mother Failed to Produce Evidence That Mexico Is Unable to Protect the Children.

Mother contends that the court “erroneously” charged her with providing evidence that Mexico is unable to protect her children because it may be incapable or unwilling to give the children adequate protection. We find no error.

The determination of whether any valid undertakings are possible in a particular case is “inherently fact-bound” and the petitioner, in this case father, proffering the undertaking bears the burden of proof. (Danaipour v. McLarey (2002) 286 F.3d 1, 21, 26.) Here, the trial court authorized the return of the children to Mexico, subject to specific undertakings. The undertakings assume that a Mexican court will consider the issues (custody, protective order) raised by mother in the United States court. Absent evidence to the contrary, American courts may not presume the courts in Mexico are unable to promptly issue orders to protect the children’s emotional health pending the outcome of the custody proceedings there. (Maurizio, supra, 201 Cal.App.4th at pp. 641-642.) Given this presumption, the party challenging the viability of the undertakings, in this case mother, bears the burden of showing otherwise. Mother failed to do so.

5. Returning the Children to Mexico Did Not Infringe on the Fundamental Principles Relating to the Protection of Human Rights and Fundamental Freedoms.

Mother contends that by returning the children to Mexico, the trial court has infringed on her fundamental freedom and put her “at a very unfair [and] dangerous position.” She argues that in Mexico father “will have no restrictions whatsoever to harass, attack, and by all means retaliate against her for her attempts to keep the children in the [United States]” because the RO is not recognized, nor will it be enforced, in Mexico. The flaw in mother’s claim is that she focuses only on her rights and freedoms. She makes no assertion that the children’s rights and freedoms will be violated. As for mother, the trial court did not require her return to Mexico. Rather, the court stated that she may designate another to take temporary custody of the children in Mexico, and that person’s identity and residence is to remain confidential “except as directed by this court or a competent court in Mexico.” Having found no violation of the children’s rights, the trial court correctly concluded that the defense did not apply.

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.